Himachal Pradesh High Court
Bhojia Dental College vs (A) That The on 9 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NONREPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 9th DAY OF NOVEMBER 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
EXECUTION PETITION NO. 147 OF 2016 A/W CONNECTED
MATTERS.
1. EXECUTION PETITION NO. 147 OF 2016
Between: r
1. BHOJIA DENTAL COLLEGE,
CHANDIGARHNAHAGARH ROAD,
BUDH, (BADDI), TEHSIL NALAGARH,
DISTRICT SOLAN, (H.P.),
THROUGH ITS SECRETARY.
2. BHOJIA CHARITABLE TRUST,
FOR SCIENCE, RESEARCH &
SOCIAL WELFARE, SCO 855,
MANIMAJRA, CHANDIGARH (UT),
THROUGH ITS SECRETARY.
....PETITIONERS
(SH. RAJNISH MANIKTALA, SR. ADVOCATE WITH MR.
NARESH VERMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY (HEALTH),
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA171002 (H.P.).
2. THE SECRETARY (LAW)
TO THE GOVERNMENT OF
HIMACHAL PRADESH,
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SHIMLA171002.
3. SONIA ANAND,
DAUGHTER OF SHRI BALA NAND ANAND,
VILLAGE BAGAIN, POST OFFICE CHHAILA,
.
TEHSIL THEOG, DISTRICT SHIMLA,
171220, (H.P.).
4. RAJ KUMAR BANSAL,
SON OF LT. SH. MADAN LAL,
VILLAGE & POST OFFICE PANJEHRA,
TEHSIL NALAGARH, DISTRICT SOLAN,
(H.P.).
5. ARUNA KUMARI,
DAUGHTER OF SHRI GURMUKH SINGH,
VILLAGE ATHMAN, POST OFFICE KARLUHI,
TEHSIL AMB, DISTRICT UNA, (H.P.).
6. DINESH ANAND,
SON OF SHRI RAM LAL ANAND,
VILLAGE DURAHA, TEHSIL NIRMAND,
DISTRICT KULLU172033.
7. RANJEET BODH,
SON OF SHRI DILE RAM,
VILLAGE HATHITHAN,
POST OFFICE ZIA,
DISTRICT KULLU175125.
8. TANZIN GIAGO,
SON OF SHRI SONAM DARGE,
VILLAGE & POST OFFICE KOLANG,
DISTRICT LAHAULSPITI, (H.P.).
9. POOJA SHARMA,
DAUGHTER OF SHRI T.C. SHARMA,
C/O O.P. BHATT, NEAR SILVER OAK'S HOTEL,
BANDLA ROAD, PALAMPUR,
DISTRICT KANGRA176061.
10. INDER SINGH SOHAL,
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SON OF SHRI HARI SINGH,
VILLAGE KHAROLI,
POST OFFICE GANGATH,
TEHSIL NURPUR, DISTRICT KANGRA176204.
.
11. ANURADHA,
DAUGHTER OF SHRI JAGDISH CHAND,
VILLAGE & POST OFFICE NAROLA,
TEHSIL SARKAGHAT,
DISTRICT MANDI 175033, (H.P.).
12. NAMISH SHARMA,
DAUGHTER OF SHRI B.D. SHARMA,
VILLAGE & POST OFFICE KHARUL,
VIA DAROH, TEHSIL PALAMPUR,
DISTRICT KANGRA (H.P.).
13. MANJIT RANA,
SON OF SHRI R.P. RANA,
C/O GOVERNOR'S SECRETARIAT,
RAJBHAWAN, SHIMLA171002.
14. PARUL KAPIL,
DAUGHTER OF SHRI HANS RAJ KAPIL,
NEAR P.G. COLLEGE,
DISTRICTBILASPUR174001, (H.P.).
15. SARITA KUMARI,
DAUGHTER OF SHRI HIMMAT SINGH THAKUR,
VILLAGE & POST OFFICETISSA,
TEHSIL CHURAH, DISTRICT CHAMBA,
176316, (H.P.).
16. VIKRAM GUPTA,
SON OF SHRI YOGESH GUPTA,
HOUSE NO. 2717/10,
NEAR RANITAL, NAHAN,
DISTRICT SIRMOUR173001, (H.P.).
17. SUNNY BANGA,
SON SHRI TILAK RAJ,
BINDRA COTTAGE, DINGU MANDIR ROAD,
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SANJAULI, SHIMLA171006.
18. VIVEK MALHAN,
SON OF SHRI VARINDER KUMAR,
.
S3/45, BBMB COLONY,
SUNDERNAGAR, DISTRICT MANDI (H.P.).
19. RAJAT CHAUHAN,
SON OF SHRI INDERJIT CHAUHAN,
DHANLAIK NIWAS, NEAR FROOD KAMLA NAGAR,
SANJAULI, SHIMLA171006, (H.P.).
20. ADITYA BHRDWAJ,
SON OF SHRI RATTAN LAL BHARDWAJ,
VILLAGE DHOG, POST OFFICE JAJWIN,
TEHSIL JHANDUTTA,
DISTRICT BILASPUR (H.P.).
21. SHRUTI VAID,
DAUGHTER OF SHRI KAMLESH CHAND VAID,
KUTHIALA MOHALLA,
VILLAGE & POST OFFICE PARAGPUR,
TEHSIL DEHRA, DISTRICT KANGRA,
177107, (H.P.).
22. SAMEER SHARMA,
SON OFSHRI AJEET KUMAR SHARMA,
VILLAGE & POST OFFICE CHMNED,
TEHSIL & DISTRICT HAMIRPUR,
177029, (H.P.).
23. KUNAL RAWAT,
SON OF SHRI BAL KRISHAN RAWAT,
THROCHHOUSE, SANJAULI,
SHIMLA171006, (H.P.).
24. ISHA AUMTA,
DAUGHTER OF ER. K.L. AUMTA,
AUMTA COTTAGE, NEARBALI COTTAGE,
SANJAULI, SHIMLA171006, (H.P.).
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25. NEHA SHARMA,
DAUGHTER OF SHRI T.D. SHARMA,
C/O T.D. SHARMA, DIRECTOR IGCP,
PALAMPUR, DISTRICT KANGRA (H.P.)
.
AT PRESENT C/O PROJECT DIRECTOR,
SWAN PROJECT, UNA174303, HP.
26. MOHIT PRASHAR,
SON OF SHRI PRITAM CHAND PRASHAR,
VILLAGE & POST OFFICE SERAVIA NADUAN,
DISTRICT HAMIRPUR (H.P.).
....RESPONDENTS
(SH. AJAY VAIDYA, SR. ADDL. A.G. FOR R1 AND 2).
(SH. SANJEEV BHUSHAN, SR. ADVOCATE WITH SH.
RAJESH KUMAR, ADVOCATE, FOR R3, 5, 14 AND 15)
(SH. RAVINDER SINGH JASWAL, ADVOCATE, FOR R4, 8,
10,11, 21 AND 22)
(SH. C.N. SINGH, ADVOCATE, FOR R6, 7, 13, 18 AND 20.)
