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WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw
BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTON
WRIT PETITION NO.2813 OF 2017
K.J. Somaiya College of Engineering, )
(An Autonomous Un-aided Institute )
Affiliated to University of Mumbai & )
approved by AICTE), Vidyavihar East, )
Mumbai - 4000 77; )
An Institute established by the Somaiya )
Vidyavihar, Mumbai; Through its )
Principal, Prof. Shubha Pandit )
Age: Adult, Occ : Principal ) ..... Petitioner.
V/s
1] The Secretary )
Fees Regulating Authority, )
Room No.305, 3rd Floor, Government )
Polytechnic Building, 49, Kherwadi, )
Ali Yawar Jung Marg, Bandra (E), )
Mumbai - 4000 51 )
)
2] Directorate of Technical Education )
3, Mahapalika Marg, Opp. Metro )
Cinema, Dhobi Talao, Chhatrapati )
Shivaji Terminus Area, Mumbai, )
Maharashtra 400001. )
)
3] The Registrar, )
University of Mumbai, Mumbai 32 )
)
4] State of Maharashtra, )
Through its Higher and Technical )
th
Education Department, 4 Floor, )
Mantralaya Annex, Madam Cama Road, )
Nariman Point, Mumbai - 400032 )
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)
5] University Grants Commission )
Bahadurshah Jaffar Marg, New Delhi )
)
6] The State of Maharashtra )
Through its Secretary, Department )
of Higher & Technical Education, )
Mantralaya, Mumbai )
)
7] The State of Maharashtra )
Through its Secretary, Department )
of Social Welfare & Tribal )
Department, Mantralaya, Mumbai. ) ...... Respondents.
ALONGWITH
WRIT PETITION (L) NO.2032 OF 2017
S.P. Mandali's Prin. L.N. Welingkar
Institute of Management, Development
& Research. ....Petitioner.
V/s
The Secretary,
Fees Regulating Authority and Others ....Respondents.
ALONWITH
WRIT PETITON NO. 2684 OF 2017
Bhartiya Vidya Bhavan's
Sardar Patel Institute of Technology ....Petitioner.
V/s
The Secretary,
Fees Regulating Authority and Others ....Respondents.
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Mr. Aspi Chinoy, Senior Counsel along with Mr. Akshay Prakash
Shinde for the Petitioner in WP/2813/2017.
Dr. Birendra Saraf along with Mr. Akshay Shinde for the Petitioner in
WPL/2032/2017.
Mr. Susheel Mahadeshwar along with Ms. Ranjana Todankar for the
Petitioner in WP/2684/2017.
Dr. Milind Sathe, Senior Counsel along with Ms. Manisha Jagtap and
Mr. Akshay Kapadia i/by M/s J. Shekhar & Co., for Respondent No.1
in All Writ Petitions.
Mr. S.G. Aney, Senior Counsel and Mr. L.M. Acharya, Special Counsel,
Mr. Kunal Bhange, Asst. Government Pleader, for Respondent Nos. 2,
4, 6 and 7 in WP/2813/2017 and for Respondent No.2 in
WP/2684/2017.
Mr. L.M. Acharya, Special Counsel alongwith Mr. Kedar Dighe, Asst.
Government Pleader for Respondent Nos.2 and 4 in WPL/2032/2017.
Mr. Rui A. Rodrigues for Respondent No.3 (University of Mumbai) and
for Respondent No.5 [U.G.C.] in WP/2813/2017 and WPL/2032/2017
and for Respondent No.4 [U.G.C.] in WP/2684/2017.
Mr. P.M. Palshikar for Respondent No.3 in WP/2684/2013.
CORAM: B. R. GAVAI &
B. P. COLABAWALLA, JJ.
Judgment reserved on : 19/01/2018 Judgment pronounced on : 25/01/2018 3/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:37 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw JUDGMENT: (Per B.R. Gavai, J.) 1] A common question of law that arises for consideration in these Petitions is, as to whether Petitioners who are Autonomous Colleges / Institutions, as defined in sub-section (6) of Section 2 of the Maharashtra Public Universities Act, 2016 (hereinafter referred to as "2016 Universities Act"), are governed by the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission and Fees) Act, 2015 (hereinafter referred to as "Regulation Act of 2015") or not?
2] Since all these three Petitions involve a common question of law they have been heard together and are being disposed of by this common judgment and order.
3] Factual position in all the three matters is undisputable. Petitioner in Writ Petition No.2813 of 2017 is an Autonomous Unaided College of Engineering, affiliated to the University of Mumbai and approved by the All India Council for Technical Education. The perusal of the communication addressed by the University Grants 4/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:37 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Commission ("UGC") to University of Mumbai dated 22/05/2013 would show that it has informed the University that the Commission on the recommendations of the Standing Committee, has agreed to grant autonomous status to the Petitioner under the UGC autonomous colleges scheme for a period of six years from the academic year 2013- 2014 to 2018-2019. Accordingly, University of Mumbai vide communication dated 18/03/2014 informed the Petitioner that University of Mumbai has conferred autonomous status on it for a period of six years from the academic year 2013-2014 to 2018-2019 in accordance with the provisions made in Statutes No.593 to 642. Notification to this effect was also issued by the University on 12/05/2014.
4] The Maharashtra Legislature in the year 2015 enacted the said Regulation Act of 2015. Petitioner addressed a communication dated 14/01/2016 to the Fees Regulating Authority (hereinafter referred to as the "Authority") constituted under the provisions of the Regulation Act of 2015, informing it that since it was an Autonomous Institution it would like to avail of autonomy for fixation of its fee structure for various courses conducted by it. A communication was addressed to 5/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the Petitioner on 04/03/2016 thereby communicating the Resolution of the Authority dated 02/03/2016, whereby it was resolved that the College may act as per the requirements of the UGC and University of Mumbai and that the College may follow the Rules. 5] However, the Petitioner received a notice dated 07/04/2016, informing that pursuant to the passing of the Regulation Act of 2015, it was mandatory for all such Institutions to get course-wise fee approved by the Authority for every academic year. It was further informed that in case of contravention of any of the provisions of the Act, there was provision for imposing penalty on the Institution committing breach. The Petitioner replied to the said notice on 29/06/2016, stating therein that since it was an Autonomous Institution, it was not subject to the jurisdiction of the Authority and as such, the notice issued be recalled. However, on 06/09/2016, Petitioner was served with the Notification issued by the Authority, calling upon all Private Unaided Private Professional Educational Institutions to submit their proposed fee structure in the revised format not later than 31st October for the academic year 2016-2017 & 2017-2018 for approval of the authority under the provisions of 6/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Section 14(a) of the Regulation Act of 2015. Being aggrieved by the said Notification, the Petitioner filed Writ Petition No.309 of 2017 before this Court, seeking a declaration that Chapter IV of the Regulation Act of 2015 was not applicable to the Petitioner. Petitioner thereafter received a notice dated 08/05/2017 from the Authority, informing that the matter of the Petitioner was fixed on 12/05/2017 at 2 p.m and directed the Petitioner to remain present alongwith relevant documents. Petitioner also submitted written submissions before the Authority. Vide Order dated 06/06/2017, Writ Petition No. 309 of 2017 was disposed of by this Court, thereby directing the Authority to decide the issue with regard to jurisdiction within a period of four weeks. It appears that there were certain communications between the Petitioner and the Respondent No.1 - Authority. By the impugned order dated 01/07/2017, the Authority held that the Regulation Act of 2015 was applicable even to the autonomous colleges and therefore the Petitioner was bound to submit its fee proposal to the Authority. Being aggrieved thereby, the Petitioner has approached this Court.
6] This Court, on 10/10/2018, finding a prima facie case, granted 7/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw rule and interim protection to the Petitioner. This Court prima facie found that there was conflict between the provisions of the Regulation Act of 2015 and the 2016 Universities Act. It therefore issued notice to the learned Advocate General.
