__4 IN THE HIGH COURT OF KARNATAKA AT BANGAIORE rated this the 26th day o say, 998 BEFORE THE HON’BIE ,JUSTIC! V.P,MOHAN KUMAR 1 IT PETITIONS Nos,5255 5265 & 5308 - 5313/1997 BETWEEN: 1, Dr,M,V,Shetty Memorial Trust, Mangalore by i te Se ore tary Dr.M.R.Shetty. 2. Sri.A.Shama Rao Foundation, Marigalore, by its Registrar/ President Sri.A,Raghavendra Rao, 3, Vikas Education Trust, Mangalore (Regd), by its Secretary Sri,K.O,Naik. 4, Iaxnii Memorial Education Trust, Mangalo!e, by its Secretary Dr.S.prabhu. 5. K.Pandyaraja Ballal Charitable Trust, Mangalore by its Managing Trustee, Dr.K.Ratnaraj Ballal. 6 The Mangalore Educatioil and Charitable Trust, Mangalore, represented by Dr,Amarnath Sorke, 7. Fr.Muflar’s Charitable Trust, Mangalore, represented by Dr,J .N,Shetty, 8, Karnataka Educational ai Charitable Trust, Mangalore, represented by Dr.Jeevaraj Sorke, 9. City Hospital Charitable Trust, Kadri, Mangalore, represented by Dr,Bbasker Shetty, —2— 10. Alva’s Education Foundation, Mudabidri Dakehina Kannada, represented by Dr.A,Mohan Alva. 11. Nitte Education Trust, Mangalore, represented by Sri .B .R.Hegde. ... PETITIONERS (Sri.K.Gopal Hegde, Advocate, for the petitioners) AND: 1. The Rajiv Gandhi University of Health Sciences, represented by its Registrar, Jayanagar Gerral Hospital Complex, 4th ‘T’ Block, Jayanagar, Bangalore—560 041. 2 • The Mangalore University, represented by its Registrar, Mangalagangotri 574 199. 3, The Chancellor, Rajiv Gandhi University of Health Sciences, No.1, Raj Bhavan, Bangalore, 4. State of KarnataI, by Secretary, DPAR, Yidhana Soudha, Bangelore, ... RE SPO ENT S (Sri,H,B,Datar, Sr,Advocate, for Sri,A.V,Srinivasa Reddy & Sri,S,A,Nazeer, Advocates, for respondent No.1) (Sri,M.I.Arun, Advocate, for respondent—2) (Sri.N.K.Ransh, HOGA, for respondents Nos.3 and 4) Writ Petitions filed under Article s 226 & 227 of the Constitution of India, praying to quash by issue of a writ of certiorari or in the nature of certiorari or any other writ or order, Rule 6 of AnrxureA as ultra vires of the power to make statutes and as unsustainable under Article 14 of the —3— the Constitution; (b) to quash by issue of a writ of certiorari or in the nature of certiorari or any other writ or order, Anneres-B1 to B17 as unsustainable in law a8 it is based on Rule 6 of Anrxure—A which is invalid in law and liable to be quashed; (a) to quash by issue of a writ of oertiorari or in the nature of certiorari or any other writ or order, Annexure-G as unsustaina ble in law as it has been issued by an incompetent authority i.e., 2nd respondent University, which has no right to demand affiliation and other fees from ze petitioners; Cd) to direct the let respon dent to refund the amounts collected from the let, 5th and 11th petitioners by issue of a writ of mandamus or in the nature of mandamus or any other writ or order as the demand me by the 1st respondent is based on rule 6 of Annexure-A which is invalid in law and to rant such other relief or reliefs, eta, These Writ Petitions having been heard and reserved for orders and coming on this day for pronouncement f oers, the Court pronounced the following: ORDER The question raid in these Writ Petitions mainly relates to the validity of Rule 6 of Annexure—A statutes adopted by the let respondent University under Section 62 of the Rajiv Gandhi University of Health Sciences Act, 1994, hereinafter referred to as “the 1994 Act” for brety, in relation to affiliation affiliation of Colleges to the said University. The brief facts runs thus: 2, The petitioners have established and are maintaining educational institutions offering different instructions in Health Sciences. arlier, these institutions were affiliated to Mangalore University, The details of the educational instruc tions offered as recited in the Writ Petitions are not relevant for xsolving of the dispute in question, When, with effect from 1—6—1996, the 1st respondent University was established by enacting the Rajiv Gandhi University of Health Sciences Act, (Act No.44 of 1994), by operation of Section 5(3) thereof, the petitioners Colleges were deemed to be admitted to the privileges or affiliated to the 1st respondent University and consequently, the affilitation to the 2nd respon— dert University stood withdrawn. By operation of Section 62 of the Rajiv Gandhi University Act, 1994, it was declared that all statutes in operation immediately prior to 1—6—1996, shall, subject to such modifications as may be made by the Vice Chancellor with the approval of the Chancellor and the Government and to the extent it is consis tent with the provisions of the 1994 Act, be deemed to be the statute made under the later 1994 Act, Anne xure — a Annemare-A is the notification tenet under Section 62 of the Act by the Vice Chaxcellor, adopting the statute in relation to the affilia tin of Qolleges and Institutions ant Rule 6, the infringing rule, preeeribes the fees payable by the Colleges/Institutions for affiliation to the let respondent. 