Sushant Ray vs Dean & Head, Faculty Of Law, ...
2010 Latest Caselaw 975 Del

*                 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.

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

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,

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

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

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

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.

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

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.

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'