Dismissed

Tapasya Rawat v. State of Uttarakhand

Uttarakhand HC26 Apr 2022WPMS/2878/2018

Case brief

AI extract

What is this about?

Writ petitions by MBBS students challenged the fee demanded by a private medical college and the Appellate Authority's order holding the State's 2006 fee-regulation Act inapplicable to it. The High Court held the Act applies only to institutions affiliated to State funded universities, councils or boards, and not to a constituent college of a private university; petitions dismissed.

What the court decided

AI extract

Tapasya Rawat Vs State of Uttarakhand — Education and Admissions | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND

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AT NAINITAL

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ON THE 26^TH DAY OF APRIL, 2022

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BEFORE:

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HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI

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WRIT PETITION(M/S) No. 2566 of 2018

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BETWEEN:

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Vartika Chauhan and Others …….Petitioners

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AND:

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State of Uttarakhand through Secretary Medical

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Education and Others ....Respondents

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With

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WRIT PETITION (M/S) No. 1948 of 2018 WRIT PETITION (M/S) No. 2015 of 2018 WRIT PETITION (M/S) No. 2457 of 2018 WRIT PETITION (M/S) No. 2870 of 2018 WRIT PETITION (M/S) No. 2872 of 2018 WRIT PETITION (M/S) No. 2873 of 2018 WRIT PETITION (M/S) No. 2874 of 2018 WRIT PETITION (M/S) No. 2875 of 2018 WRIT PETITION (M/S) No. 2877 of 2018 WRIT PETITION (M/S) No. 2878 of 2018 WRIT PETITION (M/S) No. 2893 of 2018 WRIT PETITION (M/S) No. 3245 of 2018

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(By Mr. B.D. Upadhyaya, Senior Advocate, assisted by Mr. Naveen Tewari & Mr. Sunil Upadhyaya, Advocates and Mr. Sanjiv Jha, Mr. Prateek Tripathi, Mr. Arun Pratap Shah, Advocates for the petitioners, Mr. Vinod Nautiyal, Deputy Advocate General with Mr. R.C. Arya, Standing Counsel for the State of Uttarakhand, Mr. Sanjeev Agarwal & Mr. Sandeep Kothari, Advocates for Himalayan Institute of Medical Sciences, Ms. Sukhvani Singh, Advocate, holding brief of Mr. Parikshit Saini, Advocate for Medical Council of India and Mr. N.S. Pundir, Advocate for Hemwati Nandan Bahuguna, Uttarakhand Medical University)

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JUDGMENT

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Since common questions of law and facts are involved in these writ petitions, therefore they are heard together and are being decided by a common judgment. However the for sake of brevity, facts of Writ Petition (M/S) No.2566 of 2018 are being considered and discussed.

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Writ Petition (M/S) No. 2566 of 2018 has been filed by 26 persons, who participated in State Counselling for MBBS course held in 2018 by respondent no. 3 and based on their score in NEET-UG, they were allotted Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun/respondent no.4 (hereinafter referred to as “the institution”). At the time of admission, the fee structure for MBBS course was made known to the petitioners by the institution (respondent no. 4). Feeling aggrieved by insistence by the institution to deposit fees as per the determination made by Fee Committee of the University under Himalayan University Act, 2012, this writ petition was filed, in which decision taken by Appellate Authority under Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 was also challenged. The reliefs, sought in this writ petition, are reproduced below:-

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“I) To issue a writ, order or direction in the nature of certiorari and quash the order dated 05.07.2018 [Annexure No. 1] of the Fee Appellate authority.

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II) To issue a writ, order or direction in the nature of certiorari and quash the office orders dated 02.08.2018 and 03.08.2018 [Annexure No. 2 (Colly)] issued by the State of Uttarakhand;

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III) To issue a writ, order or direction in the nature of certiorari and quash the notice dated

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04.08.2018 [Annexure-No. 3] issued by the Registrar Swami Rama Himalayan University;

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IV) To issue a writ, order or direction in the nature of mandamus directing the State Government not to allow the increase in the Fee by Himalayan Institute of Medical Sciences till the mandatory prerequisites and detailed in judgment reported in (2003) 6SCC 697 are followed and complied.”

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This Court passed an interim order on 24.08.2018, relevant extract whereof is reproduced below:-

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“Till the next date of listing, respondent No. 4 shall not compel the students to pay the revised fee, in terms of the impugned notice dated 04.08.2018.

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The amount payable as fee to Respondent No. 4 shall abide by the decision in Writ Petition (M/S) No. 1705 of 2017 and other connected writ petitions.”

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Learned counsel for the petitioners submits that, pursuant to the aforesaid order, such petitioners, who are domicile of Uttarakhand, are paying Rs. 4,00,000/- per annum as tuition fee; while, those who are not domicile of Uttarakhand are paying ` 5,00,000/- as tuition fee, upon furnishing an undertaking that amount payable as fee by petitioners, would be subject to outcome of Writ Petition (M/S) No. 1705 of 2017.

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Mr. Sanjiv Jha, learned counsel for petitioners points out that the institution had filed Writ Petition (M/S) No. 1705 of 2017 challenging a Government Order dated 15.07.2017, which provided that interim fee determined for some other college, namely, Sri Dev Suman Subharti Medical College, Dehradun would be applicable to the institution, till final determination of fee by the Competent Authority. He further points out that said writ petition, was

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withdrawn by the institution, in view of decision dated 05.07.2018 taken by Appellate Authority constituted under Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (hereinafter referred to as “2006 Act”). The order passed on 28.09.2018, whereby Writ Petition (M/S) No. 1705 of 2017 was permitted to be withdrawn, is reproduced below:

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“In view of the submission made by Sri Sanjeev Agarwal, learned counsel for the petitioner, the present petition is dismissed as withdrawn. However, it is made clear that withdrawal of writ petition shall not be treated as confirmation of the order dated 05.07.2018 passed by the Appellate Authority and the said order shall be open to challenge by any aggrieved person, in accordance with law. It shall be open for the petitioner to raise all contentions, as are being raised in the present writ petition.” 6. In this writ petition, petitioners have challenged the order passed by Appellate Authority on 05.07.2018, whereby Appeal filed by the institution was allowed and it was held that Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006, is not applicable to the institution. Petitioners have also challenged the orders dated 02.08.2018 & 03.08.2018 passed by State Government consequent to the decision taken by Appellate Authority. Public notice issued by the University, of which respondent no. 4 is a constituent college, asking students of MBBS course to pay the fee as determined by Committee constituted under the Himalayan University Act 2012, is also challenged by the petitioners.

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The question, which falls for consideration in these writ petitions, is whether Uttarakhand Unaided

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Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (hereinafter referred as 2006 Act) would apply to Himalayan Institute of Medical Sciences (respondent no. 4). The Appellate Authority under aforesaid Act has held in the impugned order that 2006 Act would not apply to respondent no. 4, therefore, petitioners have challenged the decision taken by the Appellate Authority.

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It is not in dispute that the institution (respondent no. 4) is a constituent college of Swami Rama Himalayan University, which was established under a State legislation, namely, Himalayan University Act, 2012 (Act No. 12 of 2013).

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Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 was enacted by State Legislature pursuant to directions issued by Hon’ble Supreme Court in the case of Islamic Academy of Education and Another Vs. State of Karnataka and Others (2003) 6 SCC 697. Relevant provisions of 2006 Act, relied upon by learned Counsels for either side are reproduced below for ready reference:-

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“2. This Act applies to Unaided private professional educational institutions affiliated to State Funded Universities, Councils, Boards or other bodies established under Law, excluding minority institutions.

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In this Act, unless the context otherwise requires(p) “Private Professional Educational Institution” means a professional institution not established or maintained by the Central Government or the State Government, which exclude minority institutions.

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(r) “Professional Educational Institutions” means, college or an institute by whatever name called imparting professional education or conducting professional educational courses leading to the award of a degree, diploma or a certificate by whatever name called, approved or recognized by the competent statutory body and affiliated to a University and, includes a constituent unit of a deemed to be University imparting professional education.

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(v) “State Funded University” means a university established or incorporated by an Act of the State Legislature and funded by the State Government;

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(x) “Unaided Institution” means a private professional educational institution, not being an aided institution or minority institution;

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(y) “University” means a University so declared under Law.

