Madras High Court
The President vs The Union Of India on 31 July, 2023
2023/MHC/3566
W.A.(MD)No.405 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.405 of 2014
and
M.P.(MD)No.1 of 2014
The President,
R L Institute of Nautical Sciences,
TVR Nagar, Aruppukottai Road,
Madurai – 625 022,
Madurai District. ...Appellant
/Vs./
1.The Union of India,
Rep. by its Secretary,
Ministry of Shipping, Road Transport
& Highways (Department of Shipping),
Transport Bhawan, 1, Sansad Marg,
New Delhi – 110 001.
2.The Director General of Shipping,
Office of the Directorate General of Shipping,
Jahaz Bhavan, W H Marg,
Mumbai – 400 001. ...Respondents
1/10
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W.A.(MD)No.405 of 2014
PRAYER:- Writ Appeal - filed under Clause XV of Letters Patent Act, to
set aside the order dated 04.07.2013 in W.P.(MD)No.10055 of 2013 on
the file of this Court and allow the Writ Petition.
For Appellant : Mr.S.Xavier Rajini
for Mr.Isaac Mohanlal
Senior Counsel
For Respondents : Mr.Karthikeya Venkatachalapathy
Central Government Standing Counsel
JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
The appellant is an Institution running Maritime courses and
holding an approval from the Director General of Shipping (in short
'DGS'). It is admittedly not a member of the Maritime Institute
Association (in short 'Association'). The Association had challenged a
Circular in Order No.2 of 2007 dated 31.10.2007 (in short '2007 Order')
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W.A.(MD)No.405 of 2014
by way of writ petition in W.P.No.12919 of 2012 . That order had dealt
with the question of deduction and remittance, at one percent, of tuition
fee and other dues from the candidates.
2. The 2007 Order provided, in clause 4.20 thereof that
approved Institutes and Workshops conducting maritime training courses
shall pay to the DGS 'one percent of the total fees which will include
tuition and all other fees chargeable from a student, for the sanctioned
strength of all courses, every financial year from 1st April to 31st March,
the minimum of which shall be less than Rs.10,000'.
3. The challenge had been on various grounds including that
the DGS did not have power to levy a tax. The writ petition had been
dismissed by the Writ Court under order dated 18.07.2012 in W.P.Nos.
12919 and 12920 of 2012. The specific argument supra, had been
rejected noticing that the DGS, being a statutory body was empowered to
levy fee in respect of services provided by its affiliated institutions.
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W.A.(MD)No.405 of 2014
4. The 2007 order does not amplify on the scope of 'tuition fee
and other dues', and the interpretation of the aforesaid phrase by the
Court in order dated 18.07.2012 is on the basis that the entirety of the
receipts of the training institution shall be subject to the deduction.
5. Order dated 18.07.2012 elaborates, at paragraph 4 thereof,
the various components upon which the deduction would have to be
made, being tuition fee, university examination, mark sheet, convocation,
boarding and lodging, laundry, uniform, linen, bed, books, furniture,
medical expenses, library, laboratories, transportation, educational
equipments, swimming training, computer training, internet facility, ship
visits, boat rowing practice, gym, saloon, etc.
6. We called for the writ records to peruse the material on the
basis of which the adumbration, as above, was made. Though there is
reference to counter filed by DGS at para 7 of order dated 18.07.2012, a
copy of that counter relates only to W.P.No.12920 of 2012, which has
been filed by the International Maritime Academy, which writ petition
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W.A.(MD)No.405 of 2014
has been disposed along with W.P.No.12919 of 2012 filed by the
Association. With this, we do not have benefit of the material on the
basis of which the various components upon which the fee of 1% is to be
remitted, were set out in order dated 18.07.2012.
7. A perusal of Order No.2 of 2007 also does contain any clue
in this regard as Clause 4.23, which defines 'fees' and which is extracted
below, is silent on this aspect:-
“4.23 Annual remittance to Government:
All approved Institutes and workshops
themselves conducting maritime training course,
shall pay to the DGS one percent of the total fees
which will include tuition and all other fees
chargeable from a student, for the sanctioned
strength of all courses, every financial year from 1st
April to 31st March, the minimum of which shall be
less than Rs.10,000......”
