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2016 DIGILAW 2837 (ALL)

Lakshmi Public Charitable Trust v. State of U. P.

2016-08-17

A.P.SAHI, VIJAY LAXMI

body2016
JUDGMENT Heard Ms. Aparajita Bansal, learned counsel for the petitioners, learned standing counsel for the respondent No.1 and 3 and Sri S.M.A. Zaidi, holding brief of Sri Waseequddin Ahmad, learned counsel for the 2nd respondent. 2. This writ petition has been filed by a professional institution run by the petitioner No.1 Charitable Trust questioning the vires of the Uttar Pradesh Private Technical Educational Institutions (Regulation of Admission and Fixation of Fee) Regulations, 2015 to the extent of Regulation 4 as being in conflict with the provisions of Section 10 read with Section 14 of the Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006. 3. Paragraph-30 of the writ petition extracts the aforesaid Regulations. Learned counsel for the petitioners advancing her submissions, contends that there cannot be a generalization or standard fixation of fee nor can the institution be compelled to that extent and even otherwise, the statutory committees which have been constituted under the said Regulations, have not undertaken any such exercise that may be available under Section 10 (2) of 2006 Act. It has further been submitted that the quantum of fixation of fee is nowhere provided in the Regulations and the same being open ended may result in arbitrariness and violation of Article 14 of the Constitution of India. Learned counsel submits that as a matter of fact, the Regulations are unbridled and consequently, the institutions are bound to suffer on account of promulgation of such Regulations and it is, therefore, urged that the same may be struck down as ultra vires and a direction be issued for adopting the factors as prescribed in Section 10 of the 2006 Act and for fixation of fee of such institutions. 4. One of the principal grounds of challenge further is that once the standard fee if fixed, then the provisions of sub-section (2) of Section 10 become redundant inasmuch as the provisions of giving an opportunity to the petitioner's institutions vanishes if the Regulations itself provide for fixation of standard fee. In this view of the matter, the petitioners contend that the Regulations being not in conformity with Section 10, the same is liable to be struck down. 5. Ms. In this view of the matter, the petitioners contend that the Regulations being not in conformity with Section 10, the same is liable to be struck down. 5. Ms. Bansal further contends that there are certain caps provided under Regulation 4 (4) fixing ceiling on certain expenses and contends that the committee would feel bound by such Regulation hence the giving of an opportunity to the institution would be an empty formality as the committee will fix the fee only in accordance with the same. She has invited the attention of the Court to the provisions of the Act to contend that if the manner of application has been fixed, then there remains no play in the joints and the aforesaid parameters violate Articles 14 and 19 (1) (g) of the Constitution of India. To that extent, the said Regulation also cannot be enforced. 6. Replying to the aforesaid submissions, Sri Q.H. Rizvi, learned Additional Chief Standing Counsel and Sri S.M.A. Zaidi, learned counsel for the respondent No.2 have urged that the petitioners have an opportunity of being heard before fixation of the fee as per Section 10 (2) and, therefore, the Regulations do not in any way, counter the aforesaid provisions for the purpose of fixation of fee. Learned counsel further submits that the standard fee as indicated therein, is only a methodology which is indicated for the purpose of the working of the Act. The fee to be charged by the institutions shall obviously be fixed after completing the investigation by the committee so constituted. 7. We have considered and perused the said Regulations and we find that the Regulations do not in any way strike at the root of the factors that have been defined under Section 10 of the Act. Secondly, the quantum of fixation of fee being open ended in nature the mentioning of standard fee does not amount to fixation of fee. The same is only a bench mark for the purpose of hearing the institution while giving an opportunity under sub-section (2) of Section 10 of the Act. The fixation of fee can be lower or higher as provided in the Regulations itself. The same is only a bench mark for the purpose of hearing the institution while giving an opportunity under sub-section (2) of Section 10 of the Act. The fixation of fee can be lower or higher as provided in the Regulations itself. So far as the quantum of fixation is concerned, the same cannot be an issue for challenging the vires of the Rules or Regulations which in our opinion, make the provisions of the 2006 Act workable so as to define the fee structure which has been contemplated under the 2006 Act. The Regulations, therefore, in our considered opinion, do not in any way infringe upon the rights of the institutions so as to get the fee fixed as proposed that is to be decided after giving an opportunity of hearing. To that extent the Rules not being ultra vires on any of the grounds raised of being either an outcome of incompetent exercise or being ultra vires the 2006 Act or being ultra vires to the provisions of the Constitution of India, the relief with regard to the vires of the Regulations referred to in paragraph-30 in the petition is unsustainable. 8. Ms. Bansal has urged that the provisions of Regulation 4 (4) infringe the fundamental rights guaranteed under the Constitution as they amount to imposing conditions that are irrationale and, therefore, the relief prayed for, deserves to be granted. 9. We have perused the aforesaid Regulations and the same authorizes the committee to fix the fee having regard to the guidelines referred to in the aforesaid Regulation. The said guidelines take care of financial discipline and also allow sufficient leverage for factors to be taken into consideration while fixing the fee. These factors are clearly relatable to the provisions of Section 10 of the Act and cannot be said to be outside the scope of the 2006 Act. Secondly, the method of calculation of different types of expenses qua intake of students has been indicated in paragraph-38 to 51 of the writ petition and what we find is that the petitioner's contention appears to be that if the said factors are applied rigidly by the committee, would result in arbitrariness or also affecting the running of the institution. We find that the Act itself was framed in order to control the fiscal operations of the institution in order to curb any unfettered realization of fee. We find that the Act itself was framed in order to control the fiscal operations of the institution in order to curb any unfettered realization of fee. For this, the Regulations if allow a requirement for furnishing documents and accounts, the same cannot be said to be an intrusion on the rights of the petitioner's institution. The petitioner has raised specific allegations in paragraph-36 and 37 about the workability on the issue of allowable expenditure. In our opinion, it is because of this reason that an opportunity of hearing is given under Section 10 (2) to permit the committee to take a just decision. The fixation of caps and the methodology has been introduced on the basis of past experience. The Regulations framed are founded on an empirical method giving guidelines for calculating the expenses. It is for the institution to satisfy the committee at the time of fixation of fee as to whether the same would result in any financial loss to the institution or otherwise which again is a matter of quantum which cannot at this stage be an issue to declare the Regulations as ultra vires. The Committee can take into consideration any objections raised by the institution in this regard. 10. We, therefore at this stage, on the basis of the material on record, do not find any substantial ground available for raising a challenge to the vires of the Rules by the petitioner's institute. 11. Ms. Bansal then contended that she may be permitted to withdraw the writ petition and raise a challenge as and when the fixation of the fees may cause any adverse affect on the petitioner's institution. She prays that the writ petition be permitted to be withdrawn with liberty to file a fresh petition raising any challenge as and when such a cause becomes available to the petitioner's institution including the fixation of quantum of the fee by the committee in future. 12. Accordingly, we permit the petitioner to withdraw the writ petition and approach the Court as and when desirable on the issues raised in view of the prayer made by the learned counsel for the petitioner.