Conceicao Fernandes Joao Jose Fernandes and ors. Vs. Asst. Engineer and anr. - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - (v) in case the applicants were not satisfied with the amount of compensation so fixed by the respondents, then they should proceed, if so advised, for additional compensation, but even then the applicants would be entitled to withdraw the amount deposited in the court to the extent of the amount of compensation fixed by the respondents.kakade p.v., j.1. the aggrieved applicants have preferred this revision application against the order passed by the district judge, south goa, margao dated 27/09/ 2002, dismissing their application for compensation and also for enhanced compensation under section 10(d) of the indian telegraph act, 1885 read with section 16(3) of the said act.2. heard both the sides. perused the record.3. the applicants had initially filed a civil suit against the respondents before the court of civil judge, senior division at margao and apparently obtained an order in their favour, but in appeal, filed before district court which was allowed, respondents were allowed to install the said electricity line in the impugned land. the applicants, thereafter, preferred a revision petition before this court which was disposed of by order dated 11/ 10/2001 and it was an order passed by consent, formulating the conditions to be abided with by the parties as follows:(i) the respondents should deposit an amount of rs. 3,00,000/- towards the amount of compensation payable to the applicants for damages to the trees, non-user of the land and other matters, by 30/10/2001.(ii) the respondents should fix the amount of compensation payable to the applicants with respect to the loss of use of land and damages to the trees, etc., within a period of three weeks from the date of marking of the trees, which are required to be cut for laying down the line.(iii) if the amount of compensation so fixed by the respondents was rs. 3 lakhs or less than that, then the applicants should be entitled to withdraw the said amount deposited in the district court.(iv) if the amount of compensation was more than rs. 3 lakhs, then the respondents should deposit additional amount in this court and the applicants would be entitled to withdraw that additional amount also.(v) in case the applicants were not satisfied with the amount of compensation so fixed by the respondents, then they should proceed, if so advised, for additional compensation, but even then the applicants would be entitled to withdraw the amount deposited in the court to the extent of the amount of compensation fixed by the respondents.(vi) in case the amount of compensation fixed was less than rs. 3 lakhs and the applicants did not dispute that amount of compensation, then the balance which would remain could be withdrawn by the respondents.(vii) in case any proceedings are filed for additional compensation by the applicants, then the district judge should dispose of such proceedings as early as possible and preferably within a period of six months.(viii) in case the respondents decided to change the alignment of the laying of the electricity line, they would be entitled to do so, but the same procedure with respect to fixing and paying of compensation would be followed mutatis mutandis.(ix) the respondents were required to see whether it was feasible to shift the alignment of laying the electricity line along the border of the land of the applicants.(x) the respondents were free to carry out the work of laying the electricity line as per the original alignment in view of the above directions.as a result of the said settlement before this court, the respondents carried out a valuation, and a list of trees to be cut was prepared and the trees were valued at rs. 11,080/-. however, as far as the loss of use of land was concerned, on behalf of the respondents, it was opined that as the land fell below overhead line, it could be utilised by the owners of the land and, therefore, compensation for non-user was not considered.4. the learned district judge, while disposing of the application raised the issue to the fact whether the applicants were entitled to further compensation of rs. 29,37,000/- by way of loss of the use of land. the district court finally after hearing both the parties came to the conclusion that they were not entitled to such compensation for loss of the land and dismissed the application. while doing so, the district court observed that rule 82 of the indian electricity rules, 1956, provides for erection or alteration to buildings, structures, flood banks and elevation of roads. sub-rule (1) of rule 82 provides that if at any time subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or flood bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building or structure or flood bank or road, any permanent or temporary addition or alteration, he and the contractor whom he employs to carry out the erection, addition or alteration, shall, if such work, building, structure, flood bank, road or additions and alterations thereto would, during or after the construction result in contravention of any of the provision of rules 77, 79 and 80 give notice in writing of his intention to the supplier and to the inspector and shall furnish therewith a scale drawing showing the proposed building, structure, flood bank, road and addition or alteration and scaffolding required construction. the learned district judge has also discussed other relevant provisions of the electricity act. while referring to rule 80 of the said indian electricity rules, 1956 it is observed that it provides for clearance to be maintained from buildings of high and extra-high voltage line and sub-rule (1) of rule 80 provides that when a high or extra-high voltage overhead line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such lines of not less than 3.58 metres, in case of high voltage line up to and including 33,000 volts. sub-rule (2) of rule 80 provides that the horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind, be not less than 1.829 metres, in case of high voltage line about 11,000 volts up to and including 33,000 volts. according to the learned district judge, applicants did not lead evidence to show what was the height of the overhead line erected by the respondents. therefore, it was concluded that the applicants, in case they wish to carry out any construction of any building, the applicants would be required to keep a horizontal clearance of 1.829 metres and considering that there would be three conductors for the said overhead line. the applicants may be deprived from use for construction purpose a strip of about 15 feet or about 4.66 metres, i.e. an area of about 4147.40 sq. metres only. it was further observed that in the event of the applicants developing their land in the near or distant future, the applicants could ask for the shifting of the line, as contemplated by rule 82 of the indian electricity rules, 1956 or leave the area of about 4147.40 sq. metres for the open space which might be required to be left out from construction. on this basis, finally the application came to be dismissed.5. when matter came up for hearing, in the course of hearing of the matter it was seen apparent that the land over which the high tension wires passed, could not be put to any use. at that stage, the learned government pleader also agreed to put up proposal to the state government to consider the quantum of compensation to be paid to the petitioners.6. thereafter, ultimately, the so called proposal has come up for consideration which is filed in writing on record, wherein it is observed that the land below the high tension line could be put to use either for growing trees on for any other suitable plantation by asking for necessary clearance and only about 2.8 metres of area for clearance has to be kept between the conductor of 33 kv line as such the petitioners can not be entitled for compensation as no loss is being caused to the petitioners. it is further observed on behalf of the state that any development if permissible under the social forest land is desired to be obtained by the petitioner, the petitioners case shall be considered in terms of law as and when petitioner approaches the concerned authorities.7. in my considered view, the proposal in other words is on negative lines.8. in this connection, the learned counsel for the applicants brought to my notice the ruling in the case of (k.s.e.b. v. cheriyan varghese) : air1989ker198 , wherein it was observed that the court was of the view that apart from the compensation for damage done by the cutting of trees, the owner of the land was also entitled to compensation for any diminution in value of land that he has suffered for the reason of the drawal of overhead power lines across the land. the diminution in value is to be determined with reference to the market value of land without trees before and after the drawal of the lines.9. in my view, this is the principle which has been overlooked by the learned district judge and for which purpose, i am inclined to remand the matter to adjudicate the issue afresh. on the basis of this observation, i hereby direct that the order passed by the district judge, south goa, margao dated 27/ 9/2002 is hereby set aside. matter is remanded to the district judge, south goa, margao for consideration afresh on the basis of observations made herein.10. with these directions, the revision application stands disposed of with no order as to costs. both the parties shall be entitled to put up evidence in support of their respective cases.