IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: October 11, 2018

Judgment delivered on: January 28, 2019

+ LPA 733/2017, CM Nos. 41569-41574/2017 & 9883/2018

SHANKER DOON & ORS

..... Appellants

Through: Ms. Amita Singh Kalkal, Adv.,

Mr. Rahul Chaudhary, Adv.,
Ms. Aditi Gupta, Adv.,
Ms. Akriti Dewan, Adv. and
Mr. Avesh Chaudhary, Adv.

versus

GOVERNMENT OF NCT OF DELHI & ORS

..... Respondents

Through: Mr. Ramesh Singh, SC for GNCTD

with Mr. Chirayu Jain, Adv. and
Ms. Nikita Goyal, Adv. for GNCTD
Mr. Rajiv Bansal, Sr. Adv. with
Mr. Namit Suri, Mr. Dipender
Chauhan, Mr. Kunal Kumar,
Ms. Parul Panthi,
Mr. Saaket Jain and
Ms. Aprajita, Advs. for Self Financing
Education Institutions Association.
AND

+ LPA 734/2017, CM Nos. 41584-41587/2017

GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI & ANR ..... Appellants
Through: Mr. Ramesh Singh, SC for GNCTD
with Mr. Chirayu Jain and Ms. Nikita
Goyal, Advs. for GNCTD
Mr. Anuj Aggarwal, ASC (Civil) for
GNCTD
LPA 733/2017 and connected matter Page 1 of 50
 versus

THE SELF FINANCING EDUCATIONAL INSITUTIONS

ASSOCIATION ..... Respondent

Through: Mr. Rajiv Bansal, Sr. Adv. with

Mr. Namit Suri, Mr. Dipender
Chauhan, Mr. Kunal Kumar,
Ms. Parul Panthi, Mr. Saaket Jain and
Ms. Aprajita, Advs. for Self Financing
Education Institutions Association.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT

V. KAMESWAR RAO, J

CM No. 41572/2017 (for taking the additional documents on

record) & CM No. 41573/2017 (for permission to file LPA
against the judgment and order dated 31.8.2017 in WP(C)
2217/2016) in LPA 733/2017

For the reasons stated in the applications, the same are

allowed and disposed of.

LPAs 733/2017 & 734/2017

1. These two appeals have been filed by the students, who

are pursuing, their education in various colleges affiliated to the

Guru Gobind Singh Indraprastha University and the Govt. of

NCT of Delhi. The common respondent is the Self Financing

Educational Institutions Association, who is respondent No.3 in

LPA 733/2017 and connected matter Page 2 of 50

LPA 733/2017 and respondent No.1 in LPA 734/2017. The

challenge is to the order dated August 31, 2017, passed by the

learned Single Judge in W.P.(C) 2217/2016, whereby the learned

Single Judge has allowed the writ petition filed by the Self

Financing Educational Institutions Association, who had

challenged the Notification dated March 10, 2016 of the Govt. of

NCT of Delhi, whereby the Notification dated February 19, 2016

had been rescinded.

2. The notification dated February 19, 2016, had notified the

acceptance of the recommendations made by the State Fee

Regulatory Committee (in short ‘SFRC’) for the 2013-2016

sessions, as effective for the 2014-2017 academic sessions.

3. The facts leading up to the filing of the writ petition may

be summed up as follows:

(i) The Govt. of NCT of Delhi (hereinafter “GNCTD”) had

promulgated the Delhi Professional Colleges or Institutions

(Prohibition of Capitation Fee, Regulation of Admission,

Fixation of Non-Exploitative Fee and other Measures to

Ensure Equity and Excellence) Act, 2007, (hereinafter, “the

LPA 733/2017 and connected matter Page 3 of 50

 Act”), providing for prohibition of capitation fee, regulation

of admission, fixation of non-exploitative fee, allotment of

seats to SCs/STs and other socially and economically

backward classes, and other measures to ensure equity and

excellence in professional education in the NCT of Delhi,

and for matters connected therewith.

(ii) Section 6 of the Act empowers the Govt. to

constitute a ‘Fee Regulatory Committee’ by way of a

notification in the official gazette, for determination of the

fee for pursuing a course in an institution.

(iii) The Act provides that upon receipt of

recommendations from the Committee so constituted and

upon being satisfied, the Govt. shall accept the same, and

notify the same for implementation. The fee as notified shall

be effective for a period of three years, unless further

extended through a separate notification.

(iv) In the alternative, the Government may send the

recommendations so received, back to the Committee, for

reconsideration, along with its own observations. The Act

LPA 733/2017 and connected matter Page 4 of 50

 provides that in such a situation, the fee as recommended by

the Committee shall be charged by the Institutions, pending

the reconsideration by the Committee.

(v) In the instant case, the Government had notified the

Constitution of the SFRC in terms of Section 6 of the Act,

for determination of the fee structure for the years 2013-

2016, vide a notification dated February 01, 2013. The

SFRC submitted its report in the year 2015.

(vi) It was only on February 19, 2016 that the

Government notified its acceptance of the recommendations

made by the SFRC, effective for the academic years 2014-

2017. Consequently, the fee structure for the years 2014-

2017, 2014-2018, and 2014-2019 for three, four, and five-

year courses stood notified. Relevant extract of the

aforesaid Notification reads as under:

“Now, in exercise of the powers conferred by sub

sections (3) and (13) of section 6 of the said Act, the
Government of National Capital Territory of Delhi
notify that the proposed fees for the academic year
2013-2016 given by the State Fee Regulatory
Committee for the academic year 2014-2017 and for
the year 2014-2018 for four years course and 2014-
2019 for five years course respectively”

LPA 733/2017 and connected matter Page 5 of 50

 (vii) On March 10, 2016, the Notification dated

February 19, 2016 stood rescinded. It is noted that the

rescinding order had been issued within 25 days from the

issuance of the original Notification. Relevant extract of the

Notification issuing the rescinding order reads as under:

“And further in exercise of the powers conferred by

sub sections (3) and (13) of section 6 of the said Act,
the Government of National Capital Territory of
Delhi had notified the proposed fees for the
academic year 2013- 2016 given by the State Fee
Regulatory Committee for the academic year 2014-
2017 and for the year 2014-2018 for four years
course and 2014-2019 for five years course
respectively vide Extra Ordinary Gazette
Notification NO. F.DHE4(68)/SFRC/14-15/9728
dated 19.02.2016.
Considering the fact that thousands of students have
been affected by the revision of the fee with
retrospective effect, the Government of National
Capital Territory of Delhi rescinds the aforesaid
Gazette Notification NO. F.DHE4(68)/SFRC/14-
15/9728 dated 19.02.2016”

(viii) It was in this scenario that the Association

challenged the impugned Notification, mainly contending

that the SFRC recommendations once having been accepted,

and notified, exercise of power rescinding the same was

arbitrary and illegal, and therefore the rescinding order had

necessarily to be set aside.

