- (1.) By Way Of This Petition Under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(A) Your Lordships may be pleased to admit and allow the present petition with cost. (B) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction by quashing and setting aside the Circular/Resolution no.109/2003 dated 29/05/2003 and Circular no.93/2013 dated 7/5/2013 by holding and declaring to be illegal and ultra vires to the powers of Executive Council and further be pleased to direct the respondents not to collect development fund fees from the petitioner college in the interest of justice; (C) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the impugned letter/order dated 10/5/2013 issued by the respondents University demanding the sum of Rs.3,49,500 towards outstanding development fund fees and further be pleased to direct the respondent to refund the petitioner the amount of development fees already charged from the petitioner since 2003 to 2004 with 18% interest and further be pleased to direct the respondents to refund the excess fees charged either as development f undertaking or any special legal charges or permanent/temporary affiliation charges with 18% interest. (D) Pending hearing and final disposal of the present petition, by way of an interim relief, YOUR LORDSHIPS may be pleased to stay the implementation and execution of the order dated 10.5.2013 and further be pleased to restrain the respondents to act as per their Circular no.109/2003 and 93/2013."
(2.) This Court (Coram: K.M. Thaker, J.) Had Passed the following order on 3.11.2014: 1. Heard Mr. Vasavada, learned advocate for the petitioner. 2. Today at the time of hearing, Mr. Vasavada, learned advocate for the petitioner tendered proposed amendment dated 1.11.2014. 2.1 By way of proposed amendment the petitioner has prayed for permission to amend the Memo of the Petition (being Special Civil Application No. 13410 of 2013) so as to add paragraph Nos. 4.21 to 4.26 and has also prayed for permission to amend the paragraph No. 8 (i.e. prayer clause) and add paragraph Nos. 8(CC) and 8(CCC). 2.2 In this context it is relevant and necessary to mention that in the petition being Special Civil Application No. 13410 of 2013 the petitioner has prayed, inter alia, that: "8(B) Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction by quashing and setting aside the Circular / Resolution no. 109/2003 dated 29/05/2003 and Circular no. 93/2013 dated 7/5/2013 by holding and declaring to be illegal and ultra vires to the powers of Executive Council and further be pleased to direct the respondents not to collect development fund fees from the petitioner college in the interest of justice; (C) Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ order or direction directing quashing and setting aside the impugned letter / order dated 10/5/2013 issued by the respondents University demanding the sum of Rs.3,49,500 towards outstanding development fund fees and further be pleased to direct the respondent to refund the petitioner the amount of development fees already charged from the petitioner since 2003 to 2004 with 18% interest and further be pleased to direct the respondents to refund the excess fees charged either as development fund or any special legal charges or permanent / temporary affiliation charges with 18% interest. 2.3 From the above quoted prayers it emerges that the petitioner has challenged the circular / resolution No. 109/2003 dated 29.5.2003 and the circular No. 93 / 2013 dated 7.5.2013 and has also prayed for declaration that the action of the respondent university of charging Development Fund Fees is unauthorized and ultravirus. 2.4 The petitioner has, by virtue of the petition prayed for refund, with interest, of the amount recovered by the respondent university from the petitioner. 2.5 Thus, in the petition the petitioner has challenged the action (levying and recovering Development Fund Fees) already taken and continued by enforcing regular (i.e. monthly / yearly) recovery of said fee. 3. Now, in the petition wherein the petitioner has challenged the action of respondent university of levying and recovering Development Fund Fees and where the petitioner has prayed for refund of the amount already recovered from the petitioner by way of Development Fund Fees, the petitioner seeks amendment as mentioned above whereby the petitioner wants to challenge subsequent and different action. 4. In this context it is pertinent to note that learned advocate for the petitioner submitted that the respondent university has already discontinued the decision and practice of recovering Development Fund Fees and the resolution / circular levying said fee is withdrawn / cancelled. Mr. Vasavada, learned advocate for the petitioner clarified that the said statement and submission is made in view of the communication dated 1.4.2014. 5. Therefore, as such, now i.e. upon withdrawal / cancellation of the decision / order levying the said fee, the cause to challenge the action of the respondent university of imposing / levying Development Fund Fees from year to year (which is subject matter of the petition) even according to petitioner, does not survive. 5.1 However, the petitioner's grievance in respect of the amount already recovered from the petitioner by way of Development Fund Fees would survive since the petitioner has prayed for refund (with interest) of the amount recovered from the petitioner. 6. However, what is relevant with regard to the request by the petitioner for permission to amend the petition is the fact that in the petition wherein the cause of action and subject matter of the petition is the action of the respondent university of imposing Development Fund Fees, which, even according to the petitioner's own submission and statement, is now discontinued by the respondent university, the petitioner wants to add new and subsequent cause of action viz. action of respondent university of subsequently introducing and levying charging certain amount, by way of and in style of late fee. 6.1 Undisputedly the action of the respondent university is a subsequent action and is different from the subject matter of this petition i.e. the dispute and grievance for which the petitioner preferred this petition. 6.2 It is also not in dispute, in view of the statement by the learned advocate for the petitioner, that the respondent university has already discontinued the practice of recovering the Development Fund Fees. 7. In view of the fact that the petition is restricted to the challenge against the respondent university's action of charging Development Fund Fees (which is, according to the petitioner's statement, now discontinued) and is also restricted to the claim for refund of the amount already recovered by way of Development Fund Fees prior to the date of petition, and having regard to the fact that the amendment sought to be made is in respect of subsequent decision and subsequent action of the respondent university whereby the respondent university, according to the petitioner's allegation, has levied another / different charge viz. late fee, (which is materially different from Development Fund Fee i.e. the subject matter of the petition) such request for permission to amend the petition does not deserve to be granted. 