3. The petitioners allege that the 1994 Act provides Seotion 33, apeoifying the matters with respect to aich statutes said be made and it does not provide for framing of the etatun regard ing prescription of affiliation fee for ocntiaance of the affiliation. Initially this was the posi tion under Section 35 of the Karnataka Uninrsittes lot, 1976 as wefl, when in $86, the lot was amended izacrporating Clans (p) and (q) to Section 35. this, according to the petitioners, eabled the 2nd respondent to frame statute to le affiliation fee. these clauses read as hereunder: “(p) fees to be charged for the omarses of study in the Uninr sity and in the affiliated colleges end for admissions to the ezamiations, degrees and diples of the Universie; (ci, —6— (q fee a to be charged for the services rendered by the Univeeity.” But there is no corresponding provision in Section 33 of the 1994 Act to levy affiliation fee, Therefore, the let respondent has no compe tence to prescribe Rule 6 in Annexure-4 as there is no statutory competence to do so. Hence, such prescription is not valid in law and is beyond the power conferred under the statute, 4. After the framing of .Anriexure—A, the 1st respondent University issued Annexures-BI to B17 to the petitioners demanding affiliation fee, Some of the petitioners paid the same under protest, whereas the others did not. It is also complained that by Anne xure.-C, the 2nd respondent Mangalore University has also demanaed the affiliation fee, This is also challenged as invalid, because on and after the affiliation to the 1st respondent University, the 2nd respondent University cannot claim any affiliation fee, 5. The let respondent has filed a detailed statement of objections. They submit as hereunder: Sec— a7e Section 4 s 1—clauses (vii) aM (xv), he flji ‘a’hi Utinreity !ealth Sciences Act, 1994, deals with the power of the Fnivereity to prescribe by a tee linsre conditinfor that aOf lmsam x on fte pyale %tin 33 , and ) of t. Q4 Act ‘onten tee pr tiding by statutes, conciitions for affiliation of Colleges, fee relating *c affiliation and disaff1iation of C 1 eges, ama such er mat era as i’s reouire to b e mrthe et. It cntMedth te 0t .atory r visions eo clo 4 h the Is reoztent with power to frame the infringing statute • The respon dent then relies on Sections 62 and 64 of the 1994 Ac to contend that he stat te Thawed aider tie K rn ‘ak StatC Uni trait a A t, 9 ita etch 61 icati n made 1; the t ‘Thawell r i.. p Ii— cable t the ist respondent and that Annemre—1 thus made has been assented to by the Chancellor on l41G1996. The Inter University Boa d of the Jni— vrile o itt iavlertetaxata Ui rsitie 976, ,itea ng ci ml bad ai— •ered the fee structure in venous cctatituent Cri— verstties and after adverting to the insistence of va’iois financin# agencies 0’ the TTnmnrsjtjeg Uke met , J ‘1.0, e , r e a. ende e enian cut efree uct prey. inidn. tea ihia ,, tinn fees be revised. In this behalf, ..t tnok note of the the fact that there has been increase in the cost of establiehnnt, material, printing, transport, communication, etc., over the years resulting in the diversion of funds earmarked for oth develop mental works. The let respondent is not eligible for any kind of financial assistance from the U.G.C until it completes five years and the State Govern— sent has also not provided adequate grant to the let respondent, For the year 1996—97, it has provided only Rs,100 lakhs whereas for the year 1997—98, it has provided Rs,120 lakhs, 6. The 1st respondent is the only University in the State established for the proper and systematic instruction for teaching, training and research in Medicine and Indian System of Medicine. Expen diture on Administration, Management and conduct of Examination throughout the State is not compara ble with other established Universities in the State, Examination and Finance Branches have been computerised for the speedy service to the students and Colleges. Part of the Administration is also computerised. An University of this size and juriMiction, required large number of staff and it will have to establish regional centres besides starting post graduate departments. All this involves involve 8 huge sums of moray (A Medical College under the Government has an Annual Budget of Rs1,5 ororee, 7. After the establishment of the University, the affiliation statute s of Ban1ore University which also prescribes fee for affiliation based on the IUB Sub.Committee report of 199as reviewed by this University keeping in view the increase in cost since 1991. The affiliation fee has been modified and notified in October, 1996 with the approval of the Chancellor obtained through the State Government. 