LPA 733/2017 and connected matter Page 6 of 50

4. Now, two appeals have been preferred against the

impugned judgement.

LPA 734/2017

5. This appeal has been preferred by the Govt. of NCT of

Delhi. It is their case that the Notification dated February 19,

2016 revised the fee structure for the sessions, as aforenoted, with

retrospective effect. It is stated that such retrospective

enhancement of the fee had adversely affected the interests of

thousands of students. Following the issuance of the Notification

dated February 19, 2016, the Government had received thousands

of representations against the fee-hike from such aggrieved

students who felt that their future career prospects had been

jeopardised, on account of inability to continue their studies due

to non-affordability.

6. It is also their case that even if the fee was increased

retrospectively, as has happened in the instant case, the same

would not translate into enhancement of scholarship amounts

already disbursed and received by the respective students, as

there was no such provision for such retrospective enhancement

LPA 733/2017 and connected matter Page 7 of 50

of scholarships. This, according to them, would end up causing

severe hardship to meritorious students who belonged to

economically weaker sections of society.

7. It is further the case of the appellant that by virtue of

Section 21 of the General Clauses Act, they were fully authorised

to rescind a notification earlier issued. It is stated that the exercise

of power to make a subordinate legislation, including the power

to rescind the same, is clearly enumerated in Section 21 of the

General Clauses Act, and that such power is without any

limitations or conditions, and that the principle of promissory

estoppel could not be permitted to be raised as a defense by the

respondents. Reliance in this regard is placed on Shree Sidhbali

Steels Ltd.& Ors. Vs State of U.P. & Ors., (2011) 3 SCC 193;

Rasid Javed & Ors. Vs State of U.P. & Anr., (2010) 7 SCC

781; and Supdt. Of Tasex, Dhubri & Ors. Vs Onkarmal

Nathmal Trust & Ors., (1976) 1 SCC 766.

8. It is further stated that the timeline for applicability of

recommendation of the SFRC is determined by statutory

provision i.e Section 6(3) of the 2007 Act. In terms of Section

6(3), the recommendation of the SFRC comes into effect only

LPA 733/2017 and connected matter Page 8 of 50

after issuance of notification by the Government. The fee, so

notified is valid for a period of three years in terms of Section

6(13). It is therefore evident that the applicability of the fee, so

notified is explicitly futuristic and could not have been applied

retrospectively. It is further stated that the Supreme Court in a

catena of judgments has held that no retrospective subordinate

legislation or a retrospective executive measure may be taken

under a legislation unless the legislation itself explicitly provides

for it. The Act of 2007 mandates the SFRC to recommend course

wise-cum-institution wise fee only, and in the absence of an

explicit provision enabling so, retrospective application could not

have been given to such recommendations.

9. It is further the case of the appellant that there is no doubt

that unlike legislation made by a sovereign legislature,

subordinate legislation made by a delegate cannot have

retrospective effect unless the rule making power in the statute

expressly or by necessary implication confers powers in this

behalf. Reliance in this regard has been placed on Vice

Chancellor, MDU University, Rohtak v. Jahan Singh 2007 (5)

SCC 77.

LPA 733/2017 and connected matter Page 9 of 50

10. It is further the case of the appellant that the fee so

recommended and implemented had been arrived at without

giving an opportunity of being heard to the affected students. As

such, there is a gross violation of principles of natural justice.

11. It is further stated that the defined objective of the Act is

“to provide for prohibition of capitation fee, regulation of

admission, fixation of non exploitative fee, allotment of seats to

Scheduled Castes / Scheduled Tribes and other socially and

economically backward classes and other measures to ensure

equity and excellence in professional education in the NCT of

Delhi and for matters connected thereto”. The primary subject of

protection from capitation and non-exploitative fee under the Act

are the prospective students of the professional education, and

such protection has been sought to secure them against the

Institutions which have, for variety of reasons, shown tendency to

charge capitation and exploitative fee. It is also stated that a

student’s decision to take admission in any particular Institution

is critically dependant on the fee charged by that Institution and

retrospective increase in such fee would work adversely against

such informed decision taken by the students.

LPA 733/2017 and connected matter Page 10 of 50

12. It is the case of the appellant that the impugned

notification dated March 10, 2016 was issued following receipt of

several representations by the students against the proposed fee

hike. It is the appellant’s case that education is not a business; it

is not an industry and therefore, the rescinding order has to be

viewed in light of the above circumstances. It is further stated

that the notification dated February 19, 2016 had a huge financial

implication on lives of several students who had already enrolled

themselves in respective Institutions and such a notification

coming mid-term, at a time when they are about to complete their

course, had forced several to even discontinue their studies.

LPA 733/2017

13. This appeal has been preferred by students who have been

studying in one of the Colleges, namely Chander Prabhu Jain

College of Higher Studies and School of Law, which is affiliated

with Guru Gobind Singh Indra Prastha University.

14. It is the case of the appellants herein that after the

issuance of the notification dated February 19, 2016, the

concerned Colleges began to use several arm-twisting tactics

LPA 733/2017 and connected matter Page 11 of 50

against the students to recover the fee that was retrospectively

revised, such as not allowing them to take their exams until the

fee was paid etc. It was upon being aggrieved with the said

situation that several students had made representations before

the Government against the aforesaid notification revising the fee

structure. Consequently, the Government vide notification dated

March 10, 2016 rescinded the earlier notification dated February

19, 2016 keeping in view larger public interest of the students

and considering the fact that several thousand students were

affected by the retrospective revision of fee.