7] So far as the Petitioner in Writ Petition (L) No.2032 of 2017 is concerned, it is an Institute of Management, Development & Research which has been granted autonomous status on 29/07/2015. The Petitioner, in fact, in response to the notice issued by the Authority, had submitted its proposal to the Authority regarding fees of the Petitioner. According to the Petitioner, the same was done bonafide. However, contending that since the Petitioner has been conferred autonomous status by the UGC, the Authority ceased to have jurisdiction to determine the fees of the Petitioner-Institute, the Petitioner has approached this Court seeking the same declaration as is sought in the first Petition.
8] The Petitioner in third Petition being Writ Petition No.2694 of 2017 is also an Institute of Technology. The Petitioner has been granted autonomous status on 06/04/2017 for a period of six years 8/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw from the academic year 2017-2018 to 2022-2023. After noticing the interim order passed in the first matter, the Petitioner has also approached this Court, seeking the same declaration. 9] The arguments canvassed on behalf of the Petitioners were led by Mr. Aspi Chinoy, learned Senior Counsel, in the first matter. In the second and third matter, we have heard Dr. Birendra Saraf, and Mr. Mahadeshwar, learned Counsel for the Petitioners. 10] Mr. Chinoy, learned Senior Counsel appearing on behalf of the Petitioners in the first Petition, submits that in the Maharashtra Universities Act, 1994 (hereinafter referred to as "Universities Act, 1994") full administrative, academic and financial autonomy has been granted to the Autonomous Institutions. Learned Senior Counsel submits that the definition of "autonomous college" and "autonomy" as defined in sub-section (6) and (5) of Section 2 of the said Act read with Section 89 of the said Act would reveal that the legislative intent was to grant complete autonomy in administrative, academic and financial matters to the autonomous colleges/institutions. Learned Senior Counsel submits that the said legislative intent of granting 9/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw complete autonomy, including financial autonomy is fortified by the provisions of Section 101 of the 2016 Universities Act. It is submitted that Autonomous Colleges / Institutions have been kept out of the purview of provisions of Section 101, which provide for the manner of fee fixation. Learned Senior Counsel submits that provision of keeping Autonomous Colleges / Institutions out of the purview of Fee Fixation Committee, amplifies the legislative intent prescribed under the 1994 Universities Act of giving complete financial autonomy. Learned Senior Counsel submits that when special provision under section 89 was made for a distinct class namely Autonomous Colleges / Institutions, general provisions made in the Regulation Act of 2015, would not be applicable to such a distinct class. He further submits that the legislative intent of giving complete financial autonomy to Autonomous Colleges / Institutions is explicit under sub-section (1) of Section 101 of the 2016 Universities Act, by keeping Autonomous Colleges out of the provisions of Section 101, which provide for fee fixation. He therefore submits that the legislative intent is to give complete freedom to the Petitioners to fix fees as determined by them. Learned Senior Counsel submits that when special provisions (as contained in Section 89 of the 1994 Universities Act and sub-section 10/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw (1) of Section 101 of 2016 Universities Act) grant complete autonomy, including financial autonomy to the Petitioners, general provisions contained in the Regulation Act of 2015 would not be applicable to the Petitioners. Learned Senior Counsel further submits that, it will have to be held that provisions in the Regulation Act of 2015 which are repugnant to the provisions contained in Section 89 of the 1994 Universities Act read with sub-section (1) of Section 101 of the 2016 Universities Act, stand impliedly repealed. 11] Mr. Chinoy, learned Senior Counsel, relying on the guidelines issued by the UGC to the Autonomous Colleges, submits that the autonomy has been granted, so that the Colleges that have potential for offering programmes of higher standards, have complete freedom in administrative, academic and financial matters. He submits that the UGC Policy provides that the exercise of academic freedom by teachers is a crucial requirement for development of the intellectual climate of our country. Unless such a climate prevails, it is difficult to achieve excellence in higher education system. Learned Senior Counsel, therefore, submits that when autonomy is granted to the Petitioners in pursuit of the policy of the UGC to achieve academic excellence, the 11/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw provisions of the Regulation Act of 2015 cannot be permitted to be applied to the Petitioners and impose fetters on their freedom. 12] Mr. Chinoy, learned Senior Counsel, submits that when there is conflict between a special provision and general provision, it is special provision which would apply and the general provision will have to give way to the special provision. Learned Senior Counsel in this respect relies on the judgment of the Apex Court in the cases of R.S. Raghunath vs. State of Karnataka and Another1, Life Insurance Corporation of India vs. D.J. Bahadur and Others 2 and in the case of Independent Thought vs. Union of India and Another 3. 13] Dr. Saraf, learned Counsel appearing on behalf of the Petitioner in second Petition submits that, it is not as if arbitrary and unchannelised power is granted to the Autonomous Colleges. He submits that under the Statute various Bodies like the Financial Council, the Governing Council etc are provided. It is submitted that, fees as determined by the Financial Council are required to be 1 (1992) 1 SCC 335 2 (1981) 1 SCC 315 3 (2017) 10 SCC 800 12/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw approved by the Governing Council, which apart from the representatives of the Management has also independent and government representatives. Learned Counsel therefore submits that when the Statute provides for a special mechanism for Autonomous Colleges, the general law as provided in the Regulation Act of 2015 would not be applicable.
14] Mr. Mahadheshwar, learned Counsel appearing on behalf of the Petitioner in third Petition, submits that under the Statute framed under 1994 Universities Act, a complete Code is provided for fixation of fees. He therefore submits that when a particular Statute provides for a complete Code in the matter for which it is enacted, the same will have to be construed to be a special law.
15] On the other hand, Mr. Aney, learned Senior Counsel, appearing on behalf of the State submits that perusal of various provisions of the 1994 Universities Act as well as the 2016 Universities Act would reveal that, both these Enactments are general laws, dealing with various aspect of the administration of the Universities, affiliation of the Colleges to the Universities etc. Learned Senior Counsel further 13/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw submits that even under the 1994 Universities Act, determination of fees by the Autonomous Institution was subject to regulation by the Management Council under Section 28(v) of the said Act, upon proposal made to it by the Academic Council under section 30(q) of the 1994 Universities Act. He submits that, though under Statute No.613, autonomy was given to the Autonomous Colleges, the same was subject to the provisions of the said Act and as such, subject to the recommendations of Academic Council and Management Council. 16] Mr. Aney, learned Senior Counsel appearing on behalf of the State, submits that the autonomy granted is for the limited purpose of commencement of Diploma or Certificate Courses without approval of the University, commencement of new Degree or Post-graduate Course with the approval of the Academic Council by fulfilling the minimum standards laid down by the University/UGC and for restructuring and redesigning the existing Courses with the approval of Academic Council as per UGC norms etc. 17] Mr. Aney, learned Senior Counsel submits that the Regulation Act of 2015 is an Act for the limited purpose of regulating fees of the 14/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Professional Unaided Colleges. Learned Senior Counsel further submits that 1994 Universities Act and 2016 Universities Act being general laws concerning affairs of the Universities and the Regulation Act of 2015 being a law governing limited field of regulating admissions and fees in the Professional Unaided Colleges, it is the Regulation Act of 2015 which will have to be considered as a special law and the 1994 Universities Act and 2016 Universities Act will have to be considered as general laws.
