JUDGMENT : Sudhansu Jyoti Mukhopadhaya, J. In all these cases, as a common question of law is involved and a common judgment and order passed by the learned Single Judge is under challenge, they were heard together and are disposed of by this common judgment. All the appellant - petitioners [hereinafter referred to as "the petitioners"] are self-financing unaided colleges imparting education in MBA, MCA and other professional courses. They are affiliated to various Universities of Gujarat State, namely Gujarat University, Saurashtra University and North Gujarat University. For admission to courses of MBA and MCA, there are two Centralized Admission Committees with which the subject matter of the petitions related to, i.e. one was for the colleges affiliated to Gujarat University and the other was for the colleges affiliated to North Gujarat University, Patan and Saurashtra University, Rajkot. 2. After the judgment of the Supreme Court in the case of Unni Krishnan v. State of AP, reported in (1993) 1 SCC 645 , All India Council for Technical Education ["AICTE" for short] initially made Regulations called "AICTE (Norms and Guidelines for Admission in Professional Colleges) Regulations, 1994". Under Regulation 7, the tuition and other fees for professional colleges are required to be determined by a State Level Committee, as evident from the said Regulation and quoted hereunder :- "7. Fee :- (1) Tuition and other fees for a professional college shall be determined by a State Level Committee. (2) The Council shall constitute a standing committee for each State to fix ceiling on the fees chargeable or individual courses by a professional college, or class of professional Colleges, as the case may be. The standing Committee shall consist of the following members namely :- (i) Vice-Chancellor of a University in a State, to be nominated by the State Government; (ii) Secretaries, Department of Technical Education and Department of Finance of the respective State, ex-officio; (iii) Two economists or experts in cost accountancy with background of institutional financing, to be nominated by the Council; (iv) Member-Secretary not below the rank of Joint Secretary or Directorate of the respective State Government to be nominated by the State Government. (3) & (4) ............ (5) The fees chargeable in professional colleges shall be determined on the basis of estimation of expenditure of the professional college for its efficient functioning. (3) & (4) ............ (5) The fees chargeable in professional colleges shall be determined on the basis of estimation of expenditure of the professional college for its efficient functioning. The Committee shall take the item specified in the Annexure to these regulations, into account while determining the tuition fee and other fees to be charged by a professional college. The committee may in its discretion take into consideration a reasonable return on Capital investment with reference to the investment made and determine the fees accordingly. While calculating the fees, the estimates of recurring expenditure shall be based on at least the last two years audited figures of recurring expenditure of the college and projected requirement for next three years. (6) & (7) ... ... ... ..." 3. The Ministry of Human Resource Development (Department of Education), New Delhi by Resolution dated 18.3.1997 laid down a policy on "Fee Fixation in Private Unaided Education imparting Higher and Technical Education including Management Education". Under Clause 6.4 of the said Resolution, a provision was made for constitution of a State Level Committee for determination of fee in institutions imparting technical education, as follows :- (i) Vice-Chancellor of one of the Universities in the State to be nominated by the State Government concerned - as Chairperson; (ii) Secretaries in-charge of the Technical Education and Finance Departments of the State Government concerned or their nominees - as Members; (iii) Three experts, on each in Economics, Cost Accountancy and Institutional Finance, to be nominated by the All India Council of Technical Education - as Members; and (iv) Director, Technical Education of the State concerned, as Member Secretary. Under 6.6 of the Resolution dated 18.3.1997, a provision was made to determine tuition fee and development fee, relevant portion of which is quoted hereunder :- "6.6 Fee Determination :- (a) Fee will have two broad categories - Tuition Pee and Development Fee. Besides, the management of the institutions may realise the actual cost of boarding & messing from the above students subject to the relevant Committee being satisfied about the reasonableness of such costs. (b) Tuition Fee will seek to recover the actual cost of imparting education. While assessing a fair tuition fee the Committee will take into account the following :- (i) Salary and allowances including bonus, if admissible, to teaching and non-teaching employees; (ii) Expenditure on administrative services; (iii) Cost of maintenance of laboratories including consumable. (b) Tuition Fee will seek to recover the actual cost of imparting education. While assessing a fair tuition fee the Committee will take into account the following :- (i) Salary and allowances including bonus, if admissible, to teaching and non-teaching employees; (ii) Expenditure on administrative services; (iii) Cost of maintenance of laboratories including consumable. (iv) Contingent expenditure including statutory requirements like audit fee etc. (v) Cost of acquisition of books and journals for libraries and (vi) Maintenance of buildings and other assets including rents and tariffs, Keeping the