15. Following the issuance of the rescinding order, a need

was felt to carefully consider all the issues involved including the

recommendations made by the SFRC and the views of the

respective stakeholders. Thus, a meeting was called by the

Government for holding discussions on April 04, 2016, wherein

representatives of various associations of Institutions / Colleges

provided suggestions for bringing out an appropriate notification

on the subject matter of revision of fee. It is stated that during the

pendency of such discussions, the respondent Association

LPA 733/2017 and connected matter Page 12 of 50

approached this Court through W.P.(C) No. 2217/2016

challenging the rescinding the order dated March 10, 2016.

16. It is further stated that the Government on July 04, 2016

issued a notification wherein the fee structure as notified for the

session 2012-13 was extended for the years 2014-15 and 2015-

16. The said notification however was not assailed by the

Association in the writ petition. It is their case that the impugned

judgment has been passed completely ignoring the fact that the

Govt. had already issued the notification dated July 04, 2016 and

which had not been assailed by the respondent Association.

17. The learned Single Judge had allowed the writ petition,

inter-alia on the following grounds:-

(i) The question as to whether a fee hike was permissible in

the Institutions or not was to be considered by the SFRC and for

this purpose, several hearings were held before the Committee.

The object of the Act of 2007 was to prevent prohibition of

capitation fee, regulation of admission, and fixation of non-

exploitative fee. It was in light of this latter aspect that the

Committee had made certain recommendations and forwarded the

LPA 733/2017 and connected matter Page 13 of 50

same to the Government. The procedure before the Committee

envisages an opportunity of being heard to the Institutes before

determining the fee that could be fixed by such an Institute. This

was a detailed fact-finding inquiry and entailed several hearings

before the Committee, and the physical inspection of the

aforenoted Institutes was also mandated. In terms of provisions

of the Act, the Committee was free to adopt its own procedures

for the conduct of its business. Proviso to Section 6(3) provides

that the Government may refer the matter back to the Committee

for a re-consideration if it chooses not to accept the

recommendations made by the Committee. But in this

intervening period, the Institution would charge the fee as

determined by the said Committee.

(ii) It was a matter of record that the recommendations made

by the Committee with respect to 2013-2016 session were

accepted by the Government and notification dated February 19,

2016 was issued conveying the fee structure applicable for 2014-

2017 session only after due satisfaction on the part of the

Government. However, the rescinding notification was issued

within 25 days of the aforesaid notification i.e on March 10, 2016

LPA 733/2017 and connected matter Page 14 of 50

only after due consideration was accorded to the thousands of

representations received from the students against the notification

dated February 19, 2016.

(iii) It was also noted that the State Government undoubtedly

had the power to withdraw any notification issued by it, in terms

of Section 21 of the General Clauses Act. However, the question

to be determined was whether such a power could have been

exercised by the appellant herein, in the present matter. Dealing

with the aforesaid aspect, the learned Single Judge relied on State

of Bihar v. D.N. Ganguly & Others AIR 1958 SC 1018 to

conclude that the issuance of the impugned rescinding

Notification was a power vested in the Government, in terms of

Section 21 of the General Clauses Act, and that such a

notification could pass the test of validity only if it was held that

the relevant provisions of the Act of 2007 were repugnant to the

application of the aforesaid rule of construction. This would

necessarily have involved a careful examination of the scheme of

the Act to determine whether application of the aforesaid rule

was justified in the present case.

LPA 733/2017 and connected matter Page 15 of 50

(iv) The learned Single Judge has noticed the object of the

Act is to promote equity and excellence in education in the NCT

of Delhi. It was further noted that keeping this object in mind, as

also the admitted position that all the aforenoted institutes had

issued their relevant prospectus bringing it to the knowledge of

all the incumbent and prospective students that the fee structure

was under consideration and that the fee structure already given

to the students was only provisional in nature (qua academic

session 2011-2012) and the fee hike in the subsequent years

2012-2013, 2013-2014 & 2014-2015 was pending consideration

of the State Fee Regulatory Committee, and in such an

eventuality the candidate would have to pay a revised fee. The

fact that such information was part of Brochure of the Institutes

was not disputed.

(v) It was held that inclusion of such information in the

prospectus and respective brochure imputed specific knowledge

to the students that the fee that they were currently paying (for

the year 2011-12) was only a provisional fee and that the fee

structure was currently under consideration by the SFRC and that

the students would have to pay the revised fee in case of the

LPA 733/2017 and connected matter Page 16 of 50

recommendations being accepted by the Government. It was

therefore held that, the main ground for issuance of the impugned

notification, namely, that several representations were received

from affected students who were unhappy with the said fee hike,

had little strength.

(vi) The learned Single Judge has also noted that the

Committee while laying down the fee structure had kept in mind

the object of the Act, however it was never the case of the

appellant herein that the Committee had acted contrary to said

object, which was to ensure charging of non-exploitative fee by

the Institutions. Had it been the case of the Government that it

was unhappy with the recommendations of the Fee Regulatory

Committee, it would not have notified the recommendations. In

such a scenario, it would have been open to the Government to

return the said recommendations to the Committee for re-

consideration along with its own observations. In the present

case, however, and as noted by the learned Single Judge, the

Government chose to accept the said recommendations which

were to its satisfaction.

LPA 733/2017 and connected matter Page 17 of 50

(vii) The learned Single Judge has also noted that the notified

fee structure would come into force for a period of three years. It

has also been noted that the fees of educational institutions have

to be enhanced like all other fee structures; inflation and growth

of the economy with the passage of time also had to be kept in

mind. The fact that the fee being paid by the students of the

aforenoted institutions was a provisional fee was also known to

them as was duly notified in the prospectus. As such, issuance of

the impugned rescinding notification also was held to be in non-

conformity with the satisfaction of the Government, as inferred

from the issuance of the notification dated February 19, 2016.

(viii) In conclusion the learned Single Judge has noted that the

petitioner Institutions had not been permitted to hike their fee

since 2011-12 and that they, not working on charity, had to make

ends meet. Therefore, a case was clearly held to have been made

out in their favour.

18. The impugned judgment has been challenged by the

Government mainly on the ground that the learned Single Judge

has failed to appreciate the import of the phrase “a fee regulatory

committee, for determination of the fee, for pursuing a course in

LPA 733/2017 and connected matter Page 18 of 50

an Institution” in Section 6(1) of the Act. It is their case that the

scope of mandate of SFRC is clearly limited to determining

course wise fee for an Institution and not on year to year basis.

