M P Birla Institute of Management Vs State of Karnataka

M.P. BIRLA INSTITUTE OF MANAGEMENT ASSOCIATE, BHARTIYA VIDYA BHAVAN No.43, RACECOURSE ROAD BENGALURU-560 001 REPRESENTED BY ITS PRINCIPAL DR. S. SATHYANARAYANA

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…PETITIONER

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(BY SRI. K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. NISCHAL DEV B.R., ADVOCATE)

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AND:

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Digitally signed by CHANNEGOWDA PREMA Location: High Court of Karnataka

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STATE OF KARNATAKA VIDHANA SOUDHA, AMBEDKAR VEEDHI BENGALURU-560 001

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REPRESENTED BY ITS PRINCIPAL SECRETARY

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ADMISSION OVERSEEING COMMITTEE 2^ND FLOOR, KEA BUILDING SAMPIGE ROAD, 18^TH CROSS MALLESHWARAM, BENGALURU-560 003 REPRESENTED BY ITS SECRETARY

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FEE REGULATORY COMMITTEE 2^ND FLOOR, KEA BUILDING SAMPIGE ROAD, 18^TH CROSS MALLESHWARAM, BENGALURU-560 003 REPRESENTED BY ITS SECRETARY

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NC: 2025:KHC:7421-DB WP No. 51832 of 2019

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GOVERNMENT OF KARNATAKA DEPARTMENT OF HIGHER EDUCATION ROOM No.645, 6^TH FLOOR M.S. BUILDING, BENGALURU-560 001 REPRESENTED BY ITS SECRETARY

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…RESPONDENTS

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(BY SRI. M.N. SUDEV HEGDE, AGA FOR R1 & R4: SRI. N.K. RAMESH, ADVOCATE FOR R2 & R3)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO (a) ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER WRIT OF LIKE NATURE QUASH THE IMPUGNED NOTICE DATED 14.11.2019 (ANNEXURE-A) PASSED BY 2^ND RESPONDENT,

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KEA/AOC/90/2019-20 AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY

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HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) Heard the learned senior counsel appearing for the writ petitioner and learned counsel appearing for the respondents.

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It is submitted by the learned Senior counsel appearing for the writ petitioner in WP No.51832/2019 that the notice which is impugned in this writ petition though it is styled as a 'notice' is actually an order visiting adverse civil consequences on the petitioner and that as such it is bad for non adherence with the principle of natural justice. It is submitted that the notice calls upon the petitioner - institution to refund the excess fee collected from the students admitted for study of MBA Course for the academic Year 2019-20 within a period of 15 days, failing which, the Institute called upon to show cause why action should not be initiated against the college under the provisions of Prohibition of Capitation Fee Act and Admission Rules, 2006. It is submitted that

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the notice is issued after coming to the conclusion that excess fees have been charged and this conclusion is arrived at without putting the Institution on notice and without considering the contentions.

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It is submitted by the learned senior counsel that the notice states that fees have been fixed for the MBA courses in Government seats by the State Government and that the petitioner-Institution is collected the fees in excess of what has been fixed. It is submitted by the learned senior counsel that the fixation of fee is to be done by the Fee Regulatory Committee in terms of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 ('the 2006 Act' for short). It is further contended that no such fee had been fixed in respect of MBA Course for the year in question, by the Fee Regulatory Committee and therefore, the notice itself is unsustainable.

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Further, it is submitted that in case there is a complaint with regard to collection of fee in excess of what

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is fixed by the Fee Regulatory Committee. It is for the Fee Regulatory Committee to take action in terms of Section 7(4) of the 2006 Act and the Admission Overseeing Committee would not have the power of the jurisdiction to exercise the power under Section 7(4) of the 2006 Act. It is contended that the direction to refund the excess fee could have been issued only by the Fee Regulatory Committee and not by the Admission Overseeing Committee.

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Learned Government Advocate appearing for

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the respondents on the other hand contend that the fees have already been fixed in respect of Government Seats and other seats as evident from Annexure-A proceedings in WP No.41217/2019. It is submitted that the said fixation of fee for the year 2018-19 has been made applicable for the academic year 2019-20 as well and therefore the contention that the fees are not been fixed

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by the Fee Regulatory Committee would not be sustainable at all.

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Having considered the contentions advanced,

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we notice that the principle contention raised by the learned senior counsel appearing for the petitioner is that the Institution has not been given a chance to explain as to how the fixation and collection of fee by them was just and proper and that the contentions of the Institution have not been considered at all before coming to the conclusion

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that fees have been fixed in excess. In view of the said contentions raised, we are of the opinion that we need not consider any of the contentions raised on the merits, including the question of jurisdiction of the committee. We are of the opinion that it is for the Admission Advisory Committee to consider the contentions raised by the petitioner before coming to any conclusion with regard to the factual aspects of the matter. In the above view of matter, we are of the opinion that Annexure-A in WP No.51832/2019, which is the notice issued by the

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Admission Advisory Committee, is to be considered as a show cause notice by disregarding the last paragraph thereof. The petitioner who is already on notice of the

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NC: 2025:KHC:7421-DB WP No. 51832 of 2019

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allegations will be permitted to submit a written representation as against the said notice within three weeks from today and the contentions shall be considered by the Admission Advisory Committee and appropriate orders shall be passed in accordance with law after hearing the petitioner within two weeks thereafter as well. The committee shall pass orders after considering all contentions as early as possible.

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In view of the fact that the Annexure-A has

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been treated as show cause notice and on assurance of the learned senior counsel appearing for the petitioner that the amounts if any, found due after appropriate adjudication shall be made good by the petitioner, the amounts paid pursuant to the interim order dated 10.12.2019 shall be refunded to the petitioner. It is made clear that the direction to refund the amounts paid pursuant to the interim order is being made in view of the fact that the petitioner was not heard and contentions

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