2. CIVIL WRIT PETITION NO. 879 OF 2016
Beteen:
CAPT. JAGDISH CHAND VERMA,
S/OLATE SH. LASHKARI RAM,
R/O VPO NAROLA, DISTT. MANDI,
HIMACHAL PRADESH.
.....PETITIONER
(BY SH. RAVINDER SINGH JASWAL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY TO
GOVERNMENT OF HIMACHAL PRADESH,
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SHIMLA02, HIMACHAL PRADESH.
2. THE SECRETARY (LAW),
TO THE GOVERNMENT OF
.
HIMACHAL PRADESH, SHIMLA02,
HIMACHAL PRADESH.
3. THE SECRETARY (HEALTH)
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA02
HIMACHAL PRADESH.
4. THE DIRECTORATE,
MEDICAL EDUCATION AND RESEARCH,
HIMACHAL PRADESH, SHIMLA09
HIMACHAL PRADESH.
5. HIMACHAL PRADESH UNIVERSITY
THROUGH ITS REGISTRAR,
SUMMER HILL, SHIMLA05,
HIMACHAL PRADESH.
6. BHOJIA DENTAL COLLEGE & HOSPITAL,
CHANDIGARHNALAGARH ROAD,
BUDH (BADDI), TEHSIL NALAGARH,
DISTT. SOLAN, HIMACHAL PRADESH,
THROUGH ITS SECRETARY.
7. BHOJIA CHARITABLE TRUST FOR SCIENCE,
RESEARCH & SOCIAL WELFARE,
SCO 855, MANIMAJRA, CHANDIGARH (UT)
THROUGH ITS SECRETARY.
.....RESPONDENTS
(SH. AJAY VAIDYA, SR. ADDL. A.G., FOR R1 TO 4)
(SH. RAJNISH MANIKTALA, SR. ADVOCATE WITH SH.
NARESH VERMA, ADVOCATE, FOR R6 AND 7).
3. CIVIL WRIT PETITION NO. 3145 OF 2016
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1. DINESH ANAND,
S/O SHRI RAM LAL ANAND,
VILLAGE DURAHA, TEHSIL NIRMAND,
.
DISTRICT KULLU172033.
2. ADITYA BHARDWAJ,
S/O SHRI RATTAN LAL BHARDWAJ,
VILLAGE DHOG, P.O. JAJWIN,
TEHSIL JHANDUTTA,
DISTRICT BILASPUR, H.P.
3. RANJIT BODH,
S/O SHRI DILE RAM,
VILLAGE HATHITHA, P.O. ZIA,
DISTRICT KULLU175125.
4. MANJIT RANA,
S/O SHRI R.P. RANA,
C/O SH. P.S. RANA, GOVERNOR'S
SECRETARIAT, RAJBHAWAN,
SHIMLA171002.
5. VIVEK MALHAN,
S/O SH. VARINDER KUMAR,
S4/42, BBMB COLONY,
SUNDERNAGAR, DISTRICT MANDI, H.P.
....PETITIONERS
(BY SH. C.N. SINGH, ADVOCATE)
AND
1. STATE OF H.P.
THROUGH ADDITIONAL CHIEF SECRETARY (HEALTH)
TO THE GOVT. OF HIMACHAL PRADESH,
SHIMLA2, H.P.
2. FEE COMMITTEE,
THROUGH ITS CHAIRMAN
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(ADDITIONAL CHIEF SECRETARY (HEALTH)
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA2, H.P.
.
3. DIRECTOR,
MEDICAL EDUCATION AND RESEARCH,
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA9, H.P.
4. BHOJIA DENTAL COLLEGE,
CHANDIGARHNALAGARH ROAD,
BUDH (BADDI), TEHSIL NALAGARH,
DISTRICT SOLAN, H.P., THROUGH
ITS SECRETARH.
5. BHOJIA CHARITABLE TRUST FOR SCIENCE,
RESEARCH & SOCIAL WELFARE,
SCO 855 MANIMAJRA, CHANDIGARH (UT)
THROUGH ITS SECRETARY.
...RESPONDENTS
(SH. AJAY VAIDYA, SR. ADDL. A.G. FOR 1 TO 3)
(SH. RAJNISH MANIKTALA, SR. ADVOCATE WITH SH.
NARESH VERMA, ADVOCATE, FOR R4 AND 5).
4. EXECUTION PETITION 157 OF 2016.
Between:
1. BHOJIA CHARITABLE TRUST FOR
SCIENCE, RESEARCH & SOCIAL WELFARE,
SCO 855, MANIMAJRA, CHANDIGARH (UT),
THROUGH ITS SECRETARY.
2. BHOJIA DENTAL COLLEGE,
CHANDIGARHNALAGARH ROAD,
BUDH, (BADDI), TEHSIL NALAGARH,
DISTRICT SOLAN, (H.P.),
THROUGH ITS SECRETARY.
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(BY SH. RAJNISH MANIKTALA SR. ADVOCATE WITH SH.
NARESH VERMA, ADVOCATE).
.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY (HEALTH),
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA171002 (H.P.).
2. DIRECTOR,
MEDICAL EDUCATION & RESEARCH,
HIMACHAL PRADESH,
BLOCK NO.18B, SDA COMPLEX,
KASUMPTI, SHIMLA171009, (H.P.).
3. ASHISH KUMAR,
SON OF SHRI PIRTHI CHAND,
VILLAGE KALRUHI, POST OFFICE AMB,
TEHSIL AMB, DISTRICT UNA (H.P.)
PIN 177203.
4. MANISHA KAPILA,
DAUGHTER OF DR. RATTAN CHAND,
SET NO. 6, WILLY'S PARK,
NEAR CHAURA MAIDAN,
SHIMLA171004, (H.P.).
5. NARENDER KUMAR,
SON OF SHRISIDHU RAM,
VILLAGE CHACHOGA, POST OFFICE MANALI,
DISTRICT KULLU (H.P.) PIN 175131.
6. RAJAT SAHOTRA,
SON OF SHRI P.C. SAHOTRA,
C/O KAPOOR CHAND,
VILLAGE KUTHIANA, POST OFFICE DANGRI,
TEHSIL & DISTRICT HAMIRPUR (H.P.)
PIN 171042.
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7. SANCHETNA JARIYAL,
DAUGHTER OF SHRI RAM ALAL,
VILLAGE CHADIYARA, POST OFFICE GUTKAR,
TEHSIL SADAR, DISTRICT MANDI (H.P.),
.
PIN175021.
8. NIVEDITA GAZTA,
DAUGHTER OF LATE COL. L.R. GAZTA,
C/O MS. KANTA GAZTA, 6401B,
RAJEEV VIHAR BY AWHO,
MANIMAJRA, CHANDIGARH PIN 160101.
9. VIKAS SHARMA,
SON OF SHRI SUKHDEV SHARMA,
VILLAGE KWANGALTA, P.O. SALOUNI,
TEHSIL BARSAR, DISTRICT HAMIRPUR (H.P.).
10. VIJAYENDRA SINGH CHANDEL,
SON OF SUBEDAR CHARAN SINGH CHANDEL,
VILLAGE & POST OFFICE NANGAL,
TEHSIL NALAGARH, DISTRICT SOLAN (H.P.).
