SCA/27209/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27209 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAULIK MAHENDRAKUMAR SHAH - Petitioner(s) Versus STATE OF GUJARAT THRO.COMMISSIONER OF HIGHER & 2 - Respondent(s) ========================================================= Appearance : MR SA DESAI for Petitioner(s) : 1, MS TRUSHA PATEL, AGP for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, MRS VD NANAVATI for Respondent(s) : 2, MR AJ SHASTRI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 21/02/2008 ORAL JUDGMENT 1. Rule. Ms.Patel, learned AGP for respondent SCA/27209/2006 2/13 JUDGMENT No.1, Mrs.Nanavati, learned Counsel for respondent No.2 and Mr.Dave, learned Counsel for respondent No.3, waive service of notice of Rule. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard. 2. The petitioner has preferred the petition for appropriate writ to direct respondents No.2 and 3 to refund the amount of Rs.80,000/- collected on the basis of excess fees of 1000 US Dollar per year for two academic years of 2000-02 at the rate of Rs.40 per One US Dollar in compliance of the Notification dated 24.11.1999 read with the circular dated 3.6.2003 issued by the respondent No.1. 3. Mr.Desai, learned Counsel for the petitioner has not pressed the interest on the aforesaid amount, though claimed in the petition. 4. Heard Mr.Desai, learned Counsel for the petitioner, Ms.Patel, learned AGP for the State Government, Mrs.Nanavati, learned Counsel for respondent No.2 University and Mr.Dave, learned Counsel for respondent No.3 College. SCA/27209/2006 3/13 JUDGMENT 5. Upon hearing the learned Counsel appearing for both the sides, it appears that the issues arising in the present petition are covered by the decision of this Court in case of Sarva Vidhya Kelavani Mandal through S. Chinnam Reddy v. State of Gujarat & Ors., reported in 2005(1) GLR, 420. In the said decision, this Court ruled as under:- “Therefore, power to accord final sanction to all fees including development fees are with Statelevel Committeee and for such purpose the decision of Statelevel Committee is required to be taken and notification is also required to be issued. No other regulations framed by the AICTE are brought to the notice of the court which may be in operation prior to the above referred notification, dated 24.4.02 for showing that for NRI/POI students, State level Committee had not to finalise all the fees by issuing notification.” 6. It was observed that the development fees would get included in the words “all institutional fees”. Even otherwise also, the definition of the word 'fees' is inclusive definition and not SCA/27209/2006 4/13 JUDGMENT exhaustive definition and as per the settled principles of interpretation of statute, all types of fees, including development fees, shall get included. 7. It was also considered by the Court that the State-level Committee had notified the development fees as decided by AICTE and, therefore, unless and until State-level Committee notifies for inclusion of development fees, which might have been decided by its own or by AICTE, the petitioner Colleges would not be entitled to charge the fees, either under the head of 'fees' or 'development fees'. 8. The Court further observed that the petitioners are the institutions, who have taken benefits of the said regulations, authorizing them to charge fees as per the Regulations framed by AICTE and the petitioners herein now cannot be heard to say that the said Regulations are declared unconstitutional or overruled by the Apex Court in the above referred judgement and, therefore, the petitioners can be directed to refund the surplus fees collected by them on the basis of SCA/27209/2006 5/13 JUDGMENT the fees prescribed by the State-level Committee as per the said Regulations. Even if the regulations are declared as unconstitutional or overruled, the one who is beneficiary of such regulations cannot be allowed to take a contrary stand. The Court further observed that the Director of Primary Education being the Principal Secretary of the State-level Committee, if had communicated, calling upon the petitioner to refund the fees, it cannot be said that there is absolutely no authority on the part of the Director to address such a communication. It may be that if the instructions are not complied with, the Director of Technical Education may take action in accordance with law for recommendation or otherwise to cancel the recognition of the college or action known to law. 9. This Court, in the above referred decision in the case of S.V.Kelavani Mandal v. State (supra), at Para 5 had observed as under:- “5. It is an admitted position and that is not even the case of the petitioners that the State level Committee has notified development fee SCA/27209/2006 6/13 JUDGMENT as decided by the AICTE and therefore unless and until the Statelevel Committee notifies for inclusion of development fee which might have been decided by its own or by the AICTE the petitioners colleges would not be entitled to charge the fees either under head of "Fee" or "Development Fees". The requirement under law for publication of notification for fixation of development fee by the Statelevel Committee, in my view, is a mandatory requirement and therefore the functioning of the Statelevel Committee can not be said to be like that of a Post Office as sought to be canvassed by Mr.Dave by adopting the language used in the decision of the Andhra Pradesh High Court. As such even if the observations made by the Andhra Pradesh High Court in the case of AP Private Engg.Colleges Management Association (supra) are considered, while recording finding on issue No.4, interalia, it has observed as under: "The function of the Statelevel Committee is like that of a Post Office and it has to simply notify the development fee as notified by the SCA/27209/2006 7/13 JUDGMENT AICTE and it is not within their power and it is not within their power to tinker or modify the same.