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If it is found,on a trial on the merits so far as this issue of jurisdiction goes,that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true,and that the case is not cognizable by the.court,there will be two kinds of orders to be passed Ratio |
If the jurisdiction is only one relating to territorial limits or pecuniary limits,the plaint will be ordered to be returned for presentation to the proper court Ratio |
If,on the other hand,it is found that having regard to the nature of the suit it is not cognizable by the class of court to which the court belongs,the plaintiff's suit will have to be dismissed in its entirety Ratio |
By referring to the material portion of section 28 of the Rents Control Act the argument made on behalf of the appellants was found by this Court to be untenable by stating thus: "We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum Ratio |
It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties,between whom there is or was a relationship of landlord and tenant Ratio |
It does not invest those courts with exclusive power to try questions of title such as questions as between the rightful owner and a trespasser or a licensee,for such questions do not arise under the Act Ratio |
If,therefore,the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S.28 depends,we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go Ratio |
The interpretation canvassed for by the appellants will give rise to anomalous results; for example,the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly,if the Court of Small Causes finds against the defendant's plea,the plaint may have to be returned for presentation to t... |
As seen from the above observations this Court has held that it did not think that the section concerned says or intends to say that the plea of the defendant will determine or change the forum RPC |
But,if the provisions of the BT & AL Act which bear on the question of matters to be decided by the Mamlatdar are seen,they give no room for one even to think that those matters could be decided by a Civil Court when a question is raised in that behalf even by a defendant in a suit RPC |
Section 70 of the BT & AL Act to which we have adverted already imposes a duty on the Mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that Act Ratio |
Further,section 85 of the BT & AL Act to which also we have already adverted,in unequivocal terms says that in deciding any issue which is required to be decided by the Mamlatdar under the BT & AL Act no Civil Court has jurisdiction to decide it Ratio |
Furthermore,section 85A,as it stood prior to its amendment by Gujarat Amendment Act No.5 in the year 1973 and as stands thereafter,requires that if any suit instituted in Civil Court involves the question of tenancy of 'present' or 'past',as the case may be,the same being required to be decided or dealt with by an auth... |
Thus,the provisions in the BT & AL Act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a Civil Court,the same could be decided by the Civil Court Ratio |
Thus we are constrained to answer the question in the negative by agreeing with the view expressed by the single Judge of the High Court in this regard in his Judgment and Order under appeal Ratio |
Consequently,the Judgment and Order under appeal does not call for our interference Ratio |
In the result,we dismiss this appeal with costs RPC |
Appeal dismissed RPC |
The Order of the Court was as follows FAC |
In these matters relating to admission to professional courses in medicine,engineering,pharmacy,nursing,etc.in educational institutions which are claimed to be Minority Educational Institutions,the petitioners have questioned the applicability of the scheme framed by this Court in J.P.Unni Krishnan v Ratio |
State of A.P.(1993 Ratio |
1 SCC 645 1993 Indlaw SC 1056 Ratio |
I as well as the applicability of the rules and orders made by several State Governments on the basis of the said decision Ratio |
By order dated October 7,1993 passed by the Constitution Bench three questions were referred for consideration by a larger Bench FAC |
In,pursuance of the said order,this Bench has been constituted FAC |
When the matters were taken up on March 16,1994,the Court felt that it was necessary to reframe the first two questions Ratio |
The hearing of the matters was,therefore,adjourned to March 18,1994,on which date the questions requiring consideration by this Bench have been reframed to highlight the several aspects of the claims put forward by the petitioners Ratio |
The claim of being a "minority" -whether based on religion or language -and the claim of being a "Minority Educational Institution" put forward by the petitioners cannot be pronounced upon without first ascertaining what the said expressions connote and signify Ratio |
Having regard to the importance of the questions involved we consider it appropriate to issue notice to the Attorney General of India as well as the Advocates General for the States Ratio |
It would,therefore,not be feasible to take up the hearing of these matters before the Court closes for the long vacation Ratio |
Since the process of selection of candidates for admission for the next academic session is to commence soon,it is necessary to pass an interim order governing admission to the professional courses in Minority Educational Institutions for the next academic session Ratio |
For admission in the last academic session 1993-94,an interim order in the following terms was made by a Bench comprising Hon'ble the Chief Justice and one of us (Justice B.P.Jeevan Reddy) on May 14,1993 in Writ Petition Nos.350 and 355 of 1993 FAC |
We have heard Shri Soli J.Sorabjee,learned Senior Counsel for the petitioners in these two writ petitions FAC |
Issue rule FAC |
There will be an interim order in the following terms: (i) Fifty per cent of the total intake in the petitioners' educational institutions shall be permitted to be filled up by candidates selected by the agencies of the State Government on the basis of a competitive examination/test FAC |
