- (1.) This bunch of petitions have been filed by the educational institutions challenging enhancement of fee (examination fee) by the respondent University from the students without any decision taken to amend the statute/ordinance as is required by virtue of Section 52 of the U.P. State Universities Act, 1973.
(2.) It is submitted that the issue in that regard has already been settled by a Division Bench of this Court in M.J.P. Rohilkhand University and others vs. Self Finance College Welfare Association and others , 2015 (7) ADJ 709. The Division Bench has approved the reasoning assigned by this Court in the judgment delivered in Self Finance College Welfare Association and Another vs. State of U.P. and others , 2014 (4) UPLBEC 3339. Scheme of the Act has been noticed by this Court and following observations have been made in paragraph nos.13 to 15 of the judgment in Self Finance College Welfare Association and Another (supra):- "13. A perusal of the scheme of the Act clearly goes to show that charging of fee by the university or affiliated and associated colleges has to be provided in the ordinance. Unless the demand of development fee is backed by framing of appropriate ordinance permitting such levy of development fee, the university would not be entitled to charge such amount. This provision would otherwise restrict the possibility of levying different fee by different institutions arbitrarily. The respondent university, therefore, can levy development fee only if it is so provided by an ordinance. In the instant case, no such ordinance has been brought to the notice of the Court, which permits levy of development fee, and therefore, the charging of amount as development fee is without jurisdiction. 14. The argument of Sri Vivek Verma that source of power for levy of development fee can be traced from section 21(1)(viii) also cannot be accepted. Section 21 deals with the powers of the Executive Council. Section 21(1)(viii) deals with fixation of fee, emoluments and travelling and other allowances of the examiners only. The power to levy development fee from students of the self financed colleges cannot be traced to section 21(1)(viii) of the Act. So far as the judgement of Hon'ble Single Judge in writ petition no.67119 of 2011 is concerned, it may be noticed that the specific issue requiring adjudication by this Court was not the question under consideration therein. Moreover, the provisions, which have been noticed above, were not pressed, and therefore, the judgement delivered in that matter cannot come to the rescue of the respondent university. The judgement of Hon'ble Supreme Court in Municipal Council (supra) also has no applicability to the facts of the present case inasmuch as the judgement of the Apex Court dealt with the fixation of fee by the municipality and the question was as to whether the levy was a fee or tax. The judgements relied upon by Sri Vivek Verma, therefore, have no applicability to the facts of the present case. 15. Considering the aforesaid facts and circumstances of the case, this Court finds that the demand of the university to levy development fee since is not backed by the appropriate statutory provision, therefore, it cannot be sustained. The law is otherwise settled that if the statute requires a thing to be done in a particular manner, it has to be done in that matter alone and no other procedure for the purpose can be resorted. Once the Act provides the procedure for determination of fee, the university was bound to have charged fee only in such manner and its decision to levy the development fee without complying with the provisions of the Act cannot be sustained. Consequently, writ petition succeeds and is allowed."
(3.) The reasoning in the aforesaid judgment has been affirmed in special appeal. However, the direction to refund the amount to students has been set aside on the ground that details of the students, to whom amount was to be refunded, were not available. Para 8 and 9 of the Division Bench judgment in M.J.P. Rohilkhand University and others (supra) are reproduced hereinafter:- "8. In conclusion therefore, we are of the view that the learned Single Judge was not in error in coming to the conclusion that in the absence of an Ordinance being framed in exercise of powers conferred by Section 52 of the Act, the University acted ultra vires by levying a Development fee on students of self financed institutions. This is a matter where the University would have to frame an Ordinance before it can regulate and demand a fee to that effect. 9. The remaining question that survives for consideration is in regard to the ultimate relief which was granted by the learned Single Judge. The University has already realized the development fee through the constituent colleges which collected the fee from individual students which was then remitted to the University. The learned Single Judge directed the University to refund the fee to the colleges with a further direction to the colleges to refund the fee to the students. In our view, this would not necessarily result in a situation where the fee would directly reach the hands of students to whom the fee would have to be given. Some of them may have left their colleges having completed the courses. The learned Single Judge had no data or material that would indicate how many students was the fee collected from; how many students were still pursuing their education in constituent or affiliated colleges and how many had left their courses of study either by completing their courses or otherwise. The order of the learned Single Judge should not in our view result in a situation where the colleges ultimately retain the fee upon the refund being made by the University without the students obtaining a refund of the fees which they have paid. In our view, such a direction was not warranted. In the absence of sufficient data and in the absence of details of students before the Court, it would not be appropriate or proper to issue such a direction. That part of the direction consequently shall stand quashed and set aside. We, however, sustain the declaration by the Single Judge that the levy of a Development fee without framing an Ordinance under Section 52 of the Act is ultra vires and illegal." ;