8, The University has found it difficult to mane its affairs within the actual receipts. As against a total receipts of Rs,401 lakhs from Government, Eligibility, Registration, Affiliation and Exami nation Fees the estimated total expenditure is around Rs,1405 lakhs during 199798. The total estimated expenditure for 1997-98 exclusily for academic activities including conduct of examina tion besides the proposed expenditure on esablisl ment, maintenance, development of the Campus works out to Rs,7,08 crores as detailed below: Pri!Lting -10- (in lakhs ) Printing & Stationery 50 Purchases of computers and Allied equipments 30 Furnishing computer centre 3 Oonferenoe & Seminars 2 T,A & D.A,to members of the 75 Authorities Meeting expene 5 Examination charges 300 Postage & Telegram 2 T,A to University Staff I Purchase of Audio Visuals arid other conference equipments 10 Advertisements igarding affili ation, etc 5 Publication 20 Training, teachers & continua tion Education 20 Research 20 Refresher course for non-teach ing professionals of Health Sciences 40 Purchase of Library Books and other facilities 60 Legal charges 15 Net working of Library and other facilities 50 TOTAL 708 9 In the first year of its inception the Rajiv Gandhi University has conducted several workshop involving —11— involving teachers, principals of colleges in the matter of review of syllabi and curriculum and matters pertaining to conduct of examination, The University ha not collected any Registration fee from the participants. The total expenditure on these workshop/seminars is borne by the Uni versity itself, In order to establish contact with ail the affiliated colleges and maintain contimiity of contact, state of Art facilities like V—sat, E4ail have been established at a considerable cost, Erstwhile Hospital iilding is renovated ±or the purpose of installing the University administrative, Examination and Finance Wing and a big hail for use at the time of Evalua tion of Answer Scripts, etc., has been put up at a total cost of Rupees One Crore, Keeping all these facts in view and especially in the matter of affiliation, the committee noted that Univer sities are spending quite a lot of money for correspondence, transportation and local inspection etc., and suggested a revision in affiliation fees, 10, The recommendation of the Committee was adopted with certain modification by both Mysore and Bangalore Universities and notified on 10-1—92 and 10-5—96 respectively, The Rajiv Gandhi Univer sity of Health Sciences, KarnatakaAc provides for I 2— for adaption of statutes under KArnataka State Universities Act by the Pirat Vice—Chancellor. The Vice—Chancellor perused the recommendation of the Inter-University Board Sub—Committee meeting held five years ago, the reviewed fee structure in conventional Universities and also the neigh bouring State of Tamjl Nadu M.G.R.Medical University and other Universitiesdapted the Affiliation Statutes under KStJA with the modified fee structure with the prior approval of the Chancellor. The Governnnt b conveyed the approval to the modi fied statutes in their letter HFW/420/MSF, dated 17—10—1996, The modification in fee structure is not arbitrary. The University is not mcing any profit out of the fee collected. 11, These respondents submit tbat the notification pre scribing the fee I a neither arbitrary nor un reasonable and the same is in tune with the prevail ing coats of various servioes to be rendered by these respondents. The same is based on the prevail ing costs to be incurred by these respondents in discharge of its functions under various categories. The same h been determined by the academic bodies like inter-University Board and the same has been accepted by the Chancellor on the recommendation of I3 of the Government, Payment of affiliation fee or other fee is an obligation under the statutes in order to enable the University and the vious bodies of the Universities to carry out their functions to maintain the highest academic stan— darde 12, It is further contended that the let respon dent has exercised its power vested in them under the statutes and hence Anne xure—A is not an ultra viree Act, The fee stipulated is not unreasonable, The fee collected is not disproportionate to the service rendered as ll, 13. The let respondent has filed an additional statement of objections setting forth the details of receipts and expenditure for the