M. AAMIRA FATHIMA AND OTHERS versus ANNAMALAI UNIVERSITY AND OTHERS

[2018] 12 S.C.R. 1027

M. AAMIRA FATHIMA AND OTHERS

ANNAMALAI UNIVERSITY AND OTHERS

(Civil Appeal No. 6654 of 2018)

JULY 13, 2018

[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]

Tamil Nadu Educational Institutions (Prohibition of Collectionof Capitation fee) Act, 1992 – ss.2(b)(I), 2(b)(II) and 4(2-A) –Respondent No.2- medical college was established by the AnnamalaiUniversity – Fee charged by the University was too high ascompared to the other Government colleges – Writ petition filed bythe students – Highlighting the enormous difference between thefees charged by the University on one hand and the scale fixed bythe Government as well as the Committee on Fixation of Fee on theother, they pleaded that the matter for fixation of fee be referred tothe Committee in terms of the 1992 Act – Writ petition was dismissedby the High Court and it was held that 1992 Act was not applicableas the concerned institution was not notified by the StateGovernment – University contended that it was entitled to fix fee onits own without the intervention of any Committee – On appeal,held: High Court was completely in error in observing that for theapplication by the provisions of the 1992 Act an educationalinstitution must always be specified by the Government bynotification – The requirement of specification by the Governmentis only in respect of “any other educational institution or class orclasses of educational institutions” u/s. 2(b)(II) of the Act – Whereas,s.2(b)(I) of the Act is an independent and stand alone provisionand does not require any specification by the Government – In instantcase, the University answered the description u/s.2(b)(I) of theAct – Furthermore, s.4(2-A) of the Act, specifically apply to thecourses leading degrees in medicine and Engineering – Therefore,the matter of fixation of fees was to be assessed by the “Committeeon Fixation of Fee” as contemplated under 1992 Act and theUniversity was not entitled to devise its own fee structure –Annamalai University Act, 2013 – ss.4(13) and 20(i)(m) –Education/Educational Institutions.

AAllowing the appeals, the Court

HELD: 1. In the present case the Single Judge of the HighCourt considered the definition of Educational Institution asappearing in Section 2(e) of the Tamil Nadu EducationalInstitutions (Prohibition of Collection of Capitation fee) Act, 1992Band came to the conclusion that for the purposes of application ofthe provisions of 1992 Act the concerned institution ought tohave been notified by the State Government and an appropriatereference must be made to the Fee Fixation Committee. Thisreasoning has been affirmed by the Division Bench of the HighCourt. It is, therefore crucial to consider the scope and ambit ofCthe said provision. For facility the definition of “educationalinstitution” can be divided in two parts as under:

Section 2(b) “educational institution” means:

(I) any institution by whatever name called, whether managedDby any person, private body, local authority, trust orUniversity, carrying on the activity of imparting educationleading to degree or diploma (including degree ordiploma in law, medicine or engineering) conferred by anyUniversity established under any law made by theLegislature of the State of Tamil Nadu.

Eand

(II) any other educational institution or class or classes ofeducational institutions (other than any educationalinstitution established by the Central Government orunder any law made by Parliament) as the GovernmentFmay, by notification, specify.[Para 12][1037-E-F; 1038-A]

2.1 According to (I) part of the definition, the activity mustlead to award of degree or diploma conferred by any Universityestablished under any law made by the Legislature of the State.There is element of certainty about this first part of definitionGand it is not left to the discretion of the Government in any manner.If there is course which leads to award of degree or diploma byany University as specified, the concerned institution carryingon the activity of imparting education would be an educationalinstitution within the meaning of said Section 2(b). [Para 12][1038-B-C]H

M. AAMIRA FATHIMA AND OTHERS v. ANNAMALAI

2.2 The definition has an inclusive provision which isspecified in the (II) part and empowers the Government to specifyany other educational institution or class or classes of educationalinstitutions. Upon such specification by notification, suchinstitution or class or classes of institutions would also standcovered by the definition. The (II) part also contains bracketedportion which is an exclusionary aspect of the definition. Thisbracketed portion excludes any institution established by theCentral Government or under any law made by the Parliamentwith respect to which the State Government cannot, even byexercising power of specification include such institution.[Para 12][1038-D-E]