According to them, the Committee had no mandate to determine

the timeline for the payment of fee. It is further stated that under

Section 6(3) of the Act, after receipt of the recommendation of

the Committee, it is for the Govt. to either notify the same or

refer them back to the Committee for re-consideration in terms of

proviso to Section 6(3). Nowhere in the Act has the Committee

been given the power to fix the timeline for implementation of

the fee recommended by it, nor can such a power be inferred

from any other provision of the Act. Reliance in this regard has

been placed on Ahmedabad Urban Development Authority v.

Sharad Kumar Jayantikumar Pasawalla and others 1992 (3)

SCC 285.

19. It is further their case that the learned Single Judge has

failed to appreciate that there is nothing in the Act, which

stipulates a retrospective determination or application of the fee

by the Committee and its consequent implementation. It is also

stated that the learned Single Judge erred in heavily relying upon

LPA 733/2017 and connected matter Page 19 of 50

the information contained in the respective admission brochure

and prospectus of the Institutions to the effect that the fee was

under consideration by the Committee and in case of any revision

being recommended and notified, the same would be liable to be

paid by the concerned students. It is their case that such a

stipulation in the brochure was contrary to the statutorily

prescribed mandate of the Committee. Further, such a stipulation

would be legally enforceable only to the extent that they are in

consonance with the statutorily prescribed mechanism. It is their

case that when the mechanism of fee determination and

notification as envisaged in the Act does not provide for

retrospective determination and implementation of fee, no

College could have legally bound the students to such a

determination.

20. It is further stated that the imputation of knowledge to the

students as regards the fee quoted in the respective brochures

being temporary in nature and payment of revised fee as and

when the occasion arose, could not have been done without the

express and specific declaration or undertaking by the students

regarding acknowledgement of such a liability to pay the

LPA 733/2017 and connected matter Page 20 of 50

increased fee with retrospective effect in the future. It is

therefore their case that the students being the actual aggrieved

party, should have been made party to the writ petition in the

instant matter and given a chance to make their case before the

Court.

21. It is stated that the learned Single Judge has also heavily

relied on the concept of ‘provisional fee’ to conclude that the

students being imputed with appropriate knowledge were liable

to pay the increased fee as and when recommendations of the

Committee were accepted and notified by the Govt. It is their

case that under the Scheme of the Act, the concepts of

‘provisional fee’ or ‘final fee’ do not exist. The Act only

stipulates two kinds of fee; (i) the fee as recommended by the

Committee, which can be charged by the Institutions, if the

recommendations are referred back to the committee for re-

consideration in terms of proviso to Section 6(3); and (ii) being

the notified fee, which the Institution may charge in terms of

Section 6(13). It is their case that the concept of ‘provisional

fee’, being alien to the scheme of the Act, charging any such

enhanced fee from the students and that too retrospectively under

LPA 733/2017 and connected matter Page 21 of 50

such notion would be expressly and brazenly exploitative and

thus prohibited by the Act. Giving effect to anything like

provisional fee, which is beyond the ambit of Section 22 (which

was applicable only for the session 2007-08) is violative of the

scheme of the Act.

22. It is further stated that the learned Single Judge has erred

in negating the statutory protection afforded to the students under

the Act by subjecting them to huge financial liability under the

guise of contestable retrospective fee and that too in litigation in

which they are not a party. In doing so, the learned Single Judge

has also failed to appreciate that the decision of the students to

take admission in a course or in an Institution, being critically

dependent on the fee being charged by such an Institution, has

been negated in all manner, thereby exposing them to an

unknown amount of higher fee retrospectively.

23. Mr. Ramesh Singh, learned Standing Counsel appearing

for GNCTD would submit that after the issuance of the impugned

rescinding order dated March 10, 2016, two other notifications

were issued, both on July 04, 2016. Under the first of these, the

validity of the last fee fixation i.e. for the period 2012-13 was

LPA 733/2017 and connected matter Page 22 of 50

extended for 2014-15 and 2015-16. The second of these

notifications was issued to give prospective effect to the

recommendation of the SFRC having accepted them for the

academic year 2016-17. He states that, even though both the

notifications dated July 04, 2016 were challenged in the writ

petition, the same was however not argued / pressed before the

learned Single Judge.

24. He would further submit that even if the impugned

rescinding order is held to be bad in law, the aforesaid two

notifications dated July 04, 2016 would continue to operate and

therefore, the question of implementation of the earliest

notification dated February 19, 2016 does not arise. He states,

that the quashing of the rescinding order would not automatically

revive the aforesaid notification. In this regard, he would rely on

Firm ATB Mehtab Majid & Co. v. State of Madras and Anr

1963 Supp 2 SCR 435 and State of U.P. and Ors. v. Hirendra

Pal Singh & Os (2011) 5 SCC 305. He would also state that

even on merits, the impugned notification is valid in law

inasmuch as it is in terms of, and in accordance with provisions

of the Act of 2007.

LPA 733/2017 and connected matter Page 23 of 50

25. Mr. Singh would refer to Section 6 (12) (a) to state that

under the Scheme of the Act, the exercise of fixation of fee

structure is to be done well in advance of the academic year and

no later than 31st of December of the previous academic year. He

would also rely on Section 3(i) to state that the said Committee

has been constituted for “determining fee for admission to an

Institution”. According to him, a combined reading of Section

3(i) and Section 6(12)(a) of the Act shows that the provisions of

the Act do not contemplate fee fixation / notification after the

commencement of the academic year. It is therefore, his

submission that the statutory scheme of the Act is such that once

the recommendations of the Committee are accepted by the

Government, the notification for implementation of the same

should be only for the future academic year. Hence, the period

prior to the date of notification of the said recommendations, if

accepted and notified by the government, would fall foul of the

aforesaid scheme of the Act.

26. It is his submission that instead of issuing the impugned

rescinding notification for the academic year 2013-16, the

Government ought to have resorted to the proviso to Section

LPA 733/2017 and connected matter Page 24 of 50

6(13) of the Act and accordingly issued notification extending

validity of the earlier notified fees to that period. Without

prejudice, he would state that in any event the notification dated

February 19, 2016 to the extent that it sought implementation of

recommendations of the Committee retrospectively for the

academic years 2014-15 and 2015-16 would be in the teeth of the

scheme of the Act on account of the Government being not

vested with power to issue notification with retrospective effect.

