# Self Finance Colleges Welfare Association, Bijnor & Anr v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1532
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-13
- **Case number:** Civil Misc. Writ Petition No. 57930 of 2013
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/self-finance-colleges-welfare-association-bijnor-anr-v-state-of-u-p-ors-43063
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-Writ
Petition-filed
by
Association
of
self
financed
institution
affiliated
to
MJP
Ruhilkhand University-challenges decision
of executive council-charging development
fee-in absence of any statutory provisiondiscrimination in charging development
fee from un-aided institution
-without
rational basis-held-petition by registered
association-maintainable.
Held: Para-3 & 5

## Text

1532
 INDIAN LAW REPORTS ALLAHABAD SERIES
30. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2014
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 57930 of 2013
Self
Finance
Colleges
Welfare
Association, Bijnor & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri V.K. Singh, Sri D.K. Singh, Sri
Bhuvnesh Kumar Singh
Counsel for the Respondents:
C.S.C., Sri Vivek Saran, Sri Vivek Varma
Constitution
of
India,
Art.-226-Writ
Petition-filed
by
Association
of
self
financed
institution
affiliated
to
MJP
Ruhilkhand University-challenges decision
of executive council-charging development
fee-in absence of any statutory provisiondiscrimination in charging development
fee from un-aided institution
-without
rational basis-held-petition by registered
association-maintainable.
Held: Para-3 & 5
3.
The petitioner, being a registered
society, is a juristic person. It has filed the
present writ petition on behalf of its
members,
which
are
Self
Financed
Colleges, affiliated to the respondent
university. The representatives of the 12
institutions, details of which have been
given in para nos. 4 & 5 of the
supplementary affidavit, are the members
of the committee of management of the
petitioner
institution.
Sri
G.K.
Singh,
learned Senior Advocate, has also made a
statement that member institutions of the
petitioner undertake to be bound by the
outcome of the present writ proceedings.
In view of the above, I am of the opinion
that the petitioner association is entitled
to maintain the present writ petition on
behalf of its member self financed
colleges.
5. In such view of the matter, I am of
the opinion that the petitioner is entitled
to maintain the present writ petition in
respect of the grievance raised, and the
objections raised with regard to its
maintainability is consequently rejected.
Case Law discussed:
1996 (7) SCC 29
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
1.
Petitioner is an association of Self
Financed Colleges, affiliated to M.J.P.
Ruhilkhand University, Bareilly and has got
itself registered as a society under the
Societies Registration Act, 1860. Clause-12
of its bye-laws permits the society to institute
legal proceedings on its behalf. It has filed
the present writ petition challenging the
decision taken by the Executive Council in
its meeting dated 2.11.2011 and 27.2.2013,
as intimated in the communication/order of
the Registrar dated 15.7.2013, insofar as a
demand of development fee @ Rs. 500/- per
student has been levied from the Self
Financed institutions.
2. At the very outset, Sri Vivek Verma,
learned counsel appearing for the University,
has raised a preliminary objection with
regard to the maintainability of the writ
petition on the ground that petitioner has no
locus to maintain the writ petition as it is not
a person aggrieved and no student, who
alone could have complained, has actually
raised an issue and the writ petition,
therefore, is liable to be dismissed.
3. The petitioner, being a registered
society, is a juristic person. It has filed the
3 All]. Self Finance Colleges welfare Association, Bijnor & Anr. Vs. State of U.P. & Ors.
1533
present writ petition on behalf of its
members, which are Self Financed
Colleges, affiliated to the respondent
university. The representatives of the 12
institutions, details of which have been
given in para nos. 4 & 5 of the
supplementary affidavit, are the members
of the committee of management of the
petitioner institution. Sri G.K. Singh,
learned Senior Advocate, has also made a
statement that member institutions of the
petitioner undertake to be bound by the
outcome of the present writ proceedings.
In view of the above, I am of the opinion
that the petitioner association is entitled to
maintain the present writ petition on
behalf of its member self financed
colleges.
4. The demand of development fee
is restricted only to the self financed
colleges
and
no
such
demand
is
contemplated from the students of the
aided colleges. It is submitted by the
learned counsel for the petitioner that
decision of the respondent university to
levy development charges from the self
financed colleges only is arbitrary, as it
discriminates against the students of self
financed colleges. There is nothing on
record to indicate as to why development
fee is being charged only from the
students of self financed colleges. The
argument of Sri Vivek Verma that fee
structure for aided and non aided
institutions, is different, is not convincing.
The university will have to justify as to
why such demand is restricted to students
of self financed colleges only. No reply or
reason, in this regard, has been brought on
record. The status of the institution has no
bearing on the demand for payment of
development charges. In the absence of
any rational basis for the classification,
this Court finds substance in the argument
that the members of the petitioner are
discriminated, as its students are being
saddled with extra liability.