11. SHIKHA BAKSHI,
DAUGHTER OF LT. COL. S.R. BAKSHI,
HOUSE NO. 2628/1,
SECTOR 47c, CHANDIGARH.
12. BHAWNA SINGAL,
DAUGHTER OF SHRI AMIN CHAND SANGAL,
HOUSE NO. 204 SECTOR 46A,
CHANDIGARH. PIN 160047.
13. SAMITA DEVI,
DAUGHTER OF SHRI SURINDER KUMAR,
WARD NO.4, NEAR PROF. COLONY,
MALAHAT NAGAR, UNA (H.P.).
14. DIMPAL DEHAL,
DAUGHTER OF SHRI BALDEV DAHAL,
VILLAGE & POST OFFICE CHAKMOH,
TEHSIL BARSAR, DISTRICT HAMIRPUR
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(H.P.) PIN174312.
15. BHABHISHAN KUMAR,
SON OF SHRI SUSHIL KUMAR,
.
VILLAGE SUNEHRA, P.O. UNA,
TEHSIL & DISTRICT UNA
(H.P.) PIN 174303.
16. JATINDER KUMAR,
SON OF SHRI MAST RAM,
VILLAGE AND POST OFFICE JEJWIN
TEHSIL JHANDUTTA, DISTRICT
BILASPUR (H.P.) PIN 174031.
17. ASHIMA BANSAL,
DAUGHTER OF SHRI SUNIL BANSAL,
HOUSE NO. 1455, KAMLA NAGAR,
KALKA DISTT. PANCHKULA
(HARYANA) PIN 133302.
18. SONAL CHOPRA,
DAUGHTER OF SHRI VIJAY KUMAR CHOPRA,
JAGDAMBA BHAWAN, WARD NO.7,
HOUSE NO. 108, HAMIRPUR (H.P.)
PIN 177001.
19. ASHISH SHARMA,
SON OF SHRI TILAK RAJ SHARMA,
KANOL BHAWAN, VIKAS NAGAR,
P.O. KASUMPTI SHIMLA9 (H.P.)
PIN 171009.
20. SHWETA JAGOTA,
DAUGHTER OF SHRI AMAR NATH JAGOTA,
VILLAGE HARKURKAR P.O. &
TEHSIL GHUMRWIN, DISTT. BILASPUR
PIN 174021.
21. PRASHANT GUPTA,
SON OF SHRI RAVI CHAND GUPTA,
VILLAGE & POST OFFICE GURKURI,
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TEHSIL & DISTRICT KANGRA (H.P.)
PIN 176001.
22. POOJA SHARMA,
.
DAUGHTER OF SHRI SURENDER SHARMA
C/O SAROCH PRINTING PRESS,
KACHEHRI ADDA, DHARMSHALA,
DISTRICT KANGRA (H.P.).
23. PRIYANKA,
DAUGHTER OF SHRI HARMESH RAJPOOT,
15, HILL VIEW HOUSING SOCIETY
JHALERA, UNA (H.P.) PIN 174303.
24.
VIJAY KUMAR THAKUR,
S/O SH. K.C. THAKUR,
1415, SAROJININ NAGAR,
NEW DELHI110023 AT PRESENT
VILLAGE KARKUHI, POST OFFICE TULLAH,
TEH. JOGINDAR NAGAR, DISTT MANDI,
(H.P.) PIN175015.
25. MAYANK SHARMA,
S/O SHRI RAJESH SHARMA,
HOUSE NO. 3759, SECTOR 22 D,
CHANDIGARH. PIN160022.
26. RENU KAUSHAL,
DAUGHTER OF SHRI S.P. KAUSHAL,
SHASTRI COLONY, GHUMARWIN,
DISTRICT BILASPUR (H.P.) PIN 174021.
27. NEHA RANA,
DAUGHTER OF SHRI JAGMOHAN KUMAR RANA,
VILLAGE & POST OFFICE DAULATPUR CHOWK,
TEHSIL AMB, DISTRICT UNA,
(H.P.) PIN 177204.
28. RISHAB GUPTA,
SON OF LT. SHRI BALRAJ GUPTA,
HOUSE NO. 2752/10, BARA CHOWK,
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JAIN GALI NAHAN, DISTRICT SIRMOUR
(H.P.) PIN 173001.
29. PUJA CHAUHAN,
.
DAUGHTER OF SHRI SHAYAM SUNDER,
MALONWALA BHOOD, TEHSIL NAHAN
DISTRICT SIRMOUR (H.P.) PIN 173001.
30. ABHINAV KONDAL,
SON OF SHRI R.C. KINDAL,
VILLAGE & POST OFFICE PAPROLA,
TEHSIL BAIJNATH, DISTRICT KANGRA,
(H.P.) PIN 176115.
31. RUPINDER,
SON OF LATE SHRI DHANI RAM,
VILLAGE JAIGARH, POST OFFICE CHOWAI,
TEHSIL ANI, DISTRICT KULLU,
(H.P.) PIN 172032.
32. BINDU BALA,
DAUGHTER OF SHRI KISHNU RAM,
VILLAGE & POST OFFICE GANDHIR,
TEHSIL JHANDUTTA, DISTRICT BILASPUR,
(H.P.) PIN174029.
33. ANKUR DHIMAN,
SON OF SHRI ANIL KUMAR DHIMAN,
VILLAGE DIALRI, POST OFFICE BHORANJ,
TEHSIL BHORANJ, DISTRICT HAMIRPUR,
(H.P.) PIN176045.
34. ROHIT,
SON OF SHRI MANGAL CHAND,
VILLAGE THORANG, POST OFFICE GONDHLA,
DISTRICT LAHAULSPITI, (H.P.)
PIN175140.
35. RUCHI CHOUDHARY,
DAUGHTER OF SHRI SHANTI SAWROOP CHAUDHARY
V.P.O BHARMAR, TEHSIL JAWALI,
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DISTRICT KANGRA (H.P.)
PIN 176021.
36. SHRADHA SHANDIL,
.
DAUGHTER OF SHRI SURESH SHANDIL,
RAMA NEWS AGENCY, THE MALL SHIMLA,
(H.P.) PIN 171001.
37. KARAN KANWAR,
SON OF COL. N.S. KANWAR,
C/O DIRECTOR RVS HEADQUARTERS,
WESTERN COMMAND, CHANDIMANDIR
(HARYANA) PIN134107.
38. SAMRIDHI SHARMA,
DAUGHTER OF SHRI SHAM LAL SHARMA,
VILLAGE & POST OFFICE AMB,
DISTRICT UNA (H.P.) PIN177203.
39. GEETIKA KAUSHAL,
DAUGHTER OF SHRI PAWAN KUMAR KAUSHAL,
HOUSE NO. 44, WARDNO.2, KAUSHAL NIWAS,
NEAR PNB, VILLAGE & POST OFFICE
SANTOKHGARH, TEHSIL & DISTRICT
UNA (H.P.).
40. AASTHA MAHAJAN,
DAUGHTER OF SHRI PRAVEEN KUMAR,
H. NO. 1767/1, SECTOR 39B,
CHANDIGARH. PIN160036.
41. AVNIMAHAJAN,
DAUGHTER OF DR. ANIL MAHAJAN,
SUB DIVISIIONAL HOSPITAL DEHRA GOPIPUR,
DISTRICT KANGRA (H.P.) PIN177101.