academic year 1997—98, It is disclosed therefrom that the total receipt was Rs,%OI,46 lakhs while the expenditure was Rs.706,25 lakhs, It is also pointed out that ii.o amount is ape nt towards any capital expenditure. A further additional statement of objection:.was again filed on 11—11—1997 stating further details of the expenditure incurred by the let respondent. Anneir-1 to Anneire-7 were also produced to support the avermente, The estimated expenditure on —14— on salaries with admissible ailowances for academic anti examination branch is given in Annexure—1. Annexure—2 is a statement of accounts of expenditure incurred on computer centre for academic wing. Annexure—3 is a statement of accounts of expenditure on computers for examination wing. Anne mre—4 is a statement giving details of eaveiling allowances and dearness allowances for conduct of meeting of authorities and its committees. Annexure—5 is a statement showing the details of expenditure towards local enquiry committee for inspection of colleges, A nne nire s-6 and 7 are the s tateme nts showing the details of proposed expenditure for the conduct of University Fxamination for 199697 and 1997—98. 14. The following points re formulated in the Writ Petitions and in the course of gumeats to sustain the attack on Anne 3alre-A and consequential notices: V (i) There is power vested with the 1st respondent under the 1994 Act to le affiliation fee ftom the peti tioners; (ii) As the 1994 Act do not provide for le of affiliation fee, the Vi— Chcellor of the 1st ispondent University has no power to frame Rule 6 of the Anneire—A statutes; (iii) ‘1 5— (iii) The fee fixed under Annexura—A is unreasonably high and is arbitra The sam.• has been fixed witbout considering the question whether it could be levied from the students; (iv) There is no quid pro quo for the levy of affiliation by the let respondent; Cv) As can be seen from Annexure—D, the fee levied by the 2nd re spo nde nt for affiliation is much less than what is being levied by the I st respon— dent, If the sane was found suffi cient hitherto by the 2nd responnt, then it is not possible to justify the bike by its successor the 1st respondent; (vi) The power to levy fee was expressly conferred by the Karnataka State Universities Act, 1976, on the 2nd respondent only after the amendment made in 1986, But when the 1994 Act was enacted, such similar power is conspicuously absent, It means, there is no statutory authority vested with the Vioe-Cha.nc.ellor to frame Rule 6 in Annenire—A statutes, (vii)After the operation of Section 5(3) of the 1994 Act, the 2nd respondent h no power to is sue Anne xure -0. 15. 1 15. I have heard Mr.Gopal Hegde, learned counsel for the petitioner, r,H.B.Datar, learned Senior Counsel on behalf of the 1st isponnt, Mr.M,I,Ain, appearing for the 2nd xspondent, and the learid Government Advocate, at length. 16. We wiil first advert to the contentions urged to the effect that the 1st respondent has no statu tory power to issue Innexure-A statutes. The argu ment is developed by the learned counsel by adverting to the provisions of the 1994 Act and that of the Karnataka State Universities Act, 1976. As per Section 4(xv) of the 1994 Act, it is provided that subject to the provisions of the Act and such condi tions as may be prescribed by the Statutes or Ordi nances, the University may fix, demand, receive or collect such fees and other charges. According to the learned counsel, it is unlike the provisions of the 1976 Act as amended in 1986, Therein it is rov1ded that subject to the provisions of the Act, statute may provide for fees to be charged for the services rendered by the University. There fore, accordIng to the learned counsel for the peti tioners, by virtue of this enabling provision, the 2nd respondent University could frame the statute °ixing the affiliation fee payable. Thereafter, whe by virtue of Section 5 of the 994 Act, all —17— all Colleges affiliated to the Universities of Nysore, Bangalore, Karnataka lFangalore, Gulbarga and Kuvempu Universities were deemed to be admitted to the let respondent University, then in the absence of a corre spondinp provision corresponding f tIe 1 7 Act to Section 35()tn the 1994. Act, no statute can be framed to levy affiliation fee nor adopt the statute of the 2nd re spondent with any material modification, Continuance of the statute framed by the Universities, referred to above ad irvo in Section 35(q) can be only as contemplated under Section 62 of the 1994 Act, Section 62 of the Act rpads as follows: “62k Continuance of Statutes, Ordi nances, etc.