Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 742 (GUJ)

Krishachand Somnath Shastri v. State of Gujarat

2013-12-17

R.M.CHHAYA

body2013
JUDGMENT : R.M. CHHAYA, J. 1. By way of this application under section 482 of the Code of Criminal Procedure, 1973 (the Code) the applicants have prayed for quashing of complaint being C.R. No. 11088/2003 registered at Navrangpura Police Station, Ahmedabad City for the offences under sections 120-B, 406, 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860 (the I.P.C.) and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act as well as charge-sheet filed pursuant thereto and all other proceedings arising out of the said complaint. 2. This Court (Coram: M.R. Shah, J.) on 12.9.2008 admitted the matter and granted ad interim relief in terms of Paragraph No. 18 13) of the matter. 3. The facts of the case are that: applicant No. 1 was Pro Vice-Chancellor of the Gujarat University and applicant No. 2 is the Managing Trustee of a public trust imparting education, known as Som Lalit Education and Research Foundation. 4. On perusal of the impugned complaint it transpires that the same came to be lodged on the basis of a written application, which came to be filed by respondent No. 2-first informant/original complainant, to the Police Inspector of Navrangpura Police Station, Ahmedabad City. It appears from the said application, which is treated as F.I.R. that three persons are named as accused i.e. applicant No. 1 (original accused No. 1), applicant No. 2 (original accused No. 2) and one Shri Mahendrabhai Parshotamdas Jadia (original accused No. 3), who was Registrar of the Gujarat University. That the crux of the allegations, which are leveled in the complaint are to the effect that the courses of self-financed technical/ management courses, such as Engineering, Pharmacy, MBA, MCA, Architecture, Arts and Crafts, etc. are supervised and recognised by a parent/apex body viz. All India Council for Technical Education (A.I.C.T.E.) New Delhi. It is mentioned in the complaint that the schedule of fees, which were to be charged by such self-financed institutions, were fixed by the State Level Committee and the development fee was determined by the A.I.C.T.E. for the recognised institutions. It is further averred that such fees are published in the Official Gazette and as development fees can be charged/collected from the students after it is published/prescribed by its publication in the Gazette. It is further averred that such fees are published in the Official Gazette and as development fees can be charged/collected from the students after it is published/prescribed by its publication in the Gazette. It is further alleged that the State Level Committee publishes a notification to the said effect and thereafter a resolution is sent to the concerned university. It is further contended that in order to develop the technical education in India, the All India Council for Technical Education Act, 1987 came to be enacted w.e.f. 28.12.1987 and thereafter the concerned department, through A.I.C.T.E. framed regulations and the schedule of fees in the form of directions vide order dated 18.3.1997. It appears from the impugned complaint that the State Level Committee of the State of Gujarat vide notification dated 24.11.1999 fixed the fees and development fee, which can be charged by the self-financed institutions imparting technical and management courses for the academic years 1999-2000 and 2000-01 as well as 2001-02 and copy of the said notification was also sent to the Gujarat University as well as the self-financed institutions. It is further contended in the complaint that a Higher Power Committee is also constituted vide order dated 31.5.2003 consisting of six, members who were experts in the field in order to verify whether during the academic year 2000-01 more fees were collected then prescribed by certain self-finance institutions. As averred in the complaint, more particularly in Paragraph Nos. 8.1 and 8.2 thereof, it is, inter alia, alleged that the applicants were guilty of collecting and charging more tuition and development fees than the prescribed fees by the State Level Committee on the basis of notification dated 24.11.1999 issued by the State Level Committee constituted for that purpose. It is alleged that applicant No. 2 in his capacity of managing trustee of the trust, which is running such self-financed institute, has already collected more fees as alleged and thereby all of them have committed the offences as alleged. That the complaint further quantifies that applicant No. 2 has illegally collected amount of Rs. 36,75,000/- and have thereby committed offences of cheating, more particularly upon the students. That the complaint further quantifies that applicant No. 2 has illegally collected amount of Rs. 36,75,000/- and have thereby committed offences of cheating, more particularly upon the students. On the basis of this factual background, it is alleged that all the accused persons as well as Shri Mahendrabhai Parshotamdas Jadia (original accused No. 3), Registrar, have connived with each other and by misusing their powers, as public servants, have committed the offences as alleged in the complaint. 5. Heard Mr. A.D. Shah, learned advocate, with Mr. Mitesh R. Amin, learned advocate for the applicants, Mr. Alkesh N. Shah, learned Assistant Public Prosecutor for respondent No. 1State, and Mr. G.M. Joshi, learned advocate for respondent No. 2first informant/original complainant. 