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Allahabad High Court · body

2004 DIGILAW 2365 (ALL)

YAGYA DUTT v. STATE OF U P

2004-11-25

PRADEEP KANT, RAJIV SHARMA

body2004
On 25-9-04, we had allowed the special appeal and passed the following order: "for the reasons to be recorded later, we allow the special appeal and fix an amount of Rs. 48,125/-as average, fee for students of 2003-04 batch of MBA/mca course for their first and second year course, which fee is inclusive of the average Tuition Fee, Development Fee and Other Fee. The aforesaid fee does not take into account the internal examination fee, University examination fee and insurance charges and the security and admission fee, if it has not already been paid, which amount is to be paid by the students in addition to the aforesaid amount. The students who have paid any amount towards the fee for the academic session 2003-04 (first year of the course), they shall only be required to pay the difference of amount, if any, becomes due, as per the amount which we have fixed for each of the academic years 2003-04 and 2004-05. The students, who are now pursuing the second year course and have not paid any fee, shall pay the entire amount of Rs. 48, 125. We further direct that the students, who have not paid any fee in their second year course, they shall pay the entire amount of Rs. 48,125 by 30th November, 2004. The students who have paid any amount in their second year also, the same shall be adjusted keeping in mind the average fee determined by us by the college authorities. In respect of any difference of amount of fee, which the students are required to pay for the average fee of the academic year 2003-04, the difference of the amount as against the amount paid by them in the said session and the amount determined by us aforesaid shall be paid by them within a reasonable time, say before they undertake the final examination. This provisional or tentative determination of fee is subject to final determination which may be made by the Committee and would be open to adjustment on either side i. e. in case if the determination by the Committee is less than the fee paid by the students, the respondent institution shall refund the excess amount without any delay, say within maximum period of three weeks from such determination, but in case the fee determined by the Committee is found more than the fee paid by the students, they would make the deficiency good within a maximum period of one month from the date of the said determination. All the appellants and other like students of 2003-04 batch of MBA/mca course shall give an undertaking along with a notarized affidavit of the aforesaid fact within a maximum period of three weeks from today before the Director/principal of the institution, failing which the benefit of this interim arrangement made by the Court would not be available to them and it will be open to the respondent institution to realise the fee as has been determined by them". 2. We now proceed to give our reasons. 3. This special appeal arises out of an order passed by the learned Single Judge dated 14-9-04 by means of which the writ petition filed by the appellants challenging the demand of additional ice for pursuing M. B. A. /m. C. A course in Northern India Engineering College, Faizabad Road, Lucknow has been dismissed. 4. For making the higher education, both technical and non-technical, available to the maximum number of students, who are desirous of pursuing such higher studies, without compromising with the quality of higher education, one of the foremost consideration and essential feature is the determination of fee, i. e. laying down the fee structure for such higher studies. 5. The question has been considered by the Apex Court in various cases and/guidelines and directions have also been issued regarding the manner and the factors, which should be taken into consideration for determining such fee. In T. M. A. Pai Foundation v. State of Karnataka, 2002 (2) LBESR 933 (SC) : (2002) 8 S. C. C. 481, the Supreme Court laid down certain guidelines and issued directions for determination of fee in pursuance of which a GO. dated 2-7-03 was issued. In T. M. A. Pai Foundation v. State of Karnataka, 2002 (2) LBESR 933 (SC) : (2002) 8 S. C. C. 481, the Supreme Court laid down certain guidelines and issued directions for determination of fee in pursuance of which a GO. dated 2-7-03 was issued. By means of this G. O. , the fee of MBA and MCA courses was fixed at Rs. 19000/-per year per student. This G. O. was challenged by filing writ petition No. 29756 of 2003, wherein the operation of the G. O. dated 2-7-03 was stayed and the educational institutions were permitted to realise the fee from the students which they were charging in the previous year. Another writ petition was filed bearing number 3590 (MS) of 2003 before a learned Single Judge, (A. N. Varma, J.), who while asking for the affidavits, passed an order that the petitioner shall pay an amount of Rs. 7000/- (remaining fee) within 15 days. This order was apparently passed by taking into consideration the information brochure which indicated that a total amount of Rs. 40,000/- was to be deposited by a student against a free seat, wherein the fee under other categories was not considered but as a matter of fact the