42. SANGEETA RANI,
DAUGHTER OF SHRI OMKAR SINGH,
VILLAGE & POST OFFICE BHATOLI,
DISTRICT UNA (H.P.) PIN 174315.
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43. GARIMA MAJAHAN,
DAUGHTER OF BRGD. ARVIND GUPTA,
VILLAGE & POST OFFICE SAMLOTI,
TEHSIL & DISTRICT KANGRA,
.
(H.P.) PIN 176001.
44. VISHAL SHARMA,
SON OF SHRI PARDEEP KUMAR,
VILLAGE & POST OFFICE CHALET,
TEHSIL AMB, DISTRICT UNA,
(H.P.) PIN177204.
45. RHYTHM BHARDWAJ,
SON OF SHRI BISHAN DASS BHARDWAJ,
HOUSE NO. 89, LAKHANPUR,
TEHSIL SADAR, DISTT. BILASPUR,
(H.P.) PIN174001.
46. RAMANPREET KAUR,
D/O SH. SANTOKH SINGH
VILLAGE & POST OFFICE
DEHLAN (UPPER), TEHSIL AND DISTT UNA
(H.P.) PIN174306.
47. AMIT SHARMA,
SON OF SHRI ASHOK KUMAR,
VILLAGE TUKARI, POST OFFICE
DARKATI, TEHSIL JAWALI,
DISTRICT KANGRA, (H.P. PIN176023.
48. PALVI MAJAHAN,
DAUGHTER OF SHRI RISHI MAHAJAN,
FANCY CLOTH HOUSE, HOSPITAL GALI,
KANGRA (H.P.) PIN176001.
49. SHILPA MANKOTIA,
DAUGHTER OF SHRI SURESH SINGH MANKOTIA,
VILLAGE & POST OFFICE PANJAWAR,
DISTRICT UNA (H.P.) PIN177208.
50. NATASHA,
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DAUGHTER OF SHRI HEM RAJ,
WARD NO.4, VIKASNAGAR KHAD PAAR,
NEAR FISHERY DEPARTMENT
UNA, (H.P.).
.
51. MANIK MAJAHAN,
SON OF SHRIAJAY KUMAR,
MOHALLA SAPRI, NEAR BUS STAND,
CHAMBA (H.P.) PIN176310.
52. PREETI SAGAR,
DAUGHTER OF SHRI PREM SAGAR SHARMA
VILLAGE & POST OFFICE DHARAMSAL
MAHATAN, TEHSIL AMB,
DISTRICT UNA (H.P.) PIN177203.
53. PALLAVI SHARMA,
DAUGHTER OF SHRI S.K. SHARMA,
HOUSE NO. 415/1, WARD NO.3,
NEAR CHIEF ENGINEER RESIDENCE (C.Z.)
M.G. ROAD, MANDI (H.P.) PIN175001.
54. JYOTI SHARMA,
SON OF SHRI RAJENDER KUMAR SHARMA,
VILLAGE LADHYANI, POST OFFICE LEHRI SARAIL
TEHSIL GHUMARWIN, DISTRICT BILASPUR,
(H.P.) PIN174027.
55. ABHAY KATOCH,
SON OF SHRI VINOD KATOCH,
VILLAGE PATHIAR, TEHSIL &
DISTRICT KANGRA, (H.P.) PIN176047.
(BY SH. AJAY VAIDYA, SR. ADDL. A.G. FOR R1 & 2.)
(SH. SANJEEV BHUSHAN, SR. ADVOCATE WITH SH.
RAJESH KUMAR, ADVOCATE, FOR R3, 5, 7, 8, 12, 14, 15,
16, 20, 22, 23, 25 TO 28, 30 TO 34, 38 TO 42, 44, 46, 47,
49, 51 TO 55).
Reserved on: 4.10.2021
Decided on:___11.2021
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These petitions coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya, passed the following:
.
ORDER
CWP No. 879 of 2016 and CWP No.3145 of 2016
along with Execution Petition 147 of 2016 in CWP No. 1235 of
2007 and Execution Petition No. 157 of 2016 in CWP No. 384 of
2008 have been heard together and are being decided by a
common judgment on account of involvement of common
questions of facts and law.
2. By way of instant petitions, petitioners have prayed
for following substantive reliefs respectively:
CWP No. 879 of 2016
(i) That the tuition fee for free/merit seats as notified
by the respondent state in notification dated
15.9.2003 for the session 200304 for free/merit
seats (i.e Rs. 20,000/ per seat per annum) may
kindly be held applicable.
(ii) That the notification No. HFWB(E)38/2014 dated
7.11.2015 i.e. Annexure P2 which has been issued
in violation of Apex Courts judgment and the
direction of this Court may be kindly be quashed
and set aside and declared null and void.
(iii) That notice reference No. BDC/BHUD/CWP
1235FR/SF16716089 dated 23.11.2015 i.e
Annexure P1 issued in violation the Apex Court
.
Judgment and the directions of this Court may also
be quashed and set aside in view of the above
submissions.
CWP No.3145 of 2016
a. Issue a writ of certiorari, mandamus or appropriate
writ order or direction as this Hon'ble Court deems
fit quashing notification dated 17.11.2015
(Annexure P6) passed by respondent No.1.
b. Issue a writ of certiorari, mandamus or appropriate
writ order or direction as this Hon'ble Court deems
fit quashing the decision dated 17.7.2015 (Annexure
P5) passed by respondent No.4/ fee committee held
on 17.7.2015 for all intents and purposes.
c. Issue a writ of certiorari, mandamus as this Hon'ble
Court deems fit quashing he very constitution of
respondent No.2 "Fee Committee" by respondents
being in defiance, noncompliance to the judgment
dated 17.9.2013 passed by the Hon'ble Court in
CWP No. 1235 of 2007 (Bhojia Dental College Vs
State of H.P. and others) and CWP No. 384 of 2008 )
Bhojia Charitable Trust and another Vs State of H.P.
and others) for all intents and purposes.
d. Issue a writ of certiorari, mandamus as this Hon'ble
Court deems fit upholding the tuition fee as
prescribed vide notification No. HFWB(F)510/94
.
loose dated 15.9.2003, for the academic session of
200304 in respect of BDS course of Private Dental
Colleges of Himachal Pradesh, may be upheld.
Execution Petition No. 147 of 2016 in CWP No. 1235 of
(A) That the respondents 3 to 26 may be directed to pay
the amount of balance fee as per details given in the
body of petition.
(B) That the necessary certificate for the amount to be
recovered from each respondent student as per
details given in the body of the petition may be
ordered to be given in favour of the petitioner.
Execution Petition No. 157 of 2016 in CWP No. 384 of 2008
(A) That the respondents 3 to 55 may be directed to pay
the amount of balance fee as per details given in the
body of petition.
(B) That the necessary certificate for the amount to be
recovered from each respondent student as per
details given in the body of the petition may be
ordered to be given in favour of the petitioner.
3. Petitioner in CWP 879 of 2016 is father of Ms.
Anuradha, who along with petitioners in CWP No. 3145 of 2016
were students of BDS course, commencing from 200304, in
Bhojia Dental College and Hospital, Bhud, Nalagarh, Distt.
