tion Civil No 961 of 1988 Etc
Under Article 32 of the Constitution of India
Kuldip Singh Additional Solicitor General Rajindra Lal Chopra AS Pundir Bharat Sangal Dr Mrs Roxna section Swamy MC Dhingra Prem Malhotra and Ms A Subhashini for the Petitioners
Madan Lokur Manik Karanjawala CM Nayyar and SK Mehta for the Respondents
The Judgment of the Court was delivered by DUTT J
These writ petitions relate to the allocation of seats in medical colleges in the MBBSBDS Course pursuant to the result of the All India Entrance Examination conducted by the Central Board of Secondary Education New Delhi in respect of 15 per cent of the total number of MBBSBDS seats in medical colleges of different States
Before dealing with the individual writ petitions we may refer to an application made by the Union of India being PG NO 907 CMP No 29264 of 1988 in Writ Petition Civil No 348 52 of 1985 praying for suitable directions in the matter of allocation of vacant seats
It has been stated in this application that the results of the All India Entrance Examination conducted by the Central Board of Secondary Education for admission in the MBBSBDS Course were declared on July 15 1988
A merit list of 1600 candidates together with a waiting list of 1000 candidates was sent to the Director General of Health Services by the Central Board of Secondary Education for making allocations of candidates to various medical colleges for admission to MBBSBDS Course as the case may be
The Director General of Health Services allocated 1428 candidates to MBBS Course and 111 candidates to BDS Course in the various medicaldental colleges
Further it is stated that on the basis of information received in the office of the Director General of Health Services 532 candidates have not joined in all these courses and accordingly the said 532 seats have been lying vacant
In order to decide the criteria to be adopted for allocation of vacant seats as a result of drop outs in the number of candidates who had been allocated MBBSBDS seats in various medicaldental colleges a meeting was held under the chairmanship of the Secretary Ministry of Health and Family Affair
In this meeting the Chairman of the Central Board of Secondary Education Secretary Medical Council of India and representatives of the Ministry of Law and Justice participated besides others from the Ministry of Health and Family Affair and the Directorate General of Health Services
The Committee took a decision regarding the allocation of seats in the MBBSBDS Course
The Committee has also made certain suggestions regarding the guidelines to be followed for the purpose of filling up the vacant seats in the MBBSBDS Course
Mr Kuldip Singh learned Additional Solicitor General submits that this Court may approve of the suggestions made by the said Committee or lay down the guidelines for the purpose of filling up the vacant seats
After hearing the learned Counsel of the petitioners in these writ petitions and after considering the suggestions of the committee and the submissions made by the learned Additional Solicitor General we direct that the following guidelines should be followed for the purpose of filling up the said 532 seats in the MBBSBDS Course
The candidates who have been allocated seats to the Dhanbad Medical College which is not a recognised College by PG NO 908 the Medical Council of India after 1982 should first be reallocated to the recognised medical colleges having vacancies keeping in view the aspect of the minimum distance from their home towns
Those candidates who have exercised their choice for MBBS Course only or to MBBS Course by way of first preference and to BDS Course by way of second preference and admitted to BDS Course for want of seats in the MBBS Course shall if they or any of them desire to be admitted in the MBBS Course be absorbed against the available vacant seats in order of merit
The change from BDS Course to MBBS Course will however be at their own cost and responsibility
The vacant MBBS or BDS seats thereafter available should be offered to the candidates on the waiting list in order of merit
Allocation may be made to medical colleges on the basis of the five preference indicated by the candidates in the application forms
Any allocation of seat made to a candidate in the waiting list either in the MBBS or BDS Course shall be final and no request for change from one course to the other will be entertained
In the case of those candidates in the waiting list who cannot be allocated to medical colleges on the basis of five preferences given by them in the application forms the Director General of Health Services will allocate them colleges as near to their places of residence as possible subject to availability of seats in those nearby colleges
The candidates will be given maximum time of twenty days to join the medical colleges allotted to them failing which the seats will be declared vacant