18] Mr. Aney, learned Senior Counsel further submits that the Regulation Act of 2015 is traceable to Entry 25 of List - III of Seventh Schedule of the Constitution. He submits that the Petitioners have not challenged the validity of the said Act. Learned Senior Counsel further submits that the Petitioners have not raised any grievance insofar as the applicability of the Regulation Act of 2015 for admissions to the Petitioner - Colleges. He submits that such an argument, which says that the Regulation Act of 2015 would be applicable in part and not applicable in part, cannot be sustainable. 19] Mr. Aney relies on the judgments of the Apex Court in the cases 15/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw of Harshad S. Mehta and Others vs. State of Maharashtra 1, State of M.P. vs. Kedia Leather & Liquor Ltd and Others 2 and in the case of Municipal Council, Palai through the Commissioner of Municipal Council Palai vs. T.J. Joseph3 20] Dr Milind Sathe, learned Senior Counsel, appearing on behalf of Respondent No.1 - Authority, whilst supporting the contentions of Mr. Aney, submits that the Regulation Act of 2015 has been enacted in pursuance to the mandate of the Apex Court as could be found in the judgment of the Constitution Bench consisting of the five Hon'ble Judges in the case of Islamic Academy of Education and Another vs. State of Karnataka and Others4 and the Judgment of the Constitution Bench consisting of the seven Hon'ble Judges in the case of P.A. Inamdar and Others vs. State of Maharashtra and Others 5. Learned Senior Counsel submits that Section 101 of the 2016 Universities Act deals with fixation of fees, whereas what has been provided under the Regulation Act of 2015 is regulation of the fees. Learned Senior Counsel submits that the validity of a similar Act enacted by Madhya 1 (2001) 8 SCC 257 2 (2003) 7 SCC 389 3 AIR 1963 SC 1561 4 (2003) 6 SCC 697 5 (2005) 6 SCC 537 16/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Pradesh State Legislature fell for consideration before the Constitution Bench of the Apex Court in the case of Modern Dental College and Research Centre and Others vs. State of Madhya Pradesh and Others 1. Learned Senior Counsel submits that, though the words used in the said Act were "fee fixation", it has been held by the Apex Court that, they, in effect, provided for regulation of fees, to ensure that there was no arbitrariness. Learned Senior Counsel therefore submits that there is a distinction between "fee fixation" and "fee regulation" and as such, there is no conflict in both the Acts. Learned Senior Counsel further submits that though the 1994 Universities Act used the word "financial autonomy", in the 2016 Universities Act, the said word "financial autonomy" has been taken away and what has been provided in 2016 Universities Act is only academic and administrative autonomy and therefore the contention of the Petitioners needs to be rejected. 21] Mr. Chinoy, in rejoinder, submits that insofar as Judgments on which Mr. Aney and Dr Sathe relied on are concerned, in those cases there was no issue with regard to the autonomous status granted to the Colleges and as such, the said judgments would not be applicable 1 (2016) 7 SCC 353 17/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw to the facts of the present case. He submits that, when under the 1994 Universities Act and the 2016 Universities Act an autonomy has been granted in furtherance of the policy of the UGC, the same cannot be taken away by the Regulation Act of 2015. He reiterates that the Regulation Act of 2015 being a general law, would not be applicable to the Autonomous Institutions for which a distinct class has been carved out under Section 89 of the 1994 Universities Act and under Section 101 of 2016 Universities Act. Mr. Chinoy further submits that the argument that there is a distinction between "fee fixation" and "fee regulation" is totally without substance. Both the things are one and the same. He submits that by the Regulation of 2015 the freedom which is granted to the Autonomous Institutions to achieve academic excellence is being taken away and as such, interpretation, as placed by the Respondents, would not be sustainable. FINDINGS:
22] For appreciating the rival submissions, we will have to refer to certain provisions of the 1994 Universities Act, the Regulation Act of 2015 and the 2016 Universities Act, so also the Statutes framed under 18/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the 1994 Universities Act.
23] Sub-section (5) of Section 2 of 1994 Universities Act, defines "autonomy" as thus :-
"2(5) "autonomy" means a privilege of the university conferred by the statutes to permit a college, institution or a university department to conduct academic programmes and examinations, develop syllabus for the respective subjects and issue certificates of passing the examinations etc. A college, institution or a university department which has been granted autonomy shall have full academic administrative and financial autonomy subject to the provisions of the Act and Statutes;"
Sub-section (6) thereof, defines "autonomous college" etc. as thus:-
"2(6) "autonomous college", "autonomous institution" or "autonomous department" means a college, institution or department to which autonomy is granted and is designated to be so by the Statutes;"
24] Section 89 of the 1994 Universities Act, reads thus :-
"89. (1) A university department or institution, affiliated college or recognised institution may apply to the university for grant of autonomous status. The Management Council on the recommendation 19/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw of the Academic Council may confer the autonomous status.
(2) The autonomous university department or institution or college or recognised institution, may constitute its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic, financial and other activities of the university, as prescribed.
(3) The autonomous university department or institution or college or recognised institution may prescribe its own courses of study, evolve its own teaching methods and hold examinations and test for students receiving instruction in it and award degrees or certificates of its own. Autonomous university department or institution or college or recognised institution shall function with the objectives of promoting academic freedom and scholarship on the part of teachers and students which are essential to the fostering and development of and intellectual climate conducive to the pursuit of scholarship and excellence."
25] Sub-section (5) of Section 2 of 2016 Universities Act, defines "autonomy" as thus :-
2(5) "autonomy" means a privilege of the university conferred by the Statutes to permit a college, institution or a university department to conduct academic programmes and examinations, develop syllabus for the respective subjects and issue certificates of passing the examinations;"
Sub-section (6) thereof, defines "autonomous college" etc. as 20/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw thus:-
2(6) "autonomous college", "autonomous institution" or "autonomous department" means a college, institution or department to which autonomy is granted and is designated to be so by the Statutes;"
26] Section 101 of 2016 Universities Act reads thus :-
"101.(1) There shall be a Fee Fixation Committee to work out the real cost of delivery of each and every under-graduate and post-graduate courses or programmes run by the university, colleges and recognized institutions, other than autonomous colleges and autonomous institutions and those managed and maintained by the State Government, Central Government and local authorities.
(2) The Fee Fixation Committee shall decide the tuition fees, other fees and charges for various courses or programmes as recommended by the board of Deans, and recommend it to the academic Council for approval.
(3) The Fee Fixation Committee shall consist of the following members, namely :-
(a) a retired Vice-Chancellor or an eminent educationist having wide experience in the field of education, who shall not be connected with the university or any college or institution under its jurisdiction as the Chairperson ;
(b) the Dean of the faculty concerned ;
(c) Chancellor's nominee on the Management Council ;
(d) one finance expert nominated by the Vice-21/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
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(e) one legal expert nominated by the Vice-Chancellor, not connected with the university or college or institution under its jurisdiction ;
(f) Registrar or his nominee not below the rank of Deputy Registrar - Member Secretary.
(4) The quorum for a meeting of the committee shall be three.
(5) All members of the committee, other than ex-officio members shall hold office for a term of five years and shall not be eligible for a second consecutive term.
(6) Notwithstanding anything contained above, the State Government may evolve the Statutory Mechanism of fixation and regulation of fees which shall be binding on different types of colleges and recognized institutions as specified by the State Govt. in this regard.
(7) The tuition fees, other fees, and charges for various courses or programmes as recommended by fee fixation committee and finally approved by the Academic Council shall be applicable in general. Provided that, any college or recognized institution other than autonomous college and autonomous institution and those managed and maintained by the State Government, Central Government and Local Authorities which intends to charge different fees other than those prescribed and approved by Academic Council may submit the proposal to the fee fixation committee and the fee fixation committee shall decide the tuition fee, other fees and charges for the specific course or programme for such college or institution on 22/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the basis of assessment and evaluation of different additional facilities provided by such applicant college or recognized institutions. The decision of fee fixation committee in this regard shall be final and binding on the applicant college or institution.
(8) The committee shall meet at least twice a year to examine and consider the fee fixation proposals on the basis of the norms as prescribed in Ordinance, and shall hold as many meetings as needed. The committee shall decide tuition fees, other fees and charges for various courses or programmes, at least six months before the commencement of academic year.
27] Section 122 of 2016 Universities Act reads thus:-
122. (1) A university department or institution, affiliated college or recognized institution may apply to the university for grant of autonomous status. The Management Council on the recommendation of the Academic Council may confer the autonomous status.
(2) Autonomous university department or institution or affiliated college or recognized institution shall function with the objectives of promoting academic freedom and scholarship on the part of teachers and students which are essential to the fostering and development of an intellectual climate conducive to the pursuit of scholarship and excellence.
