Babu Banarasi Das University ... vs State Of U.P. Thru. Secy. Medical ...
2017 Latest Caselaw 1382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 1
 

 
Case :- MISC. BENCH No. - 7830 of 2017
 
Petitioner :- Babu Banarasi Das University Lucknow Thru. Its Registrar
 
Respondent :- State Of U.P. Thru. Secy. Medical Education & Ors.
 
Counsel for Petitioner :- Laltaprasad Misra,Alok Saran,Gaurav Mehrotra,Mrs. Komal Jaiswal-Ojus L
 
Counsel for Respondent :- C.S.C.,Sanjay Bhasin
 

 
Hon'ble Arun Tandon,J.

Hon'ble Devendra Kumar Upadhyaya,J.

The instant petition under Article 226 of the Constitution of India filed by Babu Banarasi Das University, a University created and established under the Babu Banarasi Das University U.P. Act 2010, seeks to challenge the order dated 07.04.2017 passed by the State Government, whereby fee to be charged from each student by the petitioner-University for Master's Degree Course in Dental Science(MDS) for the academic session 2017-2018 has been determined and fixed as Rs. 4,91,700/-.

Heard Dr. L.P. Mishra, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and perused the record.

The basic premise of challenge to the impugned order as espoused by the learned counsel for the petitioner is that the determination of fee to be charged from the students of the petitioner-University could not have been done by passing the impugned order for the reason that the same has been done under the provisions of the U.P. Private Professional Educational Institutions (Regulations of Admission and Fixation of Fee) Act, 2006 (herein after referred to as "Fee Act, 2006") which is not applicable to the petitioner-University and, thus, the impugned order is completely without jurisdiction. It has further been contended by the learned counsel for the petitioner that in respect of the fee to be charged from its students, the petitioner-University has been conferred with the power to do so under Section 7(q) of the Babu Banarasi Das University Act, 2010 (hereinafter referred to as "Babu Banarasi Das University Act") which is a special legislation and as such any determination of fee in this case having been done under the Fee Act, 2006, which a general legislation, would not be lawfull.

It has been argued by the learned counsel for the petitioner that Babu Banarasi Das University Act is a legislation which contains special law, whereas the Fee Act, 2006 is a legislation embodying in it the general law, hence the former shall operate and will hold the field. Further submission of the learned counsel for the petitioner is that Babu Banarasi Das University Act has been passed at a later point of time, hence in case of conflict between two statutes, the prior Act would yield to the later legislation. Submission on behalf of the petitioner also is that the provisions of Fee Act, 2006 are unambiguous which do not cover the petitioner-University and while construing a statute, if it is found that the provision is unambiguous and legislative intent is clear than no other rule of construction of statutes should be put in service for the reason that other rules of construction are taken aid of only when the legislative intention is not clear. Learned counsel for the petitioner in support of his submissions has cited the judgments of Hon'ble Supreme Court in the cases of Commercial Tax Officer, Rajasthan Vs. Binani Cements Limited and another [(2014) 8 SCC 319], Tata Motors Limited Vs. Pharmaceutical Products of India Limited and another [(2008) 7 SCC 619], Chandra Prakash Tiwari and others Vs. Shakuntala Shukla and others [(2002) 6 SCC 127], R.S. Raghunath Vs. State of Karnatka and another [(1992) 1SCC 335], Ajoy Kumar Banerjee and others Vs. Union of India and others [(1984) 3 SCC 127] and B. Premanand and others Vs. Mohan Koikal and others [(2011) 4 SCC 266].

The question which falls for consideration of this Court in this case is as to whether the Fee Act, 2006 excludes in its operation the petitioner-University.

For examining the submissions advanced on behalf of the petitioner-University, certain provisions of both the enactments need to be considered.

Fee Act, 2006 has been enacted by the State Legislature with an objective of providing for regulation of admission and fixation of fee in the private professional educational institutions and the matters connected therewith and incidental thereto. Section 2 of the said Act contains the ambit of its applicability, according to which, this Act is applicable to the private aided or unaided professional educational institutions. It, however, excludes the minority institutions from its operation. Section 2 of the Fee Act, 2006 is extracted herein below:

"2. This Act shall be applicable to the private aided or unaided professional educational institutions, excluding minority institutions."