In this regard, he would rely on Vice Chancellor, MDU, Rohtak

(supra) and Cannanore Spinning and Weaving Mills Ltd. v.

Collector of Customs and Central Excise, Cochin & Ors. (1978)

2 ELT J 375.

27. He states that the issuance of the earlier Notification was

therefore clearly a case of mistake on the part of the Govt. and

the same was sought to be corrected through issuance of the

impugned rescinding order and subsequently the two notifications

dated July 04, 2016. He would rely on Videsh Sanchar Nigam

Ltd. and Anr. v. Ajit Kumar Kar & Ors. (2008) 11 SCC 591 to

state that in case of a mistake, the same would not confer any

right on any party and that the same can be corrected.

LPA 733/2017 and connected matter Page 25 of 50

28. To conclude, he would rely on Section 21 of the General

Clauses Act to state that the power to issue a notification / order

would necessarily and complementarily include the power to

rescind such a notification / order. He would also draw our

attention to the impugned judgment to state that the learned

Single Judge had also arrived at a similar conclusion.

29. Being aggrieved by the impugned judgment, the students

have also preferred an appeal mainly on the ground that the said

judgment fixes an onerous liability on them without having been

given an opportunity to make their case. It is further stated that

the impugned judgment has been passed completely ignoring the

fact that the Govt. had already issued the notification dated July

04, 2016 wherein the fee structure as notified for the year 2012-

13 was extended for the years 2014-15 and 2015-16. It was

pursuant to this judgment that the College of the appellants had

issued the letter dated September 12, 2017 to the students, therein

stating that they were required to pay the increased fee of

Rs.55,800/- for BBA & BBA (CAM) courses and Rs.51,900/- for

BCA courses failing which their degrees would not be issued to

them. They are therefore aggrieved by the action of their College

LPA 733/2017 and connected matter Page 26 of 50

in revising the fee with retrospective effect without having duly

informed the students of such an increase or pending revision at

the time of taking admission. It is their case that no such

disclosure of information was ever made in the prospectus of the

College.

30. It is also stated that the College of the appellants has been

charging revised fee for the last two years from the students, who

joined from the academic session 2015-16 and therefore the

finding of the learned Single Judge that the Colleges had not been

allowed to hike their fee since the 2011-12 session, is erroneous.

31. It is further their case that even if the rescinding order is

held to be bad in law, it would not lead to revival of the earlier

notification dated February 19, 2016 but the present fee structure

would actually be governed by the subsequent notification dated

July 04, 2016. Reliance in this regard has been placed on

B.N.Tewari v. Union of India AIR 1965 SC 1430 and Indian

Express Newspapers (Bombay) Private Ltd. and others v. Union

of India and Ors. 1985 (1) SCC 641. It is therefore their case

that without a challenge being laid to the notification dated July

04, 2016, the same would continue to remain effective for all

LPA 733/2017 and connected matter Page 27 of 50

intent and purposes. It is also their case that issuance of the

rescinding order was within the powers of the government as

conferred by Section 21 of the General Clauses Act.

32. It is stated that the learned Single Judge has failed to

appreciate that the retrospective revision of the fee structure in

terms of the earlier notification pursuant to recommendation of

the Committee has led to an onerous liability being fastened to

the students and in many cases have caused great hardships in the

form of inability to pay the increased fee. This burden has further

been enhanced on account of the fact that the concerned

Institutions are now demanding accumulated arrears of fee

stretching over the past few years, failing which the issuance of

their respective degrees has been stalled.

33. Ms. Amita Singh Kalkal, learned counsel appearing on

behalf of the appellants / students would submit that the

legislative intent behind enactment of the Act of 2007 was that

the students enrolling in any academic session would have

specific knowledge of the fees, which would be charged from

them and the same must clearly be specified in the prospectus

issued by the respective Institutions. She would rely on Islamic

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Academy of Education v. State of Karnataka (2003) 6 SCC 697

and Section 6 (12)(a) of the Act of 2007 to state that the exercise

of determining fee structure of an academic year is to be carried

out well in advance before the commencement of such session.

Even under Section 6(12) of the Act, the Committee has the

power to require each of the Institutions to place before it, the

proposed fee structure along with the relevant documents as well

as books of accounts.

34. She would draw our attention to various provisions of the

Act to state that the Committee has the power to recommend the

proposed fee to be charged by each Institution for each academic

year. The Govt. has the power to accept the recommendations of

the Committee and notify the same, and the fee so being notified

would remain valid for a period of three years for a student taking

admission during that academic year. The Govt. also has the

power to refer the matter back to the Committee for re-

consideration along with its own observations, in case the same is

not found acceptable. In such a situation, the Institutions would

continue to charge the fee as determined by the Committee. She

states that the Act came into force from May 29, 2007 and it was

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only under Section 22(a) of the Act that the Committee was given

the power to fix the fee for the academic year 2007-08

‘provisionally’, subject to final adjustments later. It is therefore

her submission that, nowhere in the Act, is the Committee

empowered to fix, or recommend, fee provisionally for any

subsequent academic year. She further submits that it is clear

from the scheme of the Act that retrospective determination of

fee is not provided for, or permitted. On the contrary, the Act

specifically provides for determination of fee in advance prior to

commencement of an academic session. She would state that the

notification dated February 19, 2016 implementing the revised

fee structure for the academic session 2014-15 and 2015-16

would be contrary to the provisions of the Act, inasmuch as it

provides for retrospective revision of fee structure, without a

specific power in that regard being provided for. In this regard,

she would rely on Income Tax Officer v. IMC Ponnoose & Ors.

AIR 1970 SC 385.

35. She would further rely on B.N. Tewari (supra) and

Indian Express Newspapers (supra) to state that even if the

rescinding order is held to be bad in law, the same would not

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amount to automatic revival of the notification dated February

19, 2016. She further states that during the pendency of the writ

petition, the Govt. had also issued notification dated July 04,

2016 extending the validity of the fee structure fixed for 2012-13

to 2014-15 and 2015-16 and that the learned Single Judge has

failed to take cognizance of this fact in the impugned judgment.