above parameters in view, suitable rates will be fixed for holders of 'free', 'Payment' and NIR/Foreign students categories. (c) ... ... ... ... ... (d) ... ... ... ... ... (e) Development Fee may be at flat rates be determined every three years by the AICTE and UGC as the case may be Different rate may be prescribed for "Payment" "Free/Merit" and Foreign/NRI' seat holder. These bodies could also classify institutions in different categories for the purpose of prescribing different slabs prescribed such organization is based on intelligible and object criteria. (f) in the first ten years, it would be open to the managements to appropriate upto half of the proceeds of the development fee or the actual capital cost, whichever be lower. The remaining half will have to be utilized for upgradation and replacements in the first ten years and thereafter the entire proceeds will have to be so utilized. (g) As the fee chargeable will be notified by the relevant Committee, it will be the duty of the Statutory body concerned to communicate the rate of Development Fee to such bodies well in advance to enable the appropriate Committees to suitably incorporate such rates in their Notification. The UGC/AICTE will take into account the views and suggestions of the private institutions, the State Governments and interested members of Public while determining these rates." 4. In the present case, the dispute relates to 'development fee' to be charged by the self-financing institutions for a period of three years i.e. 1999-2000, 2000-01 and 2001-02- 5. The development fee for free seats, payment seats for Engineering Degree and Diploma was decided as per the guidelines of the AICTE notification dated 24.6.1998. However, the development fee of the other disciplines such as MBA, MCA, etc. were yet to be received from AICTE. The development fee for free seats, payment seats for Engineering Degree and Diploma was decided as per the guidelines of the AICTE notification dated 24.6.1998. However, the development fee of the other disciplines such as MBA, MCA, etc. were yet to be received from AICTE. The State Level Committee for determination of fees to be charged by the self-financing institutions (Degree & Diploma Engineering, Pharmacy, Management, Architecture) as was constituted by the AICTE, New Delhi, decided the fees for free seats and payment seats on 24.11.1999. As noticed earlier, by that time, though the development fee for free seats and payment seats for Engineering Degree and Diploma had been decided by the AICTE notification dated 24,6.1998, the AICTE had not determined the development fee for other self- financing institutions imparting teaching in Pharmacy, Management and Architecture. The State Level Committee, therefore, while decided the development fee and tuition fee to be charged for all such institutions for free seats, payment seats and NRI seats. the following recommendations were made by notification dated 30.11.1999. Such fee was made valid for three years i.e. 1999-2000, 2000-01 and 2001-02. 1. FEES :- Type of Free Seats Payment Seats N.R.I. Seats Institution Tuition Fee Rs.per annum Development Fee Rs.Per annum Tuition Fee Rs.per annum Development Fee Rs.Per annum Tuition Fee US $ per annum Development Fee US# Per annum Engineering Degree 1,500 3,000 32,000 8,000 4,000 1,000 Engineering Diploma 1,000 1,000 18,500 3,500 2,000 1,000 Pharmacy Degree 1,500 2,000 29,000 6,000 2,000 1,000 MBA/PGDM 1,500 3,000 30,000 5,000 2,000 1,000 MCA 3,000 3,000 32,000 8,000 4,000 1,000 Architecture Degree 1,500 3.000 24,000 6,000 2,000 1,000 2. Institutions in the State of Gujarat offering these programmes and duly approved by the All India Council for Technical Education are listed in Appendix. 3. These fees shall be valid for three years i.e. 1999-2000, 2000-2001 and 2001-2002. As the development fee for other disciplines such as Pharmacy, MBA and MCA had not been received by the State Level Committee from AICTE, the development fee as was prescribed. as shown above, was shown to be provisional with a condition that the same shall be reconciled as per the development fee finally decided by the AICTE, which was specified under Clauses 7 and 8 of the notification dated 30.11.1999 and quoted hereunder:- "7. as shown above, was shown to be provisional with a condition that the same shall be reconciled as per the development fee finally decided by the AICTE, which was specified under Clauses 7 and 8 of the notification dated 30.11.1999 and quoted hereunder:- "7. Development Fee for free seats and payment seats for Engineering Degree and Diploma are decided as per the guidelines of the AICTE Notification No. F. No. NW/FEE-Com/97 dated 24/06-1988. However, the Development Fee for other discipline still to be received from AICTE. The present rates are only provisional and therefore shall be reconciled as per development fee finally decided by AICTE. 8. NRI fees are also decided tentatively and it shall be subject to revision as per the rates as and when decided by AICTE. The Institutions shall have to reconcile the accounts accordingly." 