The allocation of MBBS seats already made shall not be disturbed
The Director General of Health Services shall consider the question of allotment of medical colleges to candidates who have been already admitted to MBBS or BDS Course nearer to their home towns in order of merit
Absorption in the said 532 vacant seats of candidates who have already been admitted in the BDS Course and reallotment of medical colleges to candidates also already admitted in the MBBS or BDS Course as the case may be PG NO 909 home towns and the reallocation to the recognised medical colleges of candidates who have been already allocated seats to the Dhanbad Medical College shall be made within a period of three weeks from today
The petitioner Amanjit Singh Gill in Writ Petition Civil No 961 of 1988 is a resident of Punjab
He has been admitted in the MBBS Course in the Tamil Nadu Medical College
He prays that the respondent may be directed to allot a seat in Patiala Medical College Punjab which is near to his residence
The petitioner Shalu Sood in Writ Petition Civil No 1110 of 1988 has been allotted a seat in the BDS Course in SCB Medical College Cuttack and she has since joined the said College
According to her two seats in BDS Course are lying vacant in Delhi
No particulars have however been given by her as to in which medical college in Delhi the two seats are lying vacant
Be that as it may she prays for the allotment of one of such seats to her in order of merit
In Writ Petition Civil No 1071 of 1988 the petitioner Vimal Mehta who is a resident of Faridabad Haryana has been allotted a seat in the MBBS Course in Darbhanga Medical College Bihar which is far off from the place of residence of the petitioner
On behalf of the petitioner preference has been given first to a medical college in Delhi and second to a medical college in Rohtak in the State of Haryana
The grievance of the petitioner Mahesh Dutt in Writ Petition Civil No 1056 of 1988 is that although 7 seats in the MBBS Course have been lying vacant in the Medical College Rohtak in respect of which he gave his first preference he has been allotted a seat in the Medical College Dhanbad
The home town of the petitioner is in Haryana and it is prayed by him that he should be allotted a seat in the MBBS Course in the Medical College Rohtak
The petitioner has however already joined the Medical College Dhanbad
The case of Kumari Shilpa Mehra the petitioner in Writ Petition Civil No 936 of 1988 is that she has been allotted a seat in the BDS Course at the Government Dental College Bombay although candidates who have secured less marks than her have been admitted in MBBS Course
The petitioner has already joined the BDS Course in the said Government Dental College Bombay
It is prayed by her that she may be allotted a seat in the MBBS Course in any medical college in Bombay in order of merit
PG NO 910 The guidelines for filling up the said 532 seats in the MBBSBDS Course cover the cases of the petitioners in the different writ petitions mentioned above
Instead of giving separate directions in each of the writ petitions we direct the Director General of Health Services to deal with all the above cases and also the cases of other candidates in accordance with the above guidelines laid down by us
All the cases shall be disposed of by the Director General of Health Services within a period of three weeks from today
The Director General after disposal of the representations of the writ petitioners and others with regard to the filling up of the said 532 vacant seats in the MBBSBDS Course shall submit a report to this Court within six weeks from today
The writ petitions and CMP No 29264 of 1988 are disposed of as above
There will however be no order as to costs in any of them


Summary:
In the matter giving rise to the Special Leave Petition Civil No 8219 of 1982 the plaintiffs filed a suit alleging that their father who dies in the year 1956 had mortgaged the suit property for 30000 Koris by a registered mortgage deed dated 20th April 1943 executed in favour of the power of attorney holder and manager of the defandants Nos
l and 2
The defendant No 3 is the heir of the attorney who was also managing the properties of the defendants Nos
I and 2
The mortgage property consisted of two delis having residential houses shops etc
The mortgagees had inducted tenants in the suit property being defandants Nos 4 to 9 in the original suit
When the mortgage transaction took place the economic condition of the father of the plaintiffs was weak and he was heavily indebted to others
Taking advantage of that situation the mortgagees took mortgage deed from him on harsh and oppressive conditions by getting incorporated a long term of 99 years for redemption of mortgage