36. In conclusion, she would draw our attention to the object

of the Act, namely, providing benefit to the students taking

admission in various degree / diploma and certificate courses in

unaided Institutions against the malpractices of profiteering by

charging capitation fee and for promoting fixation of non-

exploitative fee. It is her submission that the provisions of the

Act should therefore be interpreted so as to advance the aforesaid

objective.

37. Mr. Rajiv Bansal, learned Senior Counsel appearing on

behalf of the common respondent Association would submit that

the only question arising out of the present batch of appeals is

whether the Govt. could determine / fix the fee to be charged by

private Institutions under Section 6(3) of the Act of 2007 by

issuing the impugned notification dated March 10, 2016, thereby

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rescinding / withdrawing the earlier notification dated February

19, 2016, which allowed self financing Institutions to charge fee

for the academic years 2014-17 as determined and recommended

by the Committee for the years 2013-16. He states that the fee

structure for the subject Institutions had remained stagnant for the

last several years ever since the previous determination for the

period 2009-12 and which was extended to 2012-13. By effect of

the impugned rescinding order and subsequent notifications dated

July 04, 2016, the Govt. has rejected the determination of fee by

the Committee for the year 2013-16 and has decided to keep the

fee stagnant upto 2016-17.

38. It is his submission that the Govt. does not have the

power to rescind or withdraw the notification of the fee structure

as recommended by the Committee once having been accepted.

He would draw our attention to Section 6(3) of the Act to state

that only the Committee under the Act can determine the fee and

not the Govt. Once the Committee has determined the fee, the

Govt. can either notify the same or refer it back for re-

consideration. There is no other option. Under the proviso to

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Section 6(3), pending such re-consideration the Institutions

would continue to charge fee as determined by the Committee.

39. He would further refer to Proviso to Section 6(2) of the

Act to state that the Committee while determining the fee

structure to be charged by the Institutions has to give an

opportunity of hearing to the said Institutions before final

fixation. It is his submission that the Govt. cannot bypass /

circumvent the procedure as provided for by the Act. He further

states that this procedure is in furtherance of principles of natural

justice and the impugned rescinding order is in complete

disregard of such principles having completely dispensed with

the requirement of giving a hearing to the subject Institutions. He

also stated that the Committee, having been appointed for

specific purpose under the Act cannot be rendered redundant or

otiose on account of actions of the Govt. which were exercised

beyond jurisdiction under the Act.

40. It is his submission that Section 6(1) of the Act

specifically provides for Members who would constitute the

Committee for the purpose of determination of fee. He therefore

states that the impugned rescinding order apart from being

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violative of the Statute also tantamounts to second guessing the

wisdom of highly qualified individuals, who have specifically

been appointed under the Act for a specific purpose. He states

that, it is a well settled proposition of law that when law provides

for something to be done in a particular manner, the same has to

be done in that manner alone and no other. Applying the same

principle to the facts of the case, it is his submission that the

legislature had intended for only the Committee constituted under

the Act to fix / determine the fee to be charged and in case, the

Govt. chose to differ with the said recommendations, the matter

was to be referred back to the Committee for re-consideration. It

is therefore the Committee alone that shall re-consider the fee

structure and fix the same. In this regard, he would rely on I.T.C.

Bhadrachalam Paperboards and Another v. Mandal Revenue

Officer A.P. and Ors (1996) 6 SCC 634, Nazir Ahmad v. The

King-Emperor, AIR 1936 PC 253 (2), Babu Verghese and Or v.

Bar Council of Kerala and Ors 1993 (3) SCC 422 and State of

Tamil Nadu and Others v. K. Shyam Sunder and Ors (2011) 8

SCC 737.

LPA 733/2017 and connected matter Page 34 of 50

41. He would submit that even as per equity, the fee increase

should not have been blocked as the last occasion when the fee

hike was allowed was in the year 2009 and the fee had remained

stagnant for the last seven years. He states that the last fee

determined by the Committee for the years 2009-12 was also

implemented retrospectively for the years 2009-12 by way of a

notification dated February 7, 2012. Retrospective

implementation of the revised fee to be charged is not due to any

fault of the institutions and therefore cannot be any basis

whatsoever for the Government to contravene the provisions of

the statute and exercise powers ultra vires the Act.

42. Mr. Bansal would also submit that the argument of

retrospective revision of fee as raised by the appellants is ill-

founded and misplaced inasmuch as the Government, while

exercising its right under the Act, firstly issued a notification

earmarking the period for which the Committee was constituted

to determine the hike in fee and it was thereafter that the

Committee made its recommendations revising the fee for the

period so earmarked. It is also his submission that the students

were made aware of the constitution of the Committee and the

LPA 733/2017 and connected matter Page 35 of 50

consequent pendency of the revision of the fee structure. The

students therefore, at the time of notification of constitution of the

Committee, are made well aware through the respective

institutions’ prospectus of the fact that they would have to pay

enhanced fee in term of the recommendations of the Committee

having been accepted and notified by the government. It is his

submission that a bare perusal of the application forms for

different years of the subject institutions would show that the

students were adequately made aware of the pendency of

consideration of revision of the fee structure before the

Committee and their consequent liability to pay the revised

amounts as and when applicable.

43. He would fault the appellants’ reliance on proviso to

Section 6 (13) of the Act which empowers the Government to

extend the validity of any extant fee structure for further periods

as notified, mainly on three grounds, (i) the said Proviso comes

into effect only after the fee as notified by the Government holds

the field for a period of three years. In the instant case, the fee as

notified on February 19, 2016 has not been in operation for the

said period and therefore, the Proviso would not come into

LPA 733/2017 and connected matter Page 36 of 50

operation; (ii) Section 6(13) has to be read harmoniously with

the rest of Section 6 and specifically Section 6(1), 6(2) and 6(3)

and therefore, once the Committee has determined the fee for

particular period, the Government has no power to reject this

determination and instead continue the determination of a

previous period; and (iii) the Government, under the Act, had the

option to either extend the last fee determined by the Committee

in 2009 or to constitute a Committee and notify the revised fee

structure as determined by it. The government having exercised

the latter option is now estopped from acting on the former.