2.3 The aforesaid analysis thus conclusively establishes thatin so far as cases covered under (I) Part are concerned, nospecification by the Government is required or necessary. If theconcerned activity leads to award of degree or diploma by anyUniversity established under any law made by the StateLegislature, such institution shall be “educational institution”within the meaning of provisions of Section 2(b). The specificationby notification is pre-requisite only if the institution concernedis otherwise not covered under (I) Part. The High Court wascompletely in error in observing that for the application by theprovisions of 1992 Act an educational institution must always bespecified by the Government by notification. The requirement ofspecification of notification is only in respect of “any othereducational institution or class or classes of educationalinstitutions” and has not to be read with (I) part of definition,which part of the definition is an independent and stand aloneprovision and does not require any specification by theGovernment. [Para 13] [1038-E-H]

3. According to Section 3(1) of the Annamalai UniversityAct, 2013, on and from the commencement of said Act theUniversity established under the Annamalai University Act, 1928shall be deemed to have been established and incorporated underthe provisions of 2013 Act. It is well settled that whenever aLegislation deems, by way of legal fiction that particular stateof affairs has to be assumed, that legal fiction has to be given fulleffect. There is no escape from the situation that the University

Ain the present case is the one established under any law made bythe Legislature of the State of Tamil Nadu. [Para 15] [1039-A-C]

4. The University by its very nature of activities would berunning numerous courses and to that extent provisions of 2013Act are general in nature. The provisions of Section 4(2-A) ofB1992 Act are specific and special and apply to courses leading todegrees in Medicine and Engineering. Therefore, insofar asprofessional courses leading to degrees in Medicine andEngineering are concerned, the matter must be screened andassessed by Committee on Fixation of Fee and the submissionthat the University was entitled to fix fees on its own without theCintervention of such Committee has to be rejected. [Para 18][1042-B-D]5. The University was not entitled and competent to deviseits own fee structure in the present matter without having thefee fixed by the Committee on Fixation of Fee as contemplatedDunder 1992 Act. The matters shall therefore have to be referredto said Committee and the University is directed to place theentire material including its balance-sheet and accounts beforethe Committee of Fixation of Fee. [Para 19][1042-F-G]

Islamic Academy of Education and Another v. State ofEKarnataka and Others(2003) 6 SCC 697 : [2003] 2Suppl. SCR 474;Cochin University of Science andTechnology and Anotherv.Thomas P. John and Others(2008) 8 SCC 82: [2008] 7 SCR 887 ;GurupadKhandappa Magdumv.Hirabai Khandappa MagdumFand Others(1978) 3 SCC 383 : [1978] 3 SCR 761;P.A. Inamdar and Othersv.State of Maharashtra andOthers(2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603 –referred to.

East End Dwellings Co. Ltd. v. Finsbury BoroughCouncil (1952) 2 All ER 587 – referred to.G

Case Law Reference

[2003] 2 Suppl. SCR 474 referred to Para 4[2008] 7 SCR 887 referred to Para 9[1978] 3 SCR 761 referred to Para 15H[2005] 2 Suppl. SCR 603 referred to Para 16

M. AAMIRA FATHIMA AND OTHERS v. ANNAMALAI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6654of 2018.

From the Judgment and Order dated 26.09.2016 of the High Courtat Judicature at Madras in Writ Appeal No. 1637 of 2014

WITH

Civil Appeal Nos. 6655-6656, 6657-6659, 6660 and 6661 of 2018.

Mrs. V. Mohana, Nikhil Nayyar, N. Sai Vinod, Dhananjay Baijal,Ms. Smriti Shah, Divyanshu Rai, G. Sivabalamurugan, Ms. Vandana,Vasantha Kumar, Mrs. Yamunah Nachiar, S.Ravishankar,Gaurav Agrawal, S. Nandakumar, Ms. Tanu Priya Gupta, M. S. SaranKumar, Ms. Deepika Nandakumar, Sugam Kumar Jha, Gaurav Sharma,Dhawal Mohan, Prateek Bhatia, Abhishek, K. V. Vijaya Kumar,Ms. Maitreyee Mishra, K. V. Ramkumar, Naresh Kumar, B. Balaji, Advs.for the appearing parties.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J. Special leave to appeal granted inall matters.