Though possession was to be handed over to the mortgagees they took condition for interest on the part of principal amount in the mortgage deed
Mereover the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property and were also permitted to rebuild the entire property
A registered notice to the defendants Nos
I and 2 was given to redeem the mortgage but they failed to do so hence the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos 4 to 9 who were the tenants Inducted by the mortgagees
PG NO 827 Defendant No 1 resisted the suit alleging that the term of the mortgage was for 99 years so the suit filed before the expiry of that period was premature
The defendant No 3 resisted the suit by filing the written statement
The defendants Nos 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled they could not get actual physical possession from the tenants who were protected by the Bombay Rent Act because they were inducted by the mortgagees
The Court proceeded against defendants Nos
21 to 27 heirs of mortgagee defendant No 2 ex parte and a preliminary decree for redemption of mortgage was passed on 2nd April 1974 by the Trial Court
But this ex parte decree was set aside by the District Court in the appeals filed by the heirs of defendant No 2 on the ground that summons of the suit had not been duly served upon them
Thereafter defendent No 21 filed his written statement alleging that the suit was bad for non joinder of the sisters of the plaintiffs as parties
Moreover as per the terms and conditions of the mortgage deed there was usufructuary mortgage for 20000 koris and the remaining 10000 koris were advanced to the mortgagor at monthly interest at the rate of 12 per cent
There was a condition in the mortgage deed that the mortgagor would pay principal amount us well as the interest at the time of redemption
When the suit was filed in the year 1972 the mortgagees were entitled to recover interest on 10000 Koris for a period of 29 years that the total mortgage amount along with interest would come to 47400 koris equivalent to Rs 15800 and the Civil Judge had no jurisdiction to try such suit that the court fees was also not sufficient that it was not true that the father of the plaintiffs was of weak economic condition
The grand father of the plaintiffs was as Advocate and the father of the plaintiffs was the clerk of an advocate The plaintiff No l was also working as an Advocate at the time of the mortgage so they knew the legal position that at the relevant time the prevalent custom in Kutch State was to take mortgages of long term for 99 years and when it was permissible to take mortgage deeds with such a long term it was also necessary to give permission for rebuilding the whole property for better enjoyment of lt
So these terms could not amount to clog on equity of redemption of mortgage the mortgagees did not take any undue advantage and they were not present physically when the transaction took place through their power of attorney holders
If the conditions of mortgage deed did not amount to clogs on equity of redemption the suit would be clearly premature
The plaintiff No I had subsequently became a Civil Judge and was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and oppressive he would not have sat idle for 29 years
But he remained silent because he was aware of the PG NO 828 said custom
The prices of immovable properties had increased tremendously therefore the suit had been filed with mala fide intention that in case the Court comes to the conclusion that there was a clog on equity or redemption and the plaintiffs were entitled to the redemption then the interest on 10000 koris should be awarded to the mortgages and that the suit should be dismissed as there was no clog on equity of redemption and the Court had no jurisdiction to try the suit
The other defendants remained absent
The Trial Court while decreeing the suit came to the conclusion that there was mortgage transaction between the father of the plaintiffs and the mortgagees on 20th April 1943 that the terms and conditions in the mortgage deed being harsh and oppressive amounted to clog on equity of redemption so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage that the sisters of the plaintiffs were not necessary parties to the suit and even if they were a co mortgagor was entitled to file the suit for redemption so the suit was not bad for want of non joinder of necessary parties that it had jurisdiction to try the suit that the mortgagees were not entitled to claim interest on 10000 koris and that the plaintiffs were entitled to recover possession from the defendants Nos 4 to 9 who were the tenants inducted by the mortgagees
