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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4075 of 2011
1. Shantiniketan Bahu-Udeshiya Sanstha,
405, Sadodday Plaza,
Near Ram Mandir,
Central Avenue, Nagpur,
through its President Shri Vinod
Shyamlal Chhangani,
Aged about 31 years,
Resident of Sindhi Colony,
Mecosobagh, Nagpur.
2. Shantiniketan Business School,
situated at survey No.22/3, Mhasala,
Near Uppalwadi Industrial Estate,
Kamptee Road, Nagpur-440021,
through the Director of Institute,
Dr. Shri Sreehari Chava,
Resident of 7, Shivanand,
148, Pande Layout,
Nagpur-440025. ... Petitioners
Versus
The Rashtrasant Tukdoji Maharaj
Nagpur University,
Civil Lines, Nagpur,
through its Registrar. ... Respondent
Shri S.Z. Qazi, Advocate for Petitioners.
Shri Raj Wakode, Advocate for Respondent.
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Coram : R.K. Deshpande & M.G. Giratkar, JJ.
Date : 23rd November, 2017 Oral Judgment (Per R.K. Deshpande, J.) :
1. The petitioners applied to the All India Council for Technical Education (AICTE), the Apex Body, for grant of permission to start the new course of Master's Decree in Business Administration (MBA) from the Academic Session 2010-11. For that purpose, the on-line application was submitted by the petitioners to the AICTE on 3-4-2010 as per the procedure prescribed by it. Similarly, a copy of such on-line application submitted to the AICTE was also forwarded to the respondent-University as well as the State Government as per the procedure prescribed by the AICTE. The petitioner-Institution was granted approval by the AICTE vide its communication dated 23-8-2010 to start the new course of MBA with intake capacity of sixty students from the Academic Session 2010-11. The State Government granted permission on 30-7-2010. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 3
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2. The respondent-University by its communication dated 9-9-2010 demanded the affiliation fees of Rs.5,00,000/- from the petitioners for processing their application along with late fees of Rs.2,50,000/- for the delay caused in making such application. According to the respondent-University, the petitioner-Institution should have made an application for grant of permission to the University on or before the last day of October 2009, as it wanted to start such a course from the Academic Session 2010-11. Hence, a demand was for late fees. In support of the demand for affiliation fees of Rs.5,00,000/-, the University has placed reliance upon the notification dated 26-10-2010 issued by it.
3. The first question involved in the present petition is whether the petitioners were required to submit the application to the respondent-University for grant of permission or affiliation before the last day of October 2009 for starting the new course of MBA from the Academic Session 2010-11. The another ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 4 wp4075.11.odt question involved is whether the respondent-University was justified in making the demand of Rs.5,00,000/- for grant of permission or affiliation to the petitioner-Institution in respect of the course of MBA, and an amount of Rs.2,50,000/- towards the late fees for the delay caused in making such application.
4. Shri Wakode, the learned counsel appearing for the respondent-University, has relied upon the provision of Section 82 of the Maharashtra Universities Act, 1994, which deals with the procedure for grant of permission, and it is urged that such procedure has not been followed by the petitioners. The contention cannot be accepted. It is not in dispute that the MBA Course is a professional course and the question of grant of permission to open such course is covered by the provisions of the All India Council for Technical Education Act, 1987. Unless the permission is granted for running this Course by AICTE, the respondent-University constituted under the Maharashtra Universities Act does not become competent to grant permission or affiliation to the petitioner-Institution. It is only upon grant of ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 5 wp4075.11.odt permission by the AICTE that the petitioner-Institution can be affiliated to the respondent University. In the present case, the AICTE granted its approval to start the course in question on 23-8-2010 with effect from the Academic Session 2010-11. An advance copy of application made to AICTE on 3-4-2010 was received by the respondent-University on 6-4-2010. Hence, it is held that the requirement of making such application before the last day of October, 2009 became directory.
5. In view of the decision of the Apex Court in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors., reported in 2006 AIR SCW 2048, the controversy remains no longer res integra and the provision of Section 82 of the Maharashtra Universities Act would not be applicable where the professional course is required to be run only upon the permission to be granted by the AICTE, the Apex Body. In view of this, the contention of the learned counsel for the respondent-University, relying upon the provision of Section 82 of the Maharashtra Universities, does not hold the ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:46 ::: 6 wp4075.11.odt field and the same is rejected.
6. Coming to the next question of competency of the respondent-University to demand an amount of Rs.5,00,000/- towards the affiliation fees is concerned, Ordinance No.3 of 1994 framed by the respondent-University deals with the affiliation fees to be charged to the Colleges running the professional courses. It prescribes a sum of Rs.1,00,000/- as fees for affiliation. The said Ordinance is framed by the University in exercise of its power conferred by Section 54 of the Maharashtra Universities Act. The reliance is placed upon the power of the Vice-Chancellor under Section 14(8) of the said Act regarding issuance of direction in the absence of any statute, ordinance or regulation. It is urged that the fees prescribed of Rs.1,00,000/- in the said Ordinance was completely outdated and, therefore, the fees were required to be enhanced, which has been done by passing the resolution of the Management Council in its meeting held on 30-12-2008 prescribing the fees of Rs.5,00,000/-. It is urged that such fees are meant for all professional courses, but ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:47 ::: 7 wp4075.11.odt specifically the course of MBA was not included and, therefore, by issuing the corrigendum dated 26-10-2010, it was clarified as applicable for stating new MBA Course/College.
7. The passing of the resolution by the Management Council to enhance the affiliation fees from Rs.1,00,000/- to Rs.5,00,000/- on 30-12-2008 and issuance of notification dated 26-10-2010 cannot be justified on the basis of the power conferred by Section 14(8) of the Maharashtra Universities Act, the reasons being - (i) it is the power conferred upon the Vice-Chancellor and not on the Management Council, and
(ii) the Vice-Chancellor can exercise such a power in the absence of any statute, ordinance or regulation operating in the field. In the present case, the power is exercised by the Management Council on 30-12-2008 and the corrigendum dated 26-10-2010 was issued by the Registrar of the University. Both these authorities were incompetent. The Ordinance No.3 of 1994 prescribing the affiliation fees of Rs.1,00,000/- is operating in the field and it can be amended only by way of the procedure ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:47 ::: 8 wp4075.11.odt prescribed for Amendment of the Ordinance under Section 54 of the Maharashtra Universities Act. The field is already occupied and the Vice Chancellor was incompetent to exercise power under Section 14(8) of the Maharashtra Universities Act in respect of the subject covered by the Ordinance, which remains unamended. In view of this, the resolution passed by the Management Council and the notification issued cannot be sustained and the same will have to be quashed and set aside. Consequently, the demand of such fees by the communication dated 9-9-2010 also cannot be sustained.
8. In the result, the petition is allowed. The notice of demand dated 9-9-2010 issued by the respondent-University is hereby quashed and set aside. The petitioners cannot escape the liability of payment of Rs.1,00,000/- as per Ordinance No.3 of 1994. In view of the findings recorded earlier, the question of delay in making t he payment of affiliation fees does not arise. The petitioners have deposited an amount of Rs.1,00,000/- with the respondent-University and an amount of Rs.4,00,000/- in ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:03:47 ::: 9 wp4075.11.odt this Court. The respondent-University is at liberty to appropriate the amount of Rs.1,00,000/- towards the affiliation fees required to be paid by the petitioners. The amount of Rs.4,00,000/- deposited by the petitioners in this Court, be refunded to the petitioners along with the interest, if any, accrued thereon.
9. Rule is made absolute in above terms. No order as to costs.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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