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(1) The State Government shall constitute an Admission and Fee Regulatory Committee, which shall consist of the following :-

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(a) Retd. High Court Judge to be nominated by Chief Justice of High Court

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Chairman

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(b) Secretary, Medical Education (Ex-

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Officio) - Member

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(d) Secretary, Law (Ex-Officio) - Member (e) One Retd. Govt. Officer retired from a post not below the rank of Secretary to the State Govt. nominated by the State Govt.

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-Member

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(f) One Ex-Vice Chancellor of the State University to be nominated by the Governor

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-Member

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(g) Two Eminent Educationalist to be nominated by the State Govt. -Member (h) Secretary, High Education (Ex-Officio)

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-Member Secretary

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The Chairman of the committee will also nominate a Chartered Accountant of repute as may be defined in the rules.

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(6) The Chairman shall preside over the meeting of the committee and in absence of Chairman the committee shall choose one of its members for chairing that particular meeting and the Committee may adopt its own procedure as it deems fit.

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(15) The committee may also enquire the following unaided private professional educational institution:-

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In all such cases, the committee after obtaining evidence and the explanations from the management concerned may issue directions or forward appropriate recommendations including withdrawal of affiliation to concerned university or the State Government for necessary action and may also impose penalties.

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(a) the location of the professional

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institution.

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(b) the nature and requirements of

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the professional course.

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(e) the expenditure on

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administration and maintenance.

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(f) a reasonable surplus required for growth and development of the professional institution.

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(g) any other relevant factor –

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The Admission and Fee Regulatory Committee shall determine, in the manner prescribed, the fee or fees to be charged by unaided private professional educational institution affiliated to a State University.

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(2) No professional educational institution shall collect any fee by whatever name or form called from the candidate for admission to professional educational courses over and above the fee determined by the Committee.

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[(3) The Committee may determine different fees in respect of different courses of professional education being offered at different institutions depending upon the factors as mentioned above and it may place similarly placed institutions in broad groups;]

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Provided that the committee may fix higher fee to be collected by the unaided private professional educational institution from the nonresident Indian student for admission.

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(4) The Admission and Fee Regulatory Committee shall give the institution an opportunity of being heard before fixing any fee or fees.

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Appeals. - [(1) The State Government shall appoint an Appellate Authority, which shall consist of the following :-

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(a) Retd. High Court Judge to be nominated by Chief Justice of High Court. - Chairman

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(b) One Retd. Govt. Officer retired from a post not below the rank of Chief Secretary of the State to be nominated by the State Govt. - Member

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A person or unaided private professional educational institution aggrieved by an order of the Admission and Fee Regulatory Committee may file an appeal, within a period of ten days of receiving such order.

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(2) The Committee shall come into force from the date of its notification and the term of the office of the nominated members shall be for a period of two years or until they attain the age of sixty-five years, whichever is earlier, from the date of their nomination and, in case of any vacancy arising, for any reason, the State Government shall fill such vacancy within three months prior to falling of vacancy and not later than three months from the date of vacancy.

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Penalty. - [If any person or unaided private professional educational institution violates the provisions of this Act, the Admission and Fee Regulatory Committee and or Appellate Authority may -

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(a) direct the withdrawal of affiliation or recognition of such institution from the statutory body with which such institution is affiliated by issuing suitable directions;

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(b) direct the statutory body, university or board which grants degrees, diplomas or certificates to such institution to cancel the admission and registration of such students admitted in violation of this Act to such institution;

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(c) direct the institution to admit any students to whom admission has wrongly been denied due to non-compliance of the provisions of this Act;

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(d) impose financial penalties for each violation of the Act which shall not be less than Rupees ten

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lakh per violation and which shall be recovered by the University as arrears of land revenue;

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(e) all such directions/recommendations shall be binding on the non-minority unaided private professional educational institutions affiliated to the State Universities and shall also be complied by the concerned University within six months from the date of issue of such directions/recommendations. If such directions/recommendations are not complied, then it will come into force automatically after the expiry of the duration as mentioned above:

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Provided that, before any action is taken as mentioned above, a reasonable opportunity of hearing shall be provided to such person or institution by the admission and fee regulatory committee and or appellate authority.

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Act to have overriding effect. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

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Section 4(1) and Section 12(1) of 2006 Act were amended by an amendment made in 2010. Relevant extract of notification dated 26.03.2010 whereby amending Act, 2010 was notified, is reproduced below:-

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“Substitution of sub-section (1) of Section 4. For sub-section

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(1) of section 4 of the principal Act, the following sub-section shall be substituted; namely:-

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"The State Government shall constitute an Admission and Fee Regulatory Committee comprising:—

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(a) A Retired Judge of High Court of - Chairman

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nominated by the State Government

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(b) Principal Secretary/Secretary, Medical - Member Education (Ex-officio)

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d) Principal Secretary/Secretary, - Member Law (Ex-officio)

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(e) A retired Government officer retired - Member from a post not below the rank of Secretary to the State Government nominated by the State Government

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(f) One Ex-Vice Chancellor of the State - Member University nominated by the Governor

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(g) Two eminent educationist nominated - Member by the State Government

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(h) A renowned Chartered Accountant as - Member defined in the rules nominated by the State Government

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(i) Principal Secretary/Secretary, - Member Secretary Higher Education (Ex-officio)

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Substitution of sub-section (1) of Section 12.For clause (a) of subsection (1) of Section 12 of the principal Act the following clause shall be substituted, namely—

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(a) A Retired Judge of High Court nominated - Chairman. by the State Government”

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2006 Act was lastly amended in the year 2018, and the amending Act was notified on 02.05.2018. By the said amending Act, clause (r) of Section 3 was omitted and clause (p) of Section 3 was substituted and, in place of the expression “Private Professional Educational Institution”, “Private Institutions”, was defined in Section 3(p) as follows:-

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“(p) "Private Institutions" means Unaided private professional higher educational institutions on which this Act applies.

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By the amending Act of 2018, various subsections of Section 4 were amended. Section 4 of the amending Act of 2018 is reproduced below:-

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Amendment of Section 4. - Sub-sections (2), (4), (5), (7), (8), (10), (11), (12), (13)(a), 14, (15) of Section 4 of Principal Act shall be substituted as follows, namely-

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"(2) The committee shall come into force from the date of its notification and the term of office of the nominated members shall be 3 years from the date of nomination or until they attain 65 years of age, whichever is earlier:

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Provided that the term of office of the Chairman of the Admission and Fee Regulatory Committee shall be for a period of three years or until the attainment of age of 68 years whichever is earlier and in case of any vacancy arising earlier in the

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Committee, for any reasons, the State Government shall fill such vacancy, not later three months from the date of occurrence vacancy, for the remainder of the term.

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(4) No person, who is associated with any private institution in any manner, shall be eligible for being as Chairman or a member of the Admission and Fee Regulatory Committee.

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(5)(i) The Chairman or a Member may, by writing under his hand addressed to the State Government, resign from the office of the Chairman or a Member, as the case may be, at any time.

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(ii) The State Government shall remove a person from the office of the Chairman or a Member referred to in sub-section (i), if the person:-

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(a) becomes an undischarged insolvent;

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(b) is convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude;

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(d) has, in the opinion of the State Government, so abused the position of the Chairman or any Member as to render that person's Continuance in office detrimental to the public interest or the Chairman or any Member of the Committee shall be removed, if he performs any act, which in the opinion of State Government is unbecoming of Chairman or Member of the Committee:

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Provided that, no such Chairman or any Member shall be removed by the State Government without giving him an opportunity of being heard;

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(7) Hereby repealed.

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(8) The Committee shall also hear complaints with regard to admission in contravention of the procedure laid down by the Committee. The Committee, after obtaining the evidence and explanation from the management concerned may take decision that the private institution has violated the procedure prescribed for admission or not. The Committee may impose penalties.

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(10) The Committee or any officer authorised by it shall have power to inspect at any stage of the process of admission. If the Committee arrives at the opinion that the admission process conducted by the private institution contravenes the specified procedure, the Committee, after giving an opportunity of being heard may, penalise the institution.