.
Solan (HP) (for short, "Bhojia Dental College").
4. Government of Himachal Pradesh, after decision of
Supreme Court in Islamic Academy of Education versus
State of Karnataka, issued notification dated 15.9.2003,
whereby the fee structure of Private Dental Colleges for
academic session 200304 was determined. A sum of Rs.
20,000/ per student per annum was determined for 50% seats
of Govt. sponsored students and Rs. 2.5 Lakhs per student per
annum was fixed for 50% seats of management quota. These
amounts, however, were inclusive of all charges except
refundable security.
5. Vide notification dated 13.2.2004 Government of
Himachal Pradesh constituted Fee Structure Committee for
academic session 200405. The committee submitted
provisional fee structure at Rs. 85,000/ for academic session
200405 for Bhojia Dental College in respect of both State as
well as Management quotas. This provisional fee structure was
subject matter of CWP No. 22 of 2004 and connected matters.
The Division Bench of this Court vide decision dated
22.12.2004 disposed of the matters on the basis of consensus
arrived at between the parties to the effect that the Fee
.
Structure Committee may be directed to reassess, reevaluate,
reexamine and reconsider the entire gamut of the fee
structure and all issues relating thereto with a view to find out,
determine and ultimately prescribe a final fee structure, totally
uninfluenced by the provisional fee structure already adopted/
assessed by it. Accordingly, directions were issued. It was also
noted by the court that the committee while determining the
final fee structure would also consider the cases of students
who were admitted prior to academic session 200405.
6. Consequent upon the directions issued by High
Court, the Fee Structure Committee submitted its
recommendations to the State Government, who in turn, issued
communication dated 28.7.2005 prescribing the fee for
academic sessions 200304, 200404 and 200506. As regards
Bhojia Dental College, final fee was fixed at Rs. 84,000/ per
annum per student for both the categories i.e. free seats and
management seats. This fee structure was challenged by
students admitted in 200304 before this Court in CWP No.856
of 2005. The challenge was rejected by the court holding that
judicial review of the decision of the Committee was not
possible.
.
7. The State Legislature enacted The Himachal
Pradesh Unaided Dental Colleges (Regulation of Admission and
Fixation of Fee for Academic Year 200304) Act, 2006 (for short,
"First Act of 2006"). Section 4 of the Act read as under:
"4. Fixation and Regulation of Fee:
Notwithstanding anything contained in any order or
judgment passed by any competent Court or any
order, notification or instruction issued, the
students admitted against Government quota (merit
seats) during academic year 200304 in Private
Unaided Dental Colleges in the state shall continue
to pay fee for the academic year 20032004
according to fee structure issued vide notification
No. HFWB(F)510/94loose, dated 15.9.2003 for the
entire academic course of Bachelor of Dental
Surgery."
8. The State Legislature enacted another Act titled as
Himachal Pradesh Private Medical Educational Institutions
(Regulation of Admission and Fixation of Fee) Act, 2006 (for
short, "Second Act of 2006"). Section 3 of this Act provides for
Regulation of Admission, fixation of fee and making of
reservation for different categories in admissions to Private
Medical Educational Institutions. Sub section (3) of Section 3 of
said Act reads as under:
.
"3(3) The State Government may constitute an
Admission and Fee committee (hereinafter referred
to as the 'Committee') consisting of such members
as may be specified by the State Government, by
notification, to recommend the mode of admission,
making of reservation, allocation of seats and
fixation of fees etc. to the State Government."
Section 7 of the Act read as under:
"7.
r Fixation of Fees: (1) The State government
while determining, or the Committee constituted
under sub section (3) of section 3 while
recommending to the State Government, the fee to
be charged by a Private Medical Education
Institution, shall consider the following factors:
(a) The location of the institution;
(b) The nature of the medical course;
(c) The cost of land and building;
(d) The available infrastructure and equipment;
(e) The expenditure incurred or being incurred on
faculty, administration and maintenance;
(f) The reasonable profit required for the growth and
development of the institution;
(g) Any other relevant factor, which the State
Government deems just and appropriate for the
determination of fee.
(2) Before determining fee under sub section (1),
the State Government or the said Committee, as
the case may be, shall give the concerned Private
.
Medical Educational Institutions and the
representatives of the students already studying in
such institutions and the representatives of the
students who intend to seek admission in these
institutions, a reasonable opportunity to express
their view point in writing in respect to the fee
determination.
(3) Notwithstanding anything contained in sub
sections (1) and (2), the State Government may, in
public interest, determine a provisional fee
structure.
Provided that the fee shall be fixed in
accordance with the provisions of sub section (1)
and sub section (2) within a period of ninety days
from the fixation of such provisional fee.
(4) Notwithstanding anything contained in sub
sections (1) and (2), the State Government shall
have power to review the fee structure fixed by the
Committee, prior to commencement of this Act.
9. The Government of Himachal Pradesh vide
notification dated 8.12.2006 fixed the provisional fee for the
state quota students admitted in the academic years 200405
and 200506 at Rs. 50,000/ till the final outcome of the
recommendation of the Review Committee. The Review
Committee took final decision on 2.6.2008 and recommended
.
the fee of Rs. 50,000/ per student per annum for students
admitted against state quota seats during the academic years
200405 and 200506.
10. Whereas Section 4 of the First Act of 2006 was
challenged in CWP No. 1235 of 2007 before this Court,
and recommendation
r to
notification dated 8.12.2006 issued by the State Government
dated 2.6.2008 made by Review
Committee was challenged in CWP No. 384 of 2008. Both the
writ petitions were filed by Bhojia Dental College. Division
Bench of High Court vide common judgment dated 17.9.2013
passed in CWP. Nos 1235 of 2007 and 384 of 2008 held section
4 of the First Act of 2006 invalid and null and void and as
concomitant entire Act was rendered unenforceable and
redundant. The decision of Review Committee dated 2.6.2008
was also quashed and set aside. The Division Bench of this
Court in paras 40 to 43 of the said judgment held as under:
"40. Having said this, the next question is what
must be the fee structure of the petitioner
College for the relevant academic sessions
200304, 200405 and 200506. Should it be
on the basis of the notifications, dated
15.9.2003 and 28.7.2005, as claimed by the
petitioners? Indisputably, after notification
.
dated 28.7.2005, the issue was required to be
examined by the Review Committee
constituted under section 7 of the Second Act
of 2006. The Review Committee was
constituted under Section 7(4) of the said Act
vide notification dated 24.11.2006, to review
the fee structure fixed earlier in respect of
Private Unaided Dental Colleges in Himachal
Pradesh. Neither this notification nor Section 7
of the Second Act of 2006 has been challenged
by the petitioners before us. Whereas, the
petitioners participated in the proceedings
before the Review Committee so constituted.