students were required to pay only Rs. 33,120/-at the time of admission. Therefore, this amount of Rs. 7000/-was ordered to be paid. The interim order also took note of the interim order passed by a Division Bench (Jagdish Bhalla, J. and P. K. Chatterjee, J.) in Writ Petition No. 4326 (MB) of 2003: Babu Banarsi Das National Institute of Technology and Management and another v. State of U. P. and others, in which the Division Bench of this Court had directed that in the meantime average fee be realized. Few other writ petitions were also filed in which the learned Single Judge passed the same interim order. The interim orders so passed made the collection and realisation of such fee subject to the decision of the Committee constituted for the purpose, with a clear direction that adjustment shall be made in accordance with the determination of fee made by the Committee. The interim orders so passed made the collection and realisation of such fee subject to the decision of the Committee constituted for the purpose, with a clear direction that adjustment shall be made in accordance with the determination of fee made by the Committee. A special appeal was filed against the interim order dated 25-9-03 in Writ Petition No. 3590 (MS) of 2003; Manish Kumar Verma and others v. State of U. P. and others, which was disposed of by a Division Bench by saying that ordinarily no special appeal lies against the interim orders, and providing that appellants may file a stay vacation application alongwith counter affidavit before the learned Single Judge, which may be decided within two weeks. However, the application for vacation of the stay order could not be decided till dale. The present writ petition being Writ Petition No. 3444 (MS) of 2004 raising the same dispute by a different set of students, was also filed which has been dismissed by the learned Single Judge and against which judgment the present special appeal has been filed. 6. We are informed that two special appeals raising the same question have been filed which have been entertained by another Division Bench, wherein an interim order stay has been passed in the same terms as has been passed by the learned Single Judge (AN. Varma, J.) in Writ petition No. 3590 (MS) of 2001. 7. In view of the varying interim orders passed in different cases and the parties being served in this appeal, we have proceeded to decide the appeal finally. 8. Varma, J.) in Writ petition No. 3590 (MS) of 2001. 7. In view of the varying interim orders passed in different cases and the parties being served in this appeal, we have proceeded to decide the appeal finally. 8. Learned Counsel for the appellants Sri K. S. Bajpai, while assailing the order passed by the learned Single Judge strenuously urged that admittedly the fee determination has to be done by a Committee headed by a retired High Court Judge, under the orders of the Supreme Court in the case of Islamic Academy of Education and another v. State of Karnataka and others, 2004 (1) LBESR 85 (SC) : (2003)6 S. C. C 697 and which Committee, in fact, has been constituted by the State Government, which is undertaking the task of determination of fee and, therefore, till the Committee refixes the fee, the respondent Institution could not have increased or enhanced any fee and in any case no enhanced fee could be asked for from the appellants or the students, who have been given admission against 2003- 2004 batch, wherein they were given to understand about the fee structure in the information brochure which was followed by them and in any case, if any fee can be enhanced, the same cannot be so unreasonable or excessive, that too for the transitional period i. e. till the Committee makes the required determination of fee. According to him, the demand of Rs. 59,750/-from those students who have approached this Court by filing writ petitions and Rs. 98,520/-from those who have not filed the writ petition is on the face of it an arbitrary action which is without authority. 9. Further submission is that in view of the observations made by the Apex Court in the case of Islamic Academy of Education and another v. State of Karnataka (supra) (para 156 of the report) the enhanced fee has to be in between the range of 6% to 15% and, therefore, such a hike in fee could not have been made even for transitory period. In this regard he also relies upon an interim order passed by a Division Bench in Special Appeal No. 409 of 2004 arising out of Writ Petition No. 3662 (MS) of 2004. In this regard he also relies upon an interim order passed by a Division Bench in Special Appeal No. 409 of 2004 arising out of Writ Petition No. 3662 (MS) of 2004. Awadhesh Kumar and others v. Stale of U. P. and others, wherein the Division Bench on considering the fact that a Committee has already been constituted and relevant information by the respondent Institution has been sent and that in the case of Islamic Academy of Education and another v. State of Karnataka (supra), it has been observed that the enhancement of fee may be made in between the range of 6% to 15% has directed as an interim measure that the appellants to the aforesaid special appeal shall be allowed to continue the studies, in case they deposit 15% more fee in addition to the fee, already charged by the Institution. This order is dated 27-10-04. Later on, the present special appeal was riled, which was ordered to be listed before a Bench which was presided over by one of us (Pradeep Kant, J.) by an order passed by the Bench consisting of Hon Vishnu Sahai, J. and Hon. G. K. Gupta, J. who entertained the earlier special appeal, vide order dated 3-11-04. It is in these circumstances that the present special appeal has come up before this Bench. 