6. On the same date, i.e. on 30.11.1999, AICTE recommended the development fee for Pharmacy, Management & Architecture and Engineering Institutions by letter dated 30.11.1999 addressed to the Director of Technical Education, who was the Member Secretary of the State Level Committee. The said recommendation being relevant is quoted hereunder :- All India Council For Technical Education (A Statutory body of Government of India) Prof. B.G. Sangameshwara Adviser (E&T) F. No. NW/Fee-com/97 November 30, 1999 Dr. M.C. Chhabaria Director of Tech. Edu, Block No. 2, 2nd Floor Dr. Jivraj Mehta Bhavan Gandhinagar. Sub : Development Fee for Pharmacy, Management & Architecture & Engineering Institutions recommended by the Council. Dear Sir, With regard to the policy of Fee Fixation to the Private Un-aided institutions imparting higher technical education a gazette notification was issued dated March 18, 1997. Under clause 6.5 (e) of the above notification. Development Fee can be charged at a flat rate by the Institution, to be determined every three years AICTE. The council has finalized the development fee for degree and diploma Programmes in Pharmacy, Management, Architecture and Engineering as per the details given in the Annexure - 1. You are requested to take necessary steps to adopt the Development Fee for Pharmacy, Management, Architecture and Engineering, so that it can be effectively implemented in all technical institutions. The council has finalized the development fee for degree and diploma Programmes in Pharmacy, Management, Architecture and Engineering as per the details given in the Annexure - 1. You are requested to take necessary steps to adopt the Development Fee for Pharmacy, Management, Architecture and Engineering, so that it can be effectively implemented in all technical institutions. Yours Sincerely, Sd/- (B.G. SANGAMESHWARA) Fee Management Pharmacy Architecture Engineering Degree Diploma Degree Diploma Degree Diploma Free Rs.7000 Rs.4000 Rs.3000 Rs.3000 Rs.3000 Rs.3000 Rs.1000 Payment Rs.17500 Rs.12,250 Rs.7000 Rs.9500 Rs.9500 Rs.8000 Rs.3500 NRI $ 2,000 $ 1,500 $ 500 $1,500 $ 1,500 $ 1,000 - - The development fee for engineering institutions has been calculated on May 12, 1998." 7. The State Level Committee though received the said letter, subsequently issued no notification in continuation of its earlier notification dated 30.11.1999. In the meantime, in view of the recommendation of AICTE, the development fees were charged by different institutions, including the petitioners as per the recommendation of the AICTE. 8. The Director of Technical Education, Gujarat by letter dated 4.10.2002 informed all the concerned colleges imparting MBA/MCA education by informing, inter alia, that after the State Level Committee notification dated 30.11.1999, it has not come out with any notification incorporating the development fee specified in the letter of AICTE dated 30.11.1999. Therefore, the notification dated 30.11.1999 issued by the State Level Committee would continue to hold the field. AICTE also informed the colleges on 8.2.2002 to deposit the excess fee charged i.e. the development fee charged in excess of the rates prescribed in the notification dated 30.11.1999. 9. Subsequently, penal action having taken against the institutions, like the petitioners, they preferred their respective writ petitions for a direction on the respondents not to precipitate any course of action against the petitioner colleges by insisting for the refund of fees pursuant to their decision as referred to above and also prayed for setting side of such decisions. 10. After filing of the writ petitions, many of the institutions deposited the difference of fees as was charged on the basis of the development fee fixed by AICTE minus the development fee provisionally fixed by the State Level Committee with a request to the authorities not to pay back the same to the students, as they have moved before the Court. 12. 12. The learned Counsel for the appellants would submit that the institutions cannot suffer for inaction on the part of the State Level Committee. According to them, the power of fixation of development fee being vested with AICTE and the State Level Committee having fixed the provisional development fee subject to the fixation of the development fee by AICTE, if subsequent to the recommendation of the AICTE, no notification have been issued by the State Level Committee, the institutions cannot be made to suffer. Further, it was contended that the notification dated 30.11.1999 having issued by the State Level Committee, with a clear stipulation that the fixation of provisional fee subject to the final fixation made by AICTE, in view of Clause 7 therein, no further notification was required to be issued. 13. Per contra, according to the respondents, in absence of any notification issued by the State Level Committee, on the basis of the recommendation of AICTE, the tuition fee and development fee prescribed by the State Level Committee on 24.11.1999, as notified on 30.11.1999. would continue to hold the field. 14. The learned Single Judge accepted the submission made on behalf of the respondents that in absence of any subsequent notification issued by the State Level Committee, on the basis of the recommendation of the AICTE dated 30.11.1999, the earlier determination of tuition fee and development fee by the State Level Committee made on 24.11.1999, as notified on 30.11.1999, would continue to hold the field. 15. We have heard the learned Counsel for the parties and perused the record. 16. From the Resolution dated 18.3.1997 issued from the Ministry of Human Resource Development, Department of Education, New Delhi, the following facts emerge :- (i) Fee in institutions imparting technical education shall be determined by the State Level Committee [see Clause 6.4(b)]. (ii) Fee will have two broad categories - 'Tuition Fee' and 'Development Fee' - [see Clause 6.6(a)]. (iii) Development Fee shall be determined every three years by AICTE - [see Clause 6.6(e)]. (iv)(a) The fee chargeable will be notified by the relevant Committee (the State Level Committee in this case). (b) The Statutory body (AICTE in this case) is to communicate the rates of development fee to such bodies well in advance to enable the appropriate Committee (the State Level Committee herein) to suitably incorporate such rates in their notification - [see Clause 6.6(g)]. 