The candidates so selected and admitted shall pay scales of fee as applicable to this class of students as determined by the State Government from time to time FAC |
ii FAC |
The remaining fifty per cent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority FAC |
However,the selection shall be made strictly on the basis of merit among the candidates seeking admission to the institutions FAC |
Such merit shall be determined oh the basis of the academic performance at the qualifying examination; or on the basis of any objective test that the institution might itself apply to determine such relative and competing merits; or on the basis of performance of the results of the selection tests that the State Govern... |
It is optional for the petitioners to adopt any one of these three modes and apply it uniformally FAC |
Candidates so selected on the basis of merit amongst the minorities shall,however,abide by such condition in the matter of payment of tuition and other fee as may be permitted by the State Government FAC |
It is made clear that this order is made on the assumption that the petitioners are minority institutions Ratio |
It is open to the respondents to question this status claimed by the petitioners Ratio |
This order shall,however,not estop the petitioners from urging all other contentions raised in the writ petitions,as,indeed,this interim interlocutory order is made on the consent of the petitioners and without prejudice to all the contentions Ratio |
Thereafter the matter was considered by the Constitution Bench in its order dated August 18,19932.In that order the writ petitions placed before the Bench were categorised into five categories,namely,(1) unaided Minority Educational Institutions,(2 FAC |
Minority Educational Institutions which are in receipt of State funds by way of aid,(3) Minority Educational Institutions in respect of which it is not clear from the averments in the writ petitions whether they are aided or unaided institutions,(4 FAC |
writ petitions challenging the correctness and applicability of Unni Krishnan' filed by educational institutions which do not claim to be Minority Educational Institutions,(5) writ petitions which do not fall in any of the above categories FAC |
It was directed that the order dated May 14,1993,would not apply to educational institutions falling in categories (4) and (5) and the institutions referred to in paragraph 18 of the order dated August 18,1993.The order dated May 14,1993,was made applicable to the institutions falling in categories (1),(2) and (3) with... |
We do not more particularly at this stage -make any pronouncement in that behalf FAC |
This order shall be Shahal H.Musaliar v FAC |
State of Kerala,(1993) 4 SCC FAC |
112 1993 Indlaw SC 575 applicable only to those institutions which are found to be MEIs on verification by the Government and not to those who are not found to be MEIs on such verification FAC |
The 50% seats to be filled up by candidates selected by the agencies of the State Government on the basis of a competitive examination/test as well as the remaining 50% seats to be filled in accordance with cl.of the said order shall be equally distributed between free seats and payment seats FAC |
In other words,out of the 50% seats to be filled up by Government,half will be payment seats and half will be free seats FAC |
Similarly,out of the 50% of the seats to be filled up by the Management in accordance of the said order,half shall be payment seats and the other half free seats FAC |
The NRIS,if any admitted to an extent not exceeding 5% of the total seats shall be out of the payment seats to be filled under After completing the admissions each of the colleges,shall submit to the competent authority,to the University to which it is affiliated and to the Government concerned statements containing fu... |
Such statements shall contain as full a particulars as possible FAC |
The authorities to which the statements are submitted shall verify the correctness of the statements and,if they find any irregularity,they shall call upon the college concerned to rectify the same FAC |
They shall also bring any such violation to the notice of this Court by way of any interlocutory application FAC |
Any such irregularity if proved may entail serious consequences FAC |
Separate directions were,however,given in respect of institutions referred to in Writ Petitions Nos.284 and 482 of 1993.With regard to Writ Petition No.284 of 1993 it was observed that in the said writ petition the petitioner has claimed that no capitation fee is charged from any student and the fee charged is not more... |
the fees charged in the government colleges and that the admission to these institutions is made on the basis of an All India Common Entrance Test separately conducted by the petitioner and admissions are made on the basis of merit as determined in the said test,and further that in view of the reputation of these insti... |
It was also observed that this fact was not disputed by the learned Advocate General for the State of Karnataka Ratio |
Similarly as regards Writ Petition No.482 of 1993,it was observed that according to the petitioner in that case the medical college run by it at Vellore in the State of Tamil Nadu is a well-reputed institution,admission to which is made on the basis of All India entrance test conducted by the petitioner and that the ad... |
In the order dated August 18,1993,the following directions were given in respect of the institutions covered by the aforesaid Writ Petitions Nos.284 of 1993 and 482 of 19932 : "Having regard to the above circumstances,we permit the petitioners FAC |
In the above two writ petitions to admit students to their colleges on the basis of entrance test conducted by them and on the same basis on which admissions were made by them in the said colleges in the previous academic year FAC |
