Gujarat High Court
Sandip Harshadray Munjyasara vs State Of Gujarat on 8 March, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/89/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 89 of 2017
With
CA/2/2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SANDIP HARSHADRAY MUNJYASARA & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
JAY R SHAH, ADVOCATE for the Petitioner(s) No. 2
MR GIRISH M DAS, ADVOCATE for the Petitioner(s) No. 2
PARTY IN PERSON, ADVOCATE for the Petitioner(s) No. 1
SHRI VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 , 5
MR PA JADEJA, ADVOCATE for the Respondent(s) No. 2
MRS SUMAN KHARE, ADVOCATE for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 3
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 08/03/2018
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C/SCA/89/2017 JUDGMENT
ORAL JUDGMENT
1. The present petition is filed by the Petitioners - Sandip Harshadray Munjyasara and Rathod Jayendrakumar Karshanbhai, who are appearing as party-in-persons, under Articles 14 and 226 of the Constitution of India as well as under the provisions of the Gujarat Professional Technical Education Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter reffed to as "the RAFF Act") as well as the Circular issued by the Gujarat Forensic Sciences University, Gandhinagar dated 30.12.2016 for the prayer inter alia that appropriate writ, order or direction may be issued directing the Respondents to provide for experienced expert faculty as per UGC and / or AICTE norms and also to set aside the Circular dated 30.12.2016 passed by Respondent No.2 in contravention of Section 10(1) of the RAFF Act. The petitioners have also further prayed for the prayer directing to get the fee structure of the courses revised as prayed for in detail and also further direction that they may be directed to charge Rs.1500/- per year as tuition fees from the petitioners and to direct the Respondents to refund the difference of fees with interest to the petitioners regarding the fees which was already paid during semester 1 and semester 2 on the grounds stated in the memo of petition.
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C/SCA/89/2017 JUDGMENT
2. The petitioners are the citizens of India and according to the petitioners, Respondent Nos. 2 and 3 are not redressing the grievance pertaining to the faculty teaching in courses regarding quality of the education. It is also contended that fee charged from the petitioner and the students of Cybre Security and Incident Response Course has not been determined under the RAAF Act. The background and the establishment of the Gujarat Forensic Sciences University Act has been stated and the courses which are conducted by the University has been referred with emphasis on the provisions of the RAFF Act.
3. Heard Shri Sandip Harshadray Munjyasara who appear as party-in- person.
4. The party-in-person Shri Sandip Harshadray Munjyasara has referred to the RAFF Act. He pointedly referred to Section 2L and submitted that 'Professional Educational College or Institution' has been defined and submitted that such University is imparting the professional courses by whatever name it is called. He submitted that Section 2k defines 'Professional Courses'. The party-in- person has referred to Section 9 of the RAFF Act and submitted that the Fee Regulatory Committee has been constituted and the fee structure has been provided. He referred to Section 10 of the RAFF Act and submitted that it provides that notwithstanding Page 3 of 23 C/SCA/89/2017 JUDGMENT anything contained in the law, the Respondent No.3 should appear before the Fee Regulatory Committee for the purpose of deciding the Fee Structure. However, instead the Respondent No.3 the University has decided the fee structure in spite of such statutory provisions. The party-in-person has also submitted that Section 9 of the RAFF Act provide that the provisions of this Act will have an overriding effect. He emphasized:
"Section 19: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other State law for the time being in force."
Therefore, the party-in-person submitted that Respondent No.2 University has been established as per the Gujarat Forensic Sciences University Act 2008 (hereinafter referred to as "the 2008 Act"). He submitted that Section 2(viii) refers to;
"Prescribed Regulation"
and Section 2(x) refers to ;
"Missing Regulation of the University under Section 35."
