Himachal Pradesh High Court
Jagdish Chand Memorial Trust vs State Of Himachal Pradesh on 22 April, 2017
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 475 of 2017 Reserved on: 17.4.2017 Date of decision: .22.4.2017 .
Jagdish Chand Memorial Trust ...Petitioner.
Versus State of Himachal Pradesh ...Respondent Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Whether approved for reporting? Yes.
For the petitioner : Mr. M.L. Sharma, Advocate.
For the respondent: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General.
________________________________________________________________________________ Justice Tarlok Singh Chauhan, Judge This writ petition is directed against the order passed by the respondent on 14.03.2017 whereby NOC/Letter of Intent granted to the petitioner vide letters dated 20.02.2017 and
02.03.2017 to start 60 seats of Bachelor of Ayurveda, Medicine and Surgery (for short 'BAMS') course have been withdrawn.
2. The minimal facts as necessary for the adjudication of the instant lis are that the petitioner Trust in the year, 2014 set up a 50-bed hospital at Nalagarh in the name and style of Himachal Ayurvedic Hospital. The Trust decided to establish an Ayurvedic ::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 2 Medical College & Hospital at Nalagarh with 60 seats of BAMS course.
3. It is averred that after obtaining necessary permissions .
and no-objections from various authorities the Trust moved an application to the State Government alongwith detailed project report for issuance of No Objection Certificate (for short 'NOC') as per the mandate of Regulation 7(1) of the Indian Medicine Central Council (Requirements of Minimum Standard for Under-Graduate Ayurveda Colleges and Attached Hospitals) Regulations, 2016.
After prolonged correspondence, the State Government vide its letter dated 20.02.2017 (Annexure P-12) issued NOC. Thereafter petitioner applied for affiliation of the proposed Ayurvedic Medical College with the Himachal Pradesh University and the same was granted to it vide letter dated 02.03.2017.
4. The petitioner thereafter applied to the Central Government for permission to start the course. However, before the said NOC could be granted, the State Government withdrew the NOC vide impugned letter dated 14.03.2017.
5. It is this letter which has been assailed by the petitioner on the ground that the State Government had no unilateral power to withdraw the NOC, which otherwise was absolute and irrevocable and, therefore, the action of the respondent only smacks of bad faith and mala fides.
::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 36. The respondent contested the petition by filing a reply, wherein, it has been averred that the General Administration Department of the Government has framed Rules of Business for .
guidance of various departments working under it. These Rules, in turn, specify the competent authority to decide different nature of cases. It has admitted that the NOC was, in fact, granted in favour of the petitioner but the same was only with the prior approval of the Minister-Incharge of the Ayurveda Department. However, thereafter the Hon'ble Chief Minister desired that such matter should be placed before the Cabinet. Accordingly, when the matter was placed before the Cabinet, the NOC earlier granted in favour of the petitioner was ordered to be withdrawn.
We have heard learned counsel for the parties and have gone through the material placed on record.
7. It is vehemently argued by Shri M. L. Sharma, learned Advocate that the respondent could not unilaterally withdraw the NOC which was otherwise absolute and irrevocable and having done so, the same only smacks of bad faith and mala fide.
8. We find this contention to be merit less for the simple reason that the NOC granted in favour of the petitioner was admittedly by the Minister-Incharge of Ayurveda Department, whereas the Hon'ble Chief Minister thereafter had desired that such matter should be placed before the Cabinet. This decision of the Hon'ble Chief Minister was well within the powers ::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 4 conferred upon him by Rule 14 of the Rules of Business of the Government of Himachal Pradesh, which provides that cases shall be brought before the Council by a special direction of the Chief .
Minister or the Governor under Article 167(c) of the Constitution of India.
9. Now, adverting to Article 167 (c), the same reads as under:-
"167(c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council."
10. Thus, it stands established that the decision of the respondent to withdraw the NOC issued earlier in favour of the petitioner is in consonance with the provisions of Rules of Business of the State and exercise of power conferred in the Chief Minister under Article 167 (c) of the Constitution of India.