After completing the admissions,the petitioners shall furnish full particulars of the students admitted,the categories,if any,whereunder they were admitted and all other particulars relating to their admission FAC |
This information should be furnished to the competent authority,to the University to which the said colleges are affiliated and to the Secretary,Education Department,Government of Karnataka/Tamil Nadu FAC |
The said authorities shall verify whether the admissions have been made by the petitioners in accordance with the directions given herein FAC |
In case of irregularity,any of the said authorities shall be entitled to call upon the petitioner to rectify the said irregularity FAC |
It shall also be open to the competent authority,University and the Government of Karnataka/Tamil Nadu to bring any such irregularity to the notice of this Court by way of an interlocutory application for appropriate orders in that behalf FAC |
It is made clear that any violation of the directions given herein by the petitioners shall entail serious consequences inasmuch as the above orders are made based upon their representations and even before a counter-affidavit has been filed by the respective respondents in view of the urgency expressed by them FAC |
Dealing with Writ Petition No.598 of 1993,the Court,after noticing that an agreement was entered into between the institution and the Government of Kerala according to which while 85% of the seats were to be filled by the Government and the remaining 15% of the seats were left for the management to fill up in its discr... |
By order dated October 7,19933 the Constitution Bench having regard to the fact that the year 1993 being a year of transition and adjustment and also in view of the orders of the Government of India permitting admission of foreign students to the extent of as much as 50% of the seats as well as the time that had alread... |
i.e.1993,with the direction that the basis of the said selection would be as indicated in order dated May 14,19934 on the basis of merit leaving to the management of the college T.M.A.Pai Foundation v FAC |
State of Karnataka,(1993 FAC |
4SCC276 2002 FAC |
Indlaw SC 2264 ,Unnikrishnan,J.P.v FAC |
State of A.P.,(1993) 4 SCC 111 1993 Indlaw SC 1168 concerned to adjudge the merit of these candidates having regard to the relevant factors FAC |
It was further made clear that this was a special provision made only for that year FAC |
In the aforesaid order dated October 7,19933,with reference to the Minority Educational Institutions in the State of Kerala (such as those covered by Writ Petition No.598 of 1993) it has been observed: "The system obtaining in Kerala appears to be altogether different which was unfortunately not brought to our notice o... |
The system obtaining in this State appears to be that the entire fees collected by these private engineering colleges has to be made over to the Government while the Government bears the entire expenditure for running the colleges FAC |
Under this system,the colleges were allowed to admit students of their own choice to the extent of 15 FAC |
We have heard learned counsel for the parties and we are of the view that except for the Minority Educational Institutions in Kerala which are governed by the terms of the agreements with the Government of Kerala,the directions given by this Court with regard to admissions for the academic session 1993 can continue and... |
It is,therefore,directed that the admission for the academic session commencing in 1994 to the professional courses in the institutions which are claimed to be Minority Educational Institutions shall be made on the following basis: (i FAC |
In the institutions referred to in Writ Petitions Nos.284 of 1993 and 482 of 1993 admission shall be made as per the directions given in the order dated August 18,19932,for the academic session commencing in 1993 FAC |
In the institutions referred to in Writ Petition No.598 of 1993 and similar Minority Educational Institutions in the State of Kerala which are governed by an agreement with the Government of Kerala the admissions shall be made in accordance with the terms of those agreements FAC |
In respect of the seats which are left for management to fill in its discretion,merit shall be the guiding principle FAC |
Since the entire,expenditure of the colleges is borne by the State -the entire fees collected are also made over to the State -these colleges must be required to draw the students even with respect to the seats to be filled by the management from out of the State merit list,if any Ratio |
In the absence of such list,they can themselves devise the method for such selection Ratio |
We make it clear that regarding the character of these institutions -whether they are Minority Educational Institutions -we express no opinion Ratio |
That is a matter between the institutions and the Government of Kerala Ratio |
It is enough to record that Shri Vellapally,learned counsel for the State of Kerala,disputes the minority character of these institutions Ratio |
iii Ratio |
In rest of the Minority Educational Institutions falling in categories (1),(2) and (3) indicated in paragraph 5 of the order dated August 18,19932,admission shall be made in accordance with the directions contained in the order dated May 14,1993 in Writ Petitions Nos.350 and 355 of 1993 as modified by order dated Augus... |
iv Ratio |
Insofar as non-resident Indians and foreign students are concerned,the permissible limit would be only 5% of the total intake for a given year as per the direction contained in paragraph 6 of the order dated May 14,1993 as modified by order dated August 18,19932.The admission against these seats shall be made on the ba... |
but it would be open for the management of the institution to adjudge the merit of the candidates having regard to the relevant factors Ratio |
The matters be listed for hearing on July 20,1994.Notice be issued to the Attorney General of India and the Advocates General for the States on the questions as reframed Ratio |
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