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(11) It is hereby repealed.

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(12) The Committee shall determine the fees for admission to professional courses of private institutions.

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(13)(a) Before the commencement of the academic year, it shall be compulsory for every private institution to place before the Committee the proposed fee structure of professional courses with all relevant documents and books of accounts for determination of fees.

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The Committee after considering all the documents placed before it, shall determine the fee within one month maximum.

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In case the proposal for fixation of fee for professional courses is not placed before the Committee, the private institution shall not run the

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course. Therefore the private institution shall not give admission in such course.

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(14) The fee determined by the Committee shall be applicable on the private institution for a period of three years. After the expiry of the period of three years, the institution would be at liberty to apply for revision. The fee so determined shall be applicable to a candidate who is admitted to an institution in that academic year and that fee shall not be revised till the completion of his/her course in the said private institution.

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(15) The Committee may enquire the following matters with regard to private institutions-

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(a) Complaints with regard to collection of capitation fee.

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(b) Fee charged in excess of the fee determined.

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(d) Violation of any of the provisions of this Act.

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In all such cases, the Committee, after obtaining evidence and the explanations from the management concerned may issue directions or forward appropriate recommendations including withdrawal of affiliation to concerned university or imposition of penalty by the State Government after necessary action."

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By the amending Act of 2018, sub-sections (1) and (2) were substituted and sub-sections (3) to (6) were added in Section 12 of the Act. Relevant provision of the amending Act, 2018 is reproduced below:-

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“Amendment of Section 12. - Section 12

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of the principal Act-

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(i) sub-sections (1) and (2) shall be substituted as follows, namely:-

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"(1) The State Government shall appoint an Appellate Authority which shall consist of the following-

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(a) A retired Judge of High Court nominated by the State Government.

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(b) One Retired Government Officer retired from a post not below the rank of Chief Secretary or equivalent nominated by the State Government.

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A person or private institution aggrieved by the order of Admission and Fee Regulatory Committee may file an appeal within a period of one month of receiving such order.

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(2) The Authority shall come into force existence from the date of its notification and the office of the nominated members shall be for a period of three years or until they attain the age of sixty five years whichever is earlier;

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Provided that the office of the Chairman of the Authority shall be for a period of three years or until the attainment of age of 68 years whichever is earlier and in case of any vacancy arising earlier in the Authority, for any reasons, the State Government shall fill such vacancy, not later three months from the date of vacancy, for the remainder of the term.

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(ii) New sub-sections (3), (4), (5) and (6) after sub-section (2) shall be inserted as follows, namely:-

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(3) No act or proceeding of the Appellate Authority shall be deemed to be invalid by the reasons merely of any vacancy in or any defect in the constitution of the Authority.

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(4) No person who is associated with any private institution in any manner shall be eligible for being as Chairman or a Member of the Authority.

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(5)(1) The Chairman or a Member may, by writing under his hand addressed to the State Government, resign from the office of the

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Chairman or, as the case may be, of the Member at any time.

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(2) The State Government shall remove a person from the office of the Chairman or a Member referred to in sub-section (1) if the person:-

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(a) becomes an undischarged insolvent;

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(b) is convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude;

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(d) has, in the opinion of the State Government, so abused the position of the Chairman or any Member so as to render that person's Continuance in office detrimental to the public interest or the Chairman or any Member of the Authority shall be removed, if he performs any act, which in the opinion of State Government is unbecoming of Chairman or Member of the Authority:

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Provided that, no such Chairman or any Member shall be removed by the State Government without giving him an opportunity of being heard;

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(6) The Chairman shall preside over the meeting of the authority and in absence of Chairman, the Authority shall choose one of its members for chairing that particular meeting and the authority may adopt its own procedure as it deems fit.”

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Section 13 of 2006 Act was also substituted by 2018 amendment. Relevant provision of the amendment Act, 2018, is reproduced below:-

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“Amendment of Section 13. - Section 13 of the principal Act shall be substituted as follows, namely:-

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"If any person to private institution violates the provisions of this Act, the Admission and Fee Regulatory Committee or Appellate Authority may take one or more of the following action against such institution/person:-

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(a) Direct the withdrawal of affiliation of such institution from the statutory body with which such institution is affiliated or recognised or direct the appropriate authority to withdraw the recognition of such institution.

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(b) Direct the statutory body, university or board which grants degrees, diplomas or certificates to such institution to cancel the admission and registration of such students admitted in violation of this Act.

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(c) Direct the institution to admit any students to whom admission has wrongly been denied due to non-compliance of the provisions of this Act.

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(d) Impose financial penalties for each violation of the Act which shall not be less than Rupees Ten lakh per violation and which shall be recovered by the State Government as arrears of land revenue;

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(e) Impose penalty in case of charging fee in excess of prescribed fee by the concerned private institution which can be up to five to ten times of excess fee charged pre person/student. The minimum amount of penalty shall be 10 lac.

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(f) Order the institution to refund to a student within such time as specified in the order, any amount received by it in excess of the fees fixed by the Committee or any amount

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received by way of capitation fee or any amount received for profiteering:

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Provided that if the institution fails to refund the amount within the specified time to the student, the same shall be recoverable along with cumulative interest thereon at the rate of 12 per cent per annum as an arrear of land revenue and paid to the student;

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(g) Order the institution to stop admission or reduce the sanctioned intake in any professional course for such period as it may deem fit;

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(h) All such directions or orders shall be binding on private institutions;

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However, Section 2 of 2006 Act has not undergone any change, even though the Act was amended twice. Section 2 deals with applicability of 2006 Act and it provides that it shall apply to Unaided Private Professional Educational Institutions, which are affiliated to State Funded Universities, Councils, Boards or other bodies established under law. It further clarifies that the Act will not apply to minority institutions. Thus, from plain reading of Section 2, it is revealed that 2006 Act will apply to all Private Unaided Professional Colleges, excluding minority institutions, which are affiliated to some State Funded University or Council/Board etc. Thus, prima facie, affiliation with some other body or University would be sine qua non for applicability of the 2006 Act.

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It is not in dispute that Himalayan Institute of Medical Sciences (the institution) is a constituent college of

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Swami Rama Himalayan University, which was established under a State legislation, therefore, it would not need affiliation from a State Funded University, Council or Board. By virtue of Section 22 of University Grants Commission Act, 1956, a University established under a Central or State law can confer or grant degrees. Thus, on a plain reading of Section 2, 2006 Act does not appear to be applicable to the Institution in question, as it is not affiliated to a University or other such body.

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Mr. Sanjiv Jha, learned counsel for the petitioners has laid emphasis on the expression other bodies established under law in Section 2 of 2006 Act and he submits that since Swami Rama Himalayan University is established under a State legislation and Himalayan Institute of Medical Sciences is a constituent college of the said University, therefore, it will fall under the expression other bodies established under law. He buttresses his argument by contending that Section 2, if read in conjunction with sub-Section (p), (r), (x), (y) of Section 3 of 2006 Act, would leave no room for doubt that the 2006 Act would be applicable for the purpose of fee determination in respect of the institution in question.

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Per contra, Mr. Sanjeev Agarwal, learned counsel for the college contends that expression ‘other bodies established under law’ in Section 2 has to be read ejusdem-generis with the words, which precede the said expression. He thus submits that ‘other bodies established under law’ would mean a body, which can grant affiliation to a private professional college as, according to him, all other institutions enumerated in Section 2 before the expression, ‘other bodies established by law’, are competent to grant affiliation to private professional

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colleges. He further submits that no college can award degree of its own, and every private college needs to be affiliated to some State Funded University, Council or Board. In support of this submission, he drew support from Section 13(a) & (b) of 2006 Act, which provides that in case any private professional college violates any provision of the Act, then the Fee Regulatory Committee or the Appellate Authority may direct the statutory body, the University or the Board, which grants degrees, diplomas or certificates to such college, to cancel its affiliation.

