Judgment Sachchidanand Jha, J. 1. As a common dispute is involved in these three cases they have been heard together and are disposed of by this common judgment. 2. The petitioners, who are 87 in number, are students of Dr. B.R. Ambedkar Institute of Dental Sciences & Hospital, Patna (hereinafter referred to as the Institute). (Many similarly placed students of the Institute have joined hands with the petitioners as intervenors). They have approached this Court seeking direction upon the Institute to deliver their mark-sheet, certificates for the first/second/third/fourth year of the BDS Course sent to the Institute by the Magadh University and the original certificates deposited by them at the time of admission, permit them to complete their internship and on completion thereof issue necessary certificate, and other incidental reliefs. The refusal to issue the mark-sheets etc. is on the ground that the petitioners have not paid their outstanding dues. 3. There appears to be a minor dispute about outstanding hostel charges. Counsel for the parties however, fairly agreed that as this dispute involves ascertainment of facts the same may be left to be investigated by some agency. While on behalf of the petitioners it was suggested that this may be done by the Registrar of the University i.e. Magadh University, on behalf of the Institute it was submitted that as the University has issued forged and fake mark-sheets on extraneous consideration giving rise to a dispute inter se, the verification may be done by some outside agency. I shall deal with this aspect of the case later in this judgment. 4. The heart of the dispute which requires decision by this Court relates to the amount of tuition fee and other fees. It may be mentioned here that in the brochure for the academic years 1995-96 and 1996-97, the fee structure comprised of ten items, namely, (i), admission fee, (ii) tuition fee, (iii) Charges of materials used in practicals in clinical classes during teaching programme, (iv) Caution Money, (v) Sessional Examination fees, (vi) Library Charge, (vii) Building development Charge (viii) College Society, (ix) Magazines and Hand books and (x) Games and Sports. In the brochure for 1997-98 a consolidated amount was shown as admission fee including tuition fee and all other charges. It is relevant to mention here that according to the Institute the students are liable to pay the fees every year except admission fee and caution money. In the brochure for 1997-98 a consolidated amount was shown as admission fee including tuition fee and all other charges. It is relevant to mention here that according to the Institute the students are liable to pay the fees every year except admission fee and caution money. 5. The case of the petitioners is that the brochure for the particular academic year contained the particulars of the fees payable by the students on admission. Acting on such representation they took admission, and the Institute therefore cannot charge more in the subsequent years of the course. In any case, having allowed them to continue the course of study- from year to year, the Institute waived the right, if any, to demand higher fee, it is stated that at no point of time the petitioners were informed that they will have to pay higher fees during subsequent years of the course and the impugned action denying them their mark-sheets, certificates etc. at the end of the course or in the midst of it without any notice is arbitrary and illegal. The case of the Institute, in sum and substance, is that the fees indicated in the brochure were meant for the particular academic year. In subsequent years the fees were fixed in accordance with the decision of the Central Government in the light of the decision of the Supreme Court in the case of T.M.A. Pai Foundation V/s. State of Karnatka. Counsel for the Institute referred to various orders of the Supreme Court in T.M.A. Pai Foundations case on the point of fee structure and the need to generate income, if the Institute has to exist and provide quality education to the students. 6. It is common knowledge that teaching institutions usually come out with a prospectus or brochure- called by whatever name - informing the candidates at large the details of courses taught in the Institution, the facilities etc. available and the terms and conditions of admission. The brochures in question too contain brief details of the course of study imparted in the Institute, the teaching programme, library facilities, hostel facilities, eligibility for admission and so on. As per the brochure the selection was supposed to be strictly on merit. There does not appear to be any dispute that the selection in the past has been made on the basis of marks obtained at the qualifying examination i.e. l.Sc. As per the brochure the selection was supposed to be strictly on merit. There does not appear to be any dispute that the selection in the past has been made on the basis of marks obtained at the qualifying examination i.e. l.Sc. or ten plus two or equivalent examination and not on the basis of any competitive test. 7. Before proceeding further it may be stated that in CWJC No. 7085/2002 the petitioners took admission in the 1995-96 session, in CWJC No. 7807/2002 petitioner No. 31 took admission in 1990-91 session, petitioner Nos. 19, 21 and 27 in 1993-94 session, petitioner Nos. 6, 22 and 29 in 1994-95 session and the rest in 1996-97 session, in CWJC No. 8731/2002 the petitioners took admission in 1998-99 session. The cases however, were argued with reference to the brochures for the years 1995-96, 1996-97, 1997-98 and 1998-99. 