Section 3 of the Act contains the definition clause and according to Section 3(a) ''aided institution' would mean a private professional educational institution receiving financial assistance in whole or in part from the State Government or in any other body under the control of State Government. Section 3(i) of the Act defines the ''private professional educational institution' to mean a professional educational institution not established or maintained either by the Central Government, State Government or any other public body. Section 3(k) contains the definition of ''professional educational institution' which means a College or a School or an Institution, by whatever name called, where professional education is imparted which are affiliated to a State University including a Private University established or incorporated by an Act of the State Legislature or which is a constituent unit under of a deemed University defined under the relevant provisions of University Grants Commission Act, 1956. The said institution should be approved or recognized by the Competent Statutory Body established by the State Government, which regulates professional education. Section 3(n) of the Act defines the ''State University' to mean a University established or incorporated by an Act of the State Legislature, whereas Section 3(o) defines ''unaided institution' to mean a private professional educational institution, which is not aided.

Section 6 of the Fee Act, 2006 empowers the State Government to reserve seats out of sanctioned intake, in an unaided professional educational private institution, other than minority institution, under management category. Chapter-IV of the said Act relates to the provisions concerning fixation of fee to be charged by a private aided or unaided professional educational institution having regard to certain relevant aspects of the matter. Section 10(1) of the said Act vests the jurisdiction and authority in a Committee to be constituted under Chapter-II of the said Act to determine the fee to be charged by such institution. The provisions of 2006 Fee Act which are relevant for the purposes of appropriate adjudication of the issue involved in this writ petition, are quoted hereinbelow:-

"3(a) "aided institution" means a private professional educational institution, other than a minority institution receiving recurring financial grant-in-aid or assistance in whole or in part from the State Government or from any body, under the control of State Government disbursing grants-in-aid or financial assistance.

3(i) "private professional education institution" means a professional educational institution not established or maintained by the Central government, the State Government or any public body.

3(k) "professional educational institution" means a College or a School or an Institution by whatever name called, imparting professional education:-

(i) affiliated to a State University, including a Private University established or incorporated by an Act of the State Legislature or constituent unit of a deemed to be University defined under Section 3 of the University Grant Commission Act, 1956.

(ii) approved or recognized by the Competent Statutory Body established by State Government, regulating professional education.

3(n) "State University" means a University established or incorporated by an Act of the State Legislature.

3(o) "unaided institution" means a private professional educational institution, not being an aided institution.

10(1) The Committee shall determine, the fee to be charged by a private aided or unaided professional educational institution have regard to"-

(i) the nature of the professional course,

(ii) the available infrastructure,

(iii) a reasonable surplus required for growth and development of the professional institution,

(iv) the expenditure on administration and maintenance,

(v) the expenditure on teaching and non teaching employees of the institution,

(vi) any other relevant factor.

10(2) The Committee, shall give the institution an opportunity of being heard before fixing any fee:-

Provided that no such fee, as may be fixed by the Committee, shall amount to profiteering or commercialization of education.

12. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

To establish a teaching University sponsored by a Private Educational Society, namely, Babu Banarasi Das Educational Society and to provide for the matters connected therewith and incidental thereto, the State Legislature enacted U.P.Act No. 25 of 2010 i.e. Babu Banarasi Das University Act, 2010. According to the provisions of Babu Banarasi Das University Act, 2010, a University by the said Society has been established in the name of Babu Banarasi Das University which is a body corporate. In terms of Section 5 of the said Act, the University has started its operation. The objects of the University is to disseminate and advance knowledge and skill by providing instructional, research and extension facilities in various branches of learning. Section 7 vests certain powers in the University. According to Section 7(b), the University has the power to impart and promote studies in various branches of knowledge through in campus, off campus, offshore campus and satellite centres. Section 7(k) of Babu Banarasi Das University Act vests the power in the University to establish and maintain schools, centers, specialized laboratories etc. for instructional and research purposes. Section 7(p) of the said Act empowers the University to determine standards for admission including examinations, evaluation or any other method of testing. Section 7(q) of the Act authorizes the University to prescribe, demand and receive payment of fees and other charges. Section 46 of the said Act, however, provides that the fee to be charged for different academic programmers shall be in accordance with laws for the time being in force. The relevant provisions of Babu Banarasi Das University Act, 2010, namely, Section 7(b), 7(k), 7(p), 7(q) and Section 46 are extracted herein below:-

"7(b) to impart and promote the study of Science, Engineering and Technology, Bio and Medical Sciences, Dental Science Pharmacy, Management, Hotel and Hospitality Management, Law and other processional courses and also History, Culture, Commerce, Economics, Humanities, Philosophy, art etc. through in campus, off campus, offshore campus and satellite centers or by conducting centers or by distant educational programmes etc.