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Mr. Sanjeev Agarwal, Advocate appearing for respondent no. 4 has also referred to Section 5(1), where it is provided that Admission & Fee Regulatory Committee shall determine the fee or fees to be charged by unaided private professional educational institution affiliated to a State University. He contends that condition precedent for applicability of the 2006 Act would be affiliation of a professional college to a State University, Council or Board. He submits that since Himalayan Institute of Medical Sciences is a constituent college of Swami Rama Himalayan University, therefore, it does not require affiliation from any State Funded University, Council or Statutory Body, as such the condition precedent for applicability of the 2006 Act, is non-existent. Mr. Sanjeev Agarwal, Advocate has drawn attention of this Court to the provisions contained in (Swami Rama) Himalayan University Act, 2013. He refers to Section 6 of the said Act, which provides that University constituted under the said Act would have no power to grant affiliation to any college and it further provides that University can only have constituent colleges.

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Mr. Sanjiv Jha, learned counsel for the petitioners refers to Section 5 (2) of 2006 Act, where it is provided that no professional educational institution shall collect any fee, by whatever name or form called, from the candidate for admission to professional educational courses over and above the fee determined by the Committee. He thus contends that since Himalayan Institute of Medical Sciences is a professional college, therefore, it can charge only such fee as is determined by the Fee Regulatory Committee constituted under the 2006 Act. Thus, according to him, even if the college is not affiliated to any State Funded University, Board, Council etc., then also the 2006 Act would be applicable by virtue of Section 5 (2) of the Act. The submission though appears to be attractive in the first blush; but, on deeper scrutiny, the court does not find any substance therein. In sub-section (1) of Section 5,principle contained in Section 2 of the 2006 Act has been reiterated and it has been provided that fee determined by the Fee Regulatory Committee constituted under 2006 Act, shall be applicable only to such private professional colleges, which are affiliated to a State University. Since the condition regarding affiliation to State University does not exist in the present case, therefore, it cannot be held on the strength of Section 5 (2) of the Act that every professional educational institution would be bound by the determination made by Fee Regulatory Committee constituted under 2006 Act.

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Learned counsel for the petitioners has referred to Section 4 (1) of 2006 Act, which lays down composition of the Admission & Fee Regulatory Committee. He lays great emphasis on Section 4 (1) (a), which provides that Chairman of the Admission & Fee Regulatory Committee has to be nominated by Chief Justice of High

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Court. Likewise, he submits, based on Section 12 (1) (a), that Chairman of Appellate Authority was also required to be nominated by Chief Justice of High Court. These two provisions were amended in 2010 and, by the said amendment, it was provided that the State Government could have nominated a retired High Court Judge as Chairman for Admission & Fee Regulatory Committee as well as Appellate Authority. Learned counsel for the petitioners further submits that a Division Bench of this Court in WPPIL No. 92 of 2012 decided on 12.06.2018, has held as follows:

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“23. Accordingly, the writ petition is allowed.

¶201

A. The amendments carried out vide notification dated 26.03.2010 in clause (a) of sub-section (1) of Section 4 and in clause (a) of sub-section (1) of Section 12 are struck down.

¶202

B. The appointments of Justice Shri Gurmeet Ram as Chairman of Admission and Fee Regulatory Committee and Justice Shri Brijesh Kumar Srivastava as Chairman of Appellate Authority are quashed and set-aside.

¶203

C. The State Government is directed to send the proposal to the Hon’ble the Chief Justice of the High Court for nominating retired Judges of the High Court as Chairman of the Admission and Fee Regulatory Committee as well as the Chairman of the Appellate Authority within three weeks from today.

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D. We recommend/suggest the State Government to bring suitable legislation for regulating the admission and fee structure in private unaided schools in the State of Uttarakhand within a period of three months from today.

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E. The Admission and Fee Regulatory Committee shall ensure that the fee structure of students belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Disabled persons, persons below poverty line and including wards of Freedom fighters is not exorbitant.

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F. The Admission and Fee Regulatory Committee is directed to regulate the fee as per the law laid down by their Lordships of the Hon’ble Supreme Court in the judgments reported in 2003 (6) SCC 697 and 2005 (6) SCC 537.”

¶208

Based on the said judgment, Mr. Sanjiv Jha, learned counsel for the petitioners submits that since the amendment carried out in Section 4 (1) (a) & Section 12 (1) (a) in 2010 was struck down by Division Bench of this Court and appointment of the Chairman of Fee Regulatory Committee as well as Appellate Authority was set aside, therefore, the Appellate Authority could not have decided the issue till the Appellate Authority was reconstituted in terms of direction of this Court.

¶209

Per contra, Mr. Sanjeev Agarwal, Advocate submits that five weeks before the date of decision in WPPIL No. 92 of 2012, 2006 Act was amended and amending Act was notified vide notification dated 02.05.2018 and the Division Bench has not disturbed the amended provisions of Section 12(3) & 12(6), as amended in 2018.

¶210

Section 12(3) of 2006 Act, as amended in 2018, provides that no act or proceeding of the Appellate Authority shall be deemed to be invalid by the reason merely of any vacancy in or any defect in the constitution of the Authority. Section 12(6) of the amending Act of 2018 provides that the Chairman shall preside over the meeting of the Authority and in absence of Chairman, the Authority shall choose one of its members for chairing that particular meeting and the Authority may adopt its own procedure as it deems fit.

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Relying upon aforesaid two provisions, Mr. Sanjeev Agarwal, Advocate submits that, even though Chairman of the Authority had ceased to hold office by virtue of judgment rendered by Division Bench of this Court, however, in view of Section 12(3)of the amending Act of 2018, vacancy in the office of Chairman cannot invalidate the decision taken by the Appellate Authority on 05.07.2018. He further submits that Division Bench of this Court had not dissolved the Appellate Authority as a whole and only appointment of Chairman was struck down on the ground that he was appointed by the State Government in the absence of nomination by Hon’ble the Chief Justice. Based on Section 12(6), Mr. Sanjeev Agarwal, Advocate submits that, in case, where Chairman is not available, the Authority may choose one of its members to preside that particular meeting and the decision taken in such meeting, cannot be said to be invalid on the ground that Chairman was not available. Thus, according to him, presence of Chairman is not necessary for a decision taken by Appellate Authority, to be valid.

¶213

Mr. Sanjiv Jha, learned counsel appearing for petitioners placed reliance upon Section 4(1) & Section 12(1) of 2006 Act and contended that since legislative intent was that Admission and Fee Regulatory Committee and the Appellate Authority has to be constituted by the State Government, with retired High Court Judge, as Chairman, nominated by Chief Justice and since Chairman of the Appellate Authority was appointed by the State Government, in the absence of any nomination by the Chief Justice, therefore, the Appellate Authority was not properly constituted. He further submits that the mischief, which was brought about by 2010amendment in the 2006 Act, was struck down by a Division Bench of this Court in

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Writ Petition (PIL) No. 92 of 2012, therefore, constitution of Fee Appellate Committee de-hors the provisions contained in 2006 Act would be invalid. He further contends that the amending Act of 2018 cannot be pressed into service for defending Appellate Authority’s order, which is impugned in the writ petition. In support of this contention that amendment made in 2018 will have no application, he relied upon a judgment rendered by Hon’ble Supreme Court in the case of ECGC Limited v. Mokul Shriram EPC JV, reported in (2022) SCC OnLine SC 184. Paragraph no. 10 of the said judgment is reproduced below:-

¶216

“ 10 . Subsequently, the Constitution Bench in a judgment reported as Garikapati Veeraya v. N. Subbiah Choudhry & Ors. approved the judgment in Hoosein Kasam Dada, though the issue was in respect of right of appeal to the Federal Court under the Government of India Act, 1935. The argument was that the appellant had a right to file an appeal as the suit, out of which the proceedings arose before this Court, was filed on 22.4.1949. Hence, he had acquired a vested right to appeal to the Federal Court which has since been replaced by the Supreme Court. It was the said argument which was accepted by the Constitution Bench when the following principles were delineated:

¶217

“23. From the decisions cited above the following principles clearly emerge:

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(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

¶219

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

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(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

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(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

¶223

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

¶224

In the case before us the suit was instituted on April 22, 1949, and on the principle established by the decisions referred to above the right of appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the sub-court to the High Court and from the High Court to the Federal Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with clause 39 of the Letters Patent and Sections 109 and 110 of the Code of Civil Procedure provided the conditions thereof were satisfied. The question for our consideration is whether that right has been taken away expressly or by necessary intendment by any subsequent enactment. The respondents to the application maintain that it has been so taken away by the provisions of our Constitution.”