The party-in-person therefore submitted that this has reference to the provisions for other expenses like convocation fee, examination fee etc. as it is in the domain of University. The party-in-person has tried to submit that the provisions of the 2008 Act make the provision qua such expenses which may be fixed by the University. Page 4 of 23
C/SCA/89/2017 JUDGMENT However, he submitted that for the purpose of fee structure of the Respondent No.2 University, it has to be according to the RAFF Act. He referred to the further details to support his submission and also referred to the government Resolution dated 4.10.2017 and submitted that the courses which have been referred are the same courses which could be considered as professional courses. However, by this notification, the courses conducted by the Respondent University is taken out from the purview of the Fee Committee under the RAFF Act. He therefore submitted that such Resolution is bad and the courses in the professional courses should be regulated and decided by the Fee Committee under the RAFF Act. The party-in-person therefore strenuously submitted that once the Act is made and the Committee is set up to decide the fee structure, it has to be decided by the Fee Committee and the Respondent No.2-University would be covered. It was submitted that in view of this provision, the Respondent No.2 University has no authority to fix the fee in respect of professional courses conducted by the Respondent No.2 University. He submitted that the charging of one and half lack fee is not justified and it should be subject to the approval of the Fee Regulatory Committee. The party-in-person submitted that if the other University or the Institutions are subjected to the regulation of fee structure by the Page 5 of 23 C/SCA/89/2017 JUDGMENT Fee Committee under the Act, there is no reason why the Respondent No.2 - University should also not be subjected to the same procedure and fixation of fee by the Fee Regulatory Committee under the RAFF Act. The party-in-person submitted that the impugned Resolution dated 4.10.2017 passed granting of exemption to Respondent No.2 University from the purview of the Fee Regulatory Committee is violative of Article 14. The party-in- person also referred to the papers with details with reference to the syllabus and the semester and the curriculum as to how the teaching is made. He submitted that in semester 3 and 4 no classes are conducted and therefore no fee could have been charged. He also submitted that even the faculty is not sufficient and therefore they are playing with the career of the students. The party-in- person submitted that admittedly the faculty is not sufficiently provided. He referred to the affidavit-in-reply. He also referred to the Rejoinder to emphasize that the faculty or the Professor are not qualified. He also referred to other issues like CCTV Camera and other aspects. He submitted that though the affidavit is filed by Respondent No.2 University, there is no clarification given on this aspect. However, the main thrust of the submission is with regard to the fee structure and the contention that the fee could not be charged by Respondent No.2 University it should be subject to Fee Page 6 of 23 C/SCA/89/2017 JUDGMENT Regulatory Committee.
5. Learned Advocate Shri Girish Das appearing for Petitioner No.2 has referred to the submissions and and submitted that fee structure could be fixed by the committee as per the provisions of RAFF Act. He referred to Section 10(1) of the RAFF Act. He also referred to the affidavit filed by Respondent No.2 and submitted that the Respondent - Gujarat Forensic Sciences University cannot decide unilaterally the fee. He submitted that as the Petitioner No.1 - party-in-person has referred to the provisions of both the Acts, he may not refer to again and, has emphasized that when the provision of the RAFF Act has a reference to the professional courses, the fee hs to be decided by the Fee Regularity Committee and not by Respondent No.2 - Gujarat Forensic Sciences University.
6. Learned Senior Counsel Shri Dhaval C. Dave appearing with learned Advocate Shri P.A.Jadeja for the Respondent has referred to the papers and submitted that the issues raised are; one; Fee Structure, and second ; Faculty.
Learned Senior Counsel Shri Dhaval C. Dave submitted that the Gujarat Forensic Sciences University has been established under the special statute of "Gujarat Forensic Sciences Act 2007". He Page 7 of 23 C/SCA/89/2017 JUDGMENT submitted that it is first of its kind in the country and the effort has been made for establishment of such University to provide training and education in a specialized subjects. He submitted that the initial fund is given by the government for the initial establishment. However, to run the University, the powers are given in the Act and the University has to raise the necessary resources to meet with the expenses. Therefore, learned Senior Counsel Shri Dave submitted that Respondent No.2 is a University itself established under a special statute will have a right to manage and levy the fees and to decide the fee structure. He submitted that the provisions of RAFF Act has a reference to the fee regulation by the committee and the fee structure in respect of the institutions attached to the Universities and not such a autonomous body or the University established by a special statute. Learned Senior Counsel Shri Dave referred to the Resolution dated 4.10.2017 and submitted that this Resolution was required to make the University some kind of flexibility to meet with the expenses. Learned Senior Counsel Shri Dave submitted that this Resolution has not been challenged and therefore as this Resolution is in the form of subordinate legislation, the submission made by the party-in-person are not justified and, as the Resolution has not been challenged, the issue regarding fee structure cannot be gone into in view of this Page 8 of 23 C/SCA/89/2017 JUDGMENT Resolution granting exemption.
