Bombay High Court
S. P. Mandalis Prin L.N. Welingkar ... vs The Secretary, Fees Regulatng ... on 25 January, 2018
Bench: B.R. Gavai
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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
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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
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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
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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
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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
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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
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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
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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
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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-
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Chancellor, preferably a Chartered Accountant, not
connected with the university or college or institutions
under its jurisdiction ;
(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
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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.
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(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.
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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"
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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:
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"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 :--
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(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.
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(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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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)
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"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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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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
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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
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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
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"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]
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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
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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
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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
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"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
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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
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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
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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
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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
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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
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,
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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
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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
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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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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.
(B.P. COLABAWALLA, J.) (B.R. GAVAI, J.)