10. Sri G. K. Mehrotra assisted by Sri Ritu Rai Awasthi, appearing for the Institution, while meeting the challenge raised by the learned counsel for the appellants, has vehemently urged that the fee which is being said to be charged by the Institution is in accordance with the interim orders passed by this Court in Writ Petition No. 4326 (MB) of 2003, filed by Babu Banarsi Das National Institute of Engineering and Technology, Lucknow and also in accordance with the Writ Petition No. 3547 (MS) of 2003 filed by the present respondent institution, wherein the Institution has been allowed to charge fee i. e. average fee of the fee charged in previous year. 11. 11. In response to the argument of the learned counsel for the appellants, that though the aforesaid interim order and in writ petition No. 4326 (MB) of 2003 makes a reference of the order passed by the learned Single Judge at Allahabad in Writ Petition No. 29756 of 2003 and the G. O. dated 2-7-03 whereas the order passed by the learned Single Judge at Allahabad provides hat the students may be allowed to deposit the fee as they were paying in the previous year, the interim order passed by the Court at Lucknow added the word average fee, which word was not to be found in the order passed at Allahabad, learned counsel for the respondent Institution submitted that the order passed at Allahabad by the learned Single Judge did say for realisation of fee which was being charged in the previous year, but did not clarify as to how the said fee can be charged in view of the changed circumstances of the case, namely, prior to 2003, there were three categories of seats i. e. free seats, payment seals and NRI seats, which had different levels of tuition fee, namely, Rs. 15,000, Rs. 60,000 and 4,000 respectively, but since thereafter in view of the judgment of the Apex Court different fee for different kind of seats cannot be charged and there has to be one uniform fee for all seats, the Division Bench at Lucknow in Writ Petition No. 4326 (MB) of 2003, after taking the note of the said fact gave a plausible criteria for determination and charging the fee for the transitional period and, therefore, directed for average fee. In doing so, the Institution has taken into consideration the average fee of free scats as well as payment seats and has excluded the fee of the NRI seats, apart from taking into account the development fee and Rs. 10000/-towards other fee. Relying upon the aforesaid calculation which has been described in more detail in para 50 of the counter affidavit to the writ petition, it has been submitted that the total fee including the fee under one free seat and one payment seat comes to Rs. 75,000 being Rs. 15,000 for free seat and Rs. 60,000 towards payment seat the development fee is Rs. 7,000 for free seat and Rs. 17,500 towards payment seat and Rs. 75,000 being Rs. 15,000 for free seat and Rs. 60,000 towards payment seat the development fee is Rs. 7,000 for free seat and Rs. 17,500 towards payment seat and Rs. 10,000 as other fee in both the cases and, therefore, taking average of the aforesaid fee, the total amount comes, to Rs. 59750/-which is being demanded for. According to the learned counsel for the respondents, this is fully in consonance with the direction issued by the Division Bench of this Court and also in the writ petition filed by the present Institution itself, being Writ Petition No. 3547 (MS) of 2003, wherein the interim order is continuing. 12. The controversy involved in the present specie! appeal has arisen since the respondent Institution had issued demand notices for payment of additional fee in view of he uniform fee structure being applied for all categories of seats, namely, free seats, payment seats and NRI seats, since the year 2003, the latter seats being now known as management quota seats. 13. The time which is being consumed in determination of the fee by the Committee, which has already been constituted as per directions of the Supreme Court by the State Government, is an added motivation for approaching the Court. It is not known as to how much time the Committee would take in determining the fee, which has to be charged from the students who either already stand admitted or who are to be admitted in future. The institutions are not authorised to take any decision in regard to their fee, nor they can charge any fee of their own, unless the Committee makes the fee structure. One cannot lose sight of the fact that previously when three different slabs of fee were available for three categories of seats, referred to above, loss of one could have been very well recovered by the fee of the other but with uniform fee structure for all categories of seats, it can safely be presumed that unaided technical and non-technical institutions do require some enhancement in the fee so that they can provide the professional and higher education in keeping with the required standard