— Until Statutes, Ordi— nan a and Rul as are made under appro priate provisions of this Act, the Statutes, Ordinances, Regulations and Rules which were made under the Tarnatalea State Universities Act, 1976 and in force immediately before the commencement of this Act shall, sub3et to such adaptations or nodi— fications as may be made therein by the Vice—Chancellor with the approval of the Chancellor obtained through the Government in so far as they are not inconsistent with the provisions of this Act be deemed to be Statutes, Ordinances, Regulations and Rules made under the apopriate provisions of this Act.” Basicallj, -18- Basically, such Statute or Ordinance should not be inconsistent with the provisions of the 1994 Act. Thus, the contention is that the absence of a section similar to Section 35(q) of the Karnata1 State Universities Act, 1976, in the 1994 Act, indicates the legislative intention of denying the 1st respondent University power to enact, statutes with respect to subjects covered under Section 35(q) of the 1976 Act, referred to above, There fore, the let respondent cannot adopt any of the statutes on the said subject framed by t1 predeces sor University, as any such adoption would be inconsistent with the provisions of t 1994 Act. Therefore, Annexure—A is totally without jurisdic tion, 17. Section 62 of the Act, referred to above, re-arranged and should be read as follows: “Until Statutes, Ordinances and. Rules are made under appropriate provi sions of this Act, the Statutes, Ord— nances, Re&ulations and Rules which are made under the Karnataka State Univer sities Act, 1976 and in force immediately before the commencement of this Act, shal1 in so far as they are not incon sistent with the provisions of this Act may deem to be Statutes, Ordinans, Re pulatiens -19— Regulations and Rules made under the appropriate provisions of this Act, subject to such adoptions or modifica tions made therein by the Vice-Chancellor under the approval of the Chancellor obtained by the Governments” In this context, we may notice that unless there is any specific inconsistency pointed out with reference to the provisions of 1994 Act, the Statutes, Ordinances, Regulations and Rules made under the Karnatalca State Universities Act, 1976 immedi ately in force before the commencement of the 1994 Act would be in force, subject to such adoptions and modifications. Before embarking to consider this issue, we may keep in mind the following observations made by Lord Selborne in CAIDONIAN RAILWAY v, NORTH ITISH RAILWAY (1881) 6 App,Cases 114: “The mere literal interptation of a statute ought not to pvail if it is opposed the intention of the legislature as apparent by the Statute, and if the words are sufficiently flexi ble to admit of some other construction by which that intention can be better effectuated,” Unless the plain meaning to the word being any assigned would lead to absurdity, then alone it can a at) aM ce ti ieny ezaW *n f r i 41t t °an Ic p we tat t tero&ent a ye t “ tg dee sore pt er Se 4j fl q) 1 t e Act. Admitte tv eat ee en eaLe r eel or 1 .q an e 1 tion of 2ffifla tionfe rtIeKaratkt irerstieje, by ‘e2 erpine it ey e i Ito iaiei e riort teeone a oft 94*et Now,the 1 4 1 t eontein Sc ion (vv) t d (tv hie na th ‘(vi toaffliteo nc t)intin i as to ohafi tion me e#a atn t a ehfeeea a be te a Is rca o de t ttt 1 ft fee sat en °ei e 11e’e sitMr w ritio ;‘ a I 4. e abe ; / ‘ti “ 3 Is (‘ en- a ama ff i t tad a 1Sf T n be ete t lea a mat •eIb Ida f S ivers 4 t ff1 nfl C I S —21— This, a con 1 oint readi gof he e provi ions indicate that Section 4(vi) and 3ectjon 4(n) read with SectIon (s) confers powers on the let respon— o nt University to prescrile conditions for ffili— ti a of “ ea and pres ibe f°e as we L e has ° a deft Cd at Se ti n 2çn mean oresoribe by Statv t es, Ordinances or RUICSe There fore, It can be held that there is power under the 1994 Act a’ well to prescribe by Statute, condition f r affili tion s also tipuThtin f cc i ye eral, Th intei—rb th 1 t ex 1 e 1 on eeel usEd a Sec ton 4n), referred to above, tvoald swan taffilj_ ation fee” as well, cannot be described as an Impossl— tIe construction. 1 if , ca itbe I tin the absene of a spe ific clan like Section (q) of tcw Ksrnataka University Act, tnere is any inconsistency n the 1994 Act S What is meant by the word nconsis— e if S e foil w me p gve n leak ramial we a, et “Inonsisten— A tang i 0 aA bo he corals tnt if t Ic in conformity with r oonfmuoua with the other, in ot er vend what I not inc nssste i nsit ni i ci ef j a 4t• —22— ste.ge where there is an impossibility of simultaneous operation of both laws,. it signifies the idea of incompatibility, in case, tberefore where two laws c an exist side by side, one law oamot be said to be inconsistent with the other,— Smt,Chandra Rani