6. Learned advocate for the applicants has taken this Court through the impugned complaint as well as the documents, which are annexed herewith. It is contended that the basis of which the complaint is lodged against the applicants is the notification, which was issued by the State Level Committee dated 24.11.1999. At the outset it is submitted that the said notification dated 24.11.1999 came to be challenged before this Court and Division Bench of this Court in the judgment reported in the case of Sarva Vidyalaya Kelavani Mandal vs. State of Gujarat and Others, 2010 (3) GLH 678 have held that the State Level Committee had no jurisdiction to decide the development fee. It is therefore contended that very basis of the complaint is struck down by the Division Bench of this Court and, therefore, the very premise on which the allegations are leveled against the applicants fail in the eyes of law and the foundation of the impugned complaint is declared to be ultra vires. It is therefore contended that in view of the aforesaid judgment of this Court the impugned complaint as well as all consequential proceedings initiated by the investigating agency pursuant to the said complaint would amount to abuse of process of law and Court and, therefore, in order to secure ends of justice, this Court may exercise its inherent powers under section 482 of the Code. In addition to this, on instructions, it was contended that even though by the judgment in the case of Sarva Vidyalaya Kelavani Mandal (supra) the jurisdiction to prescribe the fees were declared to be illegal, applicant No. 2 has already deposited Rs. In addition to this, on instructions, it was contended that even though by the judgment in the case of Sarva Vidyalaya Kelavani Mandal (supra) the jurisdiction to prescribe the fees were declared to be illegal, applicant No. 2 has already deposited Rs. 30,00,000/- before the Gujarat University even before the complaint came to be lodged. 7. Per contra Mr. G.M. Joshi, learned advocate for respondent No. 2-first informant/ original complainant, candidly submitted that in view of the judgment in the case Sarva Vidyalaya Kelavani Mandal (supra), the case of respondent No. 2 cannot be taken further and the contentions raised by the learned advocate for the applicants is a matter of fact. It is further candidly submitted that when the complaint was filed as the development fees was collected by the applicants de hors the notification, which was issued there was a full-fledged case against the applicants as alleged in the complaint, however, in view of judgment rendered by the Division Bench of this Court in the case of Sarva Vidyalaya Kelavani Mandal (supra), the very notification dated 24.11.1999 has been struck down. Mr. Joshi has fairly contended that the impugned complaint relates to the development fees charged by applicant No. 2. 8. Mr. Alkesh N. Shah, learned Assistant Public Prosecutor for the respondent-State, has reiterated the stand taken by learned advocate for respondent No. 2, after examining the judgment rendered by the Division Bench of this Court in the case of Sarva Vidyalaya Kelavani Mandal (supra), which was relied upon by the learned advocate for the applicants and submitted that this Court may pass appropriate orders. 9. Considering the aforesaid facts and in view of the complaint, which is filed against the present applicants, the allegations which are leveled against the applicants are entirely based on notification dated 24.11.1999 issued by the State Level Committee as regards the development fees. It would be appropriate to note that in the case of Sarva Vidyalaya Kelavani Mandal (supra) the Division Bench of this Court has observed therein thus: “17. From the Resolution dated 18.3.1997 issued from the Ministry of Human Resource Development, Department of Education, New Delhi, the following facts emerge: (i) Fee in institutions imparting technical education shall be determined by the State Level Committee [See Clause 6.4 (b)]. (ii) Fee will have two broad categories Tuition Fee and Development Fee [See Clause 6.6 (a)]. From the Resolution dated 18.3.1997 issued from the Ministry of Human Resource Development, Department of Education, New Delhi, the following facts emerge: (i) Fee in institutions imparting technical education shall be determined by the State Level Committee [See Clause 6.4 (b)]. (ii) Fee will have two broad categories Tuition Fee and Development Fee [See Clause 6.6 (a)]. (iii) Development Fee shall be determined every three years by A.I.C.T.E. [See Clause 6.6 (e)]. (iv) (a) The fee chargeable will be notified by the relevant Committee (the State Level Committee in this case). (b) The Statutory body (A.I.C.T.E. in this case) is to communicate the rates of development fee to such bodies well in advance to enable the appropriate Committee (the State Level Committee herein) to suitably incorporate such rates in their notification [See Clause 6.6 (g)]. 18. Though, as per the Resolution, A.I.C.T.E. was duty bound to communicate the rates of development fee to the State Level Committee well in advance [See Clause 6.6 (g), A.I.C.T.E. failed to perform its duty till 24.11.1999 and the State Level Committee determined the tuition fee, so far as it relates to other disciplines such as Pharmacy, MBA, MCA, Architecture, etc. We have noticed that the development fee for other faculties of Engineering degrees were notified by A.I.C.T.E. for the three years i.e. 1999-2000, 2000-01 and 2001-02 as far back as on 24.6.1998. 19. The State Level Committee had no jurisdiction to decide the development fee. However, in absence of any determination by A.I.C.T.E. the State Level Committee provisionally fixed the development fee at a flat rate of Rs. 3,000/- for MBA, MCA, Architecture and Rs. 2,000/- for Pharmacy degree for the aforesaid three years in its meeting dated 24.11.1999, as notified on 30.11.1999. 