7. Learned Senior Counsel Shri Dhaval Dave submitted that the contentions which have been raised that the fee structure of Respondent No.2 University has to be subject to RAFF Act i.e. the Fee Regulatory Committee and fix the fee and not by the Respondent No.2 University, and therefore, in such Resolution providing that it will be outside the purview of the Fee Regulatory Committee under the RAFF Act has been questioned. Learned Senior Counsel Shri Dave submitted that it is a matter of policy and, before taking such decision, all relevant facts and other related issues are examined inasmuch as it is required to be considered that it is the first of its kind in India coupled with the fact that it conducts the courses with a specialized subject and there would be a maintenance expenses which are required to be met by their own resources. Learned Senior Counsel Shri Dave submitted that both; Gujarat Forensic Sciences University Act 2007, which is a special legislature, will have to be considered vis-a-vis the provisions of RAFF Act. He submitted that the professional courses may have been conducted for imparting education by the Institutions affiliated to the University under the RAFF Act. However, the Respondent No.2 University is set up by a special statute for imparting the education in different kind of courses which are Page 9 of 23 C/SCA/89/2017 JUDGMENT specialized and therefore the provisions of RAFF Act may not be applicable as the courses are totally different. He submitted that the assessment cannot be made that the courses conducted by the Respondent No.2 - Gujarat Forensic Science University are necessarily professional courses as defined in the RAFF Act. Therefore, learned Senior Counsel Shri Dhaval Dave submitted that after having got admission, it is not open to the petitioners to challenge and raise such issues. He strenuously submitted that if the petitioners are not inclined or not willing he may not have joined. However, the fact that the petitioner has joined the courses, now cannot raise such issues. It also suggest that the courses or the education imparted has an importance and then only the petitioner would have joined. The petitioner cannot raise an issue of fee structure or the faculty. He submitted that if the fee structure was higher, then the petitioner may not have joined the courses and he could have taken the decision at the relevant time. After the semester is over, it is not open to join such an issue. Similarly, learned Senior Counsel Shri Dave referred to the details that how at the end of the study the students having passed such courses are offered the campus placement. Learned Senior Counsel Shri Dhaval Dave also referred to the provisions of Section 10 of the RAFF Act and submitted that the professional courses as defined Page 10 of 23 C/SCA/89/2017 JUDGMENT would mean that the institute must be imparting education in professional courses. He submitted that the definition of 'professional courses' as provided in Section 2k has to be read with the provisions of Section 10 and submitted that when it refers to the Fee Regulatory Committee and the powers with reference to the fee structure in respect of professional courses, it has to be read that it has an application for such colleges or institutions which are covered under the RAFF Act. Learned Senior Counsel Shri Dave submitted that it may not have any application to the Forensic Sciences University established by a special statute. He also referred to the Forensic Sciences University Act 2007 and submitted that Chapter IV refers to;
"findings"
and, Section 26 of the said Act referred to;
"The University shall establish a fund to be called the 'University Fund' consisting of -
(ii) the income of the University from all sources including income from fees and charges;"
Therefore, learned Senior Counsel Shri Dhaval Dave submitted that it would imply that the necessary flexibility is reserved to the University and the fund which has been given is at the initial stage of establishment and thereafter the University is required to generate its own resources to meet with the expenses. Learned Page 11 of 23 C/SCA/89/2017 JUDGMENT Senior Counsel Shri Dave therefore submitted that the State fund is for the purpose of initial establishment and thereafter the University has to manage its own resources and support itself by generating the income and therefore this provision has been made. He submitted that the manner in which the stipend is provided to such students will show about reputation of the Institution or the value of the course. Learned Senior Counsel Shri Dhaval Dave therefore submitted that it cannot be said that there is any justification to entertain the present petition.