8. Coming back to the brochure, it provides that the Bachelor of Dental Surgery (BDS) Course will be of four academic years and have four professional examinations. After completion of the BDS course the students will have to undergo one years rotatory internship training. The amount of fee under different heads as shown in the brochure varies to some extent for the years 1995-96 and 1996-97. It may be apt to refer to the relevant part of the brochure as under - (1995-96) ADMISSION FEES The following fees shall be payable by the candidates at the time of admission. Particulars Amount (Rs.) Admission fee 3,000.00 Tuition fee (for one year) 15,000.00 Charges of materials used in practicals clinical classes during teaching programme 24,000.00 Caution Money 1,000.00 Sessional Exam. fees 2,000.00 Library charge 5,000.00 Building Development Charge 9,000.00 College Society 1,000.00 Magazines and Hand books 1,000.00 Games and Sports 1,450.00 Total 62,450.00 (1996-97) ADMISSION FEES The following fees shall be payable by the candidate the time of admission. Particulars Amount (Rs.) Admission fee 4,000.00 tuition fee (for one year) 21,000.00 Charges of materials used in practicals clinical classes during teaching programme 24,000.00 Caution Money 1,000.00 Sessional Exam. fees 2,000.00 Library charge 6,000.00 Building Development Charge 9,000.00 College Society 1,000.00 Magazines and Hand books 2,000.00 Games and Sports 1,450.00 Total 71,450.00 The brochure for the year 1997-98, unlike the previous years, mentions a consolidated amount towards admission fee including tuition fee with all other charges. For the first time distinction was made between merit/free seat and payment seat. fees 2,000.00 Library charge 6,000.00 Building Development Charge 9,000.00 College Society 1,000.00 Magazines and Hand books 2,000.00 Games and Sports 1,450.00 Total 71,450.00 The brochure for the year 1997-98, unlike the previous years, mentions a consolidated amount towards admission fee including tuition fee with all other charges. For the first time distinction was made between merit/free seat and payment seat. The relevant part of the brochure runs as under: ADMISSION FEES The following fees shall be payable by the candidates at the time of admission (For India Nationals). Sl. No. Particulars Merit/Free seat Amount Rs. Payment Seat Amount Rs. 1. Admission fee including tuition fee with all other charges for one year 8,000 75,000.00 Note:- -Fees mentioned above against the Merit/Payment seat for one year only. Candidate are required to pay same amount in all three consecutive years, i.e. IInd Year, Illrd Year and IVth Year. The brochure for the year 1998-99 with respect to admission fees is to the same effect and therefore not being quoted. 9. It was submitted that the petitioners took admission on the assurance and the terms and conditions mentioned in the brochure including those relating to the fees payable and they cannot be put to any disadvantage and the fees could not be increased on the principle of promissory estoppel. It is difficult to accept this submission. 10. The BDS Course consists of four academic years followed by one years compulsory rotatory internship training and any candidate taking admission to the BDS Course is not required to seek admission or re-admission in the ll/lll/IVth year (s) of the course. Thus once admission is taken it is valid for the entire course. The candidates are not required to pay admission fee again on successful completion and passing the examination at the end of the first year, second year and so on. However, tuition fee or other fees such as charges of materials used in practicals clinical classes the library charges charges for the Magazines and Hand books would not stand on the same footing. Let us consider, for example, the case of a candidate who is not able to clear the particular examination, say, the first years professional examination for years together. Can it be said that he would continue to prosecute the course on the same fees which he had paid at the time of admission ? Let us consider, for example, the case of a candidate who is not able to clear the particular examination, say, the first years professional examination for years together. Can it be said that he would continue to prosecute the course on the same fees which he had paid at the time of admission ? Cost of teaching, it hardly need be pointed out, increases and similarly the cost of materials also is not the same. It is.obvious that candidates in the subsequent year may have to pay more. Will it be appropriate to ask him to pay for the cost of education of someone else who has failed at the examinations in the past. Further, will it be proper to have two tiers of payment? The answers to these questions, in my opinion, must be in negative. 