* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RA No.369/2009 & CM No.12045/2009
in
W.P. (C.) No.10318/2009
% Date of Decision: 19.02.2010
Sushant Ray .... Petitioner
Through Mr.Sushant Ray, petitioner in person.
Versus
Dean & Head, Faculty of Law, University of Delhi .... Respondent
Through Mr.Mohinder J.S.Rupal, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
* RA No.369/2009 & CM No.12045/2009 These are applications by the petitioner/applicant seeking review of order dated 24th July, 2009 and to direct the respondent to admit the petitioner in the LLB Course 2009-2010 on the ground that there are vacant seats for admission to LLB course 2009-2010 and an application under section 340 of Criminal Procedure Code for taking action against the respondent for making false statements.
W.P. (C.) No.10318/2009 Page 1 of 10
The petitioner had filed a Writ Petition (Civil) No.10318/2009 contending inter-alia that he secured 711 rank in the LLB entrance test, 2009 and he attended counseling session on 10th June, 2009. He could not deposit the fees due to family problems and went out of town and could not come back for considerable time. The petitioner had contended that he had sent an email on 28th June, 2009 to the respondent which was not replied and after coming back on 10th July, 2009 when he went to deposit the fees for admission to LLB course, it was not accepted and admission to the course was denied to him.
The writ petition was contested by the respondent contending inter-alia that after 15th June, 2009 the petitioner did not have a right to deposit the fees and in any case all the seats which were available had been filled as on 29th June, 2009, the last date for admission to LLB course and no admissions have been made thereafter. The respondent had also contended that after 29th June, 2009 other candidates who had qualified the entrance examination have been seeking admissions, however, it was denied to all of them. The LLB course had also started on 21st July, 2009 and after filing up all the seats the admission could not be re-opened.
The writ petition was dismissed on 24th July, 2009 holding that the entire admission process could not be modified and varied on account of an individual and his difficulties. It was also held that W.P. (C.) No.10318/2009 Page 2 of 10 keeping a seat open for the petitioner would have resulted in a cascading effect in the entire process of admission which was not permissible and the Courts are not to interfere with the policy decision unless the action of the respondent was ex facie arbitrary and illegal.
The petitioner has sought review of order on the ground that some of the seats are lying vacant and since this aspect of the matter was not considered, therefore, the case of the petitioner is required to be considered sympathetically and on humanitarian grounds otherwise his career and future would be affected adversely.
The review petition is contested by the respondent contending inter-alia that the admission had been closed on 29th June, 2009 and thereafter no admission has been given by the respondent and classes have already started since July, 2009 and at the stage when the review application was filed the first semester was nearing to end and, therefore, petitioner could not be permitted to join the course. It was also contended that 66% attendance are required in each subject in each semester and if the petitioner is given admission pursuant to his review application dated 22nd August, 2009, the petitioner shall not be able to complete 66% attendance. The allegation in the review petition that number of seats are lying vacant was not admitted. It was rather contended that even if there were vacant seats, after the closure of admission, they could not be filled after the cut off date of 29th June, W.P. (C.) No.10318/2009 Page 3 of 10 2009 taking into consideration various factors including minimum attendance prescribed for the course.
The petitioner has also filed CM No.12045/2009 under Section 340 of Criminal Procedure Code for launching a prosecution against the respondent and its official namely Sh.S.N.Singh, Dean, Faculty of Law contending inter-alia that on 24th July, 2009 before the writ petition was dismissed, a copy of the letter dated 23rd July, 2009 was produced in the Court stipulating that all the seats which were available as on 29th June, 2009 had been filled up and no admission has been given after that. The petitioner contended that the allegation made by the respondent was incorrect, as one seat of Mr.Vipin Upamanyu roll No.13660 rank 1273 who had secured 198 marks was vacant, as he had vacated his seat which was allotted to him on 12th June, 2009 and, therefore, by letter dated 23rd July, 2009 it was falsely communicated to the Court that no seats were available.
The application under Section 340 of the Criminal Procedure Code is also contested by the respondent contending that after filling all the seats, admissions were closed on 29th June, 2009. It was asserted that when the admissions were closed, admission was given to 2130 candidates against the sanctioned strength of 2040. Regarding excess admissions made every year to the extent of 3-5%, explanation given is that more students are admitted than the sanctioned strength on W.P. (C.) No.10318/2009 Page 4 of 10 account of various factors including because of some of the candidates securing same cut off marks. It has been asserted that making admission of more than the sanctioned strength takes care of withdrawal/drop outs occurring subsequent to closure of admission. The respondent disclosed that after June, 2009 and before September, 2009, 84 students had withdrawn/dropped out still making 6 candidates over and above the sanctioned strength. In the circumstances the plea of the petitioner that the respondent deliberately made a false statement that no seat was available in the communication dated 23rd July, 2009 is not correct. As more students were admitted than the sanctioned strength, therefore, no seat was available on 23rd July, 2009 even after vacation of one seat by one of the candidates. In the circumstances it is stated that no incorrect statement was made on behalf of the respondent and no action as proposed by the petitioner be initiated.