8. Learned AGP Shri Venugopal Patel for the Respondent-State has referred to the papers and submitted that the petition has been filed without challenging the Government Resolution dated 4.10.2007. He submitted that Respondent No.2 University is therefore taken out of the purview of Fee Regulatory Committee under the RAFF Act. He submitted that it is a policy decision taken with regard to the two statutes namely RAFF Act as well as Forensic Sciences University Act 2007 under which it has been established. He submitted that the discussion has been made as to how it should not be subjected to Fee Regulatory Committee, and the brochure and the material has referred to this aspect that the courses imparted are different and a special University has been set up for the first time by special statute. He therefore submitted that the reference to Page 12 of 23 C/SCA/89/2017 JUDGMENT RAFF Act would be only in respect of such professional courses conducted by the other affiliated colleges and the University and not such University as it has been set up by a special statute. He submitted that these provisions of the Forensic Sciences University Act itself provide for charging of the fees for generating its own resources and it would imply that the University has to meet its own expenses from the resources like fees. Learned AGP Shri Venugopal Patel therefore submitted that the Resolution dated 4.10.2007 has been issued which has not been challenged and therefore a delegated legislation when it has been provided by the State after considering the relevant aspects, it cannot be questioned by the petitioner and the court may not exercise discretionary jurisdiction under Article 226 of the Constitution of India. He submitted that even if RAFF Act is to be read, it has to be read with the provisions of Forensic Sciences University Act and both are the State Acts, meaning thereby they have to be read together and RAFF Act would have a general application for the purpose of fee structure and it may not have any application to Respondent No.2 University established by a special statute. He submitted that a close look at both the Acts would make the legislative intention clear and the provisions of the Forensic Sciences University Act has clearly made the provision to fix, demand and recover the fees. Page 13 of 23
C/SCA/89/2017 JUDGMENT Again, learned AGP Shri Venugopal Patel has referred to Chapter IV and Section 26 of the RAFF Act read with Section 26(ii) that the fees could be charged by the University. He therefore submitted that the conduct of the petitioner may be examined as having got the admission and voluntarily joined the course and thereafter are raising such issues, which is not permissible.
9. Learned Advocate Ms. Suman Khare appearing for Respondent No.4 - UGC has submitted that affidavit-in-reply has been filed by the UGC. She submitted that UGC has no role to play and submitted that the issues which have been raised are between the petitioners and the University or the State. She therefore submitted that appropriate order may be passed.
10.In Rejoinder, party-in-person Shri Sandip Harshdray Munjyasara has reiterated the same contentions with reference to the the provisions of the FAFF Act and referred to Section 2(k)(vii) which defines the professional courses. Therefore, it was submitted that the Notification dated 18.11.2008 also referred to the professional courses which are covered by the RAFF Act and the courses which are conducted by the Respondent University are therefore covred in the definition of professional course. Party-in-person Shri Sandip Harshdray Munjyasara tried to submit that the courses conducted by the Respondent University are the similar as referred to in the Page 14 of 23 C/SCA/89/2017 JUDGMENT Notification and therefore it would be a professional course for which the fees are required to be fixed as per the RAFF Act by the committee. Party-in-person Shri Sandip Harshdray Munjyasara emphasized Section 19 of the RAFF Act and submitted that it has an overriding effect. Party-in-person Shri Sandip Harshdray Munjyasara has also stated that the Government Resolution which has been issued granting exemption cannot override the statutory provision of the Act like RAFF Act and therefore such issue granting exemption to the Respondent University will not have any application. Therefore, party-in-person Shri Sandip Harshdray Munjyasara also again referred to the lack of infrastructure and faculty to support his submission that the fees cannot be charged by the Respondent University. It was therefore submitted that as the Respondent No.2-University is also getting the grant / fund, cannot claim any exemption and would be covered by the provisions of the RAFF Act for the purpose of fee structure.