11. The significant aspect of the case is that in the light of the directions of the Supreme Court in the case of T.M.A. Pai Foundation V/s. State of Karnatka, the Central Government fixed upper limits of the fees in accordance with Clause 8(b) of the Dental Council of India (Norms and Guidelines for fees and Guidelines for admission in Dental colleges) Regulations 1994 for a period of three years, namely, 1997-98, 1998-99 and 1999-2000 vide letter No. V. 12012/2/95 PMS dated 16-5-1997. It would be useful to quote the relevant part of the letter as under: I am directed to stated that as required under Clause 8B of the Dental Council of India (Norms and Guidelines for fees and guidelines for admission in Dental Colleges) Regulations 1994, Government of India has fixed the following upper limits of the fee structure for merit and payment seats in private dental colleges: Payment Seats:- -An amount of Rs. 75,000 per student per annum shall be payable as fee. Out of this amount a sum of Rs. 10,000 per student per annum fixed in cases of colleges which do not have their hospital facilities will be paid back to the Government/authority running the hospital utilised by such dental colleges. Free/Merit seats:- -An amount of Rs. 8,000 per student per annum shall be payable as fee. The upper limits of fee as referred to above will be valid for a period of three years from the academic year 1997-98 after which it shall be reviewed. Free/Merit seats:- -An amount of Rs. 8,000 per student per annum shall be payable as fee. The upper limits of fee as referred to above will be valid for a period of three years from the academic year 1997-98 after which it shall be reviewed. The actual fee to be levied within the above limits will be fixed by States Committees set up by the respective State Governments/Uts. However, the amount of Rs. 10,000 per student per annum payable by Colleges not having their own hospital shall under no circumstances be reduced. The State/UT Committees will consist of a Vice-Chancellor (as nominated by the concerned State/UT Government). As Chairman, the State Health Secretary or his nominee and the Director, Medical Education. The Committee can co-opt the services of an expert on Public institution Finance. The Director, Medical Education shall be the Member Secretary of the Committee. While fixing the fees, the State/UT Committees shall take into consideration the directions given by the Hon ble Supreme Court of India in its judgment dated 9-8-1996 in the case of T.M.A. Pai V/s. State of Karnatka in W.P. (C) No. 317 of 1993. The State Committee shall notify the fees so fixed for general information. The fee was revised from the year 2000-2001 for another period of three years at 15% over the fees fixed earlier in 1997 for the payment seat vide letter No. U. 12011 / 4/99 - ME(P) dated 18-12-2000. The relevant part of the letter runs as under: I am directed to say that in pursuance of Clause 8(b) of the Medical Council of India (Norms and Guidelines for fee and Guidelines for admission in Medical College) Regulations 1994, the Central Government in its letter No. U. 12011/3/ 97- ME(P) dated 15-5-1997 and No. V. 12012/2/95- PMS, dated 16-5-1997 fixed the following upper ceiling of fee for merit and payment seats in private medical and dental colleges: xxxxxxx xxxxxxx xxxxxxx Payment seats: An amount of Rs. 75,000 per student per annum shall be payable as fee. Out of this amount, a sum of Rs. 10,000 per student per annum in case of colleges which do not have their own hospital facilities will be paid back to the Government/authority running the hospitals utilised by such dental colleges. 75,000 per student per annum shall be payable as fee. Out of this amount, a sum of Rs. 10,000 per student per annum in case of colleges which do not have their own hospital facilities will be paid back to the Government/authority running the hospitals utilised by such dental colleges. xxxxxxx xxxxxxx xxxxxxx Since the validity of the above fee structure was only up to the academic year 1999-2000, the Central Government asked for suggestions from State Government on revision of fee structure, The suggestions/comments received from the State Government were discussed in a meeting taken by Union Health Secretary on 28-4-2000 with the representatives of the State Government, the Medical Council of Indian and the Dental Council of India. Keeping in view the differing views expressed by the representatives at the meeting, it was finally decided that the issue of fixation of ceiling of fee for medical/dental colleges be left to the Central Government. Accordingly, the Central Government has considered the various aspects of the matter and has decided that the fees for merit/payment seats in private medical/dental colleges, as also the payments be made to the attached hospitals, be increased by 15% over the fees fixed in 1997, as spelt out in para 1 above. The revised fees will serve as a ceiling, and the actual fee leviable in each State, within that ceiling, will be notified by the State Government. The revised fee structure will be effective from the academic year 2000-2001 and will be valid for three years, after which it will be reviewed afresh in consultation with all concerned." 