7.1 By way of proposed amendment the petitioner seeks to introduce challenge against new and subsequent decision and action of the respondent university which is of different nature and effect and that too in a petition wherein the petitioner has challenged other and different action and has claimed for refund of the amount already recovered by way of such different action and that therefore the proposed amendment aims at, and would result into or would cause if granted change in nature and scope of the original subject matter of the petition, i.e. the nature and scope of the petition and its subject matter will be changed. 8. Therefore, the request for permission to amend the petition as per proposed draft amendment dated 1.11.2014 is declined. 8.1 It is, however, clarified that this order will not stand in way of the petitioner if it wants to challenge the said subsequent and different decision and action of the respondent university by appropriate proceedings. 9. Now so far as the relief/s prayed for in paragraph No. 8 (B) and (C) are concerned, it is necessary to mention that Ms. Rajpurohit, learned advocate for Mr. Amit Panchal, learned advocate for the respondent university also conceded to the fact that the respondent university has discontinued the practice and action of levying and recovering amount towards Development Fund Fees. 9.1 Mr. Vasavada, learned advocate for the petitioner submitted that so far as the respondent's action of levying and recovering Development Fund Fees is concerned, it is held by the Division Bench of this Court, vide CAV Judgment dated 22.8.2013 in Special Civil Application No. 10435 of 2013 that in absence of any ordinance empowering the respondent university to charge such fees, the university is not competent to levy and recover such amount. 9.2 Mr. Vasavada, learned advocate for the petitioner also clarified that the decision is in respect of the Gujarat University however so far as the respondent university in present petition is concerned, the provision are similar / identical and that therefore the said decision in Special Civil Application No. 10435 of 2013 is squarely applicable to the facts of present case. 10. In this view of the matter, it was inquired from learned advocate for the respondent university as to whether the respondent university is ready and willing to refund the amount recovered from the petitioner by way of Development Fund Fees. 11. Learned advocate for the respondent university submitted that she is not in position to make any statement for want of specific instruction. 12. Having regard to the facts of the case and submission by learned advocate for the petitioner, below mentioned order is passed:Rule returnable on 17.11.2014."
(3.) The noteworthy facts which emerge from the record of the petition are as under: 3.1 The petitioner trust was running an institution for imparting education in B.Ed. and was affiliated to the respondent University. It appears from the record of the petition that by impugned circulars and more particularly, by circular dated 29.5.2003, the respondent University provided that every selffinance shall be required to pay development fund fee. 3.2 The record further indicates that the petitioner trust applied for permanent affiliation in the year 2003 on making payment of Rs.30,000/ being the fees for such affiliation. It appears that on receipt of such an application, by a further communication dated 17.1.2004, the University informed the petitioner that the fees for permanent affiliation is Rs.50,000/ and also directed the petitioner to pay an amount of Rs.10,000/ towards late fees and the difference thereof. The petitioner paid the said amount by a Demand Draft on 11.3.2004. It appears that thereafter, the respondent University raised a demand for development fund fee and informed the petitioner that if the development fund fee is not paid, the respondent University will not give admission to the students in the College run by the petitioner. The record indicates that the petitioner deposited an amount of Rs.50,000/ each for the academic years 200405 and 200506. It is a matter of record that every year on the basis of the circular, the respondent University raised demand as per the intake of the petitioner institution and in fact, raised demand of Rs.4,43,000/ as development fund fee from the petitioner trust. As the petitioner did not pay after 2006 and further as the petitioner did not make any payment towards development fund fee, the University, in its Executive Council, continued with the affiliation on certain conditions. The record indicates that thereafter also, the petitioner paid a further amount of Rs.25,100/ on 23.3.2012 pursuant to resolution No.10(4) passed by the Executive Council of the respondent University in its meeting held on 23.9.2011. It further appears that the respondent University insisted for further payment of fees which was subject matter of a writ petition being Special Civil Application No.10603 of 2012, which came to be disposed of by this Court vide judgment and order dated 24.4.2013 with appropriate directions. It is a matter of record that the University also deducted a sum of Rs.2,78,400/ from the deposit that was paid by the petitioner trust. The petitioner has contended that even though the respondent University is not authorized and entitled to demand any development fees, such a demand is raised. The petitioner has relied upon the judgment of the Hon'ble Division Bench of this Court rendered in Special Civil Application No.10435 of 2013 dated 22.8.2013 and has contended that the case of the petitioner is squarely covered by the said judgment. It is mainly contended that the demand and levy of development fund fee is without any authority under law and in flagrant violation of the statutory provisions. It is contended that such a demand raised is perse, arbitrary and violative of Articles 14, 19(1) (g) and 162 of the Constitution of India. It is also contended that the criteria applied by the respondent University to charge development fund fee at the rate of Rs.500/ per student is without any power, authority and basis. It is contended that in fact since the academic year 201213, there are no students and therefore, the demand raised by the respondent University is perse, illegal and amounts to colourable exercise of powers and therefore, the circulars impugned deserve to be quashed and set aside.;