11. Now, therefore, the only question that remains for consideration is whether the NOC was absolute and irrevocable as alleged by the petitioner and whether the unilateral withdrawal thereof smacks of bad faith and mala fides as alleged.
12. This contention again is clearly without merit for the simple reason that the NOC placed on record no where indicates that the same was absolute or irrevocable as alleged by the petitioner.
::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 513. That apart, the mere withdrawal of the NOC will not per se establish bad faith or mala fides, more particularly, in absence of any specific averment in support thereof.
.
14. This Court in case Sri Ram Food Industries vs. State of Himachal Pradesh and Anr. (2016) 5 ILR 1554, while dealing with the question of mala fide, observed as under:-
12. Indisputably, it is always open for the Court to go into the question of mala fides raised by a litigant, but in order to succeed, much more than a mere allegation is required. Bald and unfounded allegations of mala fides are not sustainable and that mala fides must be specifically pleaded and proved. It is equally settled that when such allegations of mala fide s are made, they should be made with all sense of responsibility, otherwise, the maker of such allegations should be ready to face consequences.
13. It is equally well settled that the burden of proving mala fides is on the person making the allegations a nd the burden is 'very heavy." (E.P. Royappa Vs. State of Tamil Nadu (1974) 4 SCC 3).
14. There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fides are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As observed by the Hon'ble Supreme Court in Gulam Mustafa Vs. State of Maharashtra (1976) 1 SCC 800 "It (mala fides) is the last refuge of a losing litigant."
15. In Union of India and others Vs. Ashok Kumar and others, (2005) 8 SCC 760, it is held by the Hon'ble Supreme Court that seriousness of allegations of mala fides demands proof of high order of credibility and the Courts should be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office having high responsibility. It was held:
"21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 6 ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting .
mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab AIR 1964 SC 72). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it.
The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Another (AIR 1974 SC 555), Courts would be r slow to draw dubious inferences from incomplete facts p laced before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579)."
15. There can be two ways by which a case of mala fides can be made out. Firstly, that the action which is impugned has been taken with the specific object of damaging interests of aggrieved party and secondly such action is aimed at helping another party which results in damage to the party alleging mala fides.
16. Adverting to the facts, it would be seen that the case of the petitioner-Trust does not fall in either of the categories above as the inference of malafides has been sought to be drawn on the basis of vague and unsubstantiated pleadings.
::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 717. Apart from the above, there can be no gainsaying that matters for grant of NOC are in the realm of policy decision to be taken by the State Government where the Court will be loath .
to interfere.
18. This Bench in CWP No. 621 of 2014, titled Nand Lal & another vs. State of H.P. & others, decided on 21.5.2014, observed as under:-
"7. It is a beaten law of land that Government decision and policy cannot be subject matter of a writ petition, unless its arbitrariness is shown in the decision making process.
9. The Apex Court in Sidheshwar Sahakari Sakhar Karkhana Ltd. Vs. Union of India and others, 2005 AIR SCW 1399, has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it.
10. The Apex Court in a latest decision reported in Manohar Lal Sharma Vs. Union of India and another, (2013) 6 SCC 616, also held that interference by the Court on the ground of efficacy of the policy is not permissible. It is apt to reproduce paragraph 14 of the said decision as under:
"14. On matters affecting policy, this Court does not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The impugned policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices."
19. Proposition of law expounded in Nand Lal's case supra was thereafter reiterated by this Bench in CWP No. 4625 of 2012, titled Gurbachan vs. State of H.P. & others, decided on 15.07.2014 and thereafter in CWP No. 1282 of 2012, titled Kameshwar Sharma & others vs. State of H.P. & others, decided on 23.03.2015.
::: Downloaded on - 22/04/2017 23:57:52 :::HCHP 8No other points were raised.
20. In view of the above, we find no merit in this petition and accordingly the same is dismissed, so also the pending .
application(s), leaving the parties to bear their own costs.
(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge April 22, 2017 (sanjeev) ::: Downloaded on - 22/04/2017 23:57:52 :::HCHP