12. From a conjoint reading of the two letters of the Central Government it is manifest that the Central Government fixed the upper limit of the fees at Rs. 75,000 per student per annum for the years 1997-98, 1998-99 and 1999-2000 and 15 per cent over that amount for next three years i.e. for the years 2000-2001, 2001-2002 and 2002-2003. The fee fixed by the Institute at Rs. 75,000 would thus appear to be in accordance with the decision of the Central Government. It was pointed out on behalf of the petitioners, and rightly, that the amount of Rs. 75,000 for the years 1997-98 to 1999-2000, or 15 per cent over that amount for the next three years, was the upper limit of fees. 75,000 would thus appear to be in accordance with the decision of the Central Government. It was pointed out on behalf of the petitioners, and rightly, that the amount of Rs. 75,000 for the years 1997-98 to 1999-2000, or 15 per cent over that amount for the next three years, was the upper limit of fees. The actual fee payable by the students was to be fixed by the State Committee to be set up by the respective State Government and the Union territory comprising of Vice-Chancellor as Chairman, State Health Secretary or his nominee and the Director, Medical Education as members with liberty to the Committee to co-opt the services of an expert or Public Institution Finance. According to the petitioners, this was never done in the State of Bihar. 13. The Institute has brought on record notification of the Government of Bihar contained in Memo No. 99 (26) dated 19-5-1994 (mentioned as 19-5-1999 in the counter-affidavit) as per which while implementing the scheme framed by the Supreme Court in the case of Unikrishnan J.P. V/s. State of Andhra Pradesh and according its sanction to the scheme; the State Government fixed Rs. 1,40,000.00 as the amount payable by the student in an independent Dental College. Reference to the notification dated 15-5-1994 appears to be totally misconceived. The State Government has filed counter-affidavit. No such plea has been taken therein. The only material plea is that the Institute has been established without its permission and affiliation is violative of the proviso to sec. 21 (2) of the Bihar State Universities Act, 1976 which provides for prior permission of the State Government. There is no averment that any State Committee was ever constituted to fix the actual fee payable by students of the private Dental Colleges in terms of the direction of the Central Government contained in letter dated 16-5-1997 and 18-12-2000 referred to above. 14. Thus though fixation of fee by the Institute would appear to be in accord with the decision of the Central Government inasmuch as the amount was not in excess of upper limit fixed by the Central Government, it cannot be conclusively said that it was in true spirit of the decision. I do not wish to detain myself on this aspect of the case. I do not wish to detain myself on this aspect of the case. Having given my anxious consideration to the submissions at the Bar I have come to the conclusion that though the amount(s) shown as fees in the brochure for the year 1995-96 and 1996-97 was not final and applicable in the subsequent academic years of the course, and the Institute was competent to increase the fees in the subsequent years, but having never informed the petitioners about their liability, much less insisted upon payment of the so-called outstanding dues, the Institute waived its right to demand the excess amount. The Institute cannot be permitted to demand additional amount not on the principle of promissory estoppel as argued on behalf of some of the petitioners, but on the principle of waiver. The fundamental difference between estoppel and waiver is that while estoppel is a rule of evidence, waiver is a rule of contract. In Basheshar Nath V/s. Commissioner of Income-tax, Delhi and Rajasthan, AIR 1959 Supreme Court 149, the Supreme Court observed : "It has been said that waiver is a troublesome term in the law, The generally accepted connatation is that to constitute waiver, there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is rule of evidence." 