11.In view of the rival, submissions, it is required to be considered whether the present petition deserve consideration.
12.As could be seen from the rival submissions, the court is required to consider the provisions of the RAFF Act as well as Gujarat Forensic Sciences University Act 2007.
13.The moot question is whether the RAFF Act would have any Page 15 of 23 C/SCA/89/2017 JUDGMENT application to the Respondent University which is set up by a special statute like Gujarat Forensic Sciences University Act 2007. A close look at the provisions of RAFF Act would make it clear that this Act would apply to the aided college or the Institutions run or managed by the Trust / Society etc. and receiving the financial aid or the grant-in-aid from the government. Section 9 of the RAFF Act also has a reference to the Professional Education College or the Institution and has no reference to any Institution or the University which is set up by a special statute like Gujarat Forensic Sciences University Act. Much emphasis is given on the definition of 'Professional Courses' referred to in Section 2(k) (vii) which also provide that the Professional Educational College or the Institution, including the University imparting the professional courses and the word 'University' which has been defined, refers to; 'any University established'. Therefore, it has a reference to the Colleges or the Institutions imparting education in professional courses which are affiliated with the University or such University established by law and imparting education in professional courses. However, the provision of the Gujarat Forensic Sciences University Act clearly suggest that it has been established by a special statute for imparting a specialized education and it is designed to provide the running of international standard in Page 16 of 23 C/SCA/89/2017 JUDGMENT Investigation Science which may strengthen the criminal justice system. The Gujarat Forensic Sciences University Act has a reference to the regulations and it has been provided that it has been established with the objects set out therein inter alia to develop the pattern of training and teaching a standard of education in science and technology in relation to forensic technologies like DNA, Fingerprint, brain fingerprinting, cyber crime etc. Section 2(xi) defines the 'University' as:
"University" means the Gujarat Forensic Sciences University established and incorporated under Section 3."
14. Section 7 refers to the 'powers and functions of University' and it clearly empowered by Section 7(xviii) which provide:
"to fix, demand and receive or recover fees and such other charges as may be prescribed."
Section 35 refers to power to make regulations to provide for administration and management of the affairs of the University. Thus the Respondent is a University set up by a special statute with a definite object and purpose as referred to herein above for imparting a specialized knowledge in the field of forensic sciences which in turn help investigation for the purpose of strengthening the criminal justice system. Therefore, the moot question is whether the provisions of RAFF Act could be attracted to such University which is set up by a special statute.
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C/SCA/89/2017 JUDGMENT
15.As discussed above, RAFF Act has a reference to the courses which are imparted by the Institutions receiving grant-in-aid and / or are affiliated with the University or the Institutions and the University established under law. However, when the Respondent University has been set up by a special statute making the complete provision including the powers to make regulations and also to make the provisions for the fees etc. it could not be overlooked. Thus, when there is a special statute by which the Respondent No.2 University has been set up, it would be governed by the statutory provisions by which it has been created or the statute by which it has been created, and the provisions of RAFF Act which is generally providing for a fee structure with regard to the Institutions imparting education in professional courses, cannot be attracted. The provisions of RAFF Act are in general providing the obligation to such Institutions referred to therein. However, it cannot have the obligation to the Respondent No.2 - University set up by a special statute with the different purpose and object which is to be achieved.
16.The submissions which have been made with reference to emphasis on the professional courses that any educational institution receiving the grant or the fund of the government would be covered, is too generalized statement to accept brushing aside the Page 18 of 23 C/SCA/89/2017 JUDGMENT special statute like Gujarat Forensic Sciences University Act by which Respondent No.2-University has been set up. Merely because there is some resemblance in the type of nomenclature of the courses would not make it at par with the professional courses covered under the RAFF Act with the courses conducted by the Respondent No.2-University. Therefore, it will not have any application.
17.Further, the Government Resolution dated 4.10.2007 has been issued which is admittedly not challenged and therefore by way of such delegated legislation when it has been provided by the State that it is exempted from from th RAFF Act, the submissions made by party-in-person Shri Sandip Harshadray Munjyasara cannot be accepted.