and norms. What should be the increase in the fee is a matter, which is to be considered by the Committee, therefore, this Court would not enter into this question in this appeal. What should be the increase in the fee is a matter, which is to be considered by the Committee, therefore, this Court would not enter into this question in this appeal. Nonetheless what fee should be paid during the transitional period is a matter which cannot be ignored it would be appropriate to mention here that the writ petitions including the present one, which has already been decided and against which the special appeal has been field, in which interim orders have been passed and also those writ petitions which are pending consideration, all relate to the fixation/determination of fee during the transitional period i. e. till the final fee structure is pronounced by the Committee. The determination so made by the Court would have no effect upon the final determination, which is to be done and would be done by the Committee. 14. The learned Single Judge considered the fact that a Division Bench of this Court has allowed charging of fee by calculating the average fee of the previous year and that the G. O. dated 2-7-03 which allowed such determination has not been challenged by the petitioners, namely, the appellants. He further went into the question as to in what manner the average fee should be calculated and thereafter recorded satisfaction that the manner in which the average fee is being calculated by the respondent Institution is correct. Learned counsel for the respondents Sri G. K. Mehrotra in support of these findings given by the learned Single Judge, placed reliance upon the order passed in the writ petition (Writ Petition No. 49270 of 2003), In re: Maa Sharda Maha Vidyalaya, Shambhoopur Gahji, Azamgarh v. State of U. P. and others and other connected matters, decided on 9-2-2004, at Allahabad wherein the principle on which the average fee is to be calculated in respect of non-technical higher education institutions has been dealt with, wherein the learned Single Judge has observed as under: ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It has been submitted that by the Government Order dated 11-11-1997 the fee structure was of Rs. 6,000/-for50 per cent of the seats of normal quota Rs. 20,000/-for 35% of the seats falling in self supporting category and Rs. . . . . . . . . . . . . . . . . . . . . . It has been submitted that by the Government Order dated 11-11-1997 the fee structure was of Rs. 6,000/-for50 per cent of the seats of normal quota Rs. 20,000/-for 35% of the seats falling in self supporting category and Rs. 30,000/-for the remaining 15% falling in NRI NRI sponsored quota. The average fee according to the said fee structure comes to Rs. 14,500/-per student. This calculation is not disputed by the learned counsel for either of the parties. It has been submitted that the petitioner should be permitted to charge fee at least at the average rate of the fee structure, which had been fixed in the year 1997. Considering the facts of the case and the totality of the circumstances, it is provided that for the current session 2003-04, the petitioner-institution shall be permitted to charge fee upto the maximum of Rs. 14,500/-from each student. As has already been clarified in the very beginning, the arrangement being made shall be applicable only for the current session 2003-04. " 15. Learned Counsel for the appellants greatly relied upon the observations made by the Apex Court in the case of Islamic Academy of Education and another v. State of Karnataka (supra), wherein the figures of 6% and 15% have been mentioned in Para 156, which reads as under: "while this Court has not laid down any fixed guidelines as regards fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education. " 16. The argument that the Apex Court permits enhancement of 6% to 15% to be charged as additional fee is a misreading of the aforesaid observation of the Supreme Court. The aforesaid observation of the Supreme Court do not restrict enhancement of fee to 6% or 15% but say that reasonable surplus should ordinarily vary from 6% to 15%, which surplus would be utilized for expansion of the system and development of education. In preceding paragraphs in paras 154 and 155 the Supreme Court observed as under: "154. The aforesaid observation of the Supreme Court do not restrict enhancement of fee to 6% or 15% but say that reasonable surplus should ordinarily vary from 6% to 15%, which surplus would be utilized for expansion of the system and development of education. In preceding paragraphs in paras 154 and 155 the Supreme Court observed as under: "154. The fee structure, thus, in relation to each and every college must be determined separately keeping in view several factors, including facilities available, infrastructure made available, the age of the institution, investment made, future plan for expansion and betterment of the educational standard etc. The case of each institution in this behalf is required to be considered by an appropriate Committee. For the said purpose, even the books of accounts maintained by the institution may have to looked into. Whatever is determined by the Committee by way of a fee structure having regard to relevant factors, some of which are