TaxTMI 
TaxTMI 
2018 (7) TMI 2345
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....rected against the common judgment and order dated 26.09.2016 passed by the High Court of Judicature at Madras in Writ Appeal No. 1637 of 2014 and other connected matters. Matter arising from Writ Appeal No. 1637 of 2014 which in turn arose from Writ Petition No. 20720 of 2014, namely M. Aamira Fathima and Ors. v. Annamalai University and Ors. is taken to be the lead matter and the facts leading to the filing of the said writ appeal are set out in detail hereunder. 2. Annamalai University (hereinafter referred to as "the University") was constituted under the Annamalai University Act, 1928 (Madras Act No. 1 of 1929)^[1]. This Act received the assents of Governor and Governor General on 03.11.1928 and 11.12.1928 respectively and was first published in the Fort of St. George Gazette dated 01.01.1929. The University established Respondent No. 2 College, namely, Rajah Muthiah Medical College in the year 1985. 3. In 1992 the State legislature enacted the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 (hereinafter referred to as "1992 Act"). Section 2 defined Educational Institution as under: (b) "educational institution" means ....
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....es of such educational institutions in respect of any or all class or classes of students: Provided that before issuing a notification under this subsection, the draft of which shall be published in the Tamil Nadu Government Gazette stating that any objection or suggestion which may be received by the Government, within such period as may be specified therein, shall be considered by them. (2) No educational institution shall receive or collect any fee or accept deposit in excess of the amount notified under Sub-section (1). (2-A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), no educational institution imparting education leading to a degree in medicine or engineering shall receive or collect any fee in excess of the amount fixed by the 'Committee on fixation of fee' constituted by the Government. Explanation-For the purpose of this Sub-section 'Committee on fixation of fee' means the Committee constituted in pursuance of the direction of the Supreme Court in Islamic Academy of Education and Anr. v. State of Karnataka and Ors. [(2002) (sic 2003) 6 SCC 697]. (3) Every educational institution shal....
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.... 6. In 2013, the State Legislature enacted the Annamalai University Act, 2013 (hereinafter referred to as "2013 Act") which came into force w.e.f. 25.09.2013 and repealed the Annamalai University Act, 1928. Sections 3(1), 4(13) and 20(1)(m) and (ab) of said 2013 Act were as under: 3(1) On and from the date of commencement of this Act, the Annamalai University established under the Annamalai University Act, 1928 shall be deemed to have been established and incorporated under this Act and is hereby declared to be the University by the aforesaid name. 4. The University shall have the following objects and powers, namely: (1) to (12)..................... (13) to fix fees and to demand and receive such fees as may be prescribed; 20. (1) The Syndicate shall have the following powers, namely: (a) to (l)................... (m) to prescribe the fees to be charged for admission to the examinations, degrees, titles and diplomas of the University and for all or any of the purposes specified in Section 4: (n) to (z)(aa)................ (ab) to charge and collect such fees as may be prescribed; (ac) to (a....
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....e Judge then proceeded to consider whether the provisions of 1992 Act would apply and get attracted in the present case. After considering the definition of Educational Institution Under Section 2(e) of 1992 Act, he observed that for the purposes of application of the provisions of 1992 Act, the concerned Institution must have been notified by the State Government under the said 1992 Act. It was further observed that the University was initially established in pre-independence days and merely because the earlier Act was repealed and replaced by 2013 Act, the first limb of Section 2(b) would not apply without the State Government referring the University to the Fee Fixation Committee. 10. The correctness of the decision of the Single Judge was questioned by the students by filing Writ Appeal Nos. 1637 and 1638 of 2014. Writ Petition Nos. 6909, 6910, 12515, 27098 and 31848 of 2015 and 14562, 22911 and 26388 of 2016 preferred by some of the students were also heard along with said writ appeals by the Division Bench of the High Court. By its common judgment and order dated 26.09.2016 the Division Bench rejected the challenge and dismissed the appeals. The Division Bench affirmed the....
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....d under any law made by the Legislature of the State. There is element of certainty about this first part of definition and it is not left to the discretion of the Government in any manner. If there is a course which leads to award of degree or diploma by any University as specified, the concerned institution carrying on the activity of imparting education would be an educational institution within the meaning of said Section 2(b). The definition has an inclusive provision which is specified in the (II) part and empowers the Government to specify any other educational institution or class or classes of educational institutions. Upon such specification by notification, such institution or class or classes of institutions would also stand covered by the definition. The (II) part also contains a bracketed portion which is an exclusionary aspect of the definition. This bracketed portion excludes any institution established by the Central Government or under any law made by the Parliament with respect to which the State Government cannot, even by exercising power of specification include such institution. 13. The aforesaid analysis thus conclusively establishes that in so far as c....
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.... So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgm....
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.... should consider framing appropriate Regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. 16. The directions issued in Islamic (supra) including one regarding constitution of Fee Fixation Committee came up for consideration in P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537 and the matter was settled in following terms: 151. On Question 4, our conclusion, therefore, is that the judgment in Islamic Academy insofar as it evolves the scheme of the two Committees, one each for admission and fee structure, does not go beyond the law laid down in Pai Foundation and earlier decisions of this Court, which have been approved in that case. The challenge to setting up of the two Committees in accordance with the decision in Islamic Academy therefore, fails.............. 17. But the situation in the present matter stands on a slightly different footing inasmuch as by inserting Sub-section (2-A) along with an explanation in Section 4 in 1992 Act, Fee Fixation Committee is ....