20. The State Level Committee had knowledge that it had no jurisdiction to fix the development fee and A.I.C.T.E. is the competent authority to do so. Therefore, under Clauses 7 and 8, the following provisions were made: 7. Development Fee for free seats and payment seats for Engineering Degree and Diploma are decided as per the guidelines of the A.I.C.T.E. Notification No. F. No. NW/FEE- Com/97 dated 24.6.1988. However, the Development Fee for other discipline still to be received from A.I.C.T.E. The present rates are only provisional and therefore shall be reconciled as per development fee finally decided by A.I.C.T.E. 8. However, the Development Fee for other discipline still to be received from A.I.C.T.E. The present rates are only provisional and therefore shall be reconciled as per development fee finally decided by A.I.C.T.E. 8. NRI fees are also decided tentatively and it shall be subject to revision as per the rates as and when decided by A.I.C.T.E. The Institutions shall have to reconcile the accounts accordingly. 21. From the aforesaid facts, it will be evident that the laches were on the part of the A.I.C.T.E. Though the State Level Committee had no jurisdiction to decide the development fee, yet it decided it provisionally by its notification dated 30.11.1999. Such power being not vested with the State Level Committee, the respondents cannot direct the institutions to follow the development fee as prescribed by the State Level Committee, which otherwise will go against the Resolution dated 18.3.1997 of the Ministry of Human Resource Development, Department of Education, New Delhi. 22. It cannot be said that the State Level Committee had not notified the development fee. We have noticed that in the notification dated 30.11.1999, the State Level Committee specifically stated that it has determined the development fee provisionally and the final rate with regard to the development fee will be as fixed by A.I.C.T.E. Therefore, the prescription as made by A.I.C.T.E. is deemed to have been notified by the State Level Committee by its notification dated 30.11.1999, otherwise any other interpretation will render the State Level Committee notification dated 30.11.1999 as illegal, so far as its relates to development fee. 23. The laches on the part of A.I.C.T.E. and the laches on the part of the State Level Committee in not issuing a separate notification on the basis of the development fee fixed by A.I.C.T.E. cannot be a tool in the hands of the respondents to defeat the claim of the institutions to which they are entitled under the Supreme Court judgment and Resolution dated 18.3.1997 of the Ministry of Human Resource Development, Department of Education, New Delhi. 24. The learned Single Judge failed to notice the aforesaid facts and erred in holding that in absence of any notification issued by the State Level Committee in terms with the recommendation of the A.I.C.T.E. the institutions are not entitled to charge development fee as recommended by A.I.C.T.E. for the aforesaid three years. 25. 24. The learned Single Judge failed to notice the aforesaid facts and erred in holding that in absence of any notification issued by the State Level Committee in terms with the recommendation of the A.I.C.T.E. the institutions are not entitled to charge development fee as recommended by A.I.C.T.E. for the aforesaid three years. 25. For the reasons aforesaid, while we hold that the direction issued by the Commissioner of Higher Education dated 30.6.2003 and other similar orders by which the said authority directed the institutions including the appellant petitioners to refund the students the development fee charged in excess of the aforesaid notification is bad. Consequential directions, if any, issued by the University are also declared as illegal. The order aforesaid passed by the authorities and the common judgment and order dated 19.8.2004 passed by the learned Single Judge are set aside with a direction to the respondents to return the amount, if any, deposited by one or other petitioners pursuant to the aforesaid directions to such petitioner towards development fee. However, if one or other institutions has charged anything more than the development fee fixed by A.I.C.T.E. such amount is not required to be refunded to any such institution.” 10. As can be seem from the impugned complaint, more particularly the contents of Paragraph Nos. 8.1 and 8.2 therefore, it clearly transpires that the foundation of the allegations of the alleged offences is made against the present applicants on the basis of the notification dated 24.11.1999 issued by the State Level Committee, which is held to be without jurisdiction by the Division Bench of this Court in the judgment of Sarva Vidyalaya Kelavani Mandal (supra). 11. In view of the above, any further continuation of the proceedings jursuant to the impugned complaint would amount to abuse of process of and Court and, therefore, in order to secure ends of justice, the impugned complaint as well as all other proceedings arising out of the impugned complaint are required to be quashed in exercise of power under section 482 of the Code. 12. For the reasons stated hereinabove, the present application is allowed. Impugned complaint being C.R.I. No. 1088/2003 registered at Navrangpura Police Station, Ahmedabad City as well as charge-sheet filed pursuant thereto and all other proceedings arising out of the said complaint are hereby quashed and set aside qua the present applicants. 12. For the reasons stated hereinabove, the present application is allowed. Impugned complaint being C.R.I. No. 1088/2003 registered at Navrangpura Police Station, Ahmedabad City as well as charge-sheet filed pursuant thereto and all other proceedings arising out of the said complaint are hereby quashed and set aside qua the present applicants. It is made clear that the observations made in this judgment would apply only in case of the present applicants. 13. Rule is made absolute to the aforesaid extent. Application Allowed.