(emphasis supplied) Therefore, it has been found even by the AP High Court that the same is required to be notified by the Statelevel Committee. The question as to whether the notification by the Statelevel Committee is mandatory or not is not considered in the said decision of the Andhra Pradesh High Court. In my view, the requirement by legislature or by subordinate legislation for issuance of notification for considering the decision in normal circumstances can not be read as directory. Further, if the notification is published, it results into an official Act of a statutory body and the power would flow only thereafter. Moreover, in normal circumstances, there will be a deeming presumption that once any action is taken by issuing notification published in the gazette, it is made known to public at large including the class of students, parents of the students and to colleges and authorities etc. In the absence SCA/27209/2006 8/13 JUDGMENT of notification by the Statelevel Committee incorporating the development fees as suggested by the AICTE even if it is considered that the AICTE has power to fix the development fees, the action of collection of fees, by the petitioner colleges which had authority to college the fees only to the extent of fee as notified by the Statelevel Committee from time to time, would be rendered without any authority under law and therefore the respondent No.4-AICTE is right in taking stand that the institution imparting technical education can not charge the fee in excess than what is prescribed by the Statelevel Committee. As aforesaid aspects are not considered as observed earlier, the decision of A.P.High Court upon which reliance is placed on behalf of petitioners is of no help to them.” 10.Mr.Dave, learned Counsel appearing for respondent No.3 College, in view of the express observations of this Court at para 5 of the aforesaid decision in case of S.V. Kelavani Mandal through S. Chinnam Reddy v. State of SCA/27209/2006 9/13 JUDGMENT Gujarat & Ors. (supra), fairly submitted that respondent No.3 would stand at par with the Colleges, whose cases were considered by this Court in the above referred decision. 11.However, he submitted that against the above referred decision of this Court, the LPAs are preferred, but no stay order has been granted and therefore, he submitted that in view of the above referred decision of this Court in case of S.V. Kelavani (supra), fees may be ordered to be refunded, but respondent No. 3 college be permitted to carry matter before the LPA bench, and ultimately the final decision as may be taken by the LPA bench may prevail. He also submitted that as the criminal proceedings are pending, the petitioner has not conceded the position, as the amount is already refunded and if any balance falls short, the same shall also be deposited, but this Court may clarify the said aspect that it would not affect in the criminal proceedings before the appropriate Court, so far as the rights of the accused therein is concerned. 12.It deserved to be recorded that the AICTE had SCA/27209/2006 10/13 JUDGMENT issued notification and based on the same, the State Government acted upon. In view of the above referred decision in case of S.V. Kelavani (supra) fees were to be charged as prescribed by AICT, and other colleges including respondent No. 3 herein, who charged higher amount from the students concerned were ordered to refund the amount at the first stage with the University, and thereafter the University, in turn, refunded the same to the students. If all other colleges affiliated with the Gujarat University are given the same treatment, for directing the deposit and refund of the amount of excess fees, and when such action on the part of the State Government is not interfered with by this Court, as per the above referred decision of this Court, no different conclusion can be recorded and in view of the same reasoning, the petitioner also would be entitled to have the refund of the amount in excess fees collected by the respondent No. 3 college than fees prescribed by AICTE. 13.Learned Counsel for the University submitted that as per her instruction respondent No.3 college has not deposited any amount towards NRI SCA/27209/2006 11/13 JUDGMENT seats though directed, and the other colleges who were covered by the above referred decision and affiliated with the Gujarat University have deposited. Therefore, it was submitted that if ultimately this Court finds that the petitioner would be entitled to refund of the excess fees, the respondent No. 3 shall be required to deposit the same with the University, who thereafter will refund the amount to the petitioner. 14.As per the above referred observations when there is no rights conferred upon any of the colleges, including that of respondent No. 3 to charge higher fees than fees prescribed by AICTE, the same would apply even in respect of the all concerned category of the students, including NRI category. If respondent No. 3 has not deposited any requisite amount with the University, it will be required for respondent No. 3 to deposit the same and the petitioner's case as such since fall in NRI category, would also stand covered accordingly. As regards the proceedings of the LPA against above referred decision of this Court is concerned, ultimately it will be for the respondent No. 3, if desirous SCA/27209/2006 12/13 JUDGMENT to join in the LPA or to carry the matter before Higher Forum. Therefore, no specific observations are required to be made in this regards. 15.Concerning to the criminal case, it deserves to be recorded that the yardstick and the test in criminal case would not be the same as that of fastening of the civil liability and such principles are well-known. Merely because in civil Court or the order is passed by the competent forum for fastening of the civil liability would not ipso facto attract criminal liability, unless the other ingredients for constitution of alleged offence are satisfied. It will be for the criminal Court to examine the matter and hence, no further observations are required to be made in this regards. 16.In view of the aforesaid discussion as the present case is covered by the decision of this Court in case of S.V. Kelavani Mandal (supra) action of respondent No. 3 college of charging fees in excess than fees prescribed by the AICT can be said as unauthorised. It will be required for the respondent No. 3 college to SCA/27209/2006 13/13 JUDGMENT refund the amount, which is in excess of fees than fees prescribed by AICTE. There is no dispute that the amount in excess was collected at the rate of US$1000/- and Rs.40,000/- calculating rate at Rs. 40 per US$1 and since it is for two years, it would be Rs. 80,000/-. The petitioner would be entitled to have the refund of Rs. 80,000/- from respondent No. 3 college. However as the modalities for refunding of the amount is through University, the respondent No.3 college, if not deposited, shall deposit the said amount within two months from today. After the amount is deposited, within 15 days, the University in turn, shall refund the amount of Rs.80,000/- to the petitioner by A/c Payee cheque. Hence, ordered accordingly. 17.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. 21.2.2008 (Jayant Patel, J.) vinod/suresh