Thakur Rumal Singh Memorial Education Society v. State Of Himachal Pradesh
2018-04-17
TARLOK SINGH CHAUHAN
body2018
DigiLaw.ai
JUDGMENT Tarlok Singh Chauhan, J —This writ petition has been filed for the following substantial reliefs: (I) "That the action of the respondents imposing the amended norms, may kindly be declared illegal and the same may be quashed. (II) That the respondents may further be directed to grant No Objection Certificate (NOC) as per the old norms, for which, the requisite fee and endowment fund has already stands deposited." 2. The petitioner No.1 is a Society duly registered under the Registration of Societies Act. It is averred that after spending huge amount and after raising considerable big infrastructure, it applied for ''No Objection Certificate'' (for short ''NOC'') to run the degree courses in the streams Arts, Commerce and Science vide application dated 29.10.2014. The application submitted by the petitioners was scrutinized by the competent authority and several objections were raised, which were removed by the petitioners. Thereafter, the petitioners requested respondent No.2 to issue NOC for starting the course for the session 2015-2016 vide their application dated 28.5.2015. A team was constituted by the Joint Director of Higher Education to inspect the premises of the petitioners. On 12.6.2015, the team so constituted carried out the inspection and after satisfying itself had recommended the case of the petitioners for grant of NOC. However, when nothing further was done by the respondents, the petitioners were constrained to submit representations on 8.7.2015 and 17.7.2015 followed by another representation dated 14.3.2016. It was only on 23.11.2016 that respondent No.2 for the first time informed the petitioner''s society that the Government had now notified the new norms/guidelines for grant of NOC to the various societies, trust/institutions to start courses in the State vide notification dated 11.8.2016 vide which the inspection fee had now been enhanced from Rs. 25, 000/- to Rs. 30, 000/- and endowment fund enhanced by Rs. 2,00, 000/- i.e. from Rs. 3,00, 000/- to Rs. 5,00, 000/- in general area and from Rs. 1,00, 000/- to Rs. 3,00, 000/- for the college in those areas where there is no college running within the radius of 10 KMs. The petitioner''s Society was directed to deposit the inspection fee and endowment fund as per the revised norms at the earliest, so that the compliance report could be submitted well in time. 3.
1,00, 000/- to Rs. 3,00, 000/- for the college in those areas where there is no college running within the radius of 10 KMs. The petitioner''s Society was directed to deposit the inspection fee and endowment fund as per the revised norms at the earliest, so that the compliance report could be submitted well in time. 3. It is this action of the respondents that has been assailed by the petitioners primarily on the ground that once the respondents had themselves conducted the inspection, they could not carry out the same for the second time and that apart even the notification now sought to be enforced against the petitioners with retrospective effect. 4. In the reply filed by the State, factual matrix of the case has not been denied. However, it has been averred that the Department had earlier issued norms/ guidelines for the grant of NOC to the various Societies/ Trusts/Institutions to start courses in the State on 18.8.2008, which was further revised on 23.8.2010. However, the Department was of the view that these norms were required to be changed/modified with the passage of time and, therefore, the Director of Higher Education on 22.12.2015 was asked to submit proposal to revise the said norms. The Director of Higher Education submitted the proposed revised norms on 5.2.2016 and the same were examined at Government level where certain other suggestions were given and were required to be added in the norms. Accordingly, the Director of Higher Education submitted revised norms for approval with its recommendations on 27.4.2016 and thereafter the revised norms were notified on 11.8.2016 with the conditions that if such courses are already running in the privately managed institutions in the State of Himachal Pradesh, they have to comply with the provisions contained in the new notified norms and standards within one year. In this view of the matter, the case of the petitioners will now have to be considered on merit in accordance with new norms and, therefore, the petition should be dismissed. 5.
In this view of the matter, the case of the petitioners will now have to be considered on merit in accordance with new norms and, therefore, the petition should be dismissed. 5. Even though the Himachal Pradesh University has been arrayed as party and it has in fact even filed its reply, but since its role is only limited to the grant of affiliation, therefore, there is no necessity to discuss the contents thereof save and except to mention that the application earlier submitted by the petitioners had been rejected by the University as it was not accompanied with NOC issued by the State Government. I have heard learned counsel for the parties and have gone through the records of the case carefully. 6. At the out-set, it may be observed that somewhat identical issue came up before learned Division Bench of this court, of which, I was a Member, in case titled as Thakur Pre-Examination Coaching-cum-Training Institute (Society) Neharn Pukhar and another vs. State of Himachal Pradesh and another, therein also the petitioners had sought consideration of their case on the basis of old norms and this Court while allowing the petition had in para-15 observed as under:- "15. Perusal of the Notification dated 11.08.2016 which has been placed on record by the State demonstrates that the norms and guidelines framed thereunder have been brought into force with immediate effect and there is no stipulation contained either in the Notification or Annexure appended with the same to the effect that the applications which were submitted by prospective parties for grant of "No Objection Certificate" as per Notification dated 23rd August, 2010 were now to be scrutinized on the basis of new Notification i.e. Notification dated 11th August, 2016." 7. It is not in dispute that the petitioners after completing majority of the codal formalities, had applied for grant of NOC on 29.10.2014 and thereafter objections raised in the application were also removed in the year 2014 itself. It is also not in dispute that the petitioner''s Society thereafter requested respondent No.2 to issue NOC for starting new programme for the session 2015-2016 vide application dated 28.5.2015. It is yet again not in dispute that the Joint Director of Higher Education vide his communication dated 3.6.2015 constituted an inspection team which in fact inspected the premises of the petitioners on 12.6.2015.