(3) The autonomous university department or institution or affiliated college or recognized institution, may constitute its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic and other activities of the university, as may be prescribed by the Statutes.23/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw (4) The autonomous university department or institution or affiliated college or recognized institution may prescribe its own courses of study, evolve its own teaching methods and hold examinations and tests for students receiving instruction in it, and recommend the university for award degrees, diplomas or certificates, after following the procedure as prescribed in the Statutes. The autonomous university department or institution or affiliated college or recognized institution shall have full academic and administrative autonomy subject to the provisions of this Act and Statutes and the guidelines issued by the University Grant Commission, from time to time."
28] The relevant Statutes framed under statute making power under 1994 Universities Act are as under:-
"S.612 The Autonomous College/ Recognised Institution which is managed and maintained by the private Management / Trust shall constitute the Board of Management, which shall consist of :
1. Three members nominated by the college management from Education, Industry and Business field. These persons must be of proven academic interest as far as possible having PG level qualification. Out of this one shall be the Chairman.
2. Two experts nominated by the Vice-Chancellor from the Academic Council.24/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
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3. Two teachers elected by the Academic staff of the college for a term of 2 academic years and having not less than five years of teaching experience.
4. State Council member or Professor or a person not below the rank of Joint Director nominated by the State Government.
5. One nominee of the UGC/AICTE, as the case may be.
6. Alumni of the College nominated by the College Management.
7. Principal/Director - Member - Secretary." "S.613 Subject to provisions of the Act, Statutes, Rules and Regulations, the Board of Management of the Autonomous College/Recognised Institution/ University Department/ University Institution shall perform following powers and duties :
a) To fix the fees (including tuition fees) and other charges payable by the students, on the recommendations of the Academic Board. A total fee should not exceed the cost of education per student which includes expenses on salary, non- salary and maintenance and rent.
b)........ to l)..............."
"S.633 1. The Autonomous College/ Recognised Institution/ University Department/ University Institution shall be competent to raise its own resources by -
a) introducing the new courses on self-financing basis.
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b) accepting endowments and/or donations which are not linked with the admissions.
c) instituting new degrees/ diplomas/ certificates.
d) revising fees with the permission of the Academic Board and Board of Management.
e) grant-in-aid.
f) other assistance from funding agencies.
g) such other sources, which are legally permissible
and in consonance with the objectives of the University and of the Autonomous College / Recognised Institution / University Department / University Institution.
2. The resources realized by the Autonomous College/Recognised Institution /University Department/ University Institution shall be utilised solely for the purpose of the conduct and development of the Autonomous College/Recognised Institution/ University Department/University Institution and as provided for by the annual financial estimates (budget) approved by the Board of Management."
29] On the other hand, Sub-section (q) of Section 2 of Regulation Act of 2015, defines "Private Professional Educational Institution" as thus :-
"(q) "Private Professional Educational Institution"26/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw means any college, school, institute, institution or other body, by whatever name called, conducting any professional course or courses approved or recognized by the appropriate authority and affiliated to any university, but shall not include,--
(i) any such institution established, maintained or administered by the Central Government, any State Government or any local authority;
(ii) institution declared to be a deemed university under section 3 of the University Grants Commission Act, 1956 ; or
(iii) a university to which the provisions of the University Grants Commission (Establishment and Maintenance of Private Universities) Regulations, 2003 are applicable;"
Sub-section (r) of Section 2 thereof, defines "Professional Education" as thus :
"(r) "Professional Education" means any educational course of study declared and notified as such, from time to time by the Government which includes a course leading to the award of an Under Graduate or Post-Graduate degree, diploma, by whatever name called and recognized by the appropriate authority;"
Sub-section (1) of Section 13 thereof provides for functions, powers and procedure of Fees Regulating Authority, which reads thus:27/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw "13. (1) The Fees Regulating Authority shall perform the following functions, namely :--
(i) to determine the reasonableness of fees levied by unaided institutions on the basis of the factors specified in section 15; and to verify whether the fees so levied does not amount to profiteering or charging of capitation fees within the meaning of clause (a) of section 2 of the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987 ;
(ii) scrutiny and verification of fee proposals of the unaided institutions and final approval thereof ;
(iii) to evolve the mechanism for verification of infrastructure facilities and amenities and to undertake the verification of such facilities and amenities ;
(iv) to undertake research studies, at such intervals as the Fees Regulating Authority may deem fit, for determining the professional coursewise expenses required to be made per student, for the unaided institutions in accordance with the mandatory guidelines of the appropriate authority concerned; and
(v) to undertake measures for the redressal of grievances of the Stake-holders."
Section 14 thereof provides for procedure to be adopted by the Fees Regulating Authority and it may be relevant to refer to the same.
Section 14 reads as under:-
"14. (1) In determining the reasonableness of fee structure, the following provisions shall apply :--28/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw
(a) the Management of the Unaided Institution shall submit the details of the proposed fee alongwith the audited accounts of the preceding financial year, the proposed budget in respect of the current financial year and the relevant record and evidence to the Fees Regulating Authority for its approval not later than 31st October of previous academic year;
(b) in the event of non-submission of proposal for upward revision of fees to the Fees Regulating Authority within the time-limit specified by the Authority, the fees structure as approved by the Authority and applicable during the previous academic year shall continue to apply;
(c) the Fees Regulating Authority shall establish a separate scrutiny cell for the scrutiny of proposals submitted;
(d) after considering all the relevant factors, the Fees Regulating Authority shall approve the fees within a period of one hundred and twenty days from the date of receipt of the details of the proposed fee and communicate the details of the fee so approved;
(e) if the fee approved by the Fees Regulating Authority is not acceptable to the unaided institution, it may file review application with detail reasoning before the Fees Regulating Authority for reviewing its decision, within fifteen days from the date of communication. It shall be mandatory for the Fees Regulating Authority to decide such review application before the 31st March of every year and shall communicate its decision to the concerned institution accordingly;
(f) the Fees Regulating Authority may prescribe its procedure regarding scrutiny of fee proposals and grievance redressal mechanism as it deem fit. 29/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 :::
WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw (2) Pending the decision of the Fees Regulating Authority, the management shall be at liberty to collect the interim or adhoc fee as the case may be, till the final determination for the particular academic year. (3) The Fees Regulating Authority shall indicate the different heads under which the fees may be levied. (4) Every unaided institution shall display on its notice board, the course-wise fees as approved by the Fees Regulating Authority and on its website in Marathi and English, provided that, in case of linguistic minority institutions, the display shall also be in the language of the minority to which such, institution belongs and shall be binding on the students and the institution. (5) No institution shall collect fee amounting to more than one year fee from a candidate in an academic year and collection of fees for more than one year in an academic year shall be construed as collection of capitation fee and such institution shall be liable to be proceeded against.
(6) The fees approved and communicated by the Fees Regulating Authority shall be applicable in respect of the candidate who is admitted to the unaided institution in that academic year and shall not be revised till the completion of the course of such student in the concerned institution:
Provided that, an unaided institution may, with the prior approval of the Fees Regulating Authority, revise the fees in respect of the second or subsequent years, on the grounds such as revision in taxes, sudden revision in regular expenditure, etc."
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WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Section 15 thereof provides for factors for determination of fee structure, which reads thus :-
"15. The Fees Regulating Authority shall determine the reasonableness of the fee structure proposed by every unaided institution, in respect of each professional course or group of courses, considering following factors :--
(i) the location (Urban or Rural) of the institution;
(ii) the cost of land and building ;
(iii) minimum mandatorily required infrastructure or facilities, as specified by the appropriate authority ;
(iv) the expenditure proposed or incurred on the facilities and amenities that are not mandatory as per the guidelines of the appropriate authority ;
(v) available number of qualified regularly appointed teaching and non-teaching staff as per the prescribed norms of the appropriate authority ;
(vi) expenses on the prescribed salaries of the teaching and non-teaching staff ;
(vii) the expenditure on administration and the maintenance;
(viii) the reasonable revenue surplus required for growth and development of the institution with particular reference to the professional course conducted by it, which shall not be more than fifteen per cent. of educational revenue in the respective professional course or group of courses;
(ix) facilities provided by the Government, such as 31/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw lease of land at concessional rates and use of its infrastructure, for the conduct of the professional courses;
(x) depreciation or contribution for asset replacement fund;
(xi) rent of building or usage charges;
(xii) incentives for quality enhancement, such as--
(a) faculty strength with Ph. D. qualifications and Research publications in International Journals and Patent filed by the institution;
(b) faculty training and placement of students;
(c) accreditation of eligible programmes or the Institute such as NBA, NABET, NAAC, etc.;
(xiii) rate of inflation;
(xiv) any other relevant factor, as may be determined by the Fees Regulating Authority."