These appeals are directed against the common judgment andorder dated 26.09.2016 passed by the High Court of Judicature at Madrasin Writ Appeal No.1637 of 2014 and other connected matters. Matterarising from Writ Appeal No.1637 of 2014 which in turn arose from WritPetition No.20720 of 2014, namely M. Aamira Fathima and others v.Annamalai University and others is taken to be the lead matter and thefacts leading to the filing of the said writ appeal are set out in detailhereunder.

2. Annamalai University (hereinafter referred to as “theUniversity”) was constituted under the Annamalai University Act, 1928(Madras Act No.1 of 1929)[1]. This Act received the assents of Governorand Governor General on 03.11.1928 and 11.12.1928 respectively andwas first published in the Fort of St. George Gazette dated 01.01.1929.The University established Respondent No.2 College, namely, RajahMuthiah Medical College in the year 1985.

1 Words “Tamil Nadu” were substituted for the word “Madras” by Tamil NaduAdaptation of Law and Order, 1969

A3. In 1992 the State legislature enacted the Tamil Nadu EducationalInstitutions (Prohibition of Collection of Capitation Fee) Act, 1992(hereinafter referred to as “1992 Act”). Section 2(b) defined EducationalInstitution as under:-

“(b) “educational institution” means any institution byBwhatever name called, whether managed by any person, privatebody, local authority, trust or University, carrying on the activity ofimparting education leading to degree or diploma (including adegree or diploma in law, medicine or engineering) conferred byany University established under any law made by the LegislatureCof the State of Tamil Nadu and any other educational institution orclass or classes of educational institutions (other than anyeducational institution established by the Central Government orunder any law made by Parliament) as the Government may, bynotification, specify;”DSection 4 dealt with regulation of tuition fee or other fees ordeposits and was initially as under:-

“4. (1) Notwithstanding anything contained in any other law forthe time being in force, the Government may, by notification,regulate the tuition fee or any other fee or deposit that may beEreceived or collected by any educational institution or class orclasses of such educational institutions in respect of any or allclass or classes of students :

Provided that before issuing notification under this sub-section, the draft of which shall be published in the Tamil NaduFGovernment Gazette stating that any objection or suggestion whichmay be received by the Government, within such period as maybe specified therein, shall be considered by them.

(2) No educational institution shall receive or collect any feeor accept deposit in excess of the amount notified underGsub-section (1).

(3) Every educational institution shall issue an official receiptfor the fee or deposit received or collected by it.”

4. After the judgment of this Court in Islamic Academy ofEducation and another v. State of Karnataka and others[2], sub-section(2-A) was added along with an Explanation in Section 4 of 1992 Act bythe State Legislature vide Tamil Nadu Educational Institutions (Prohibitionof Collection of Capitation Fee) Amendment Act, 2007. As result ofthe aforesaid insertion of sub-section (2-A) and Explanation, Section 4of 1992 Act now reads as under:

“4. (1) Notwithstanding anything contained in any other law forthe time being in force, the Government may, by notification,regulate the tuition fee or any other fee or deposit that may bereceived or collected by any educational institution or class orclasses of such educational institutions in respect of any or allclass or classes of students :

Provided that before issuing notification under this sub-section,the draft of which shall be published in the Tamil NaduGovernment Gazette stating that any objection or suggestion whichmay be received by the Government, within such period as maybe specified therein, shall be considered by them.

(2) No educational institution shall receive or collect any fee oraccept deposit in excess of the amount notified under sub-section(1).

(2-A) Notwithstanding anything contained in sub-section (1) orsub-section (2), no educational institution imparting educationleading to degree in medicine or engineering shall receive orcollect any fee in excess of the amount fixed by the ‘Committeeon fixation of fee’ constituted by the Government.

Explanation – For the purpose of this sub-section ‘Committee onfixation of fee’ means the Committee constituted in pursuance ofthe direction of the Supreme Court in Islamic Academy ofEducation and another v. State of Karnataka and others [(2002) 6SCC 697].

(3) Every educational institution shall issue an official receipt forthe fee or deposit received or collected by it.”