It is yet again not in dispute that the Joint Director of Higher Education vide his communication dated 3.6.2015 constituted an inspection team which in fact inspected the premises of the petitioners on 12.6.2015. Even though the petitioners would claim that this team had recommended its case, but it appears from the reply filed on behalf of respondents No. 1 and 2 that the Inspection Committee had in fact raised some objections in the case, which admittedly were cleared by the petitioners on 29.9.2015 and thereafter the case of the petitioners was sent to the Government. Therefore, in such circumstances, now the question that arises for consideration is can the respondents be permitted to take the advantage of its own wrong ? 8. The case of the petitioners, even as per the admitted case of the respondents, was complete in all respects on 29.9.2015 and thereafter sent to the Government, whereas the proposal to change/modify the norms/guidelines for the grant of NOC to various societies/trust/institutions to start the course was initiated much later that only on 22.12.2015 and, therefore, in the given circumstances the amended norms could not have been made applicable to the case of the petitioners as these were not even conceived when the case of the petitioners after completion had already been sent to the Government on 29.9.2015. 9. The respondents have failed to place on record any material whereby it can be gathered that the petitioners had been informed that their case would be considered under the amended norms, which clearly suggests that the action of the respondents is nothing, but arbitrary, illegal, unjust and, therefore, cannot withstand judicial scrutiny. 10. The Hon''ble Supreme Court in S.L. Srinivasa Jute Twine Mills (P) Ltd. Vs. Union of India , (2006) 2 SCC 740 , has held that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication. 11. The Hon''ble Supreme Court in MRF Ltd., Kottayam Vs. Asstt. Commissioner (Assessment) Sales Tax and others , (2006) 8 SCC 702 , has held that the provisions of the Act or notification are always prospective in operation unless the express language renders it otherwise making it effective with retrospective effect. The Hon''ble Supreme Court has further held: "30.
11. The Hon''ble Supreme Court in MRF Ltd., Kottayam Vs. Asstt. Commissioner (Assessment) Sales Tax and others , (2006) 8 SCC 702 , has held that the provisions of the Act or notification are always prospective in operation unless the express language renders it otherwise making it effective with retrospective effect. The Hon''ble Supreme Court has further held: "30. The High Court in its judgment has recorded a finding that the notifications being statutory "no plea of estoppel will lie against a statutory notification". This finding of the High Court is erroneous. The doctrine of promissory estoppel has been repeatedly applied by this Court to statutory notifications. Reference may be made to Pournami Oil Mills Vs. State of Kerala , (1986) Supp1 SCC 728. In the said case the Government of Kerala by an order dated 11.4.1979 invited small scale units to set up their industries in the State of Kerala and with a view to boost industrialization, exemption from sales tax and purchase tax was extended as a concession for a period of five years, which was to run from the date of commencement of production. By a subsequent notification dated 29.9.1980, published on Gazette on 21.10.1980, the State of Kerala withdrew the exemption relating to the purchase tax and confined the exemption from sales tax to the limit specified in the proviso of the said notification. While quashing the subsequent notification, it was observed: "If in response to such an order and in consideration of the concession made available, promoters of any small-scale concern have set up their industries within the State of Kerala, they would certainly be entitled to plead the rule of estoppel in their favour when the State of Kerala purports to act differently. Several decisions of this Court were cited in support of the stand of the appellants that in similar circumstances the plea of estoppel can be and has been applied and the leading authority on this point is the case of M.P. Sugar Mills v. State of U.P.. On the other hand, reliance has been placed on behalf of the State on a judgment of this Court in Bakul Cashew Co. v. Sales Tax Officer, Quilon , (1986) 2 SCC 365 .
On the other hand, reliance has been placed on behalf of the State on a judgment of this Court in Bakul Cashew Co. v. Sales Tax Officer, Quilon , (1986) 2 SCC 365 . In Bakul Company''s case this Court found that there was no clear material to show any definite or certain promise had been made by the Minister to the concerned persons and there was no clear material also in support of the stand that the parties had altered their position by acting upon the representations and suffered any prejudice. On facts, therefore, no case for raising the plea of estoppel was held to have been made out. This Court proceeded on the footing that the notification granting exemption retrospectively was not in accordance with Section 10 of the State Sales Tax Act as it then stood, as there was no power to grant exemption retrospectively. By an amendment that power has been subsequently conferred. In these appeals there is no question of retrospective exemption. We also find that no reference was made by the High Court to the decision in M.P. Sugar Mills , (1979) 2 SCC 409 . In our view, to the facts of the present case, the ratio of M.P. Sugar Mills'' case directly applies and the plea of estoppel is unanswerable. Such exemption would continue for the full period of five years from the date they started production. New industries set up after 21.10.1980 obviously would not be entitled to that benefit as they had noticed of the curtailment in the exemption before they came to set up their industries." " 12. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the respondents are restrained from imposing amended norms qua the petitioners and are directed to grant ''No Objection Certificate'' as per the old norms for which the requisite fee and endowment fund already stands deposited. With these observations, the writ petition is disposed of, so also the pending miscellaneous application(s) , if any. The parties are left to bear their own costs.