30] It could be seen from sub-section (6) of Section 2 of the 1994 and the 2016 Universities Acts that "autonomous college", "autonomous institution" or "autonomous department" means a college, institution or department to which autonomy is granted and is designated to be so by the Statutes. Perusal of sub-section (5) of Section 2 of the 1994 Universities Act, would reveal that "autonomy" means a privilege of the university conferred by the statutes to permit 32/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw a college, institution or a university department to conduct academic programmes and examinations, develop syllabus for the respective subjects and issue certificates of passing the examinations etc. It further provides that a college, institution or a university department which has been granted autonomy shall have full academic administrative and financial autonomy subject to the provisions of the Act and Statutes.
31] Sub-section (1) of Section 89 of the 1994 Universities Act, provides that a university department or institution, affiliated college or recognised institution may apply to the university for grant of autonomous status and the Management Council, on the recommendation of the Academic Council, may confer the autonomous status. Sub-section (2) thereof enables the autonomous university department or institution or college or recognised institution to constitute its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic, financial and other activities of the university, as prescribed. Sub-section (3) provides that the autonomous university department etc may prescribe its own courses of study, evolve its own teaching 33/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw methods and hold examinations and test for students receiving instruction in it and award degrees or certificates of its own. It provides that the autonomous university department or institution or college or recognised institution shall function with the objectives of promoting academic freedom and scholarship on the part of teachers and students which are essential to the fostering and development of the intellectual climate conducive to the pursuit of scholarship and excellence.
32] Perusal of Statute 612 would reveal that the Board of Management shall consist of three members nominated by the college- management, from Education, Industry and business field, two experts to be nominated by the Vice-Chancellor from the Academic Council, two Teachers elected by the academic staff of the college, State Council member or Professor or a person not below the rank of Joint Director nominated by the State Government, one nominee of the UGC/AICTE as the case may be, Alumni of the college nominated by the college management and Principal / Director - Member Secretary. 33] Statute 613 provides for powers and duties of the Management 34/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Board. Management Board is empowered to fix the fees under clause
(a). Management Board is entitled to fix the fees (including tuition fees) and other charges payable by the students, on the recommendation of the Academic Board. However, a rider is provided that the total fee should not exceed the cost of education per student, which includes expenses on salary, non-salary and maintenance and rent.
34] Statute 633 enables the Autonomous Institutions, Colleges etc to raise its own resources by various methods like introducing new courses on self-financing basis, accepting endowments and / or donations etc, instituting new degrees / diplomas / certificates, revising fees with the permission of the Academic Board and Board of Management, grant-in-aid, other assistance from funding agencies etc. 35] Definition of "autonomous college" etc provided in section 2(6) of the 2016 Universities Act is identical with the definition of "autonomous college" as provided under section 2(6) of the 1994 Universities Act. However, insofar as definition of "autonomy" is concerned, there is a marked difference with the definition as 35/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw provided in the 1994 Universities Act, as against the the said definition provided in the 2016 Universities Act. Definition of "autonomy" in the 1994 Universities Act provides for full academic administrative and financial autonomy. Financial autonomy is conspicuously absent in the definition of the word "autonomy" in the 2016 Universities Act.
36] It appears that Section 122 of 2016 Universities Act replaces Section 89 of the 1994 Universities Act. Whereas sub-section (1) of Section 89 of 1994 Universities Act is in pari materia with sub-section (1) of Section 122 of 2016 Universities Act, position is not the same insofar as the other provisions of Section 89 of the 1994 Universities Act and Section 122 of the 2016 Universities Act are concerned. Provisions of sub-section (2) of Section 89 of the 1994 Universities Act would reveal that they speak of constituting its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic, financial and other activities of the university, as prescribed. However, perusal of sub-section (3) of Section 122 of the 2016 Universities Act reveals that though the power to constitute authorities or bodies and exercising of powers of 36/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw performing the functions and carrying out the administrative, academic and other activities is found therein, the word "financial" does not find place. Sub-section (4) of Section 122 would also reveal that autonomous university department or institution etc shall have full academic and administrative autonomy subject to the provisions of the said Act and Statutes and the guidelines issued by the University Grant Commission. Again the word "financial" which is found in Section 89 of the 1994 Universities Act is not to be found there. 37] Section 101 comes for the first time in the 2016 Universities Act. Sub-section (1) thereof provides that there shall be a Fee Fixation Committee to work out the real cost of delivery of each and every under-graduate and post-graduate course or programmes run by the university, colleges and recognized institutions. However, it provides that the same shall not be applicable to the autonomous colleges and autonomous institutions and those managed and maintained by the State Government, Central Government and local authorities. Sub- section (2) thereof provides that the Fee Fixation Committee shall decide the tuition fees, other fees and charges for various courses or programmes as recommended by the board of Deans, and recommend 37/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw it to the academic Council for approval. Sub-section (3) deals with the constitution of the Fee Fixation Committee . Sub-section (6), which begins with a non-obstante clause, provides that notwithstanding anything contained above, the State Government may evolve a Statutory Mechanism of fixation and regulation of fees which shall be binding on different types of colleges and recognized institutions as specified by the State Govt. in that regard. 38] Sub-section (7) of Section 101 of the 2016 Universities Act provide that the tuition fees, other fees, and charges for various courses or programmes as recommended by fee fixation committee and finally approved by the Academic Council shall be applicable in general. It further provides that, any college or recognized institution other than autonomous college and autonomous institution and those managed and maintained by the State Government, Central Government and Local Authorities which intends to charge different fees other than those prescribed and approved by Academic Council may submit the proposal to the fee fixation committee and the fee fixation committee shall decide the tuition fee, other fees and charges for the specific course or programme for such college or institution on 38/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the basis of assessment and evaluation of different additional facilities provided by such applicant college or recognized institutions. The said provision also gives finality to the decision of the Fee Fixation Committee.
39] Clause (q) of Section 2 of the Regulation Act of 2015 defines "Private Professional Educational Institution". It provides that "Private Professional Educational Institution" means any college, school, institute, institution or other body, by whatever name called, conducting any professional course or courses approved or recognized by the appropriate authority and affiliated to any university. However, it exclude the following three categories viz.
(i) any such institution established, maintained or administered by the Central Government, any State Government or any local authority;
(ii) institution declared to be a deemed university under section 3 of the University Grants Commission Act, 1956 ; or
(iii) a university to which the provisions of the University Grants Commission (Establishment and Maintenance of Private Universities) Regulations, 2003 are 39/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw applicable;
40] Clause (r ) of Section 2 thereof defines "Professional Education" to be any educational course of study declared and notified as such, from time to time by the Government which includes a course leading to the award of an Under Graduate or Post-Graduate degree, diploma, by whatever name called and recognized by the appropriate authority. 41] Section 13 thereof deals with functions, powers and procedure of the Fees Regulating Authority. Clause (i ) of sub-section (1) of Section 13 provides that it shall be the function of the authority to determine the reasonableness of fees levied by unaided institutions on the basis of the factors specified in section 15 and to verify whether the fees so levied does not amount to profiteering or charging of capitation fees within the meaning of clause (a) of section 2 of the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987. Clause (ii) thereof provides for scrutiny and verification of fee proposals of the unaided institutions and final approval thereof. Clause (iii) thereof provides for evolving of the mechanism for verification of infrastructure facilities and amenities and to undertake 40/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the verification of such facilities and amenities. Clause (iv) thereof provides for undertaking research studies, at such intervals as the Fees Regulating Authority may deem fit, for determining the professional coursewise expenses required to be made per student, for the unaided institutions in accordance with the mandatory guidelines of the appropriate authority concerned. Clause (v) thereof, provides for undertaking measures for the redressal of grievances of the Stake- holders.