A5. The University, though originally established as privateUniversity had always received contributions and funding from the StateGovernment. But the University never adhered to the statutory provisionsor the norms set by the State Government or the University GrantsCommission resulting in financial losses during the years 2009-10 and2010-11. Under the orders passed by the Government of Tamil Nadu aBSpecial Local Fund Audit Team was appointed which found variousirregularities, whereafter by another order dated 14.12.2012 High LevelCommittee was constituted to analyze the audit report submitted by theSpecial Local Fund Audit Team. The events which took place thereafterwere summed up by the Single Judge in the instant matters and theCrelevant observations in paragraphs 17 to 19 are quoted hereunder:

“17. After examining the report and the supporting material, thisHigh Level Committee concluded that the Founder had grosslyabused the privileges conferred upon him and that despite receivinggrants from the State Government to the tune of Rs.427.98 croresduring the period from 1998-99 to 2012-13, the University hadlanded up in serious financial crisis. Therefore, the Committeerecommended that the Government shall issue necessary directionsto the Senate and the Syndicate and also to appoint some personto carry out those directions.

18. In pursuance of the aforesaid recommendations, theGovernment issued letter dated 7.3.2013 to the Vice Chancellor,to convene the meeting of the Syndicate and Senate, to respondto the report of the Special Local Fund Audit Team. specialmeeting of the Senate was held on 13.3.2013 and the meeting ofthe Syndicate was held on 14.3.2013. The report of the Syndicateshowed that by and large, the findings of the Special Local FundAudit Team were correct. Therefore, the Government issued adirective on 26.3.2013 to convene special meeting of the Senateand the Syndicate. This was opposed by the Vice-Chancellor bya reply dated 1.4.2013 on the ground that second meeting willserve no purpose.

19. Therefore, the Government, by G.O. Rt. No.1401, PublicDepartment dated 4.4.2013, appointed an Administrator in exerciseof the powers conferred by Section 28(4) of the AnnamalaiUniversity Act, 1928. ……. “

6. In 2013, the State Legislature enacted the Annamalai UniversityAct, 2013 (hereinafter referred to as “2013 Act”) which came into forcew.e.f. 25.09.2013 and repealed the Annamalai University Act, 1928.Sections 3(1), 4(13) and 20(1)(m) and (ab) of said 2013 Act were asunder:

“3(1) On and from the date of commencement of this Act, theAnnamalai University established under the Annamalai UniversityAct, 1928 shall be deemed to have been established andincorporated under this Act and is hereby declared to be theUniversity by the aforesaid name.

4. The University shall have the following objects and powers,namely:-

(1) to (12)…………………

(13) to fix fees and to demand and receive such fees as maybe prescribed;

“20. (1) The Syndicate shall have the following powers, namely:-

(a) to (l)……………….

(m) to prescribe the fees to be charged for admission to theexaminations, degrees, titles and diplomas of the University andfor all or any of the purposes specified in section 4:

(n) to (z)(aa)…………….

(ab) to charge and collect such fees as may be prescribed;

(ac) to (an)……………”

7. 150 students who had taken admission in First MBBS Coursein Respondent No.2 College for the Academic Session 2013-14 preferredWrit Petition No.20720 of 2014 in the High Court of Judicature at Madrasquestioning fees of more than Rs.5.54 lakhs per annum imposed by theUniversity. Similar challenge was raised by students studying in DentalCourses which petitions were heard and dealt with by the High Courtalong with the main matter. It was urged by the petitioners that the feesfixed in Government Colleges in the State were Rs.12,290/- for MBBSCourse and Rs.10,290/- for BDS Course; that the Committee on Fixationof Fee constituted in terms of 1992 Act had fixed the tuition fees for

AMBBS Course at Rs.2.30 lakhs for two self-financing colleges, Rs.2.60lakhs for one self-financing college and Rs.2.80 for other self-financingcolleges and that in so far as ESI Medical Colleges were concerned, ithad fixed the tuition fees at Rs.24,000/-. Highlighting the enormousdifference between the fees charged by the University on one hand andthe scale fixed by the Government as well as the Committee on FixationBof Fee on the other, it was prayed that the matter for fixation of fee bereferred to the Committee in terms of 1992 Act.8. While opposing the aforesaid submissions, it was contended onbehalf of the University that the fees stipulated by the University werein terms of its statutes and the provisions of 2013 Act: that the object ofC1992 Act was to curtail the menace of self-financing colleges imposinghigh fees and that the Government Colleges and State Universities didnot come within the purview of 1992 Act: that presently the Universitywas running in deficit and if the fee structure was reduced it would putthe financial condition of the University in great jeopardy.D