enumerated hereinbefore, the management of the institution would not be entitled to charge anything more. 155. While determining the fee structure, safeguard has to be provided so that professional institutions do not become auction, houses for the purpose of selling seats. Having regard to the statement of law laid down in paragraph 56 of the judgment, it would have been better, if sufficient guidelines could have been provided for. Such a task which is a difficult one has to be left to the Committee. While fixing the fee structure the Committee shall also take into consideration, inter alia, the salary or remuneration paid to the members of the faculty and other staff, the investment made by them, the infrastructure provided and plan for future development of the institution as also expansion of the educational institution. Future planning or improvement of facilities may be provided for. An institution may want to invest in an expressive device (for medical colleges) or a powerful computer (for technical college ). These factors are also required to he taken care of. The Stale must evolve a detailed procedure for constitution and smooth functioning of the Committee. " 17. Thus, it is clear that the opinion expressed by Honble S. B. Sinha, J. is regarding the surplus which should be available in the institution for being utilized for expansion of the system and development of the education and not for enhancement of the fee. " 17. Thus, it is clear that the opinion expressed by Honble S. B. Sinha, J. is regarding the surplus which should be available in the institution for being utilized for expansion of the system and development of the education and not for enhancement of the fee. The argument, therefore, loses force when it is stated that on the strength of the aforesaid observation of the Apex Court the fee cannot be enhanced beyond 15%. Of course, this would not mean that the respondent Institution are free to enhance the fee in any manner they like and to any amount. The enhancement so made, can neither be excessive nor arbitrary and in the absence of the guidelines being fixed by the Supreme Court, this question has to be decided by the Committee. 18. Learned Single Judge has considered two ways of determining the average fee, namely, (i) by calculating the fee on the basis of the actual admissions made in the MBA Course in the relevant academic session i. e. adding all amounts of fee so charged and thereby dividing the same by number of students admitted and; (ii) on the basis of the total strength of the seats/capacity of the students, who could be admitted in the MBA Course irrespective of the actual number of students, who were admitted. Learned Single Judge has found that if the average fee is to be calculated on the basis of the total strength/capacity of the students, the average fee may go much higher and that the criteria of average fee on the basis of number of actual students admitted was also not followed by him. 19. The third criteria which has been applied by the institution and has been accepted by the learned Single Judge is that the fee of one student on payment seat and one student on free seat have been clubbed together and have been divided by two, which makes the tuition fee Rs. 37,500. This does not appear apparently unreasonable method of calculating the average fee so as to interfere and seems to be reasonable. 37,500. This does not appear apparently unreasonable method of calculating the average fee so as to interfere and seems to be reasonable. By adopting the aforesaid criteria, the equities stand balanced in so far as the student is concerned i. e. the fee which he has to pay and the shortfall which the institution has to bear because of the lowering down of the fee of the payment seat and bringing it uniform with the fee of the free seat. The apex Court in the case of Islamic Academy of Education and another v. State of Karnataka (supra) has also observed that there can be no fixing of a rigid fee structure by the Government. Each institution must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institute and to provide facilities necessary for the benefit of the students. This question has to be considered by the Committee while describing fee for different courses. 20. The information Brochure required the students to pay the tuition fee as prescribed therein, and also the other Fee to the tune of Rs. 10,000/-for both, free seats and payment seats, and Rs. 7,000 and Rs. 17,500 towards the development Fee respectively. Apart from this fee, they were to pay Rs. 5,000 as security fee and Rs. 3,000 as library Security, making a total of Rs. 8,000. The students were, however, required to pay a total sum of Rs. 33,120/-and thereafter by means of an interim order passed in some cases, they were required to pay a sum of Rs. 7,000, making it a total amount of Rs. 40,000 and odd. The aforesaid fee structure given in the Brochure was subject to change by UP. Government directives as applicable at the time of registration. This Brochure was issued when there were three categories of seats, a mention of which has already been made in the preceding paragraphs of the judgment. But later on when the admissions were given, the Government Order dated 2-7-03 was issued fixing the tuition fee of Rs. 19,000/-for all scats. The institution, therefore, challenged the Government Order dated 2-7-03, which, according to the institution, was not proper and that the fee mentioned therein was too low. The High Court passed an interim order permitting the institution to charge average fee. 21. 