42] Section 15 thereof provides various factors which are required to be taken into consideration by the authority for determination of fee structure.
43] As stated earlier, it is the basic contention of the Petitioners that the provisions contained in Section 89 of 1994 Universities Act and sub-sections (1) and (7) of Section 101 of 2016 Universities Act is a special law regarding autonomous institutions and the Regulation Act of 2015 is a general law with regard to regulation of fees of unaided Private Professional Educational Institutions and therefore, in view of conflict between the two, it will have to be held that the special law 41/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw will have to be given effect to over the general law. 44] Per contra, it is the contention of Respondents that the 1994 Universities Act and the 2016 Universities Act are general laws and the Regulation Act of 2015 is a special law in the matter of regulation of fees of professional unaided colleges and as such, in case of conflict between the two, the Regulation Act of 2015 shall prevail. 45] Their Lordship of the Apex Court in the case of Municipal Council, Palai through the Commissioner of Municipal Council Palai vs. T.J. Joseph1 were considering, as to whether the provisions of Sections 286 and 287 of the Travancore-Cochin District Municipalities Act stood repealed by virtue of the provisions of Section 72 of the Travancore-Cochin Motor Vehicles Act, 1125 M.E. While considering the said contention Their Lordships observed thus:-
"10. It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book and therefore, when the Court applies 1 AIR 1963 SC 1561 42/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw this doctrine it does no more than give effect to the intention of the Legislatascertained by it in the usual way i.e. by Examining the scope and the object of the two enactments, the earlier and the later."
"11. The further question which is to be considered is whether there is any repugnancy between the old and the new law. In order to ascertain whether there is repugnancy or not this Court has laid down the following principles in Deep Chand v. The State of Uttar Pradesh, (1959) Supp 2 SCR 8 at p. 43: (AIR 1959 SC 648 at p. 665)
1. Whether there is direct contract between the two provisions;
2 . whether the legislature intended to lay done an exhaustive code in respect of the subject matter replacing the earlier law'
3. whether the two laws occupy the same field."
Their Lordships while holding that there was no conflict between the provisions of Section 72 of the Travancore-Cochin Motor Vehicles Act, 1125 M.E and Sections 286 an 287 of the Travancore-Cochin District Municipalities Act observed in para 12 thus :-
"12 Another principle of law which has to be borne in mind is stated thus by Sutherland on Statutory Construction (Vol. I, 3rd edn. p. 486) 43/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw "Repeal of special and local statutes by general statutes: The enactment of a general law broad enough in its scope and application to cover the field of operation of a special or local statute will generally not repeal a statute which limits its operation to a particular phase of the subject covered by the general law, or to a particular locality within the jurisdictional scope of the general statute, An implied repeal of prior statutes will be restricted to statutes of the same general nature, since the legislature is presumed to have known of the existence of prior special or particular legislation, and to have contemplated only a general treatment of the subject matter by the general enactment. Therefore, where the later general statute does not propose an irreconciable conflict, the prior special statute will be construed as remaining in effect as a qualification of or exception to the general law."
Of course, there is no rule of law to prevent repeal of a special by a later general statute and therefore, where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statutes applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confirmed to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be resealed by the general statute the Court should try to give effect to both the enactments as far as possible. For, as has been pointed out at p. 470 of Sutherland on Statutory Construction, Vol. I where the repealing effect of a statute is 44/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw doubtful, "the statute is to be strictly construed to effectuate its consistent operation with previous legislation."
46] In the case of State of M.P. vs. Kedia Leather & Liquor Ltd and Others1, Their Lordships of the Apex Court were considering the question, as to whether after enactment of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, there was implied repeal of Section 133 of the Criminal Procedure Code. Negating the said contention, Their Lordships observed thus :-
"13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provisions, the intention is clear not to repeal the existing legislation. (See: Municipal Council Palai v. T.J. Joseph [AIR 1963 SC 1561], Northern India Caterers (Private) Ltd. and Anr. v.
State of Punjab [AIR 1967 SC 1581], Municipal Corpn of Delhi v. Shiv Shanker [(1971) 1 SCC 442: 1971 SCC (Cri) 195] and Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537: AIR 1990 SC 104]. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone 1 (2003) 7 SCC 389 45/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley [1878 3 AC 944]. The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore [(1878) 3 Ex D 276], Ratan Lal case [(1989) 3 SCC 537 : AIR 1990 SC 104] and R.S. Raghunath v. State of Karnataka [(1992) 1 SCC 335]
14. The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field.
(See: Pt. Rishikesh v. Salma Begum [(1995) 4 SCC 718] and A.B. Krishna v. State of Karnataka [(1998) 3 SCC 495]") "15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion 46/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, unless two Act are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together. (See Craies on Statute Law, 7th Edn. page 366, with reference to Berrey, Re [(1936) 1 Ch 274] To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side."
"16. While, as noted above the provisions of Section 133 of the Code are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive and the question of one replacing the other does not arise. Above being the position, the High Court was not justified in holding that there was any implied repeal of Section 133 of the Code. The appeals deserve to be allowed to the extent indicated above, which we 47/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw direct."
47] In the cases of Harshad S. Mehta and Others vs. State of Maharashtra1, it was sought to be argued that on account of certain provisions contained in the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, provisions contained in Sections 306 and 307 of Criminal Procedure Code were impliedly repealed. While rejecting the said contention, Their Lordships observed thus :-
"30. The reason for the presumption as aforesaid is that the legislature while enacting a law has a complete knowledge of the existing laws on the subject-matter and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The burden to show that there has been a repeal by implication lies on the party asserting it. Relying upon Statutory Interpretation by Francis Bennion (1984 Edn.), counsel contends that where, as in the present case, the provisions of the later enactment (the Act) are contrary to those of the earlier (the Code), the later by implication repeals the earlier in accordance with the maxim leges posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws). This is, however, a subject to the exception embodied in the maxim generalia specialibus non derogant (a general provision does not derogate from a 1 (2001) 8 SCC 257 48/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw special one)."
"31. One of the important tests to determine the issue of implied repeal would be whether the provisions of the Act are irreconciably inconsistent with those of the Code that the two cannot stand together or the intention of the legislature was only to supplement the provisions of the Code. This intention is to be ascertained from the provisions of the At. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible, implied repeal shall be avoided. It is, however, correct that the presumption against the intent to repeal by implication is overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that the two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconciable. It is possible, as contended by Mr. Jethmalani, that the inconsistency may operate on a part of a statute. Learned counsel submits that in the present case the presumption against implied repeal stands rebutted as the provisions of the Act are so inconsistent with or repugnant to the provisions of the earlier Acts that the two cannot stand together. The contention is that the provisions of Section 306 and 307 cannot be complied with by the special court and thus the legislature while enacting the Act clearly intended that the said existing provisions of the Code would not apply to the proceedings under the Act. Learned counsel contends that this Court will not construe the Act in a manner which will make Sections 306 and 307 or at 49/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw least part of the said sections otiose and thereby defeat the legislative intendment whatever be the consequences of such an interpretation."
48] It could thus be seen that, firstly, we will have to consider as to whether there is any conflict between the 1994 Universities Act and the 2016 Universities Act on the one hand, and the Regulation Act of 2015 on the other. Only in the event, if we come to the conclusion that the provisions under the 1994 and the 2016 Universities Act on the one hand and the Regulation Act of 2015 on the other, are wholly irreconciabale and both of them cannot mutually co-exist, the question as to which is a special statute and which is a general statute and as such, which should prevail, would arise. For that, we will have to examine as to whether there is any direct conflict between the two provisions and also as to whether the 1994 and the 2016 Universities Acts on one hand and the Regulation Act of 2015 on the other hand, occupy the same field.