17. (b) The Statutory body (AICTE in this case) is to communicate the rates of development fee to such bodies well in advance to enable the appropriate Committee (the State Level Committee herein) to suitably incorporate such rates in their notification - [see Clause 6.6(g)]. 17. Though, as per the Resolution, AICTE was duty bound to communicate the rates of development fee to the State Level Committee well in advance [see Clause 6.6(g)], AICTE failed to perform its duty till 24.11.1999, and the State Level Committee determined the tuition fee, so far as it relates to other disciplines such as Pharmacy, MBA, MCA, Architecture, etc. We have noticed that the development fee for other faculties of Engineering degrees were notified by AICTE for the three years i.e. 1999-2000, 2000-01 and 2001-02 as far back as on 24.6.1998. 18. The State Level Committee had no jurisdiction to decide the development fee. However, in absence of any determination by AICTE, the State Level Committee provisionally fixed the development fee at a flat rate of Rs.3000/- for MBA, MCA, Architecture and Rs.2000/- for Pharmacy degree for the aforesaid three years in its meeting dated 24.11.1999, as notified on 30.11.1999. 19. The State Level Committee had knowledge that it had no jurisdiction to fix the development fee and AICTE is the Competent Authority to do so. Therefore, under Clauses 7 and 8, the following provisions were made :- 7. Development Fee for free seats and payment seats for Engineering Degree and Diploma are decided as per the guidelines of the AICTE Notification No. F. No. NW/FEE-Com/97 dated 24/06-1988. However, the Development Fee for other discipline still to be received from AICTE. The present rates are only provisional and therefore shall be reconciled as per development fee finally decided by AICTE. 8. NRI fees are also decided tentatively and it shall be subject to revision as per the rates as and when decided by AICTE. The Institutions shall have to reconcile the accounts accordingly. 20. From the aforesaid facts, it will be evident that the laches were on the part of the AICTE. Though the State Level Committee had no jurisdiction to decide the development fee, yet it decided it provisionally by its notification dated 30.11.1999. The Institutions shall have to reconcile the accounts accordingly. 20. From the aforesaid facts, it will be evident that the laches were on the part of the AICTE. Though the State Level Committee had no jurisdiction to decide the development fee, yet it decided it provisionally by its notification dated 30.11.1999. Such power being not vested with the State Level Committee, the respondents cannot direct the institutions to follow the development fee as prescribed by the State Level Committee, which otherwise will go against the Resolution dated 18.3.1997 of the Ministry of Human Resource Development, Department of Education, New Delhi. 21. It cannot be said that the State Level Committee had not notified the development fee. We have noticed that in the notification dated 30.11.1999, the State Level Committee specifically stated that it has determined the development fee provisionally and the final rate with regard to the development fee will be as fixed by AICTE. Therefore, the prescription as made by AICTE is deemed to have been notified by the State Level Committee by its notification dated 30.11.1999, otherwise any other interpretation will render the State Level Committee notification dated 30.11.1999 as illegal, so far as its relates to development fee. 22. The laches on the part of AICTE and the laches on the part of the State Level Committee in not issuing a separate notification on the basis of the development fee fixed by AICTE, cannot be a tool in the hands of the respondents to defeat the claim of the institutions to which they are entitled under the Supreme Court judgment and Resolution dated 18.3.1997 of the Ministry of Human Resource Development, Department of Education. New Delhi. 23. The learned Single Judge failed to notice the aforesaid facts and erred in holding that in absence of any notification issued by the State Level Committee in terms with the recommendation of the AICTE, the institutions are not entitled to charge development fee as recommended by AICTE for the aforesaid three years. 24. For the reasons aforesaid, while we hold that the direction issued by the Commissioner of Higher Education dated 30.6.2003 and other similar orders by which the said authority directed the institutions including the appellant - petitioners to refund the students the development fee charged in excess of the aforesaid notification is bad. Consequential directions, if any, issued by the University are also declared as illegal. Consequential directions, if any, issued by the University are also declared as illegal. The order aforesaid passed by the authorities and the common judgment and order dated 19.8.2004 passed by the learned Single Judge are set aside with a direction to the respondents to return the amount, if any, deposited by one or other petitioners pursuant to the aforesaid directions to such petitioner towards development fee. However, if one or other institutions has charged anything more than the development fee fixed by AICTE, such amount is not required to be refunded to any such institution. All the appeals and the Civil Applications stand disposed of with the aforesaid observations and directions. but there shall be no order as to costs. Directions given.