The appeals filed by the mortgagees as well as the tenants were dismissed by the first appellate Court holding that the terms and conditions of the mortgage deed were oppressive and harsh there was clog on equity of redemption and the mortgagor should be freed from that bondage that the tenants had no right to he in possession and were not entitled to the protection of the Bombay Rent Control Act after the redemption of the mortgage
The High Court dismissed the second appeal
Civil Appeal No 9993 of 1983 is an appeal by the tenant
Civil Appeal No 397 of l980 is also an appeal by the tenant
In this case the decree holder instituted a regular suit for redemption of the mortgage property
The suit was dismissed
Thereupon the respondent No l preferred an appeal to the District Judge where the suit was decreed
The defendants filed a second appeal which was dismissed
The decree holder made an application for final decree
The Court while giving the final decree for redemption of the mortgage directed the judgment debtors to hand over the possession of the mortgage property within three months on the decree holder making payment of dues in respect of the mortgage in the court
In pursuance of the final decree the decree holder took out the execution proceedings and PG NO 829 deposited the dues in the Court and claimed possession of the mortgage property from the appellant herein stating that he was a tenant in the possession of the property
Notice was issued to the tenant who submitted his objection stating that he was a tenant not to be evicted in the execution of the decree and that he was entitled to get the protection under the Bombay Rent Control Act
The District Judge held that there was no conduct on the part of the decree holder which would stop him from claiming physical possession from the tenant of the mortgagee in possession
The High Court rejected the appeal summarily
Hence the appeal
Civil Appeal No 1286 of 1981 is also an appeal by the tenant
The appellant is the tenant of the mortgagee inducted in 1955
The property was mortgaged in 1948 for a period of five years
It appears that the tenant was inducted after the period of redemption had expired
The mortgagor had a right to redeem after the expiration of the mortgage
The first appellate court came to the conclusion that the tenants were not protected under the provision of the Bombay Rent Control Act
The appellant preferred this appeal in this Court
On behalf of the appellants it was contended that in the former Kutch District there was a custom to mortgage for a long term of 99 years and when the period was long naturally the mortgagee would he required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern so the condition should not he treated as clog on equity of redemption 2 that there is no evidence to lead to the conclusion that there was any undue influence 3 that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on the equity of redemption 4 that on the evidence and the facts the transactions did not amount to clog on the equity of redemption 5 that in Civil Appeal No 9993 of 1982 the plaintiff s were not entitled to recover possession from the appellants who are tenants in the mortgage properties since their rights are protected under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 as the said Act applies to the area of Kutch in the Bombay State
Therefore no decree for eviction could he passed against them except in accordance with the provisions of the said Act 6 that the Trial Court did not make any finding as to when the tenants were inducted either before or after the rent restriction Act was made applicable to the area of  Kutch and 7 that the High Court has erred in not following the said legal position entrenched by a line of decisions of this Court with the rights of a tenant inducted by a mortgagee with possession would enure beyond the period of PG NO 830 redemption of the mortgage if his rights are enlarged by subsequent tenancy legislation in force in the area in which the property is situated
Dismissing the Appeals HELD 1
The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage
844E 2
The rights and liabilities of the mortgagor are controlled by the provisions of section 60 of the 
846F 3
Any provision inserted to prevent
evade or hamper redemption is void
846G 4
The doctrine clog on the equity of redemption is a rule of justice equity and good conscience
It must be adopted in each case to the reality of the situation and the individuality of the transaction 847A 5
Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people
The law must transform itself to the social awareness
Poverty should not be unduly permitted to curtail one s right to borrow money on the ground of justice equity and good conscience on just terms
If it does it is bad
Whether it does or does not
however depends upon the facts and the circumstances of each case
847H 848A 6
Whether in the facts and the circumstances of these cases
the morgage transaction amounted to clog on the equity of redemption is a mixed question of law and fact