49] It is a well settled principle of law that there is a presumption against the implied repeal. There is a presumption that the legislature enacts the law with complete knowledge of existing laws pertaining to 50/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the same subject. It is equally settled that when it does not provide a repealing provision, the intention is not to repeal the existing legislation. For finding out as to whether there really exists a conflict or not, we will have to scrutinize the terms of all the Enactments and consider the true meaning and effect of both the Acts. We will have to consider what are the terms of both the Statutes, what are their objects and purposes. We will have to consider, as to whether the provisions contained in the 1994 and the 2016 Universities Acts on the one hand and the Regulation Act of 2015 on the other hand are so irreconciable and inconsistent that the two cannot stand together. In the light of these guiding principles, we will have to examine the scheme of both the Enactments.
50] The provisions of the 1994 Universities Act would reveal that autonomous colleges, autonomous institutions etc had full academic, administrative and financial autonomy. However, the same was subject to the provisions of the Act and the Statutes. It could thus be seen that in the 1994 Universities Act, the autonomy was subject to the provisions of the said Act and the Statutes framed thereunder. As could be seen from the perusal of clause (a) of Statute 613 that under 51/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the said provision also the Board of Management had no absolute freedom to determine fees. The Statute specifically provided that the total fee should not exceed the cost of education per student, which includes expenses on salary, non-salary, maintenance and rent. It could thus be seen that there are inherent limitations in Statute 613 itself. The total fees cannot exceed cost of education per student. The factors which could be taken into consideration would be expenses on salary, non-salary, maintenance and rent.
51] Under the 2016 Universities Act, the word "financial" does not find place either in sub-section (5) of Section 2 or in Section 122 which deal with the issue regarding "autonomy" is concerned. No doubt that, sub-sections (1) and (7) of Section 101 of the 2016 Universities Act, exclude the autonomous institutions from the purview of the 'Fee Fixation Committee'. However, in view of clause
(l) of sub-section (2) of Section 147 of the 2016 Universities Act, the Statutes framed under 1994 Universities Act, until they are superseded or modified under the 2016 Universities Act, are saved. It could thus be seen that, though the autonomous institutions could be out of purview of the Fee Fixation Committee as is provided under Section 52/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw 101 they still are bound to follow the requirements of Statute 613. It could thus be clearly seen that the argument that Petitioners are entitled to have complete freedom in determination of the fee itself is basically wrong.
52] Insofar as the Regulation Act of 2015 is concerned, it will have to be noted that the same has been enacted in pursuance to the mandate of the Hon'ble Supreme Court. It will be appropriate to refer to question No.6(1) framed by the Constitution Bench in the case of Islamic Academy of Education and Another vs. State of Karnataka and Others1 and the answer thereto:-
"6. In view of the rival submissions the following questions arise for consideration:
(1) Whether the educational institutions are entitled to fix their own fee structure;
(2)..............
(3).............
(4)............"
"Question No I
7. So far as the first question is concerned, in our view the majority judgment is very clear.
1 (2003) 6 SCC 697 53/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw There can be no fixing of a rigid fee structure by the government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in T.M.A. Pai's case the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court judge 54/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative 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 a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that total number of members of the Committee shall not exceed five. 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 and books of accounts must also be produced before the committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee. The Governments/ appropriate authorities should consider framing appropriate regulations, if not already, framed, 55/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:38 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation.
8. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance."
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WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw It could thus be clearly seen that Their Lordships of the Apex Court have clearly held that there can be no fixing of a rigid fee structure by the Government. It has been held that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. However, Their Lordships have held that there can be no profiteering and capitation fees cannot be charged. It has been directed by the Hon'ble Supreme Court that in order to give effect to the judgment in T.M.A. Pai Case 1 the respective State Government/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The judgment also provides as to who shall be other members of the Committee. It has been provided that, each educational institute must place before this Committee, well in advance of the academic year, its proposed fee 1 T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 57/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for scrutiny. The Committee is then required to decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The judgment further held that the Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. It has been further held that, once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. It has been further held that if any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee. The Government/appropriate authorities have been further directed to consider framing of appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering, that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. 53] It will also be relevant to refer to paras 144, 145, 146, 147, 148 and 149 of the Constitution Bench of the Hon'ble Apex Court in the 58/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw case of P.A. Inamdar and Others vs. State of Maharashtra and Others1, which read thus :
"144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic academy [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697] are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non- minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution."
"145. The suggestion made on behalf of minorities and non-minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb."
1 (2005) 6 SCC 537 59/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw "146. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of the student community. Professional education should be made accessible on the criterion of merit and on non- exploitative terms to all eligible students on a uniform basis. Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and based on a reasonable fee structure. "147. In our considered view, on the basis of judgment in Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481] and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved out of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697] cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities. "148. A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni Krishnan [Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645] 60/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw Committees which were supposed to be permanent in nature."
"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 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 [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697]. Certain decisions of some of the Committees were subjected to serious ctiticism 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 jobs 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 the benefit of hearing and contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalising fee structures 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." It could thus be seen that Constitution Bench consisting of seven Hon'ble Judges of the Apex Court in P.A. Inamdar (supra) has 61/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw approved of the directions given by the five Judges Constitution Bench in Islamic Academy of Education (supra) for regulating admissions and determination of fee structure. The suggestion made on behalf of minorities and non-minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, has been specifically rejected by Their Lordships. 54] It could thus be clearly seen that the Regulation Act of 2015 has been enacted, so as to give effect to the directions issued in the aforesaid Judgments of the two Constitution Benches of the Apex Court in the cases of Islamic Academy of Education (supra) and P.A. Inamdar (supra).
55] Even on the first principle of interpretation of statute i.e. of plain and literal interpretation, we find that arguments, as advanced by the Petitioners, need to be rejected. The perusal of Section 2(q) of the Regulation Act of 2015 would reveal that a wide definition is given to the term "Private Professional Educational Institution". The legislature has carved out three categories, which are to be excluded 62/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw from the purview of the said provision. It could thus be seen that the legislative intent was to bring all unaided Private Professional Educational Institutions under the provisions of the said Act, except what it has specifically carved out. It is further to be noted that, it is not even the case of the Petitioners that they are not bound to follow the part of the Act, which deals with regulation of admissions. As such, the contention that the Act would not apply insofar as regulation of fees is concerned does not hold water. 56] It is further to be noted that validity of "Niji Vyavasayik Shikshan Sanstha (Pravesh K Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam 2007", which provide for regulation of admissions and fixation of fees in Private Unaided Professional Colleges. came to be considered by the Constitution Bench of the Apex Court consisting of five Hon'ble Judges in the case of Modern Dental College and Research Centre and Others vs. State of Madhya Pradesh and Others 1. It is to be noted that though the words used in the said statute were "fixation of fees", it would be relevant to refer to the following observations in para 80 and 81.
1 (2016) 7 SCC 353 63/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw "80.............. This Court went on to observe that (SCC p.605, para 140) it cannot shut it eyes to the hard realities of commercialisation of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. In respect of Question 3 framed thereunder, which was with respect to the government regulation in the case of private institutions, this Court, in para 141 of the judgment, answered that every institution is free to devise its own fee structure, but the same can be regulated in the interest of preventing profiteering and no capitation fees can be charged.........."
"81. It is in the aforesaid context that we have to determine the question as to whether the provisions relating to fixation of fee are violative of Article 19(1)(g) of the Constitution or they are regulatory in nature, which is permissible in view of clause (6) of Article 19 of the Constitution, keeping in mind that the Government has the power to regulate the fixation of fee in the interest of preventing profiteering and further that fixation of fee has to be regulated and controlled at the initial stage itself. When we scan through Section 9 of the 2007 Act from the aforesaid angle, we find that the parameters which are laid down therein that have to be kept in mind while fixing the fee are in fact the ones which have been enunciated in the judgments of this Court referred to above. It is also significant to note that the Committee which is set up for this purpose, namely, Admission and Fee Regulatory Committee, is discharging only a regulatory function. The fee which a particular educational institution seeks to charge from its students has to 64/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw be suggested by the said education institution itself. The Committee is empowered with a purpose to satisfy itself that the fee proposed by the educational institution did not amount to profiteering or commercialisation of education and was based on intelligible factors mentioned in Section 9(1) of the 2007 Act. In our view, therefore, it is only a regulatory measure and does not take away the powers of the educational institution to fix their own fee........."
