Shantiniketan Bahu-Uddeshiya ... vs The Rashtrasant Tukdoji Maharaj ...
2017 Latest Caselaw 8989 Bom

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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.

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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

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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

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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

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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

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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

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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

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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