This Committee has determined the "final fee
structure" for the relevant academic sessions
200304, 200405 and 200506. Vide decision
dated 2.8.2008. It is a different matter that we
have set aside that decision in terms of this
judgment. That, however, does not follow that
the communication dated 28.7.2005
prescribing the fee structure for Private
Unaided Dental Colleges in the context of final
fee fixed by the Fee Structure Committee can
be taken forward. Notably, the review
committee was constituted in exercise of
statutory powers under section 7(4) of the
Second Act of 2006 to review the fee structure
for the relevant academic sessions determined
.
by the Fee Structure Committee. This being a
statutory committee and the notification to
constitute the said committee having not been
challenged, coupled with the fact that the
petitioners participated in the proceedings
before the review committee, the petitioners
cannot be permitted to fall back on the fee
r determined by the Fee Structure Committee
for academic sessions 200304, 200405 and
200506, and notified in terms of
communication dated 28.7.2005 or 15.9.2003.
In other words, the Review Committee
( Statutory Committee) must first examine the
issue of fee structure keeping in mind the
exposition of the Constitution Bench of the
Apex Court in the aforenoted decisions.
41. Having set aside the decision of the Review
Committee, the only logical direction that
needs to be issued is to direct the Review
Committee to reexamine the entire matter
afresh and pass appropriate directions as may
be advised, in accordance with law,
expeditiously and preferably within 8 weeks
from today. If the Review Committee upholds
the claim of the petitioners, the petitioners
would become entitled to recover deficit
amount from its students admitted in the
college for the concerned academic years
.
200304 to 200506.
42. In view of above, we dispose of both the
petitions on the following basis:
i) Section 4 of the Himachal Pradesh Private
Unaided Dental Colleges (Regulation of
Admissions and Fixation of Fee for Academic
year 200304) Act, 2006 is declared illegal and
r null and void.
ii) The decision of the Review Committee in its
meeting held on 13.5.2008 and notified vide
notification dated 2.6.2008 (Annexure P11 in
CWP No. 384 of 2008) is quashed and set
aside. Instead, the petitioners are relegated
before the same review committee for
reconsideration of the entire matter afresh in
accordance with law, expeditiously and not
later than 8 weeks from today after giving fair
opportunity to the petitioners.
iii) Until the Review Committee finally
determines the fee structure for the academic
years 200304, 200405 and 200506,
respectively, the petitioners shall not recover
any further amount from the students
admitted in the concerned academic years
200304, 200405 and 200506 save and
except the fee already collected. However, in
the event of Review Committee determines the
final fee structure for the concerned academic
.
years and if the same is in excess of the
prescribed amount already collected by the
petitioners, the petitioners would be free to
recover such excess amount from its students,
in accordance with law.
43. Both the petitions are disposed of with the
above observations, with no orders as to costs.
11. The Review Committee vide proceedings dated
17.7.2015 decided that Bhojia Dental College will charge Rs.
84,000/ per student per annum from the batches of students
of BDS course of the academic years 200304, 200405 and
200506. Government of Himachal Pradesh notified the said
decision of Review Committee vide Notification dated
17.11.2015.
12. Petitioners in the instant petitions have assailed the
abovementioned notification dated 17.11.2015 issued by the
State Government and also the decision dated 17.7.2015 of the
Review Committee.
13. Petitioners have alleged that the constitution of the
Committee was bad in law as the State Government had not
taken any steps to nominate retired High Court Judge,
Chartered Accountant, representative of MCI and AICTE etc to
.
the committee in accordance with the mandate of Apex Court.
The constitution of Review Committee has also been challenged
on the ground that it was not the same which had taken
decision dated 13.5.2008. Petitioners were not afforded
opportunity of being heard. Fixation of fee at Rs. 84,000/ per
annum was in violation of judgment dated 17.9.2013 of this
court in CWP No. 1235 of 2007, whereby the decision of Fee
Structure Committee dated 17.7.2005 fixing the fee at Rs.
84,000/ per annum had been set aside. It has also been
contended that Review Committee had not applied its mind in
as much as the fee fixed for 201516 session was Rs. 73,000/
per annum for free/ merit seats. Further the challenge has
been made on the ground that the impugned notification and
decision of Review Committee was in violation of Directions of
Apex Court judgment in Islamic Academy of Education Vs State
of Karnataka as the Review Committee had blatantly neglected
the fixed criteria of 6% to 15% as surplus for expansion of the
system and development of education. As per petitioners the
State Government had issued impugned notification only to
further the business interest of Bhojia Dental College, which
was not running educational institution for charitable
.
purposes. The decision of the State Government has also been
assailed on the ground of financial constraints of the
petitioners. It has been alleged, had they known before getting
admitted to BDS course that they would be charged such huge
fee, they would have not got themselves admitted.
14. The official
respondents have supported
justified their action being in accordance with the mandate of
r and
Apex Court as well as this Court. It has been stated that the fee
for academic sessions 200304 to 200506 was fixed strictly in
accordance with the established guidelines and criteria.
15. Bhojia Dental College has also contested the claim
of petitioners. After narrating the entire sequence of events on
factual side has controverted the allegations of the petitioners.
It has been asserted that the fixation of fee by the Review
Committee vide proceedings dated 17.7.2015 and notified by
the State Government vide notification dated 17.11.2015 was
strictly in compliance to law laid down by Constitution Bench of
Apex Court in TMA Pai and Islamic Academy of Education and
also to the directions issued by this Court in CWP No. 1235 of
2007. In CWP 879 of 2016, the petition is stated to be not
maintainable on behalf of the father of the student, who herself
.
was major on the date of filing of petition.
16. We have heard the parties and have also gone
through the records.
17. The Division Bench of this Court while rendering
judgment dated 17.9.2013 in CWP Nos. 1235 of 2007 and 384
of 2008 had taken note of exposition made by Constitution
Benches of Apex Court in TMA Pai, Islamic Academy of
Education and P.A. Inamdar and had observed in para 21 as
under:
"21. From the extracted portion of the aforesaid
decisions, there is no manner of doubt that it is the
prerogative muchless right of the educational
institution to decide its own fee structure. The
Review Committee has to evaluate as to whether
that fee structure does or does not result in
profiteering, commercialization or demanding
capitation fee. The Review Committee is expected to
examine the justification given by the educational
institution and record its satisfaction, one way or
the other, by a speaking order and reasons to be
recorded therefor. The Committee has to bear in
mind broad contours delineated by the Apex Court
in paragraph 155 of the Islamic Academy and
paragraph 149 of P.A. Inamdar(supra).
18. Indisputably, the judgment passed by the Division
.
Bench of this Court in CWP Nos 1235 of 2007 and 384 of 2008
has attained finality. Petitioners in CWP No. 879 of 2016 and
daughter of petitioner in CWP 3145 of 2016 were parties to the
above noted lis in CWP No. 1235 of 2007. Resultantly, the
legality and validity of the impugned notification dated
17.11.2015 of the State Government and decision dated
17.7.2015 of Review Committee can be tested only to the
limited extent, whether the same are in conformity with the
directions issued by this court?
19. Judged on the touchstone of above noticed
observations/directions, the decision of Review Committee
dated 17.7.2015 cannot be faulted. Perusal of minutes of
meeting of Review Committee reveal that after taking into
consideration the past instances of fee fixation having taken
place from time to time it was noted in paragraphs 4 and 6 as
under:
"4. The committee reviewed the income
expenditure statement submitted by the applicant
i.e. Shri Vikram Bhojia, Secretary, Bhojia Dental
College, Bhud, Nalagarh, District Solan. The
committee also reviewed the three options of fee
structure of BDS course submitted by the applicant
.
for the academic years under reference. The
applicant submitted that (a) if the fees is fixed @ Rs.