It could thus be seen that Their Lordships have held that, under the Scheme of 2007 Act, though the term used was "fixation of fee" the nature of role assigned to the Committee was of discharging only a regulatory function. It was found that the fee which a particular educational institution seeks to charge from its students has to be suggested by the said educational institution itself. The Committee is empowered with a purpose to satisfy itself that the fee proposed by the educational institution did not amount to profiteering or commercialisation of education and was based on intelligble factors mentioned in Section 9(1) of the 2007 Act.
57] We are of the considered view that there is no conflict between the provisions of Section 101 of the 2016 Universities Act and the 65/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw provisions of the Regulation Act of 2015. The autonomous colleges would be entitled to fix its fees in accordance with Statute 613. However, the authority under the Regulation Act of 2015 would be entitled to satisfy itself, as to whether fees determined by the unaided Private Professional Educational Institutions amounts to profiteering or commercialization or not.
58] We further find that the provisions of the Regulation Act of 2015 are not detrimental to the concept of autonomy as provided under the 1994 Universities Act and the 2016 Universities Act read with Statute 613 and on the contrary are conducive to it. Perusal of Statute 613 would reveal that while determining fees by the Board of Management on the recommendations of the Academic Board, a rider is provided that the total fee should not exceed the cost of education per student, which includes expenses on salary, non-salary and maintenance and rent. It could thus be seen that under Statute 613 while determining fee, the only factor that can be taken into consideration is the cost of education per student, which includes expenses on salary, non-salary and maintenance and rent. Per contra, under the provisions of Section 15 of the Regulation Act of 2015, the 66/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw factors which can be taken into consideration while determining reasonableness of the fee structure are much wider. It could be seen that factors like location of the institution, the cost of land and building, minimum mandatorily required infrastructure or facilities, as specified by the appropriate authority are required to be taken into consideration. In view of clause (iv) of Section 15, which provides that the expenditure proposed or incurred on the facilities and amenities that are not mandatory as per the guidelines of the appropriate authority, the autonomous institutions can very well point out the additional expenditure, either incurred by them or proposed to be incurred on the facilities and amenities that they have either provided or propose to provide for achieving academic excellence. The other factors include number of qualified regularly appointed teaching and non-teaching staff, expenses on the prescribed salaries of the teaching and non-teaching staff, the expenditure on administration and maintenance. It could further be seen that clause
(viii) of Section 15 also permits the factors of generating reasonable revenue surplus required for the growth and development of the institution with particular reference to the professional course conducted by it to be taken into consideration while fixation or 67/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw regulation of fees. The only rider is that, it shall not be more than 15% of educational revenue in the respective professional courses. One of the factors which can also be taken into consideration is incentives for quality enhancement, such as faculty strength with Ph.D. qualifications and Research publications in International Journals and Patent filed by the institution, faculty training and placement of students etc. Not only this, clause (xiv) also permits any other relevant factor, as may be determined by the Fees Regulating Authority, to be taken into consideration. It is thus clear that discretion which the College will have while determining fees under the Regulation Act of 2015 is much wider as compared to the one under Statute 613 framed under the 1994 Universities Act. 59] It could thus be seen that if parameters as provided under Section 15 of the Regulation Act of 2015 are to be exercised by the Petitioners while determining their fees, they would have much more freedom to charge fees in proportion with the services rendered by them, in their pursuit of academic excellence in contrast to the limited scope that they have under Statute 613. The only role that the authority would play is to determine as to whether the fees so fixed by 68/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw the unaided Private Professional Educational Institutions, like the Petitioners, would amount to commercialization or profiteering or not. 60] It would not be out of place to refer to para 149 of the Judgment of the Apex Court in P.A. Inamdar and Others vs. State of Maharashtra and Others1, wherein Their Lordships have sounded a note of caution to the Committees, like the authority in the present case, which reads as under:-
"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 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 [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697].
Certain decisions of some of the Committees were subjected to serious ctiticism 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 jobs 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 1 (2005) 6 SCC 537 69/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw management. They also have the benefit of hearing and contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalising fee structures 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."
Their Lordships have noted concerns of some of the Institutions which have pointed out that fee structure approved by the Committees was abysmally low which has rendered the functioning of the institutions almost impossible or made the institutions run into losses. Their Lordships have expected the Committees to be more sensitive and to act rationally and reasonably with due regard to the realities. Their Lordships directed that Committees should refrain from generalising fee structures 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.
61] We find that if the autonomous institutions, like the Petitioners, 70/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw are incurring more expenses, so as to achieve the goal of academic excellence, they can always point out such factors to the authority and if such expenses are supported by relevant material, the authority considering the wide scope available under Section 15, would be bound to take into consideration the said factors while determining as to whether fees determined are reasonable or would amount to profiteering or commercialization.
62] Insofar as reliance placed by Mr. Chinoy on the guidelines framed by the UGC are concerned, we are of the considered view that, the same is wholly misplaced. Firstly, the said guidelines, at the most, could be considered to be instructions to the autonomous institutions. The same do not have either legislative or quasi-legislative character. As such, while considering a statutory provision enacted by the competent legislature, the said guidelines will have no relevance. Apart from that, we are of the considered view that, even though the said guidelines do not have binding force, there is no conflict of the said guidelines with the Regulation Act of 2015. As discussed hereinabove, there is nothing in the Regulation Act of 2015, which can be said to have an adverse effect on administrative, academic or 71/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw financial autonomy of the autonomous institutions. On the contrary, as discussed hereinabove, the factors which can be taken into consideration while determination or regulation of fees under the Regulation Act of 2015 are much wider as compared to the provisions contained in Statute 613 framed under the 1994 Universities Act. The only restriction is that, the institutions should not indulge in profiteering or commercialization. The Act does not, in any way, interfere with the financial management of autonomous institutions. It is further to be noted that, under Statute 633, the autonomous colleges etc. are also entitled to raise funds from various sources like accepting endowments or donations which are not linked with the admissions, grant-in-aid, other assistance from funding agencies and such other resources, which are legally permissible and in consonance with the objectives of the University and of the Autonomous College etc. The Regulation Act of 2015, in no way, affects the rights which the autonomous institutions will have under Statute 633 for generating additional funds.
63] Apart from that, we find that if arguments of the Petitioners are to be accepted, it would lead to wholly anomalous situation. While all 72/74 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:18:39 ::: WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw other unaided Private Professional Educational Institutions will be subject to regulation, so that they do not indulge into profiteering or commercialization, there will be total freedom to the autonomous institutions to charge fees as they desire and indulge into profiteering and commercialization. This will be wholly contrary to the mandate of the judgments of the two Constitution Benches of the Apex Court. 64] Insofar as various judgments cited at bar by Mr. Chinoy, learned Senior Counsel appearing on behalf of the Petitioners, are concerned, we find that reference to the same would not be necessary. As already discussed hereinabove, our first duty is to find out as to whether there exist really any conflict between the two provisions. Only if such conflict is found to be existing, then the question as to which is a special law and which is a general law and which should prevail over other, would arise. However, upon perusal of the 1994 & 2016 Universities Act on the one hand and the Regulation Act of 2015 on the other hand, we are of the considered view that there exists no conflict and that both of them can simultaneously exist in the fields discussed hereinabove.
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WP-2813-17 with WPL-2032-17 & WP 2684-17.sxw 65] In that view of the matter, we do not find any merit in all these three Writ Petitions and the same are dismissed. Rule stands discharged. In the facts and circumstances of the case, there shall be no order as to costs.
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