19,000/-for all scats. The institution, therefore, challenged the Government Order dated 2-7-03, which, according to the institution, was not proper and that the fee mentioned therein was too low. The High Court passed an interim order permitting the institution to charge average fee. 21. Under the Government Order dated 9-7-04, the Government directed that, in view of the interim order passed by the Court, the average fee may be charged till the final fee is determined by the Committee keeping in mind the verdict of the apex Court in Islamic Academy of Education and another v. State of Karnataka (supra ). On 30th July, 2004, a letter has been issued by the Vice Chancellor, U. P. Technical University, Lucknow that the Government Order dated 9-7-04 has clarified that the average fees of the year 2002 that is average of the fees of the free seats of the year 2002-03 and paid fees of 2002-03 may be charged in academic year 2004-05 from new entrants subject to final fees decided by the State Fee Committee there is also a letter of the Registrar of the U. P. Technical University, Lucknow dated 13th August ,2004 that the fee which was being charged previously may be charged unless the Committee determines the final free and the same fee should he charged from the students which they have paid in the year of their admission. In view of the Government Order dated 9-7-01 and the detection issued by the Vice Chancellor coupled with the interim orders in Writ Petition Nos. 29756 of 2003, 4326 (MB) of 2003, 3547 (MS) of 2003 the average fee is sought to be charged by the institution, the same having been calculated in the manner described above. 22. In view of the Government Order dated 9-7-01 and the detection issued by the Vice Chancellor coupled with the interim orders in Writ Petition Nos. 29756 of 2003, 4326 (MB) of 2003, 3547 (MS) of 2003 the average fee is sought to be charged by the institution, the same having been calculated in the manner described above. 22. The amount of Rs 33,120 which has been deposited by each student in the previous year includes the tuition fee of Rs, 19,000/-as per determination made by the Government Order dated 2-7- 03,operation of which has been stayed by the High Court in Writ Petition No. 3547 (MS) of 2003 filed by the respondent institution, vide order dated 24-9-03 wherein the learned Single Judge while entertaining the writ petition and giving time for exchange of affidavits passed the following order: "an order has already been passed by this Court at Allahabad on 2-9-2003 as well as by a Division Bench of this Court on 16-9-2003 in Writ Petition No. 4326 (MB) of 2003 I, therefore, provide that until further 0 orders of this Court, effect and operation of order dated 2-7-2003, contained in Annexure No. 1 to the writ petition (so far as the petitioners are concerned) shall remain stayed. The petitioners institution would be permitted to collect average fee, which they were charging in the previous year. However, the fee collected by the institution shall abide by the decision of the Committee and if any excess fee had been charged, the same shall be refunded to the students. " 23. Apart from Rs. 8,000/-security money (one time), Rs 3070/-as University Exam & Insurance Fee, Rs. 1000/-towards admission fee (one time) and Rs. 700/-as Insurance Charges has been deposited. These do not include any development Fee and the other Fee, as provided in the Information Brochure itself, on which the appellants rely. Thus when the operation of the Government Order dated 2-7-03 was stayed by the High Court in respect of the respondent institution also and liberty was given to the respondent institution to charge average fee of the previous year, the respondent. institution issued a demand for paying additional tuition fee inclusive of development Fee and the other Fee. Thus when the operation of the Government Order dated 2-7-03 was stayed by the High Court in respect of the respondent institution also and liberty was given to the respondent institution to charge average fee of the previous year, the respondent. institution issued a demand for paying additional tuition fee inclusive of development Fee and the other Fee. Since we have already found that the criteria adopted by the management for determining the average fee as 37,500/-does not suffer from any unreasonableness and rather it gives a definite criteria for determining the same instead of different amounts being calculated on the strength of actual students admitted in a particular course or the total capacity of students in that particular course, we have accepted the average tuition fee as 37,500/ -. The appellants themselves have stated in the writ petition in para 13 that as per the Government Order dated 18. 