44. Mr. Bansal would also challenge the appellants’ reliance

on Section 21 of the General Clauses Act in support of their

power to issue the impugned rescinding order. He states that

Section 21 of the Act of 1897 embodies a rule of construction, the

application of which is not absolute. Application of this rule of

construction to a particular statute depends on the subject matter,

context, scheme, effect and object of the said Act. Applying the

said principle of law to the facts of this case it is his submission

that Section 21 of the General Clauses Act would be inapplicable

as the Act never envisaged a role of the fixation / determination

LPA 733/2017 and connected matter Page 37 of 50

of fee for the Government and under the Act it only had a role to

notify the fee as determined by the Committee. In this regard, he

would rely on State of Bihar v. D.N. Ganguly and Ors. AIR

1958 SC 1018 and State of Madhya Pradesh v. Ajay Singh and

Ors. AIR 1993 SC 825.

45. As regards the Government’s justification for the

impugned rescinding order in terms of the several thousand

representations received from the students against the subject fee

hike, Mr. Bansal would submit such a stand on behalf of the

Government would be absolutely unsustainable as complaints

received from students cannot be a reason to nullify the

mandatory requirements of law. It is a settled proposition of law

that where the field is occupied by an enactment, the executive

has to act in accordance therewith, particularly when the

provisions are mandatory in nature.

46. In conclusion, he would submit that if the present appeals

are not dismissed and the validity of the notification dated

February 19, 2016 is not upheld, the respondent Association

would suffer a loss to the tune of Rs.232.78 Crores. He also states

that the fee structure having remained stagnant for the last 7

LPA 733/2017 and connected matter Page 38 of 50

years, the salaries of teachers employed have constantly increased

on account of the 5th and the 6th Pay Commission which has been

duly given effect to by the respondent Association.

47. Having heard the learned counsel for the parties, the issue

which arise for consideration is whether the learned Single Judge

was justified in allowing the petition filed by the Institutions and

set aside the Notification dated March 10, 2016 issued by the

Govt. of NCT of Delhi rescinding its earlier Notification dated

February 19, 2016 on applicable fee structure.

48. Before we deal with the submissions made by the learned

counsel for the parties, it is necessary to record, in brief, certain

relevant facts. As noted from the record, it was on February 01,

2013 that the Govt. of NCT of Delhi had under Section 6(1) of

the Act appointed a State Fee Regulatory Committee for

determining the fee structure for the academic years 2013-2016.

The report was submitted by the Committee to the Government

on November 24, 2014. Pursuant thereto, the Government on

February 19, 2016 issued Notification notifying the fee for the

period 2014-2017 and also for the courses of duration four years

and five years. It transpired that the Govt. of NCT of Delhi

LPA 733/2017 and connected matter Page 39 of 50

issued Notification dated March 10, 2016 rescinding /

withdrawing the Notification dated February 19, 2016. It was

this Notification dated March 10, 2016, which was challenged by

the Institutions by filing writ petition before the learned Single

Judge in which the impugned order was passed. It may be stated

here that during the pendency of the writ petition, Govt. of NCT

of Delhi issued two Notifications dated July 04, 2016 whereby

the fee structure of 2012-2013 was extended for the years 2014-

15 and 2015-16 and, the new fee structure was made effective

from 2016-17. The impugned order of the learned Single Judge

is dated August 31, 2016.

49. Having noted the facts, the following is the position

which emerges on the reading of the provisions of the Act,

particularly, relatable to the Fee Regulatory Committee.

(i) The Government by Notification “shall constitute a Fee

Regulatory Committee for determination of the fee for pursuing

course in an Institution”.

(ii) The “Committee shall conduct its own procedure for the

conduct of its business and shall give reasonable opportunity of

LPA 733/2017 and connected matter Page 40 of 50

being heard to an Institution before determining the fee” to be

fixed for a course of study.

(iii) The “Government after receipt of the recommendations”

and subject to its satisfaction “shall notify the fee determined by

the Committee”.

(iv) “The Government may refer back the matter to the

Committee along with its observations for reconsideration and

during the intervening period, the Institution shall charge the fee

as determined by the Committee”.

(v) The terms of the Members of the Committee may be

extended by the Government for a period not exceeding six

months at a time. In any case, not exceeding beyond a total

period of one year.

(vi) The Committee shall have the power requiring each

Institution to place before it proposed fee structure of such an

Institution with all relevant documents and books of accounts for

scrutiny well in advance before the commencement of the

academic year “but not later than 31st December of the previous

academic year”.

LPA 733/2017 and connected matter Page 41 of 50

(vii) Verify the fee proposed by such Institution and also

ensure that the same does not amount to profiteering or charging

of capitation fee.

(viii) “The Committee shall approve the fee structure or

determine some other fee, which can be charged by an

Institution”.

(ix) “The fee notified by the Government shall be valid for

three years”.

50. One of the pleas of Mr. Ramesh Singh and Ms. Amita

Singh Kalkal was that the Government has no power to

retrospectively determine the fee structure. We may state here at

the outset that such a plea was not taken by the Government

before the learned Single Judge but such a plea being a legal plea

needs to be decided by us by looking into / interpreting the

provisions of the Act. Moreover, Mr. Bansal has also made his

submission on this aspect, which we shall deal with.

51. The aforesaid submission of Mr. Singh and Ms. Kalkal, is

appealing. On perusal of the provisions of the Act, as reproduced

above, it is clear that the Act contemplates that the

LPA 733/2017 and connected matter Page 42 of 50

recommendations and notification with regard to fee structure

have to be for ensuing year. This we say so, for the reason, of

presence of the words in the provisions of Section 6 of the Act

like “for determination of the fee for pursuing course in an

Institution;” “the Government may refer back the matters to the

Committee along with its observations for re-consideration and

during the intervening period, the Institution shall change the fee

as determined by the Committee;” “but not later than 31st

December of the previous academic year;” and “the fee notified

by the Government shall be valid for three years”.

52. The argument of Mr. Rajiv Bansal, learned Senior

Counsel for the respondents was that, the Government while

exercising its right under the Act first issued a Notification

earmarking the period for which the Committee was constituted

to determine the hike in fee and it was thereafter that the

Committee had made recommendations revising the fee for the

period so earmarked; the students were made aware of the

constitution of the Committee and the consequent pendency of

the revision of the fee structure. He would also fault the reliance

placed by the learned Counsel for the appellants on proviso to

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Section 6(13) of the Act, which empowers the Government to

extend the validity of the fee structure for further periods as

notified mainly on three grounds:-

(i) The said proviso comes into effect only after the fee as

notified by the Government holds the field for the period of three

years. In the instant case, the fee as notified on February 19,

2016 has not been in operation for the said period and therefore,

the said proviso would not come into operation.