848D 7
Courts do not look with favour at any clause or stipulation which clogs equity of redemption
A clog on the equity of redemption is unJust and unequitable
The principles of English law as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country looks with disfavour at clogs On the equity of redemption
Section 60 of the  in India also recognises the same position
848D E 8
It is a right of the mortgagor on redemption by reason of the very nature of the mortgage to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage
If he is PG NO 831 prevented from doing so or is prevented from redeeming the mortgage such prevention is bad in law
If he is so prevented the equity of redemption is affected by that whether aptly or not and it has always been termed as a clog
Such a clot is inequitable
The law does not countenance it
848F G 9
Whether or not in a particular transaction there is a clog on the equity or redemption depends primarily upon the period of redemption the circumstances under which the mortgage was created the economic and financial position of the mortgagor and his relationship vis a vis him and the mortgagee the economic and social condition in a particular country at a particular point of time customs if any prevalent in the community or the society in which the transaction takes place and the totality of the circumstances under which a mortgage is created namely circumstances of the parties the time the situation the clauses for redemption either for payment of interest or any other sum the obligation of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management these factors must be co related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case to determine whether these are clogs on equity of redemption
848H 849A C 10
A mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge or some other obligation for which il is given The security must therefore be redeemable on the payment or discharge of such debt or obligation
any provision to the contrary notwithstanding is a clog or fetter on thc equity of redemption and hence
bad and void
Once a mortgage must always remain a mortgage and must not be transformed into a conveyance or deprivation of the right over the property
849D E 11 
The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable
fair and just and unless there is anything to the contrary in the Statute law must take cognisance of that fact and act accordingly
Ia the context of fast changing circumstances and economic stability long term for redemption makes a mortgage an illusory mortgage though not decisive
850D E 12
Even apart from section 76a of the if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation PG NO 832 of a tenancy beyond the term of  the mortgage then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor
If the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage the mere fact that the mortgage deed authorises the mortgagee with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage
857E G 13
In the instant cases the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgagee and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the morfgagor so as to claim tenancy rights even after redemption of the mortgage
866C Khatubai Nathu Sumra vs Rajgo Mulji Nanji and Ors
 AIR 1979 Gujarat 171 Lalji Purshottam vs Thacker Madhavji Meghaji 17 Gujarat Law Reporter 497 Maganlal Chhotalal Chhatrappati and Ors
vs Bhalchandra Chhaganlal Shal 15 Gujarat Law Reporter 193 Soni Motiben vs Ms Hiralal Lakhasmhi 22 Gujarat Law Reporter 473 Vadilal Chaganlal Soni and Others vs Gokaldas Mansukh and Other  Sarjug Mahto and Others vs Smt
Devruo Devi and Others AIR 1963 Patna 114 Kunjbiharilal vs Pandit Prag Narayan AIR 1922 Oudh 283 section V Venkatarama Reddiar vs Abdul Ghani Rowther  Ors AIR and Devkinandan and Another etc
vs Roshan Lal and Others AIR  approved
Santley vs Wilde 1989 2 Ch
474 Vermon vs Betheli  and 839 G and C Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd 1914 Appeal Cases 25 All lndia Film Corporation vs Raja Gyan Nath  Sachalmal Parasram vs Ratnabai and Om Prakash Garg vs Ganga Sahai  Ors  relied on
Seth Ganga Dhar vs Shankar Lal  Ors and Jadavji Purshottam vs Dhami Navnitbhai Amaratlal  Ors 1987 4 SCC 223 distinguished Aziz Khan vs Duni Chand and Others AIR 1918 PC 48 Jarrah Timber  Wood Paving Corporation vs Samuel 119031 2 Ch
l Chhedi Lal vs Babu Nandan AIR 1944 Allahabad 204 PG NO 833 Bhika and Anr
vs Sheikh Amir and Ors Al
R 1923 Nagpur 60 Mahabir Gope vs Harbans Narain Singh   Hariher Prasad Singh vs Must
of Munshi Nath Prasad 1956 SCR l Asa Ram vs Mst
Kam Kali  Dahya Lal vs Rasul Mohammed Abdul Rahim   Madan Lal vs Bedri Narain and Others  Mulla s  7th Edition pages 401 and 402 Rashbehary Ghose s Law of Mortgage  6th Edition pages 227 and 228 Dalal s Rent Act 4th Edn
page 814 referred to