It is no more res integra that discovery of new evidence or material by itself is not sufficient to entitle a party for review of an order. The review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment. Further it must be established that the applicant had acted with due diligence and the existence of the evidence which is alleged to be discovered later on was not within his knowledge when the W.P. (C.) No.10318/2009 Page 5 of 10 order was passed. If it is found that the petitioner has not acted with due diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised.
This also cannot be disputed by the petitioner/applicant that the power of review is not an absolute power. A review cannot be sought merely for fresh hearing or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stays in the face though no elaborate argument being needed for establishing it.
The petition had been dismissed by order dated 24th July, 2009 primarily on the ground that the petitioner did not have any right entitling him to deposit fees after 15th June, 2009 which was the last date for payment of fees for him. It was further held that the petitioner ought to have deposited the fees in any case before 29th June, 2009 as after that date, the admission had been closed and the petitioner did not have any right of any type.
This Court had not dismissed the petition on the ground that no seat was available after 29th June, 2009 though this fact was communicated to the Court on 24th July, 2009 that no seat is available. While communicating to the Court that no seat is available, it was also W.P. (C.) No.10318/2009 Page 6 of 10 stated that the petitioner cannot be considered in view of the fact that a number of other candidates higher in merit list are also looking for admission against the drop outs, however, none of the candidates were admitted.
Perusal of the facts disclosed in the review application and reply to the review application filed by the petitioner under Section 340 of the Criminal Procedure Code, it is apparent that no seat was available. Even if any seat was available the petitioner did not have a right to be admitted to such a vacant seat. Thus on the ground that the vacant seats are available in the course, the petitioner is not entitled for review of order dated 24th July, 2009. There are no grounds to review the order dismissing the writ petition of the petitioner.
In the application filed by the petitioner under Section 340 of the Criminal Procedure Code, substantial allegations have also been made against his counsel. This Court is not to adjudicate on the allegations made by the petitioner against his counsel in not filing the Letters Patent Appeal against the order dated 24th July, 2009 or delay in filing the review application against the said order, in the facts and circumstances of the present case. If the petitioner is aggrieved by any act of his counsel, the petitioner can invoke appropriate remedies in accordance with law against his counsel, if he so desires. W.P. (C.) No.10318/2009 Page 7 of 10
This Court has already held, hereinabove, that no false statement has been made by the respondent. Perusal of the replies to the review application and reply to the application under Section 340 of the Criminal Procedure Code, it is apparent that even after considering the drop outs, the admission of LLB students was more than the sanctioned intake and in the circumstances the statement made on behalf of respondent on 24th July, 2009 that there is no vacant seat cannot be considered to be a false statement made willfully and deliberately.
The object of Section 340 of the Criminal Procedure Code is the formation of an opinion by the Court (before which proceedings are held) whether it is expedient and in the interest of justice that an enquiry should be made into an offence which appears to have been committed by any party. In order to form such an opinion the Court is empowered to hold a preliminary enquiry. It is not pre-emptory that such preliminary enquiry should be held, as even without such preliminary enquiry the Court can form such an opinion, if it appears to the Court that an offence has been committed in relation to a proceeding in the Court. It is also important to notice that even when the Court forms an opinion it is not mandatory that the Court should make a complaint under Section 340 of the Criminal Procedure Code. Sub Section of Section 340 though confers a power on the Court to make a complaint but it does not mean that the Court should, as a matter of course make a complaint. However, once the Court decides to W.P. (C.) No.10318/2009 Page 8 of 10 do so, then the Court should make a finding to the effect that on the fact situation, it is expedient in the interest of justice that the offence should further be probed into.
In the present case on consideration of the facts it is apparent that false statement was not made on behalf of the respondent. What was stated that no seat was vacant. The petitioner has proceeded on the premise that only the sanctioned number of students were admitted to the LLB course and since one of them had withdrawn his admission on 10th July, 2009, therefore, one seat must be vacant which had not been filled. However, the explanation given on behalf of respondent that considering various factors such as number of candidates securing same percentage, the students who had been admitted by 29th June, 2009 were more than the sanctioned intake and even after considering the drop outs, the number of students admitted were more than the sanctioned intake in the course of LLB has not been taken into consideration by the petitioner before making allegation against the respondent that false statement has been made by him. The plea of the petitioner is based on his assumption which cannot be substantiated in the facts and circumstances. In the circumstances, there is no ground to disbelieve the respondent and it cannot be held that the respondent had made any false and misleading statement before this Court in any manner.
W.P. (C.) No.10318/2009 Page 9 of 10
In the circumstances, there are no grounds to make a complaint under Section 340 of the Criminal Procedure Code against the respondent nor the petitioner is entitled for review of order dated 24th July, 2009. The applications are, therefore, without any merit and they are dismissed. Parties are however, left to bear their own costs February 19, 2010 ANIL KUMAR, J.
'rs/k' W.P. (C.) No.10318/2009 Page 10 of 10