¶225

Mr. Sanjiv Jha, learned counsel appearing for the petitioners has relied upon another judgment rendered by Hon’ble Supreme Court in the case of Shankarlal Nadani v. Sohanlal Jain, reported in (2022) SCC OnLine SC 442. Paragraph no. 29 of the said judgment is reproduced below:-

¶226

“ 29 . Still further, one of the principles is that the

¶227

rights of the parties have to be determined on the date

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when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors., Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur and Hardeodas Jagannath v. The State of Assam held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in the suit for possession does not suffer from any illegality”.

¶230

The aforesaid judgments, rendered in the case of ECGC Limited ( supra ) and Shankarlal Nadani ( supra ) do not support the case of the petitioners. In the said judgments, Hon’ble Supreme Court laid down the proposition that right of the parties to a proceeding have to be determined on the date when lis commences i.e. on the date of institution of the suit/proceeding.

¶231

In the case of ECGC Limited ( supra ), the question, which was considered by Hon’ble Supreme Court, was whether the appeal filed by ECGC Limited would be governed by Consumer Protection Act, 2019 or Consumer Protection Act, 1986. Under 2019 Act, onerous condition of pre deposit of 50% of the amount required to be paid, was added for filing an appeal,

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whereas, under 1986 Act, appellant was required to deposit 50% of the amount or ₹50,000/-, whichever is less. In that backdrop, Hon’ble Supreme Court held that condition of deposit of 50% of the amount, as awarded by National Commission, will not be applicable to the complaints filed prior to enforcement of 2019 Act.

¶234

In the case of Shankarlal Nadani ( supra ), Rajasthan Rent Control Act, 2001 was not applicable to the locality where shop was situate, at the time of filing of suit for possession by the landlord, however, during pendency of the suit, provision of said Act was made applicable. In that backdrop, Hon’ble Supreme Court has held as under:-

¶235

“ 28 . Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit.”

¶236

In the present case, petitioners had not approached any Court, Tribunal or Authority before

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enforcement of Amending Act of 2018, therefore, ratio of the aforesaid judgments that rights of the parties have to be determined on the date when lis commences, is not applicable to the facts of the case. Petitioners have filed these writ petitions after enforcement of amending Act of 2018, and they had not approached any judicial/quasijudicial authority earlier, therefore, the contention raised on behalf of petitioners that sub-Section (3) of Section 12 of 2006 Act, as amended in 2018 cannot be pressed into service for protecting the decision taken by Appellate Authority, cannot be accepted.

¶239

Learned counsel for the petitioners has laid great emphasis on the expression “other bodies established under Law” used in Section 2 of 2006 Act. The said expression is followed by “State Funded Universities”, “Councils” and “Boards” and it is provided that 2006 Act will apply only to such private professional educational institutions, which are affiliated to State Funded Universities, Councils, Boards and other bodies established under Law, excluding minority institutions.

¶240

Learned counsel for the petitioners contends that the expression ’other bodies established under law’ will bring respondent no. 4 within fold of 2006 Act, while respondents’ counsel contends otherwise. Hon’ble Supreme Court has applied Rule of ejusdem generis for interpreting a statute, when particular words pertaining to a class, category or genus are followed by general words and the general words are construed as limited to things of the same kind as those specified, as held by Hon’ble Supreme Court in the case of Kavalappara Kottarathil Kochuni v. State of Madras, reported in AIR 1960 SC 1080.

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In the case of Amar Chandra Chakraborty vs. Collector of Excise, Tripura, reported in (1972) 2 SCC 442, Constitution Bench of Hon’ble Supreme Court explained the Rule of ejusdem generis , in the following words:-

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“The ejusdem generis rule, strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category-, (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration and (v) there is no indication of a different legislative intent.”

¶244

Hon’ble Supreme Court has also applied another rule of construction, namely, noscitur a sociis , in ascertaining the meaning of doubtful word by reference to the meaning of words associated with it, such doctrine is broader than the maxim ejusdem generis. Privy Council in the case of Angus Robertson v. George Day, reported in (1879) 5 AC 63, p. 69, has held that “it is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them”.

¶245

The Rule of noscitur a sociis has been explained by Hon’ble Supreme Court in the case of State of Bombay & others Vs. Hospital Mazdoor Sabha & others, reported in AIR 1960 SC 610, which reads as under:-

¶246

“It is, however, contended that, in construing the definition, we must adopt the rule of construction noscitur a sociis. This rule, according to Maxwell, means that, when two or more words

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which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take is it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in " Words and Phrases " (Vol. XIV, P. 207): " Associated words take their meaning from one another under the doctrine of noscitura sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis." In fact the latter maxim “is only an illustration or specific application of the broader maxim Noscitura Sociis. ””

¶249

In the humble opinion of this Court, the rule of ejusdem generis and noscitur a sociis can be applied for interpreting the expression “other bodies established under law”, as the condition precedent for application of the aforesaid rules are present.

¶250

Thus viewed, the expression “other bodies established under law” must have the trappings of State Funded Universities, Councils or Boards, namely, to grant affiliation, conduct examinations and award degree/diploma/certificate. The submission made on behalf of petitioners that since Swami Rama Himalayan University is established under a State law, therefore, is covered by 2006 Act for fee determination, cannot be accepted.

¶251

Act of 2006 would apply to colleges and not to universities, whether private or State funded. Universities cannot be brought within its fold due to the expression “other bodies established under law” used in Section 2. The condition precedent for application of the

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Act, as mentioned in Section 2, is affiliation. Colleges need affiliation, while a university is self-sufficient and does not need affiliation. Thus, 2006 Act would apply to a Private Professional Educational Institution, if such institution is affiliated to any of the bodies enumerated in Section 2 of the Act. It is not in dispute that respondent no. 4 is a constituent college of Swami Rama Himalayan University, therefore, it does not require affiliation from any other body.

¶254

Learned counsel for the petitioners submits that Section 3 (p) of 2006 Act, defined “Private Professional Educational Institution” and included all professional institutions not established or maintained by Central/State Government, except minority institutions, therefore, respondent no. 4 will come within fold of Section 3(p), thus 2006 Act will be applicable.

¶255

The said submission is not acceptable for the following reasons:-

¶256

i) Section 3(p) of 2006 Act was substituted by Amending Act of 2018, and after amendment it provides that “Private Institutions means Unaided private professional higher educational institutions on which this Act applies”; applicability has to be seen with reference to Section 2 of the Act and Section 3(p), as it was before amendment, also cannot make the Act applicable to a college, which is not covered by Section 2 of the 2006 Act.

¶257

ii) Section 5(1) of 2006 Act after lying down the factors to be kept in mind while determining the fee structure, provides that

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the Admission and Fee Regulatory Committee shall determine the fee or fees to be charged by Unaided Private Professional Educational Institution affiliated to a State University. Without such affiliation, 2006 Act will not have any application to a private professional institution.

¶260

From the scheme of 2006 Act, the legislative intent is revealed that it was not meant for regulating fee in respect of constituent colleges of private Universities established under State law. Section 13 of 2006 Act, which lays down the penalties which can be imposed upon Private Professional Educational Institution, also reveals that in case of any violation of the Act by an institution, the committees constituted under the Act may direct withdrawal of affiliation from the statutory body with which the institution is affiliated. In case of constituent college of a private University, such penalty will not work, as constituent college cannot be deaffiliated and the University itself will have to be dissolved.

¶261

Learned counsel for the petitioners contends that 2006 Act was enacted pursuant to the directions issued by Hon’ble Supreme Court in the case of Islamic Academy of Education & another Vs. State of Karnataka & others, reported in (2003) 6 SCC 697, therefore, provisions of 2006 Act have to be read in the light of the said judgment and in case of any ambiguity, 2006 Act has to be read and understood in the light of the judgment rendered by Hon’ble Supreme Court. Thus, according to learned counsel for petitioners, Hon’ble Supreme Court had directed regulation of fee structure in

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respect of all private unaided professional institutions, therefore, every private professional institution must be treated as covered by 2006 Act, even if it involves doing violence to any provision of 2006 Act.

