Shaikh Abdul Aziz YasIn (Since Deceased Through His Lrs. Rehanutullah S/O. Abdul Aziz, Shahanawaz S/O. Abdul Aziz, Aslam S/O. Abdul Aziz and Bilal S/O. Abdul Aziz) Vs. Shaikh Abdul Hamid YasIn and ors. - 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. - however, the tahsildar so also the assistant collector did not find his evidence reliable.p.r. borkar, j.1. this is a writ petition filed by original defendant no. 5 in suit bearing r.c.s. no. 3 of 1971 pending in the court of civil judge, junior division, pathardi, who claimed to be tenant of lands survey no. 143, 144/1 and 144/2 of village pathardi. since tenancy was claimed by the present petitioner, the matter was referred to the tenancy authority and this petition is challenging dismissal of revision application by the maharashtra revenue tribunal, pune by its order dated 19.03.1990 in case no. mrt/ah/ii/11/86(tnc.b.69/86).2. the original suit was for partition and separate possession. after reference of tenancy issue, the tahsildar, pathardi in court reference no. 8 of 1975 by his order dated 30.04.1976 held that present petitioner was not tenant. said finding was further confirmed by the assistant collector, rahuri, division ahmednagar in tenancy appeal no. 13 of 1976.3. mrs. m.a. kulkarni, advocate for the petitioner vehemently argued that the maharashtra revenue tribunal has dismissed the revision petition mainly because no steps were taken by the present petitioner for bringing lrs of deceased respondent no. 3 faidima begum akbar who died on 15.15.1986. application was given for bringing heirs on record but it was without giving names of heirs or producing the death extract. sufficient time was given. ultimately, the application was rejected. then advocate for the petitioner filed no instruction pursis but that was not allowed and ultimately the tribunal has come to a conclusion that there cannot be different findings regarding tenancy, one against heirs of respondent no. 3 against whom revision petition had abated and one against rest of the respondents. mrs. m.a. kulkarni, therefore, prayed that the matter may be remanded back to the maharashtra revenue tribunal for deciding revision petition against respondent nos. 1,2, 4 and 5.4. shri m.n. nawandar, advocate for respondent no. 5 pointed out the final order passed by the maharashtra revenue tribunal, which is as follows:this revision application is dismissed for non-prosecution and also on ground of merits. no order as to costs.he drew my attention to para 6 in which it is said that there was concurrent finding of facts by the two courts and entire case was based on some documents and oral evidence and the revision was not tenable against the same. so, it is argued that even on merits finding of the tahsildar and the assistant collector need not be interfered with by this court. he argued that as per section 4(1)(a) of the bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as 'b.t.& a.l. act'). the petitioner could not have claimed tenancy as against his own brothers and other relatives. he drew my attention to order passed by the assistant collector in which it is stated that in 1957 yasin - father of the petitioner and respondent nos. 1 and 2 were owners and after death of yasin in 1959 respondent nos. 3 and 5 became owners.5. it is also pointed out by the tahsildar in his order that since the petitioner and respondent nos. 1 and 2 were brothers and respondent nos. 3 & 4 were their sisters, they are members of same family as descendants of yasin and there could not have been tenancy between the petitioner and the respondents.6. mrs. m.a. kulkarni pointed out that the parties are mohomedans and there is no concept of joint family. the tahsildar so also the assistant collector were in error in applying notions of joint family to the parties.7. section 4 (1) (a) of the b.t.& a.l. act is as follows:4.(1) a person lawfully cultivating any land belonging to another persons shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not-(a) a member of the owner's family, or(b) ...(c) ...(d) ... section 2(7) (a) defines 'joint family'.'joint family' means an undivided hindu family, and in the case of other persons a group or unit the members of which are by custom joint in estate or residence.8. so, though the petitioner and the respondents are not hindu, their case may come under second part of clause 7 (a) of section 2 of the b.t.& a.l. act. the petitioner and the respondent nos. 1 to 4 were l.r.s or heirs of deceased yasin. therefore, for the purpose of section 4 (1) (a), they can be considered as members of family.9. the words used in clause (a) of section 4(1) are not joint family but owners' family. so far as case of gnyandeo s/o. duraji pirange v. pandurang jyoti pirange air 1994 bom 264 is concerned, though the land-lord and tenant were members of same family, as can be seen from facts of said case, a document was executed between parties giving land to the petitioner on crop share basis. expenses of cultivation specified in the documents were to be undertaken by petitioner-defendant at his expenses and agricultural produce was to be shared equally between parties. the document also specified that there would be no objection to take steps regarding entry of name of petitioner in relevant record of rights as a tenant. the document was attested and was duly proved and in the circumstances of those peculiar facts it was held that the petitioner can be held to be tenant of the land on basis of document.10. in the present case, the tahsildar has considered oral so also documentary evidence. there was no documentary evidence regarding tenancy. merely payment of land revenue or delivery of levy by one of the co-owners cannot be considered as evidence of tenancy. one dilawar was examined as witness to prove oral agreement of 'batai' i.e. cultivation on crop share basis. however, the tahsildar so also the assistant collector did not find his evidence reliable. in this case parties are co-owners.11. ordinarilly, this court in writ petition would not have entered into all these aspects, but it will have to be considered that the suit was filed in 1971 and since then the parties have been litigating before the tenancy authorities and ultimately have come to this court. so, it is necessary that the tenancy aspect of the matter should end. after decision of this court, again original suit will begin and may continue for long time.12. so, in the facts and circumstances of the case, though the maharashtra revenue tribunal has mainly decided the revision petition on the ground of non-prosecution and for not taking steps for bringing lrs of respondent no. 3 on record, on merits this writ petition deserves to be dismissed. in the result, the writ petition is dismissed. parties to bear their own costs.