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Judgment
Sudhanshu Dhulia, J
The petitioner before this Court is an Ayurvedic College which is aggrieved by the fee fixed by the Fee Regulatory Committee, against which an appeal is pending before the Appellate Authority which is provided under the Uttaranchal Un-aided Private Professional Education Institutions (Regulation of Admission and Fixation Fee) Act, 2006 (from hereinafter referred to as the "Act").
When the matter was taken up before the Appellate Authority, the students who are respondent nos. 4, 5 and 6 before this Court, moved an impleadment application for impleading them as party before the Appellate Authority.
By the order dated 18.09.2019, the Appellate Authority has passed an order directing the private respondent nos. 4, 5 and 6 before this Court to be impleaded as party before the Appellate Authority. This order has been challenged by the petitioner before this Court on ground that under the Act there is no provision to hear the students either before the Appellate Authority or before the Regulatory Committee as to how much tuition fee should be fixed in their case.
Learned counsel Sri Vijay Bhatt who has appeared for private respondent nos. 4, 5 and 6 has relied upon the amended Section 13 of the Uttarakhand Unaided Private Professional Education Institution (Regulation of Admission and Fixation of Fee) (Amendment) Act, 2018. Section 13 of the amended Act, 2018 reads as under:-
"13. 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-
(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.
(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.
(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.
(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.
(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.
(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 received by way of capitation fee or any amount received for profiteering:
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.
(g) Order the institution to stop admission or reduce the sanctioned intake in any professional course for such period as it may deem fit.
(h) All such directions or orders shall be binding on private institutions:
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."
(Emphasis provided)
Learned counsel for private respondent nos. 4, 5 and 6 would harp upon the proviso and say that a reasonable opportunity has to be given to such persons or institutions by the Admission and Fee Regulatory Committee and the Appellate Authority.
However, this argument of the learned counsel for private respondent nos. 4, 5 and 6 is totally misplaced inasmuch as the said proviso applies to the institutions or the authority against whom a complaint has been filed that they have charged an excess fee and the fee is to be refunded. The opportunity of hearing has to be given to such a person. It is not concerned with the students.
In any case, it is not practical either for the Fee Regulatory Committee or the Appellate Authority to hear students and therefore rightly this provision has not been included in the Act where the students have also to be heard before fixing tuition fee, etc.
Learned counsel for private respondent nos. 4, 5 and 6 has also relied upon the order dated 07.09.2017 passed by the Division Bench of this Court in Special Appeal No. 214 of 2016, where the students have approached this Court. Paragraph no. 9 of the said judgment reads as under:-
"9. We may incidentally notice prima facie that even in the brochure, the fee of `80,500/-which is fixed, is made subject to change as per Government directions. The Government Order, no doubt, came in the year 2015. No doubt, the appellants have a case that it will have operation for the admission of the year 2015, but prima facie, there is nothing to indicate that the order will have effect only from 2015, but it is quite clear that it is all subject to the final decision to be taken by the Committee. Therefore, all the more reasons, the Appeal is to be disposed of by permitting the appellants to approach the Committee and it is for the Committee to take a decision in the matter in accordance with law, after naturally affording opportunity to the necessary parties. Therefore, we dispose of the Appeal, leaving it open to the appellants to approach the Committee constituted under the Act and it is for the Committee to make appropriate determination and to pass orders as it considers appropriate. We make it clear that the Committee will be totally free to do so untrammeled by any observation contained either in the judgment of the learned Single Judge or of this Court."
However, since there is no provision in the Act for hearing the students, it was definitely not proper for the Appellate Authority in this case to have impleaded the students as party in the matter. To that extent, the order dated 18.09.2019 is in violation of law and is hereby quashed and set aside.
Having made the above determination, however, the fact remains that the powers of the Committee have been given under sub-sections (9), (10), (12) and (13) of Section 4 of the Act, which is as follows:-
"(9) The Committee shall have the power to regulate its own procedure not in consistent with the provisions of this Act in all matters arising out of the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all the powers of a civil Court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any witness and examining him on oath.
(b)The discovery and production of any document.
(c) The reception of evidence on affidavits.
(d) The issuing of any commission for the examination of witness.
(10) The committee or any officer authorized 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, penalize the institution.
(12) The Committee shall determine the fees for admission to professional courses of private institutions.
(13) 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.
The Committee after considering all the documents placed before it, shall determine the fee within one month maximum.
In case the proposal for fixation of fee for professional courses is not placed before the committee, the private institution shall not run the course. Therefore the private institution shall not give admission in such course."
Although students cannot be made as a formal party and are not liable to be given a personal hearing, by the Fee Regulatory Committee or by the Appellate Authority, but the fact remains that in view of sub-sections (9), (10), (12) and (13) of Section 4 of the Act, the Committee, which would include the Appellate Authority would have powers for order of discovery of any document or to receive any evidence in form of an affidavit. The Appellate Authority can therefore take affidavits from the students in the present case. However, it cannot be done from respondent nos. 4 and 6 as this Court has been informed that respondent no. 4 has already passed out from the college and respondent no. 6 is a student of a different college. It is made clear that this should not be adopted as a dilatory tactic and the matter be heard by the Appellate Authority without any further delay in the matter.
In view of the above, the writ petition stands disposed.