20,000/ for state quota and @ Rs. 2.50 Lakh for
management quota seats, the net receipt would be
Rs. 2,73,20,100/ and (b) if the fees is fixed @ Rs.
84,000/ for all seats, then total receipt will be Rs.
1,81,44,000/ and (c) further if the fees is fixed @
Rs.r 20,000/ for state quota seats and Rs.
84,0000/ for management quota seats, the receipt
would be Rs. 86,32,000/. The applicant further
submitted that if the committee refixes the fees as
per option (a), the institute will be in profit, if the
fees is fixed as per option (b), there will be no profit
or no loss and if the option (c) is chosen then the
institute will be in loss.
6.The committee noted that as per law laid down by
the Apex Court, the committee was required to
review and moderate the fee structure to be
proposed by the college. In the instant case, the fee
was to be reviewed for three years commencing 2003
onwards. Students admitted to these sessions had
already passed out and the college would have to
resort to innovative mechanism to recover the
amount due or refund the excess fees received. The
committee further observed that expenditure figures
in respect of 200304, 200405 and 200506 had
already achieved finality as audited balance sheets
and statements of accounts were available. The only
.
variable was the tuition fee. In view of the three
options given by the applicant college, option No. II
was the only permissible option that could be
considered."
20. At this stage we find it appropriate to quote
paragraph 155 of Islamic Academy of Education and Paragraph
149 of P.A. Inamdar:
"155. While determining the fee structure, safeguard
has to be provided for so that professional
institutions do not become auction houses for the
purposes of selling seats. Having regard to the
statement of law laid down in para 56 of the
judgment, it would have been better, if sufficient
guidelines could have been provided for. Such a task
which is difficult one has to be left to the
Committee. While fixing he fee structure the
committee shall also take into consideration, inter
alia, the salary or remuneration paid to the
members of faculty and other staff, the investments
made by them, the infrastructure provided and the
plans for the future development of the institution
as also expansion of the educational institution,
Future planning or improvement of facilities may be
provided for. An institution may want to invest in an
expansive device ( for medical colleges) or a powerful
computer (for technical college). Those factors are
also required to be taken care of. The State must
.
evolve a detailed procedure for constitution and
smooth functioning of the committee."
"149. However, we would like to sound a note of
caution to such committees. The learned counsel
appearing for the petitioners have severely criticised
the functioning of some of the committees so
constituted. It was pointed out by citing concrete
examples
r that some of the Committees have
indulged in assuming such powers and performing
such functions as were never given or intended to be
given to them by Islamic Academy. Certain decisions
of some of the Committees were subjected to serious
criticism by pointing out that the fee structure
approved by them was abysmally low which has
rendered the functioning of the institutions almost
impossible or made the institutions run into losses.
In some of the institutions, the teachers have left
their job and migrated to other institutions as it was
not possible for the management to retain talented
and highly qualified teachers against the salary
permitted by the Committees. Retired High Court
judges heading the committees are assisted by
experts in accounts and management. They also
have benefit of hearing the contending parties. We
expect the committees, so long as they remain
functional, to be more sensitive and to act rationally
and reasonably with due regards for realities. They
should refrain from generalising fee structure and,
.
where needed, should go into accounts, schemes,
plans and budgets of an individual institution for
the purpose of finding out what would be an ideal
and reasonable fee structure for that institution."
21. Thus, what was required from Review Committee
was to ensure that the fixation of fee was recommended in the
manner which on one hand would not unduly enrich the
educational institution so as to make it profitable institution
and on the other hand would not render it financially unviable.
In the instant case the audited balance sheets for the relevant
years as also account statements of the institution were before
the Review Committee. On the basis of such accounts three
different options were proposed. The Review Committee
recommended the option which in its opinion was best suited in
the facts of the case. There was nothing before the Review
Committee suggesting that there was some component of
capitation fee in the proposed options. In fact, options mooted
by the institutions were nothing but permutations and
combinations of different fee structures proposed or employed
in the past. It can also not be said that the recommended fee
structure would in any manner have taken out the institution
from category of charitable institution or had made it a
.
commercial organisation. In either of the petitions before us the
petitioners have not placed on record any material to doubt the
bonafide of the Review Committee in decision making. It is
equally noteworthy that the findings recorded by the Review
Committee on the basis of accounts before it has not been
proved to be incorrect.
We cannot lose sight of another fact
that vide judgment dated 6.12.2005 in CWP No. 856 of 2005
Division Bench of this Court had upheld the fee structure for
academic year 200304 for Bhojia dental College at Rs.
84,000/ per annum for all category of seats after holding that
the committee, which was constituted for the purpose had
taken into consideration all the matters, which ought to have
been taken into consideration. Accordingly, the court had
refused to go into merits of the case by judicial review. This
judgment had also attained finality. That being so, the specific
findings recorded in the above noted judgment is a definite
indicator that the fee fixed by Review Committee vide impugned
decision is not exorbitant.
22. As regards, objection as to constitution of Review
Committee, it has been stated that the Review Committee was
.
not constituted in accordance with the direction passed by Apex
Court and also that the committee that took the impugned
decision was not the same that had taken decision dated
13.5.2008. The objection deserves to be rejected for the reason
that after coming into force of Second Act of 2006, the statutory
committees envisaged therein had substituted the committee
suggested by Apex Court in TMA Pai. The said Act provided for
constitution of committee by the State Government by
notification. Thus, the statutory committee under the Act has to
be viewed as an institution in perpetuity notwithstanding its
membership being changed from time to time.
23. Another objection raised by the petitioners is that
they were not afforded any opportunity of being heard by the
committee before taking the decision which ultimately affected
them. The matter was referred to the Review Committee under
the directions of Division Bench of this Court in CWP NO. 1235
of 2007 whereby the said committee was under no mandate to
afford opportunity of being heard to the petitioners herein. In
another view of the matter the power to review the fee structure
fixed by any committee before commencement of Second Act of
2006 is vested with State Government under Section 7(4) of
.
said Act, which does not envisage any such opportunity. Even
otherwise Section 7(2) provides for opportunity to express view
point in writing, before committee determining fee structure
under section 7(1), to the representatives of the students who
either were already studying in the educational institution
concerned or were seeking admission. In none of the cases the
petitioners herein were entitled to be heard by the Review
Committee as they had passed out from the institutions long
back and also that the fee structure was not being determined
under sub section (1) of Section 7 of Second Act of 2006. It is
not the case that the petitioners herein were not aware about
the decision rendered by Division Bench of this Court in CWP
No. 1235 of 2007 and CWP No. 384 of 2008 as they were
parties to said litigation. Had they been serious in their
endeavour, they could have easily approached the Review
Committee with the material, if any, to dislodge the claim of
Bhojia Dental College. The petitioners have also not been able
to produce before us any material which may cast some doubt
on the proceedings of the Review Committee or its ultimate
analysis. The petitioners have been afforded sufficient
opportunity of hearing in the present petitions and their
.
inability to show any serious prejudice to their rights on
account of their nonparticipation in the proceedings of Review
Committee otherwise pales into insignificance. It is significant
to notice that students of Bhojia Dental College had
represented to the committee against imposition of Rs 84,000/
fee for all categories of students for academic years 200304 to
200506. The committee had considered and rejected their
objections in its meeting dated 8.12.2015 and there is no
challenge to such findings of the committee in the instant
petitions.