¶264

This submission also does not hold much substance, in view of para 20 of the judgment rendered in Islamic Academy of Education (supra), where it was observed that the direction for setting up two sets of Committees in the States, issued under Article 142 of the Constitution of India shall remain in force till appropriate legislation is enacted by Parliament. Once the State Legislature by exercising its plenary legislative power, enacts a legislation on the subject of fee regulation, then in my humble opinion it would not be possible to hold that a constituent college of a private university, if not covered by 2006 Act, can be subjected to fee regulation under the said Act, by having recourse to the aforesaid judgment. This view is supported by the observations made by Hon’ble Supreme Court in para 155 of the subsequent judgment rendered in the case of P.A. Inamdar & others vs. State of Maharashtra & others, reported in (2005) 6 SCC 537. Para 155 of the said judgment is extracted below:-

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“155. It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well-thought out legislation on the subject. Such a legislation is long awaited. The States must act towards this direction. The judicial wing of the State is called upon to act when the other two wings, the legislature and the executive, do not act. The earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase

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until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction.”

¶268

Learned counsel for the petitioners then submits that since the problem, which was addressed by 2006 Act, was to check profiteering by private professional educational institutions, therefore, even if there is any ambiguity in the provision of the said Act, especially Section 2 thereof; by applying Heydon’s Rule or by adopting ‘purposive construction’, constituent colleges of Private Universities imparting instructions in professional courses can be governed by 2006 Act.

¶269

Heydon’s rule, which is also known as ‘purposive construction’ or ‘mischief rule’, is invoked when the material words in a statute are capable of bearing two or more constructions. This rule enables consideration of four matters in construing an Act; (i) What was the law before the making of the Act; (ii) What was the mischief or defect for which the law did not provide; (iii) What is the remedy that the Act has provided; and (iv) What is the reason of the remedy. This rule was explained by Hon’ble Supreme Court in the case of Bengal Immunity Co. v. State of Bihar, reported in AIR 1955 SC 661. In the case of Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Shrimati Sodra Devi, reported in AIR 1957 SC 832, the question before Hon’ble Supreme Court was whether the expression “individual” used in Section 16(3) of Income

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Tax Act would include ‘female’ so as to add income of her minor sons in her income. Hon’ble Supreme Court expressed the view that rule in Heydon’s case is applicable only when the words in question are ambiguous and are reasonably capable of more than one meaning. In that case, criticizing the mode of approach of the High Court stated “ the High Court of Madhya Pradesh plunged headlong into a discussion of the reasons which motivated the Legislature into enacting Section 16 (3) by Act 4 of 1937, and took into consideration the recommendations made in the Income Tax Enquiry Report, 1936 and also the statement of objects and reasons for the enactment of the same, without considering in the first instance whether there was any ambiguity in the word “individual” as used therein. It is clear that unless there is any such ambiguity it would not be open to the court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used”

¶272

After considering the legal position, Hon’ble Supreme Court held in para 44 of the aforesaid judgment that “there is nothing in the policy of the legislation and the scope and object of the statute which compels one to cut down the natural meaning of the word “individual” used in sub-section (3) of Section 16 of the Act so as to confine it to a male individual alone”.

¶273

Similarly, in the case of Kanailal Sur v. Paramnidhi Sadhukhan, reported in 1957 SC 907, Hon’ble Supreme Court has held that “recourse to object and policy of the Act or consideration of the mischief and defect, which the Act purports to remedy is only permissible when the language is capable of two

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constructions. But it has already been seen that for deciding whether the language used by the Legislature is plain or ambiguous it has to be studied in its context, and ‘context’ embraces previous state of the law and the mischief which the statute was intended to remedy”.

¶276

From the aforesaid judgments, it is apparent that Heydon’s rule cannot be applied whenever the purpose of legislation is defeated, due to some ambiguity in a provision and there are certain pre-conditions, which have to be fulfilled before the said rule can be invoked for construing a provision in the legislation so as to advance its purpose.

¶277

Having regard to the express provisions of the 2006 Act, this Court finds little scope for invoking Heydon’s rule for construing provision contained in 2006 Act in the manner suggested by learned counsel for the petitioners. Hon’ble Supreme Court has repeatedly held that normally ‘golden’ or ‘literal’ rule of interpretation of statute has to be followed and further that a statute must be read as a whole and not in isolation, ignoring other provisions of that statute.

¶278

Hon’ble Supreme Court in the case of Sushil Kumar Agarwal vs. Meenakshi Sadhu & others , reported in (2019) 2 SCC 241 laid down the conditions in which a court would be justified in departing from the plain words of the statute. In my humble opinion, the conditions necessary for construing the words differently from their plain meaning, are not present in the present case. In para 26 of the aforesaid judgment, the circumstances under which departure can be made from the plain words, have been enumerated as follows:-

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“26. The conditions that should be present to justify a departure from the plain words of any statute, have been elucidated in Justice G.P. Singh’s treatise on Principles of Statutory Interpretation (while discussing the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. ):

¶281

“...a court would only be justified in departing from the plain words of the statute when it is satisfied that (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative objective; and (4) the language of the statute is susceptible of the modification required to obviate the anomaly.”

¶282

The principle has been also adverted to in Maxwell on Interpretation of Statutes :

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“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.””

¶284

In the case of State of Maharashtra vs. Shri Vile Parle Kelani Mandal & others , reported in (2022) 2 SCC 725 , Hon’ble Supreme Court has held as under:-

¶285

“ 17. In Godrej & Boyce Mfg. Co., it is observed and held by this Court that where the words of the statute are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. It is further observed that it is the bounden duty and obligation of the court to

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interpret the statute as it is. It is further observed that it is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated.”

¶288

Similarly, in the case of Supreme Paper Mills Limited vs. Assistant Commissioner, Commercial Taxes, Calcutta & others , reported in (2010) 11 SCC 593 , Hon’ble Supreme Court has held, as under:-

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“16. The aforesaid provision is clear and explicit and there is no ambiguity in it. If the legislature had intended to give any other meaning as suggested by the counsel appearing for the appellant it would have made specific provision laying down such conditions explicitly and in clear words. It is a well-settled principle in law that the court cannot add anything into a statutory provision, which is plain and unambiguous. Language employed in a statute itself determines and indicates the legislative intent. If the language is clear and unambiguous it would not be proper for the court to add any words thereto and evolve some legislative intent not found in the statute.”

¶290

Similar view was taken by Hon’ble Supreme Court in the case of Pallawi Resources Limited vs. Protos Engineering Company Private Limited , reported in (2010) 5 SCC 196 . Relevant paragraphs of the said judgment are reproduced below:-

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“ 17. A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute. While dealing with a statutory instrument, one cannot be allowed to pick and choose. It will be grossly unjust if the court allows a person to single out and avail the benefit of a provision from a chain of provisions which is favourable to him. Reference may be made to a Constitutional Bench decision of this

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Court in Prakash Kumar v. State of Gujarat. The Court, in para 30, of that judgment observed as follows:

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"30. By now it is well-settled principle of law that no part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is also trite that the statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved."

¶295

18. We wish to also refer to a latest judgment of this Court reported as SAIL v. SUTNI Sangam, wherein this Court, very succinctly reiterated the aforesaid position in, para 67, as follows:

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"67. The learned counsel, however, invited our attention to take recourse to the purposive interpretation doctrine in preference to the literal interpretation. It is a well settled principle of law that a statute must be read as a whole and then chapter by chapter, section by section, and then word by word. For the said purpose, the scheme of the Act must be noticed. If the principle of interpretation of statutes resorted to by the court leads to a fair reading of the provision, the same would fulfil the conditions of applying the principles of purposive construction."

¶297

19. From these authorities, it is amply clear that a provision in a statute ought not to be read in isolation. On the contrary, a statute must be read as an integral whole keeping in view the other

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provisions which may be relevant to the provision in question in order to correctly arrive at the legislative intent behind the provision in question. Applying this principle to the case at hand which involves an interpretation of Section 17 (4-A), it will not be appropriate for us to read sub-section (4-A) of Section 17 ignoring the other relevant provisions.