9. The Single Judge of the High Court by his common Judgmentand Order dated 02.12.2014 dismissed the challenge raised by thepetitioners. It was observed that the petitioners having been admitted toMBBS and BDS Courses in pursuance of the prospectus for the year2013-14, were bound by the terms and conditions contained therein andEwere therefore estopped from raising any challenge. Reliance in thatbehalf was placed on the decision of this Court in Cochin University ofScience and Technology and another v. Thomas P. John and others[3].The Single Judge then proceeded to consider whether the provisions of1992 Act would apply and get attracted in the present case. Afterconsidering the definition of Educational Institution under Section 2(e)Fof 1992 Act, he observed that for the purposes of application of theprovisions of 1992 Act, the concerned Institution must have been notifiedby the State Government under the said 1992 Act. It was further observedthat the University was initially established in pre-independence daysand merely because the earlier Act was repealed and replaced by 2013

GAct, the first limb of Section 2(b) would not apply without the StateGovernment referring the University to the Fee Fixation Committee.

10. The correctness of the decision of the Single Judge wasquestioned by the students by filing Writ Appeal Nos.1637 and 1638 of2014. Writ Petition Nos.6909, 6910, 12515, 27098 and 31848 of 2015

and 14562, 22911 and 26388 of 2016 preferred by some of the studentswere also heard along with said writ appeals by the Division Bench ofthe High Court. By its common judgment and order dated 26.09.2016the Division Bench rejected the challenge and dismissed the appeals.The Division Bench affirmed the reasoning which weighed with theSingle Judge. It went on to observe that the University was empoweredunder 2013 Act to fix, demand and receive such fees as were prescribed.

11. These appeals by special leave question the correctness ofthe decision rendered by the Division Bench of the High Court.Mr. Ranjit Kumar, learned Senior Advocate while leading the argumentson behalf of the petitioners, submitted that it was completely erroneouson part of the High Court to observe that the provisions of 1992 Actwould not apply in the present case. He further submitted that on plainreading of its provisions, 1992 Act must apply and get attracted in thepresent case. These submissions were countered by Mr. S. Nandakumar,learned Advocate who appeared for the University. In his submission,the provisions of 1992 Act would not get attracted without an appropriatereference having been made by the State Government to the Fee FixationCommittee.

12. In the present case the Single Judge considered the definitionof Educational Institution as appearing in Section 2(e) of 1992 Act andcame to the conclusion that for the purposes of application of theprovisions of 1992 Act the concerned institution ought to have beennotified by the State Government and an appropriate reference must bemade to the Fee Fixation Committee. This reasoning has been affirmedby the Division Bench. It is, therefore crucial to consider the scope andambit of the said provision. For facility the definition of “educationalinstitution” can be divided in two parts as under:

Section 2(b) “educational institution” means:

(I) any institution by whatever name called, whether managed byany person, private body, local authority, trust or University, carryingon the activity of imparting education leading to degree or diploma(including degree or diploma in law, medicine or engineering)conferred by any University established under any law made bythe Legislature of the State of Tamil Nadu.

and

A(II) any other educational institution or class or classes of educationalinstitutions (other than any educational institution established bythe Central Government or under any law made by Parliament)as the Government may, by notification, specify.

According to (I) part, the activity must lead to award of degree orBdiploma conferred by any University established under any law made bythe Legislature of the State. There is element of certainty about thisfirst part of definition and it is not left to the discretion of the Governmentin any manner. If there is course which leads to award of degree ordiploma by any University as specified, the concerned institution carryingon the activity of imparting education would be an educational institutionCwithin the meaning of said Section 2(b).

The definition has an inclusive provision which is specified in the(II) part and empowers the Government to specify any other educationalinstitution or class or classes of educational institutions. Upon suchspecification by notification, such institution or class or classes ofDinstitutions would also stand covered by the definition. The (II) part alsocontains bracketed portion which is an exclusionary aspect of thedefinition. This bracketed portion excludes any institution established bythe Central Government or under any law made by the Parliament withrespect to which the State Government cannot, even by exercising powerEof specification include such institution.