15. On behalf of the petitioners the case of Amna Khatun V/s. Jahid Hussain, AIR 1981 Patna 1 a Full Bench decision of this Court was cited. sec. 11-A of the Bihar Building (Lease, Rent, Eviction and Control) Act, 1947 provided for deposit of rent within a prescribed period. The non-deposit within the prescribed period conferred a right on the landlord to get the defence of the tenant against ejectment struck off. The tenant deposited the rent but beyond time but the same was withdrawn by the landlord, A question arose as to whether the landlords right to get the defence struck off was lost by application of principle of waiver. The tenant deposited the rent but beyond time but the same was withdrawn by the landlord, A question arose as to whether the landlords right to get the defence struck off was lost by application of principle of waiver. The Full Bench by majority held that non-deposit of rent created right in favour of the landlord to have the defence of the tenant against his ejectment struck off. Such striking out was purely for the benefit of the landlord and no question of public duty or public policy was involved. A deposit made beyond time in the eye of law is invalid deposit and the landlord therefore was not legitimately and legally entitled to lay his hands on such deposits, however, by withdrawing the deposite he derived an advantage which was not due to him. In the circumstances it must be held that he had waived his right to have the tenants defence struck off. 16. The Institute has brought on record particulars of the dues outstanding against each of the petitioners. It was stated that the particulars may be got verified from the records of the Institute. In my opinion, it will be futile exercise to get the accounts verified from the Institutes records. Whether the Institute was maintaining month to month record of the outstanding dues with respect to each of the petitioner or the record has been updated in the wake of the present dispute, it is not in dispute that at no point of time before the present dispute arose, any of the petitioners was informed that so much so was outstanding against him, for non-payment of which he would have to suffer the consequences. It is relevant to mention here that there is clear stipulation in the brochure under the heading. "Striking off Roll" to the effect that the name of the student may he struck off from the roils on account of among other things, non-payment of tuition fee and other dues for 30 days after the last date of payment. The Institute thus would have been well within its right to strike off the names of the petitioners from its rolls. Instead, they were allowed to prosecute their studies from year to year. The dispute arose only after the University sent the mark-sheets, certificates etc, and the Institute refused to deliver the same on the ground that petitioners had not cleared the dues. Instead, they were allowed to prosecute their studies from year to year. The dispute arose only after the University sent the mark-sheets, certificates etc, and the Institute refused to deliver the same on the ground that petitioners had not cleared the dues. As per the chart, such as Annexure J in CWJC No. 7085/2002, each of the petitioners was running in arrear from 2nd year level, for example, Rs. 35,000.00 at the BDS second year level accumulating to Rs. 1,55,000.00 at the end of the 4th year with the additions of Rs. 60,000.00 for the 3rd year and 4th yea". On behalf of the Institute it was submitted that the names of the petitioners were not struck off because the Institute did not want to victimise them. On behalf of the petitioners it was submitted that if they had been told about the dues they might have left the Institute and prosecuted their studies elsewhere, It is un-necessary to make any comment on these arguments as they may be afterthought. But fact of the matter is that none of the petitioners was informed about the outstanding dues. If the Institute really intended to give them grace nothing prevented it from informing the petitioners about the outstanding dues and their liability to clear the outstanding dues within the extended period. Having never informed them about their dues, at the same time maintaining records of the outstanding dues, cannot be said to be fair practice. I am therefore, of the view that it would not be just and proper to permit the Institute to recover additional amount over and above the amount already paid in respect of their previous years of the BDS Course. 17. It transpired in course of hearing that pursuant to interim order of this Court the mark-sheets etc. have been supplied to the concerned petitioners. So far as that aspect of the case is concerned, all that is warranted is to make the interim order absolute. As regards the other part of the reliefs namely, supply of the certificates, opportunity to complete the rotatory internship and grant of the certificate of completion thereof etc., I would direct the Institute to do the needful without insisting on payment of additional fees. As far as hostel dues are concerned, they may be verified by a team of officials of the University nominated by the Vice-Chancellor. 18. As far as hostel dues are concerned, they may be verified by a team of officials of the University nominated by the Vice-Chancellor. 18. In the result the writ petitions are allowed with the observations and directions mentioned above. There will be no order as to costs.