24. Petitioners have contended that for 201516 session
the same committee has fixed the fee for state quota seats @
Rs. 73,000/ per annum, thus it was absurd that the fee for
academic sessions 200304 to 200506 was fixed at
Rs.84,000/ per annum. Perusal of minutes of meeting dated
8.12.2015 reveal firstly that the constitution of committee was
substantially not the same and secondly the recommendation
made by said committee was in the context of notification dated
27.5.2014 whereby three tier fee structure for state quota
students of BDS course in Private Dental Colleges in the State
was prescribed. In any case the proceedings dated 28.12.2015
.
of the committee is not in challenge before us nor are we seized
of material to adjudicate upon its legality or otherwise. It is also
not clear whether the recommendation of said committee has
been accepted by the State Government or not.
25. The petitioners have also raised the plea of estoppel
on the ground that the fee structure changed after their joining
the course was not binding on them and had they known the
change in fees beforehand, they would not have got themselves
admitted. It is not in dispute that the change in fee structure
was necessitated with the purpose to comply with mandate of
Apex Court in TMA Pai which had overruled Unnikrishnan on
relevant aspect to limited extent. That being so, the plea of
estoppel is not available to the petitioners. Moreover, petitioners
never assailed the changes in fee structure proposed by
different committees from time to time, therefore, they cannot
be allowed to raise this issue in present proceedings, where the
scope of challenge has its own restrictions as noticed above.
26. In view of above discussion, we do not find it
necessary to rule on the objection of Bhojia Dental College with
respect to maintainability of writ petition No. 879 of 2016 on
behalf of father of one of the students.
.
27. Bhojia Dental College has preferred Execution
Petition No.147 of 2016 in CWP 1235 of 2007 and Execution
Petition No. 157 of 2016 in CWP 384 of 2008. The fact remains
that both the Writ Petitions i.e. 1235 of 2007 and 384 of 2008
were decided by a common judgment dated 17.9.2013 by
Division Bench of this Court with directions as noticed above in
paragraph 10 of this judgment.
28. In Execution Petition No. 147 of 2016 private
respondents Nos. 6,7,13,18 and 20 have submitted their reply
and respondent No.11 has submitted objection petition
separately. Respondents 6,7,13,18 and 20 in Execution Petition
No. 147 of 2016 are the petitioners in CWP No.3145 of 2016
and respondent No. 11 in the said execution petition is
daughter of petitioner in CWP No. 879 of 2016. The reply and
objection petition submitted by above referred private
respondents respectively contain the grounds which are Pari
Materia the same on which they have preferred CWP Nos 3145
of 2016 and 879 of 2016 respectively. Since we have already
considered the grounds raised in CWP Nos 3145 of 2016 and
879 of 2016 in paras supra and have recorded specific findings,
the same shall apply mutatis mutandis to the objections raised
.
in Execution Petition No. 147 of 2016. No other private
respondent has raised any objection in said execution petition.
29. In Execution Petition No. 157 of 2016 an objection
petition is purportedly filed by respondents 3, 5 to 9, 12, 14 to
16, 19 to 23, 25 to 28, 30 to 34, 36, 38 to 42, 44, 46, 47, 49
and 51 to 55 but the same has been signed only by Shri
Bhabhishan Kumar (Respondent15) and nothing on record
suggests that said respondent No.15 had authority from other
above noted respondents to file the objection petition on their
behalf also. Respondent No. 45 has separately filed his
objections.
30. Noticeably, none of above referred objectors in
Execution Petition No. 157 of 2016 had assailed judgment
dated 17.9.2013 passed by the Division Bench of this Court.
They had also accepted the decision dated 17.7.2015 of the
Review Committee and notification dated 17.11.2015 issued by
the State Government.
31. The objection of objectors in Execution Petition No.
157 of 2016 primarily is that judgment dated 17.9.2013 did not
carry any mandatory direction and the tool of execution cannot
be used by the execution petitioner to recover the due amount,
.
if any, from the objectors.
32. The right of execution petitioner to receive fees from
students including objectors is not in question. The bone of
contention has been the rate at which the fee is to be paid.
Admittedly, on account of various interdicts imposed by statute
and judicial pronouncements, the regulatory procedure to fix
the fee was taken out of hands of execution petitioner and other
similarly situated educational institutions and was instead
vested in independent authorities. Decisions taken by
authorities, from time to time, to fix fee payable to execution
petitioner could not attain finality as is evident from details of
facts narrated in earlier part of this judgment. Judgment dated
17.9.2013 passed by Division Bench of this Court, in execution
in instant proceedings has attained finality. The direction No.
iii) of said judgment was preceded by specific mandate of the
Court as contained in para 41 of the judgment as under:
"41. Having set aside the decision of the Review
Committee, the only logical direction that needs to
be issued is to direct the Review Committee to re
examine the entire matter afresh and pass
appropriate directions as may be advised, in
accordance with law, expeditiously and preferably
within 8 weeks from today. If the Review
.
Committee upholds the claim of the petitioners,
the petitioners would become entitled to recover
the deficit amount from its students admitted in
the college for the concerned academic years
200304 to 200506.
Thus, the Writ Court has pronounced a positive mandate in
favour of execution petitioner and the same cannot remain a
mere paper decree. All the objectors were parties to the
judgment in execution and the above said mandate is binding
on them without any shadow of doubt, judgment having
attained finality and Review Committee having upheld the claim
of execution petitioners. To direct execution petitioners at this
stage to institute independent claims against individual private
respondents in execution petitions will be nothing but travesty
of justice.
33. Objectors in Execution Petition No. 147 of 2016
have also raised an objection that the execution petition is not
maintainable in view of Notification No. HHC/Rules/Vol. V/97
12600026019 dated 23/24.09.2013 whereby Rule 16, under
Part C, "Civil Writ" of the Rules known as "High Court of
Himachal Pradesh (Original Side) Rules 1997 has been deleted.
The objection is wholly misconceived and untenable in view of
.
The High Court of Himachal Pradesh (Original Side) (9 th
Amendment), Rules notified vide notification No.
HHC/Rules/Vol. V/97I dated 9.4.2014.
34. In view of above, we do not find any merit in the writ
petitions and also the objections raised in execution petitions
Nos. 147 and 157 of 2016 and the same are dismissed with no
orders as to costs. Private respondents in both the execution
petitions are directed to pay due and admissible amount of
arrears of fee to the execution petitioners within a period of
three months from today, failing which the execution
petitioners shall be at liberty to take steps to execute the order
in accordance with law especially PartC, Rule 16, Writ
Jurisdiction (High Court of Himachal Pradesh) Rules, 1997. All
miscellaneous pending applications, if any, are accordingly
disposed of.
(Tarlok Singh Chauhan)
Judge
November 9th, 2021 (Satyen Vaidya)
(kck) Judge