7(k) to establish and maintain schools, centers, specialized laboratories, or other units for research and instructions as are in the opinion of the university necessary for the furtherance of its objects.

7(p) to determine standards for admission into the University, which may include examination, evaluation or any other method of testing.

7(q) to prescribe, demand and receive payment of fees and other charges

46. The fee charged for different academic programmers shall be in accordance with laws for the time being in force."

Learned counsel for the petitioner has drawn attention of the Court to the provisions of Section 7(q) which empowers the University to prescribe, demand and receive payment of fees and other charges. It is on the basis of the said provision that it has been submitted by the learned counsel for the petitioner that any determination of fee, to be charged by the University, made by any authority other than the University will be hit by Section 7(q) of the 2010 Act and will infringe upon the statutory rights of the University to prescribe fee to be charged from its own students.

The aforesaid submission advanced by the learned counsel for the petitioner based on Section 7(q) of the 2010 Act has, however, to be tested not in an isolation, but on the basis of the prescriptions available elsewhere as well in 2010 Act and also under the relevant provisions of Fee Act, 2006. Section 46 of 2010 Act clearly provides that fee to be charged for different academic programmers shall be in accordance with laws for the time being in force. Thus, if Section 7(q) and Section 46 are read together, the legal position, in our considered opinion, which emerges is that the University is empowered to prescribe fees for only those courses for which no statutory prescription for determination of fees is in existence. Section 12 of the Fee Act, 2006 clearly provides that the provisions of the this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Thus, so far as the fee to be charged in respect of professional courses for which the Committee created under Fee Act, 2006 has been empowered to determine the same is concerned, on the strength of Section 7(q), University will have no authority to prescribe fee. Section 7(q) authorizes the University to prescribe fee only in respect of those courses for which no separate statutory prescription for determination of fee is available or is in existence. There is a purpose for incorporating Section 46 by the State Legislature in 2010 enactment. If Section 7(q) is interpreted, in the manner as has been canvassed by the learned counsel for the petitioner, to mean that the University has authority and power to prescribe fee for all the courses, Section 46 of the said Act will be rendered otiose. The intent of Legislature in incorporating Section 46 is to exclude the power of determination of fee of the University so far as the courses in respect of which fee is to be determined in terms of any other law for the time being in force are concerned. Since in respect of course in question i.e. course leading to award of Master's Degree in Dental Science, statutory prescriptions in the Fee Act, 2006 are available, in our considered opinion, power of the University to prescribe fee for the said course under Section 7(q) shall stand excluded.

Emphasis has been laid by the learned counsel for the petitioner on the provision contained in Section 3(k) of Fee Act, 2006 and it has been argued that "Professional Educational Institution" as defined in the said provision would exclude the University created under a State Legislation and managed by private hands, such as the petitioner-University. The said submission, in our opinion, is mis-placed as the Professional Educational Institution has been defined to mean a College or a School or an Institution, by whatever name the same may be called, which imparts professional education. Such an institution to be covered within the definition of ''Professional Educational Institution' occurring in Section 3(k) should either be affiliated to State University including a private University established or incorporated by an Act of the State Legislature or should be a constituent unit of a deemed University defined in terms of the relevant provisions of the University Grants Commission Act, 1956. The State University has been defined under Section 3(n) to mean a University established or incorporated by an Act of the State Legislature.

Since the petitioner-University has been incorporated under U.P. Act No. 25 of 2010, it would be a State University within the meaning of Section 3(n) of 2006 Act. We are of the view that Section 3(k) in its ambit encompasses three types of institutions, namely, (1) an institution affiliated to a State University, (2) a private University established or incorporated by an Act of the State Legislature and (3) a constituent unit of a deemed University defined in terms of the provisions of the University Grants Commission Act, 1956. To submit that Section 3(k) in its ambit encompasses only two types of Professional Educational Institution, namely, an institution affiliated to a State University including private University and (2) an institution which a constituent unit of a deemed University, does not flow from Section 3(k).