Again, it is required to be stated that it is a matter of policy whether a University is set up by a special Act with a specific purpose should be kept outside the purview of another statute like RAFF Act. The High Court in exercise of discretionary jurisdiction under the concept of judicial review would not be justified to examine such issues as it is a matter of policy. The State may have considered the relevant aspects having regarding to the purpose which is sought to be achieved by establishment of Respondent No.2 - University by a special statute imparting the specialized Page 19 of 23 C/SCA/89/2017 JUDGMENT training as stated above. Therefore, the submissions made by party-in-person Shri Sandip Harshadray Munjyasara cannot be accepted.
18.The another facet of the submissions which have been made with regard to the grievance for the infrastructure and the faculty with much detail are misconceived. The submission that in semester 3 and semester 4, there is practically no classes and therefore no fee should be charged is too difficult to accept inasmuch as in such courses when there is a field training as part of the curriculum, there may not be a classes but it is provided for the practical training. Therefore, the submission that there are no classes for a particular semester and therefore there could not be any fee, cannot be accepted as it is the overall cost towards imparting of education for a particular course which is considered and thereafter it has been provided with breakup as per the year and semester and the fee is charged accordingly. Again, it is a matter with regard to the examination of details and the various factors which this court may not be justified in going into such details.
19.The submissions which have been made with regard to the insufficient faculty and the infrastructure are also misconceived. In fact the petitioners are estopped from raising such contentions inasmuch s having obtained the admission voluntarily and having Page 20 of 23 C/SCA/89/2017 JUDGMENT undergone the studies for some time. It is too late to raise the contention about the fee or the fee structure and the faculty or the infrastructure. The petitioners voluntarily applied for an got the admission and have undergone the courses now cannot be permitted to question the method of fixation of fee or the fee structure. The persons like the petitioners having voluntarily taken up the admission and pursued the courses are estopped from raising such contention. It is for the petitioners to either pursue the study or may not continue if it is found unsuitable or if it is found that the fees charged is higher. It depends on ones own volition and discretion s to which college or the University and which course he would undertake. However, once having taken the admission voluntarily is estopped from raising all such contentions inasmuch as the petitioners cannot compel or advise the Respondent with regard to the nature of studies or syllabus and the courses and / or fixation of the fees. The petitioners could have apprised themselves before getting the admission and could have made himself equipped with all details, both, with regard to the facility and / or the fee structure and could have taken the decision. Once the decision has been voluntarily taken to get the admission, and having undergone the studies for some time, it is not open to raise such contentions questioning the authority of the University to Page 21 of 23 C/SCA/89/2017 JUDGMENT charge fees on the ground that the fee structure has to be fixed by the Regulatory Committee like different Act like RAFF Act. As stated above, the RAFF Act may not have any application in light of the special statute by which the Respondent No.2 - University is established. It is not open for the person like the petitioners to compel the Respondent University to revise or reconsider the fee structure or the course as suggested and this court declines in exercise of discretionary jurisdiction under Article 226 of the Constitution of India to enter into such minute details in the field of education.
20.It is well accepted that normally the courts would not be justified in the field of education which may have a reference to various factors including the details of courses with different subjects, analysis of the material, the method of imparting the education and also the suitability of the faculty or the Professors. Therefore the submissions which have been made by the petitioners cannot be accepted.
21.Again, as stated above, when a University is established by special statute with a purpose and when the decision has been taken by the government to keep it outside the purview of the Fee Regulatory Committee, it has been further clarified by the Notification, there is no need to exercise the discretion under Article 226 of the Page 22 of 23 C/SCA/89/2017 JUDGMENT Constitution of India.
Therefore, the present Special Civil Application No. 89 of 2017 along with Civil Application No. 9910 of 2017 cannot be entertained and deserve to be dismissed and accordingly stands dismissed along with Civil Application.
Rule is discharged. Interim relief, if any, shall stand vacated. No order as to costs.
(RAJESH H.SHUKLA, J.) JNW Page 23 of 23