5. In such view of the matter, I am
of the opinion that the petitioner is
entitled to
maintain the present writ
petition in respect of the grievance raised,
and the objections raised with regard to its
maintainability is consequently rejected.
6. The demand of development fee
from the students of self financed colleges
has been challenged on the ground that
such a demand is not backed by law. The
aforesaid submission is substantiated by
Sri G.K. Singh, learned Senior Counsel,
by relying upon section 51(2)(j) of the
U.P. State Universities Act, 1973 (herein
after referred to as 'Act'). It is contended
that the fee, which may be charged by an
affiliated college, has to be provided in
the ordinance of the university. Section
51(2)(j) of the Act is reproduced:-
"51.
Ordinances-
--------------
(2) Without prejudice to the generality of
the provisions of sub-section (1), the
Ordinance shall provide for the following
matters, namely-
(j) the fees which may be charged by
the University or by an affiliated or
associated college for any purpose;"
7. Section 52 of the Act provides for
the manner in which ordinance would
have to be framed. Specific provisions
relating to income or expenditure of the
university for being incorporated in the
ordinance also requires an approval from
the State Government. Section 52(3),
proviso (c), which is applicable, is
reproduced:-
"52. Ordinance how made. --------
1534
 INDIAN LAW REPORTS ALLAHABAD SERIES
(3) Save as otherwise provided in
this section, the Executive Council may,
from time to time, make new or additional
Ordinances or may amend or repeal the
Ordinances referred to in sub-sections (1)
and (2):
Provided that no ordinance shall be
made -
(c)
effecting
the
number,
qualifications and emoluments of teachers
of the university or the income or
expenditure of the university, unless a
draft of the same has been approved by
the State Government."
8. On the strength of the aforesaid
provision, it is contended that unless
ordinances are framed, in accordance with
law,
making
specific
provision
for
charging of development fee, the decision
to charge the amount itself is in excess of
jurisdiction. Reliance has been placed
upon the decision of this Court in
Committee of Management Public Degree
College and others Vs. State of U.P. and
others: 2012 (5) ESC 3015. Para 8 of the
judgment has been relied upon, which is
reproduced:-
"Having heard learned counsel for
the parties and having perused the
records and the stand of the University,
this Court does not find any justification
for having a different structure of
examination fee for the students of the
self-financed institutions at a a higher
rate. To my mind there is no rational
nexus with the object sought to be
achieved namely the examination fees
which is in relation to examinations that
are
common
for
the
self-finance
institutions and aided institutions. In the
absence of any rational basis for the
discrimination, the equality clause as
contained under Article 14 of the
Constitution of India appears to have
been infringed by the University by
imposing different fee for the same
courses and for the same examination.
The status of the institution has no
bearing on the nature of the examinations
that are common for aided and selffinanced institutions. No other material
adverse to the petitioners has been placed
to draw an inference otherwise. To the
contrary the decision of the Finance
Committee for the Session 2012-13
vindicates the stand on discrimination
raised by the petitioners."
9. Sri Vivek Varma, learned counsel
appearing for the university, on the other
hand, has attempted to justify the
decision,
by
referring
to
Section
21(1)(viii) of the Act. Section 21 provides
for the power and duties of Executive
Council. Section 21(1)(viii) of the Act is
reproduced:-
"To fix the fees, emoluments and
travelling and other allowances of the
examiners."
10. He contends that levy of the
development
fee
by
the
Executive
Council can be traced to the aforesaid
provision. He also places reliance upon
the judgment delivered by this Court in
Writ Petition No. 67119 of 2011, which is
reproduced below:-
"Heard learned counsel for the
petitioner, learned Standing counsel as
well as Sri Sanjay Kumar Singh, Advocate
for the respondents University.
Petitioner is an association of Self
Finance Education Institutions which is
affiliated to Dr.Bhim Rao Ambedkar
University, Agra.
3 All]. Self Finance Colleges welfare Association, Bijnor & Anr. Vs. State of U.P. & Ors.
1535
State Government on 24th March,
2011 has resolved to increase the amount
in question which an incumbent was
entitled to get in lieu of examination duly
and in In view of service rendered in the
examination. Pursuant thereto, university
concerned in the meeting of the Finance
Committee has resolved on 17.5.2011 by
proceeding to enhance the fees of students
from Rs. 1000/- to Rs. 1500/- per annum
and said resolution of Finance Committee
has been accepted by the Executive
Council of the University concerned on
9.06.2011. At this stage petitioner has
rushed to this Court contending therein
that increase which has been so made is
unjustifiable and uncalled for.
Once the State Government in its
wisdom has taken decision to revise the
remuneration of the incumbents, who are
attached with the examination work and in
this regard definite directives have been
issued that remuneration be increased and
further amount incurred for the same is to
be generated by the University concerned.