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22. The stand of the learned Senior Counsel appearing on behalf of the appellant that under sub-section (4-A) of Section 17 there is automatic fixation of the fair rent without any reference to the Rent Controller is untenable as it is not in conformity with the cardinal rule referred to above by us.”

¶301

In the case of Ansal Properties and Industries Limited vs. State of Haryana and another , reported in (2009) 3 SCC 553 , Hon’ble Supreme Court has held, as under:-

¶302

“ 38 . When the provisions of Section 3(3)(a)(iv) are analysed, it would be apparent that the word used in the said provision is "land" and it has been specifically mentioned therein that if the colonizer does not construct the community buildings and facilities on its own or through its agency or organization or individual, then the said licensee would be required to transfer the said land set apart for the aforesaid purpose free of cost to the Government. The Government's claim is therefore restricted to lands which the developer has failed to develop as community centres. In other words only that land which the developer has not been able to develop as community service facilities would stand transferred to the Government free of cost and the said land could be

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utilized by the Government for the aforesaid purpose either by itself or through its agency.

¶305

39. If the legislature had intended that the licensee is required to transfer the land and also to construct the buildings on it or to make payment for such construction, the legislature would have made specific provisions laying down such conditions explicitly and in clear words in which event the provisions would have been worded in altogether different words and terms. It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statue.

¶306

40 . In Ganga Prasad Verma (Dr.) v. State of Bihar, it has been held that:

¶307

Where the language of the Act is clear and explicit, the court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.

¶308

41 . Mr. Anoop G. Chaudhary, learned Senior Counsel wanted us to read the provision of the Section 3(3)(a)(iv) of the Act by adding a few words to it, for according to him the latter part of the aforesaid section i.e. the obligation of the appellant to transfer to the Government at any time free of cost the land, should be read by adding the provisions of the earlier part of the section i.e. to construct at his own cost the community centres and other community buildings on the lands set apart for this purpose. The

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aforesaid contention apparently arises out of the complete misreading of the aforesaid provision.

¶311

42 . The responsibility regarding construction of community centres and other community buildings could be discharged by adopting any of the three options as mentioned hereinbefore and each one of such options is an independent option and one cannot be connected and related with the other. We cannot read the provision relating to construction at the own cost of the developer the schools, hospitals, community centres and other community buildings on the land set apart for this purpose, into an independent alternative provision relating to transfer of such land to the Government free of cost. The aforesaid option given to the developer to construct the community centres and other community buildings at its own cost is when he can utilize himself manage it. Therefore, we cannot read the aforesaid provision in the manner sought to be read by Mr. Chaudhari, for reading by adding certain words in the aforesaid manner does not appear to be the intention of the legislature while enacting the aforesaid legislation, for otherwise the legislature would have explicitly said so in the body of the main part of the section itself.”

¶312

Mr. Sanjeev Jha, learned counsel for the petitioners then submits that Section 14 of 2006 Act contains non-obstante clause which provides that provisions of the Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, therefore, all private professional colleges, will come within its sweep and respondent no. 4 cannot be treated as exempted from application of 2006 Act. With reference to Section 14, he further contends that even if the Act, under which a

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private university is established, provides for some mechanism for fee regulation, then also its fee has to be regulated as per provision contained in 2006 Act.

¶315

The submission made on behalf of petitioners also does not hold much substance for the following reasons:-

¶316

(1) Petitioners may get benefit of Section 14 of 2006 Act, if they are able to substantiate that the said Act applies to constituent college of Private University.

¶317

(2) Non obstante clause would come into play in case of conflict between two legislations, both dealing with the same subject matter.

¶318

(3) Non obstante clause contained in Section 14 of 2006 Act would operate only against laws which existed on the date of commencement of 2006 Act and not against future laws.

¶319

It is not in dispute that the Institution (respondent no. 4) is constituent college of a University, and merely because of the non obstante clause contained in Section 14 of 2006 Act, it will not come within fold of the said Act.

¶320

Learned counsel for the petitioners further submitted that before Appellate Authority could decide pending appeal of the institution (respondent no. 4), appointment of Chairman of the Appellate Authority was set aside by a Division Bench of this Court on the ground that he was appointed without being nominated by the Chief Justice. Thus, he submits that after removal of

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Chairman, pursuant to order of this Court in WPPIL No. 92 of 2012, appellate authority cannot be said to be validly constituted, therefore, decision taken by the appellate authority, sans Chairman would be a nullity.

¶323

Per contra, learned counsel for respondent no. 4 submits that decision taken by Appellate Authority cannot be faulted merely because Chairman of the Appellate Authority was not in office at the relevant point of time. He further submits that all members of Appellate Authority were holding office and they had validly taken decision in the appeal filed by respondent no. 4, in exercise of their statutory power. He has referred to sub-section (6) of Section 12, which provides that in the absence of Chairman of Appellate Authority, the Authority shall choose one of its members for chairing a particular meeting and the Authority may also adopt its own procedure, as it deems fit. Thus, according to him, due to absence of Chairman, Authority had chosen one of its members for chairing that particular meeting and decision was taken in the pending Appeal, as per law. He has also drawn attention of this Court to sub-section (3) of Section 12 of 2006 Act, which reads as under:-

¶324

“S. 12(3). No act or proceeding of the Appellate Authority shall be deemed to be invalid by the reason merely of any vacancy in or any defect in the constitution of the Authority.”

¶325

Thus, learned counsel for respondent no. 4 submits that decision taken by Appellate Authority cannot be faulted merely because office of its Chairman had fallen vacant or for any defect in the constitution of the Authority. Perusal of the order passed by Appellate Authority reveals that it has been

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signed by Mr. Subhash Kumar as Chairman and Dr. Rajendra Dobhal, as Member.

¶328

Learned counsel for the petitioner contends that sub-section (3) and sub-section (6) were added in 2006 Act by an amendment made in 2018, however, it is not in dispute that amending Act of 2018 was enforced on 02.05.2018 while decision taken by Appellate Authority, impugned in this writ petition, is dated 05.07.2018. Thus, it is apparent that sub-section (3) & sub-section (6) were added in Section 12 of 2006 Act, much before the impugned decision was taken by Appellate Authority, therefore, will come within protective umbrella of Section 12(3) of 2006 Act.

¶329

Learned counsel for the petitioner contends that amendment made in 2018 cannot be pressed into service for saving the decision taken by Appellate Authority on 05.07.2018, however, he could not substantiate this argument. The judgments relied by petitioners’ counsel, namely, Shankarlal Nadani v. Sohanlal Jain, (2022) SCC OnLine 442 and ECGC Limited v. Mokul Shriram EPC JV, (2022) SCC OnLine SC 184, are on a different point altogether, namely, the rights of the parties have to be determined on the date when lis commences i.e. on the date of filing of the suit. Paragraph nos. 28 & 29 of the judgment rendered by Hon’ble Supreme Court in the case of Shankarlal Nadani ( supra ) succinctly summarises the legal position on the point, which is extracted below:-

¶330

“ 28 . Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became

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¶332

applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit.

¶333

29 . Still further, one of the principles is that the rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors., Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur and Hardeodas Jagannath v. The State of Assam held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in

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the suit for possession does not suffer from any illegality.”

¶336

It is not the case of petitioners that they had instituted any proceeding/suit or filed any application before any judicial/quasi-judicial authority. The aforesaid judgments would have helped petitioners, if their right of appeal against the order passed by such authority was tinkered with or some onerous condition was attached to their right to appeal, through amendment. Petitioners, however, had not approached any forum and they were not even party to the proceedings before Appellate Authority or Fee Regulatory Committee, thus, the two authorities relied by them, do not help them.

¶337

Learned counsel for the petitioners then contends that while striking down the amendments made in clause (a) of sub-section (1) of Section 4 and clause (a) of sub-section (1) of Section 12 of 2006 Act, Division Bench of this Court had directed the Admission and Fee Regulatory Committee to regulate the fee as per law laid down by Hon’ble Supreme Court in the case of Islamic Academy of Education and another v. State of Karnataka and others reported in (2003) 6 SCC 697 and P.A. Inamdar & others vs. State of Maharastra & others reported in (2003) 6 SCC 697. Therefore, learned Appellate Authority erred in ignoring the said direction issued by Division Bench of this Court.