8. The challenge in the present writ petition is to Training
Circular No.9 of 2013 dated 09.05.2013 (in short '2013 Order') and we
have encapsulated the events commencing from issuance of the 2007
Order, to set the present writ petition in context.
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W.A.(MD)No.405 of 2014
9. According to the appellant, the 2007 Order was applicable
only to tuition fees and statutory charges and it is only in the 2013 Order
that the scope of the deduction has been amplified. The attempt of the
writ petitioner / appellant is to state that the scope of the deduction of 1%
has been expanded only in the 2013 Order to include items such as food,
mess charges and accommodation, university, books, transportation fee,
etc., collected from the students.
10. This challenge is misconceived in light of the discussion in
the previous paragraphs. The scope of the 2007 Order has been
understood to mean and encompass a gamut of levies including fees,
statutory charges and various other costs. In our understanding however,
one percent that is required to be paid would relate to the tuition fee and
other charges payable to the regulatory bodies.
11. Order of the Writ Court dated 18.07.2012 has attained
finality as on date. Though the writ petitioner states that it has filed a
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W.A.(MD)No.405 of 2014
third party appeal challenging the same which is pending in SR stage, no
such appeal has, admittedly seen the light of day, thus far. We thus do
not give any credence to this submission.
12. The 2013 Order is, infact, beneficial as far as the petitioner
is concerned. In paragraph No.2 thereof, the competent authority / DGS
confirms that the collection of fee shall not be on 'sanctioned strength',
but shall be on the 'admitted strength' alone. Paragraph 2 of the 2013
Order reads as follows:
“2. The competent authority has now
decided that the 1% Annual Fee shall be enforced
on the actual fee i.e. total fee (inclusive of tuition
and all other fees collected from a student in any
nomenclature i.e. charges for food, mess charges,
accommodation, uniforms, books examination fee,
transportation strength of the respective batch.
Accordingly, clause 4.23 of DGS Order No.2 of
2007 [F.No.21-TR (2)/2007 dated 31.10.12] is
modified to the extent that the words 'sanctioned
strength' shall be replaced by the words 'admitted
strength'. All other stipulations in the said
provision shall remain the same.”
In our considered view, there can be no other reading of the
2013 Order.
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W.A.(MD)No.405 of 2014
13. We however reiterate that the requirement to deduct 1%
(gross) can only be on the amounts collected as tuition fee or other
charges to the regulatory body / University in the absence of any
stipulation to the contrary in the primary Order, ie., the 2007 Order.
Collection of charges such as food, mess charge, accommodation charge,
books, transportation fee, etc., would be by way of reimbursement of the
costs incurred by the Appellant on those accounts. The deduction can
thus be effected on net basis, on those receipts less the actual costs
incurred by the petitioner Institute on those heads.
14. The writ petitioner prays for a reduction of the liability
which we are not inclined to consider seeing as the grant of such
reduction would fall within the prerogative of the competent authority,
the DGS. The institute is always at liberty, if it is believes it is so
entitled, to approach the DGS for a waiver / reduction and it is for the
DGS to consider such request in accordance with law and applicable
Regulations/Circular. This Writ Appeal is dismissed though with liberty
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W.A.(MD)No.405 of 2014
as above. No costs. Consequently, connected Miscellaneous Petition is
closed.
[A.S.M.J.,] & [R.V.J.,]
31.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
sm
TO:
1.The Union of India,
Rep. by its Secretary,
Ministry of Shipping, Road Transport
& Highways (Department of Shipping),
Transport Bhawan, 1, Sansad Marg,
New Delhi – 110 001.
2.The Director General of Shipping,
Office of the Directorate General of Shipping,
Jahaz Bhavan, W H Marg,
Mumbai – 400 001.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.405 of 2014
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Judgment made in
W.A.(MD)No.405 of 2014
Dated:
31.07.2023
https://www.mhc.tn.gov.in/judis