University concerned in order to generate
the funds meeting out such expenses has
subsequently
resolved
by
an
Expert
Committee that is Finance Committee for
making increase of Rs. 500/- per student. As
far as petitioner is concerned, increase of
Rs. 1000/- per annum to Rs. 1500/- per
annum has been effected and the said
resolution has been accepted by the
Executive council. Once when enhancement
in question is only from Rs. 1000/- to 1500/-
and the decision in question has been taken
in regard to meeting out Financial liability
as directed by the State Government, then
this Court can not come to the rescue of the
petitioner by proceeding to interfere with
the said policy decision.
A said policy decision neither
infringes any Constitutional right nor
infringes any statutory right conferred
upon the petitioner.
Writ
petition
is
accordingly
dismissed."
11. Reliance has also been placed
upon the judgment of the Apex Court
reported in Municipal Council, Waraseoni
and another Vs. Satish Chandra Jain and
another: 1996 (7) SCC 29.
12. I have considered the respective
submissions advanced and have also
perused
the
materials
placed
for
consideration of this Court as well as the
judgements relied upon.
13. A perusal of the scheme of the
Act clearly goes to show that charging of
fee by the university or affiliated and
associated colleges has to be provided in
the ordinance. Unless the demand of
development fee is backed by framing of
appropriate ordinance permitting such
levy of development fee, the university
would not be entitled to charge such
amount. This provision would otherwise
restrict the possibility of levying different
fee by different institutions arbitrarily.
The respondent university, therefore, can
levy development fee only if it is so
provided by an ordinance. In the instant
case, no such ordinance has been brought
to the notice of the Court, which permits
levy of development fee, and therefore,
the charging of amount as development
fee is without jurisdiction.
14. The argument of Sri Vivek Verma
that source of power for levy of development
fee can be traced from section 21(1)(viii) also
cannot be accepted. Section 21 deals with the
powers of the Executive Council. Section
21(1)(viii) deals with fixation of fee,
emoluments
and travelling and other
1536
 INDIAN LAW REPORTS ALLAHABAD SERIES
allowances of the examiners only. The power
to levy development fee from students of the
self financed colleges cannot be traced to
section 21(1)(viii) of the Act. So far as the
judgement of Hon'ble Single Judge in writ
petition no.67119 of 2011 is concerned, it
may be noticed that the specific issue
requiring adjudication by this Court was not
the question under consideration therein.
Moreover, the provisions, which have been
noticed above, were not pressed, and
therefore, the judgement delivered in that
matter cannot come to the rescue of the
respondent university. The judgement of
Hon'ble Supreme Court in Municipal
Council (supra) also has no applicability to
the facts of the present case inasmuch as the
judgement of the Apex Court dealt with the
fixation of fee by the municipality and the
question was as to whether the levy was a fee
or tax. The judgements relied upon by Sri
Vivek
Verma,
therefore,
have
no
applicability to the facts of the present case.
15. Considering the aforesaid facts and
circumstances of the case, this Court finds
that the demand of the university to levy
development fee since is not backed by the
appropriate statutory provision, therefore, it
cannot be sustained. The law is otherwise
settled that if the statute requires a thing to be
done in a particular manner, it has to be done
in that matter alone and no other procedure
for the purpose can be resorted. Once the Act
provides the procedure for determination of
fee, the university was bound to have
charged fee only in such manner and its
decision to levy the development fee without
complying with the provisions of the Act
cannot be sustained. Consequently, writ
petition succeeds and is allowed.
16. The decision of the Executive
Council held in its meeting dated
2.11.2011
and
27.2.2013
as
communicated vide order of the Registrar
dated 15.7.2013, insofar as it raises a
demand for payment of Rs. 500/- as
development fee from the students of self
financed institutions, is quashed. This
Court had passed an interim order,
whereby
the
amount
collected
as
development fee was directed to be kept
in a separate deposit by the university.
Since the writ petition has been allowed,
it is provided that the amount in this
regard, kept with the university shall be
returned to the colleges, with a further
direction to the colleges to return such
amount to the students concerned.
17. No order, however, is passed as
to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2014
BEFORE
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE MANOJ MISRA, J.
Civil Misc. Writ Petition No. 58755 of 2014
Arun Kumar Dubey & Anr.
.Petitioners
Versus
High Court of Judicature at Allahabad &
Anr.
...Respondents
Counsel for the Petitioners:
Sri Jitendra Kumar, Sri Prasoon Tomar
Counsel for the Respondents:
Sri Manish Goyal, Sri Ravi Kant
Constitution of India, Art.-233(2)-Higher
judicial
services-petitioner
declared
successful in preliminary examinationaggrieved by corrigendam issued on
26.06.2014 by which 7 years experience
shall be read in view of law laid down in
Sanjay Agrawal case-meaning thereby
the date on which advertisement made-