2 2000, the following fee structure for AICTH approved institutions was given: 24. This approved fee structure does take into account the other Fee and development Fee a reference of which has already been made by us earlier. The appellants thus do not dispute that this was the approved fee structure, which should have been adhered to by the respondent institution. However, in para 14 they say that they have deposited the entire amount of Rs. 33,120/-including the tuition fee, admission fee, development fee, security fee and insurance fee etc. and rely upon receipt Annexure-2. However, the receipt annexed as Annexure-2 to the writ petition and photostat of which has been filed alongwith the memo of appeal, indicate that no fee has been paid towards and development Fee. 25. On calculating the tuition fee as Rs. 37,500, other fee and development fee on which comes to Rs. 5,625 (15% of the tuition fee) as development Fee and Rs. 5,000 towards the other Fee under the two heads instead of Rs. 12,250 and Rs. 10,000 respectively as determined and demanded by the institute, the total amount of fee which a student has to pay comes to Rs. 48,125 for each academic sessions i. e. first year and second year, for the students of 2003-04 batch. 1 26. The total amount towards fee thus comes to Rs. 48,125/-as against Rs. 59,750/-as determined and demanded by the institute. 48,125 for each academic sessions i. e. first year and second year, for the students of 2003-04 batch. 1 26. The total amount towards fee thus comes to Rs. 48,125/-as against Rs. 59,750/-as determined and demanded by the institute. The security amount which is one time refundable and the other amounts which have been paid towards one time fee, if had already been paid shall not be realised again. The amount of average fee determined by us does not include the insurance charges, internal examination fee and University examination fee. We, therefore, hold that the students pursuing their course in the second year shall deposit the total fee of Rs. 48,125/-subject to the adjustment being made on final determination of fee by the Committee and for depositing the arrears if any, of the previous year (fist year) they may be allowed reasonable time, say by the time they take the final examination. 27. The insistence on the part of the petitioners/appellants that since they have paid Rs. 40,000/-in the first year of their course, i. e. 33,120/-at the time of admission and thereafter Rs. 7,000/-by virtue of various interim order and, therefore they have paid the entire fee which was mentioned in the Information Brochure and thus cannot be subjected to any additional, fee and that too such an excessive fee of Rs. 59,750/-for each year, escapes the very fact that Rs. 40,000/-in all were firstly for the free seats, as they were available at the time of issuance of the Brochure and which also include Rs. 8,000/- towards security money. In case of abolition of different fee structure, namely, higher fee structure under the payment seats which are now known as management quota seats, a balance has to be struck off by allowing the institution to charge such fee which is the average fee so that the loss of amount towards management quota seats (earlier known as payment seats) stands reduced, and of course, it is to be done at the cost of enhancement of fee against the fee free seats now known as State seats. Thus Rs. 40,000/-could not be determined as fee for all the seats after the uniform fee policy being adopted for all seats and even if we assume that Rs. Thus Rs. 40,000/-could not be determined as fee for all the seats after the uniform fee policy being adopted for all seats and even if we assume that Rs. 40,000/-has been deposited by the petitioners/appellants, may be under the interim orders of the High Court, the amount of fee which they have to pay in addition would be Rs. 8,125/-as against the fee already paid by them. Of course, the security money would be deposited by them separately, if it has not already been deposited, it being one time, in the manner and during the period which we have granted i. e. till they undertake the final examination. Likewise, in the second year Rs. 48,125/-is the total average fee, where no security money is to be deposited by any student. 28. In respect of the security money, suffice would be to mention that the same cannot be treated as a fee, either towards tuition fee or development fee or the other fee as it is one time and refundable on the completion of the course. The amount of security thus if it has been deposited, cannot be counted towards tuition fee or development fee or the other fee as its amount is to be separately maintained. 29. Though there had been no challenge to the imposition development Fee and other Fee, which has been prescribed in the Brochure itself but during the course of arguments, learned counsel for the appellants Sri K. S. Bajpai stressed that the development Fee cannot be more than 10% in view of the judgment of the apex Court in the case of Modern School v. Union of India, (2004) 2 UPLBEC 2012 ). In the aforesaid case, 10% development Fee has been mentioned to have been incorporated in the Duggal Committee Report whereas the apex Court stated that the said fee can be upto 15%. 