¶338

Per contra learned counsel appearing for respondent no. 4 submitted that the judgment was rendered by Division Bench of this Court on 12.06.2018; while the amendment made in Sections

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4 & 12 in the year 2010 was nullified by another amendment, made in 2018, which was not brought to the notice of Division Bench. He points out that 2018 amendment was notified on 02.05.2018 i.e. more than five weeks before the judgment in Writ Petition (PIL) No. 92 of 2012. He further submits that after enactment of 2006 Act, pursuant to direction of Hon’ble Supreme Court, Appellate Authority could not have gone back to the judgment rendered by Hon’ble Supreme Court in the case of Islamic Academy (supra) and P.A. Inamdar (supra) for holding that private university and its constituent college would also be governed by 2006 Act. He further submits that Appellate Authority has been created under a State legislation, thus, it is a statutory authority, therefore, it has to decide an appeal within the parameters laid down in the statute. He further submits that the judgment rendered by Hon’ble Supreme Court in the case of P.A. Inamdar (supra) does not deal with regulation of fee. This Court finds substance in the submission made on behalf of respondent no. 4. Once a legislation is enacted, then an authority created by such legislation has to decide the issues as per provision of the said legislation, and it cannot consider anything not provided in the statute.

¶341

Learned counsel for the petitioners has relied upon the judgments rendered by Hon’ble Supreme Court in the case of M. Aamira Fathima and others v. Annamalai University and others, reported in (2018) 9 SCC 171 and Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others, reported in (2016) 7 SCC 353.

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Both the judgments relied on behalf of petitioners are distinguishable on facts.

¶344

In the case of M. Aamira Fathima (supra) Court was dealing with Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992, in which the expression ‘educational institution’, as defined in Section 2(b), included all institutions by whatever name called, and after considering provisions of 1992 Act, it was held that private Universities are also covered under the expression ‘educational institution’.

¶345

The definition of Educational Institution given in Tamil Nadu Act is reproduced below:-

¶346

“Section 2(b) “educational institution” means:

¶347

(I) any institution by whatever name called, whether managed by any person, private body, local authority, trust or University, carrying on the activity of imparting education leading to a degree or diploma (including a degree or diploma in law, medicine or engineering) conferred by any University established under any law made by the Legislature of the State of Tamil Nadu.

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and

¶349

(II) any other educational institution or class or classes of educational institutions (other than any educational institution established by the Central Government or under any law made by Parliament) as the Government may, by notification, specify.

¶350

Hon’ble Supreme Court, by interpreting part II of Section 2(b) of Tamil Nadu Act held that the State Government can make the provisions of 1992 Act applicable to any other educational institution, except those established by Central Government or under a Central legislation.

¶351

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Since 2006 Act of Uttarakhand does not contain any provision analogues to Section 2(b) (II) of Tamil Nadu Act, therefore the said judgment does not help the petitioners.

¶353

Similarly, the judgment rendered in the case of Modern Dental College and Research Centre (supra) is also distinguishable on facts. In the said case, Hon’ble Supreme Court was dealing with the question of validity of a 2007legislation on regulation of fee in private professional educational institutions enacted by State Legislature of Madhya Pradesh. Challenge to the said legislation was made by the private medical/dental colleges as regards (i) provision relating to admission; (ii) provision relating to fixation of fee; (iii) provision for reservation; and (iv) provision relating to eligibility for admission. The validity of the said legislation was upheld by Hon’ble Supreme Court. Paragraph no. 190 of the said judgment is reproduced below:-

¶354

“190. For the foregoing discussion, I hold that the State has the legislative competence to enact the impugned legislation- the 2007 Act to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai, Islamic Academy of Education and P.A. Inamdar. Regulations on admission process are necessary in the larger public interest and welfare of the

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student community to ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering. With the above reasonings, I concur with the majority view in upholding the validity of the impugned legislation and affirm the well merited decision of the High Court.”

¶357

Himalayan Institute of Medical Sciences (respondent no. 4) is a constituent college of Swami Rama Himalayan University, established under Himalayan University Act, 2012 (hereinafter referred to as ‘Uttarakhand Act No. 12 of 2013’). Section 2(j) of the said Act defines ‘constituent college’ as follows:-

¶358

“S.2(j) 'Constituent College' means a college or institution maintained and managed by the University.”

¶359

Section 4 of the said Act provides for establishment of the University. Section 5 of the said Act provides that State shall not be under any statutory obligation to grant Financial Assistance to the University. Section 6 of the said Act provides that the University may have its own Constituent Colleges, Regional Centres, Study Centres, but it shall have no power to admit any other college or institution to the privileges of affiliation. Thus, the University established under the said Act cannot grant affiliation to any college. Section 8 of the said Act enumerates powers that are available to the University and clause (n) of Section 8 (1) provides that University can demand and receive such fee,

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bills, invoices and collect charges as may be fixed by the Statutes or rules, as the case may be. Section 12 of the said Act lays down that Governor of Uttarakhand shall be Visitor of the University, who under sub-section (3) of Section 12 of the said Act, can call for any paper or information relating to the affairs of the University and, on the basis of such information, he may issue directions as he may deem fit in the interest of the University, which shall be complied with by all concerned. Section 27 of the said Act enumerates the matters, which can be dealt with by the statutes of the University, while Section 30 enumerates the matters, which may be dealt with by framing rules.

¶362

Clause (f) and (g) of Section 30 of the said Act (Act No. 12 of 2013) empowers the University to make rules as regards fee chargeable from students for various courses and also for admission to examinations etc. Learned counsel for respondent no. 4 has drawn attention of this Court to sub-section (3) of Section 46 of the said Act and sub-sections (5)&(6) of Section 47 in support of his contention that the University is subject to supervision and control of State Government and the Visitor in respect of financial matters also. He further submits that University can be dissolved under Section 49(2), if it fails to carry out directions issued by the State Government.

¶363

Act No. 12 of 2013 was amended vide Act No. 30 of 2013 and name of the University was changed from Himalayan University to Swami Rama Himalayan University.

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Mr. Sanjeev Agarwal, learned counsel appearing for respondent no. 4 has referred to the first statute of the University, particularly clause (nn) of clause 4.05(2). Clause (nn) empowers the Board of Management of the University to determine/amend fee and other charges for various courses conducted by the University in consultation with the Finance Committee. He has also referred to Rules 7 & 8 of the first Rule of University framed in 2014. Rule 7 provides that Board of Management would be competent to determine the fee structure for a course and for this purpose, a fee committee shall be constituted, based on whose recommendation, fee shall be determined by the Board of Management, which shall be valid for three academic sessions. Rule 8 provides that on the recommendation of Board of Examinations and in consultation with the Finance Committee, Board of Management shall decide the fee to be charged for University examinations, degrees and other academic distinctions.

¶366

In the present case, the question which falls for consideration of this Court is whether 2006 Act is applicable to respondent no. 4 (institution) for its fee determination or not. From the scheme of the 2006 Act, as discussed above, this Court finds that the said Act cannot be made applicable to respondent no. 4. However, this Court is not expressing any opinion regarding applicability of Act No. 12 of 2013 for fee determination.

¶367

In the year 2006, when the Uttarakhand Unaided Private Professional Educational Institutions

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(Regulation of Admission and Fixation of Fee) Act, 2006 was enacted, there were no private universities in Uttarakhand and all private professional colleges were affiliated to some University, Board or Council. With the advent of private universities, however, situation has changed and many unaided private professional colleges are being run as constituent college of private universities. The State legislature therefore has to step-in to make the legislation in sync with present day scenario.

¶370

For the foregoing reasons, this Court does not find any reason to interfere with the order passed by the Appellate Authority, which is impugned in this writ petition. The consequential orders issued by State Government and the notice issued by Registrar of respondent no. 4 (institution) in terms of decision of Appellate Authority also cannot be interfered with.

¶371

Accordingly, petitions fail and are dismissed. No order as to costs.

¶372

(MANOJ KUMAR TIWARI, J.)

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Arpan

Tapasya Rawat v. State of Uttarakhand

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Tapasya Rawat v. State of Uttarakhand

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