The State University as defined under Section 3(n) will be a University established or incorporated by an Act of the State Legislature, whether it is managed by (1) the State or any body under the State or (2) by any private body such as a Society etc. An institution affiliated to State University would, thus, mean an institution which has been admitted to its privileges by a State University or by a private University as well, and hence, so far as the affiliated colleges or institutions are concerned, if they are imparting professional education, they will be covered by Section 3(k), even if they are affiliated to a private University. Thus, Section 3(k) (i) of 2006 enactment, if interpreted harmoniously, would mean to include a private University in its folds as well where professional education is being imparted.

To illustrate, the Professional Educational Institution would be an institution imparting professional education affiliated to any of the Universities created or incorporated under the U.P. State Universities Act which are run by private management. The said definition of professional educational institution would also include any institution affiliated to a private University incorporated under an Act of State Legislature. It would also include a private University as well in case such University has been incorporated by an Act of the State Legislature and is imparting professional education.

As per provision of Section 10(1) of the Fee Act, 2006, the Committee constituted under the Act is empowered to determine the fee to be charged by a private aided or unaided professional educational institution. Since the professional educational institution, in our opinion, would mean a private University as well, as such in relation to MDS Course run by the petitioner-University, which has been incorporated under the U.P. Act No. 24 of 2006, we have no hesitation to hold that the Fee Determination Committee constituted under 2006 Fee Act is empowered to determine the fee to be charged by the petitioner-University from its students studying in MDS Course.

We, thus, hold that Fee Act, 2006 will have full and complete application so far as the MDS Course being run by the petitioner-University is concerned. In respect of courses where fee is not to be determined by the Statutory Fee Committee constituted either under Fee Act, 2006 or under any other enactment, the University will be free and will thus be empowered to determine the fee to be charged from its students in exercise of its authority and powers vested in it under Section 7(q) of 2010 Act.

In the light of the discussions made above, we are of the opinion that there does not exist any inconsistency between 2010 Act and Fee Act, 2006, hence the argument made by the learned counsel for the petitioner that in case of conflict between two statutes, later statue would prevail, has no application in the fact and circumstances of this case.

Similarly, the other argument raised by the learned counsel for the petitioner that the special law (in this case, 2010 enactment) will hold the field and the general law (Fee Act, 2006) will yield, also does not have any force in view of the legislative scheme of these two enactments as discussed above.

Thus, the argument to the extent that the determination of fee made by the impugned order dated 07.04.2017 is without jurisdiction on account of non-applicability of Fee Act, 2006 merits rejection and hence, is not acceptable.

Having observed as above, we have examined the impugned order dated 07.04.2017 in so far as it determines the fee of Rs. 4,91,700/- to be charged by the petitioner-University from each student for the academic sessions 2017-2018 and we find that on notice being issued to the petitioner-University, no proposal was sent by the petitioner-University; rather the petitioner-University had submitted reply to the notice pointing out therein that Fee Act, 2006 is not applicable and hence, fee to be charged by the petitioner-University cannot be determined or fixed by the fee committee.

Since we have held that Fee Act, 2006 will be applicable so far as the MDS Course being run by the petitioner-University is concerned and Section 10(2) of the Fee Act, 2006 provides that the Fee Committee while determining the fee to be charged by a private aided or unaided professional educational institution shall give the institution concerned an opportunity of being heard, it is directed that the respondents shall give appropriate opportunity to the petitioner-University to submit its proposal having regard to various aspects of the matter as detailed in Section 10(1) of the Act. Fee to be charged shall, thus, be determined in accordance with law based on consideration of the said proposal to be submitted by the petitioner-University and other relevant factors. The petitioner-University shall have a week's time to submit its proposal in terms of Section 10(2) of the Fee Act, 2006 and on receipt of the said proposal, the fee shall be determined by the respondents within ten days thereafter. The impugned order dated 07.04.2017 in so far as it relates to the petitioner-University shall abide the redetermination of the fee to be done by the respondents under this order.

The writ petition is disposed of in the aforesaid terms

There will be no order as to costs.

Order Date :- 30.05.2017

Sanjay