13. The aforesaid analysis thus conclusively establishes that in sofar as cases covered under (I) Part are concerned, no specification bythe Government is required or necessary. If the concerned activity leadsto award of degree or diploma by any University established under anyFlaw made by the State Legislature, such institution shall be “educationalinstitution” within the meaning of provisions of Section 2(b). Thespecification by notification is pre-requisite only if the institutionconcerned is otherwise not covered under (I) Part. The High Court wascompletely in error in observing that for the application by the provisionsof 1992 Act an educational institution must always be specified by theGGovernment by notification. In our view, the requirement of specificationof notification is only in respect of “any other educational institution orclass or classes of educational institutions” and has not to be read with(I) part of definition, which part of the definition is an independent andstand alone provision and does not require any specification by theGovernment.H

14. The next question which must be considered is whetherUniversity in the present case answers the description in (I) Part ofSection 3(b) of 1992 Act. According to Section 3(1) of 2013 Act, on andfrom the commencement of said Act the University established underthe Annamalai University Act, 1928 shall be deemed to have beenestablished and incorporated under the provisions of 2013 Act. It is wellsettled that whenever Legislation deems, by way of legal fiction that aparticular state of affairs has to be assumed, that legal fiction has to begiven full effect. After quoting famous passage of Lord Asquith in EastEnd Dwellings Co. Ltd. v. Finsbury Borough Council[4], this Court inGurupad Khandappa Magdum v. Hirabai Khandappa Magdumand others[5] held that the legal fiction engrafted in Explanation I to Section6 of the Hindu Succession must be given due and full effect. There isthus no escape from the situation that the University in the present caseis the one established under any law made by the Legislature of theState of Tamil Nadu.15. In Islamic (supra), this Court directed constitution of twoCommittees, namely, Fee Fixation Committee and AdmissionsCommittee. Paragraph 7 of the decision dealt with the concept of Fixationof Fee by the Committee and said paragraph was as under:

“7. So far as the first question is concerned, in our view the majorityjudgment is very clear. There can be no fixing of rigid fee structureby the Government. Each institute must have the freedom to fixits own fee structure taking into consideration the need to generatefunds to run the institution and to provide facilities necessary forthe benefit of the students. They must also be able to generatesurplus which must be used for the betterment and growth of thateducational institution. In paragraph 56 of the judgment it has beencategorically laid down that the decision on the fees to be chargedmust necessarily be left to the private educational institutions thatdo not seek and which are not dependent upon any funds from

4 1952 AC 109, 132 =(1951) 2 All ER 587

“If you are bidden to treat an imaginary state of affairs as real, you must also imagineas real the consequences and incidents which, if the putative state of affairs had in factexisted, must inevitably have flowed from or accompanied it; and if the statute saysthat you must imagine certain state of affairs, it cannot be interpreted to mean thathaving done so, you must cause or permit your imagination to boggle when it comes tothe inevitable corollaries of that state of affairs.”

5(1978) 3 SCC 383

the Government. Each institute will be entitled to have its own feestructure. The fee structure for each institute must be fixed keepingin mind the infrastructure and facilities available, the investmentsmade, salaries paid to the teachers and staff, future plans forexpansion and/or betterment of the institution etc. Of course therecan be no profiteering and capitation fees cannot be charged. Itthus needs to be emphasized that as per the majority judgmentimparting of education is essentially charitable in nature. Thus thesurplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be divertedfor any other use or purpose and cannot be used for personal gainor for any other business or enterprise. As, at present, there arestatutes/regulations which govern the fixation of fees and as thisCourt has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgmentin T.M.A. Pai case the respective State Governments/concernedauthority shall set up, in each State, committee headed by aretired High Court Judge who shall be nominated by the ChiefJustice of that State. The other member, who shall be nominatedby the Judge, should be Chartered Accountant of repute. Arepresentative of the Medical Council of India (in short “MCI”)or the All India Council for Technical Education (in short “AICTE”),depending on the type of institution, shall also be member. TheSecretary of the State Government in charge of Medical Educationor Technical Education, as the case may be, shall be memberand Secretary of the Committee. The Committee should be freeto nominate/co-opt another independent person of repute, so thatthe total number of members of the Committee shall not exceedfive. Each educational institute must place before this Committee,well in advance of the academic year, its proposed fee structure.Along with the proposed fee structure all relevant documents andbooks of accounts must also be produced before the Committeefor their scrutiny. The Committee shall then decide whether thefees proposed by that institute are justified and are not profiteeringor charging capitation fee. The Committee will be at liberty toapprove the fee structure or to propose some other fee which canbe charged by the institute. The fee fixed by the Committee shallbe binding for period of three years, at the end of which periodthe institute would be at liberty to apply for revision. Once feesare fixed by the Committee, the institute cannot charge eitherdirectly or indirectly any other amount over and above the amountfixed as fees. If any other amount is charged, under any otherhead or guise e.g. donations, the same would amount to chargingof capitation fee. The Governments/appropriate authorities shouldconsider framing appropriate regulations, if not already framed,whereunder if it is found that an institution is charging capitationfees or profiteering that institution can be appropriately penalisedand also face the prospect of losing its recognition/affiliation.”