30. In the case of Modern School v. Union of India, (supra), though the matter related to non-technical education, in Para 26 it has been held that the development fee should not exceed 15% of the tuition fee. In the instant case, we find that the development fee has been charged over and above 15% of the tuition fee. In the case of free seats, Rs. 7,000 as against the tuition fee of Rs. 15,000 and Rs. 17,500 as against the tuition fee of Rs. 60,000 for payment seats. In the instant case, we find that the development fee has been charged over and above 15% of the tuition fee. In the case of free seats, Rs. 7,000 as against the tuition fee of Rs. 15,000 and Rs. 17,500 as against the tuition fee of Rs. 60,000 for payment seats. By the dictum of the Ape Court, this could have been upto Rs. 2. 250 and Rs. 9,000 respectively making a total of Rs. 11,250 and even if the average was to be taken, it should have been Rs. 5,625, which obviously will reduce considerable amount from the fee which is being sought to be charged, namely, Rs. 59,750. We have accordingly calculated (the average fee, by taking only Rs. 5625 towards the development Fee. 31. With respect to the other Fee of Rs. 10,000/-being charged, learned counsel for the respondents has relied upon the Information Brochure which in fact, is the basis, for challenging the enhanced fee by the appellants wherein a separate fee of Rs. 10,000/-has been allowed to be realised under the said head in the special appeal but we do not find any challenge to the said fee having been made in this appeal or before the learned Single Judge. Despite the aforesaid factual position with respect to the charging of other Fee we feel that the same be reduced to Rs. 5,000/-, as the said fee would also depend and would have co-relation upon the tuition fee which may be determined later on by the Committee and also because neither of the parties have categorically explained about the nature of the said fee and the reason for charging the same except that the learned counsel for the respondents has submitted that it is under the statutory provisions and as approved by the AICTE that the said fee is being charged. 32. Since in the entire body of the writ petition and the memo of appeal, the appellants have not challenged the imposition of development Fee and other Fee nor its quantum, therefore, they cannot raise any objection with regard to the charging of the said fee over and above the tuition fee. We, however, have reduced the quantum of the aforesaid two fee in the circumstances of the case. 33. We do not find any justification for demand of an amount of Rs. 98,520/-from any student at present. We, however, have reduced the quantum of the aforesaid two fee in the circumstances of the case. 33. We do not find any justification for demand of an amount of Rs. 98,520/-from any student at present. The order passed by the learned Single Judge stands modified, as indicated above. 34. For the reasons state above, we allow the special appeal and fix an amount of Rs. 48,125 as average fee for students of 2003-04 batch of MBA/mca course for their first and second year course which fee is inclusive of the average Tuition Fee, Development Fee and Other Fee. The aforesaid fee does not take into account the internal examination fee, University examination fee and insurance charges and the security and admission fee, if it has not already been paid, which amount is to be paid by the students in addition to the aforesaid amount. The students who have paid any amount towards the fee for the academic session 2003-04 (first year of the course), they shall only be required to pay the difference of amount, if any, becomes due, as per the amount which we have fixed for each of the academic years 2003-04 and 2004-05. The students, who are now pursuing the second year course and have not paid any fee, shall pay the entire amount of Rs. 48,125. 35. We further direct that the students, who have not paid any fee in their second year course, they shall pay the entire amount of Rs. 48,125 by 30th November, 2004. The students who have paid any amount in their second year also, the same shall be adjusted keeping in mind the average fee determined by us by the college authorities. In respect of any difference of amount of fee, which the students are required to pay for the average fee of the academic year 2003-04, the difference of the amount as against the amount paid by them in the said session and the amount determined by us aforesaid shall be paid by them within a reasonable time, say before the undertake the final examination. 36. 36. This provisional or tentative determination of fee is subject to final determination which may be made by the Committee and would be open to adjustment on either side i. e. in case if the determination by the Committee is less than the fee paid by the students, the respondent institution shall refund the excess amount without any delay, say within maximum period of three weeks from such determination, but in case the fee determined by the Committee is found more than the fee paid by the students, they would make the deficiency good within a maximum period of one month from the date of the said determination. All the appellants and other like students of 2003-04 batch of MBA/mca course shall give an undertaking alongwith a notarized affidavit of the aforesaid fact within a maximum period of three weeks from today before the Director/principal of the institution, failing which the benefit of this interim arrangement made by the Court would not be available to them and it will be open to the respondent institution to realise the fee as has been determined by them. Special appeal allowed. .