16. The directions issued in Islamic (supra) including one regardingconstitution of Fee Fixation Committee came up for consideration inP. A. Inamdar and others v. State of Maharashtra and others[6] andthe matter was settled in following terms:

“151. On Question 4, our conclusion, therefore, is that thejudgment in Islamic Academy insofar as it evolves the scheme ofthe two Committees, one each for admission and fee structure,does not go beyond the law laid down in Pai Foundation and earlierdecisions of this Court, which have been approved in that case.The challenge to setting up of the two Committees in accordancewith the decision in Islamic Academy therefore, fails……….....”

17. But the situation in the present matter stands on slightlydifferent footing inasmuch as by inserting sub-section (2-A) along withan explanation in Section 4 in 1992 Act, Fee Fixation Committee is astatutory mechanism in terms of said provisions of 1992 Act. Said Section4 shows that under sub-section (1) the Government is empowered toregulate the tuition fee or any other fees or deposits in the mannerprescribed therein. But in relation to imparting of education leading to adegree in medicine or engineering, sub-section (2-A) has been given anoverriding effect by incorporating non-obstante provision. Sub-section(2-A), unlike sub-section (1), does not require any notification by theGovernment. If an institution carries on activity of imparting educationleading to degree or diploma as spoken of in sub-section (2-A) of saidSection 4, the fee structure has to be that which is fixed by the Committee.The legislative intent is very clear and no educational institution which

Acomes within the scope of sub-section (2-A) can receive or collect anyfees in excess of the amount fixed by the “Committee on Fixation ofFee”.

18. We now have to deal with the submission whether the Universityby virtue of Section 4(13) and 20(1)(m) of 2013 Act could charge, collectBand receive tuition fee without the intervention of “Committee on Fixationof Fee” as contemplated by Section 4(2-A) of 1992 Act. The Universityby its very nature of activities would be running numerous courses andto that extent provisions of 2013 Act are general in nature. The provisionsof Section 4(2-A) of 1992 Act are specific and special and apply tocourses leading to degrees in Medicine and Engineering. Therefore,Cinsofar as professional courses leading to degrees in Medicine andEngineering are concerned, the matter must be screened and assessedby Committee on Fixation of Fee and the submission that the Universitywas entitled to fix fees on its own without the intervention of suchCommittee has to be rejected. The other submission that the studentsDwere estopped from raising challenge must also fail. If particularmodality is prescribed by the Legislature any action in defiance orignorance of such modality cannot be protected or preserved on the pleaof estoppel. The reliance placed on the decision of this Court in CochinUniversity of Science and Technology (supra) was also misplaced. Inthat case students who had taken admission in NRI Quota, thereafterEcontended that their fee structure be slashed to the same level asapplicable to non NRI students. The concept of estoppel was pressedinto service while rejecting said submission but that cannot be groundto deny the express protection available under legislation.19. We, therefore, allow these appeals and set aside the judgmentsFand orders under appeal. We hold that the University was not entitledand competent to devise its own fee structure in the present matterwithout having the fee fixed by the Committee on Fixation of Fee ascontemplated under 1992 Act. The matters shall therefore have to bereferred to said Committee and the University is directed to place theGentire material including its balance-sheet and accounts before theCommittee on Fixation of Fee within two weeks from the date of thisJudgment. The Committee shall thereafter bestow attention and fixappropriate fee structure for the academic year 2013-14 onwards. Itgoes without saying that if the fee structure fixed by the University is

found by the Committee to be inappropriate, consequential benefit andadvantage shall be given to each and every student. The Committeeshall fix the appropriate fee structure for the current academic Session2018-19 as well. The entire exercise shall be completed by 31.08.2018.

20. These appeals stand allowed in aforesaid terms. No costs.

Ankit Gyan

Appeals allowed.