(ii) Section 6(13) has to be read harmoniously with rest of the

Section 6 and specifically Sections 6(1), 6(2) and 6(3) and

therefore once the Committee has determined the fee for a

particular period, the Government has no power to reject this

determination and instead continue the determination of a

previous period.

(iii) The Government under the Act had the option to extend

the last fee determined by the Committee in 2009 or to constitute

a Committee and notify the revised fee structure as determined by

it.

LPA 733/2017 and connected matter Page 44 of 50

53. The submissions made by Mr. Bansal are appealing on a

first blush, but on a deeper consideration, it is seen that the Act

(vide Section 6) stipulates a procedure for determination of fee

structure. Such a procedure must be adhered to, i.e., fee structure

necessarily has to be in place before students take admission in a

particular course rather than keep them in suspense and claim a

higher amount from a back date. We also say that we want to put

this interpretation of the provisions of the Act in place for future

reference, so that the Government take timely action on fee

structure strictly in accordance with the mandate of the Act,

which will be beneficial not only to the students but to the

Institutions instead of delaying the process, which results in a

situation, which we have seen in the present case.

54. Insofar as the plea of Mr. Bansal that the students were

put to notice and as such they cannot object to the fee structure is

concerned, suffice it to state, this argument is more of an

argument of estoppel. The representation to the students that the

fee is provisional, in no way, can be taken against the students, in

view of the provisions of the Act, which according to us

stipulates the fee so determined has to be prospectively

LPA 733/2017 and connected matter Page 45 of 50

implemented. That apart, we also find that a student must have

an informed choice of opting for an institution with a more

beneficial fee structure.

55. Having said that, on a careful consideration of the facts in

the case, we find, the issue of fee structure primarily relates to

two years i.e 2014-15 and 2015-16. This we say so, as in any

case the fee structure has been made effective from 2016-17 vide

notification dated July 06, 2016.

56. Insofar as the academic year 2014-15 is concerned, the

recommendation and notification of February 19, 2016 shall be

unimplementable / inapplicable being retrospective in view of our

above finding. So for that academic year, the fee structure as

recommended on November 24, 2014 (which is during the

academic year) could not have been given effect to.

57. Insofar as the academic year 2015-16 is concerned, the

recommendations were in place when the academic year started

(which were submitted during academic year). The

recommendations were submitted by the Committee to the

Government on November 24, 2014. On receipt of the

LPA 733/2017 and connected matter Page 46 of 50

recommendations, the Government has two options either to

accept the recommendations and notify the same (surely the next

academic year 2015-16) or send the recommendations back to the

Committee for re-consideration with its views. The Government

sat over the matter and after one and a half year, on February 19,

2016 issued the Notification notifying the fee structure but

immediately rescinded the same on March 10, 2016 and is now

taking the stand that such notification needs to be prospective.

Had the Government issued the notification, in any manner as

deem fit, immediately after November 24, 2014, the same would

have governed the fee structure for the academic year 2015-16.

No reasons have been given for the delay. No doubt, there is no

period mentioned for issuance of notification but the delay on the

part of the Government cannot be to the prejudice of the

Institutions. We are also conscious that the recommendations

were also not sent back to the Committee, but the Government

also cannot sit over them. So, with effect from academic year

2015-16, the Institutions were within their right to charge the fee

as recommended by the Committee for a particular course. This

would have been in conformity with the spirit underlying the

provisions of the Act, as noted above i.e., if the recommendations

LPA 733/2017 and connected matter Page 47 of 50
are sent back, the Institutions are within their rights to charge the

recommended fee. So, for 2015-16, the Institutions could have

charged fee as recommended.

58. Further, a plea has been taken by the Government, that

having issued the notification dated February 19, 2016, it had

also the power to rescind the same in view of Section 21 of the

General Clauses Act. The learned Single Judge by referring to

the judgment of the Supreme Court in B.N. Ganguly (supra) and

after noting the object of the Act to be prohibiting capitation fee;

regulation of admission and fixation of non-exploitative fee, and

to promote equity and excellence in education in NCT of Delhi

held that, the Government cannot take the umbrella protection

under Section 21 of the General Clauses Act.

59. In B.N. Ganguly (supra), the Supreme Court held that

Section 21 of the General Clauses Act can be invoked only if, and

to the extent if any, the context and the scheme of the Act so

permits. In other words, it would be necessary to examine

carefully the scheme of the Act, its object and all its relevant and

material provisions before deciding whether, by the application of

the rule of construction enunciated by Section 21, the power to

LPA 733/2017 and connected matter Page 48 of 50

cancel the notification can be said to vest in the appropriate

Government by necessary implication. If the context and effect

of the relevant provisions is repugnant to the application of the

said rule of construction, assistance of the said section cannot be

invoked.

60. Having noted the scope of Section 21 of the General

Clauses Act, it must be held, in the facts of this case, the power to

rescind the notification dated February 19, 2016, is only to the

extent, to make the said notification prospective in the manner

concluded by us above, i.e., for the Academic Year 2014-15.

61. Insofar as the judgments in Islamic Academy of

Education V. State of Karnataka, IT Officer v. IMC Ponnoose,

B N Tewai v. Union of India, Firm ATB Mehtaab Majid & Co.

v. State of Madras & Anr., Uttar Pradesh v. Hirendra Pal

Singh, Vice Chancellor MDU Rohtak v. Jahan Singh,

Cannanore Spinning and Weaving Mills Ltd. v. Collector of

Customs and Central Excise and VSNL Ltd. v. Ajit Kumar Kar,

relied upon by the appellants in these appeals are concerned, in

view of our conclusion above, in the peculiar facts of this case,

the same may not be relevant.

LPA 733/2017 and connected matter Page 49 of 50

62. Suffice it to state, in view of our above conclusion, the

appeals are partially allowed by holding that; (i) Government

could not have notified the fee structure for a particular course for

the year 2014-15 to that extent the order of the learned Single

Judge is set aside; (ii) the notification dated March 10, 2016

could not have been issued rescinding the earlier notification

dated February 19, 2016 to the extent of fee structure for the year

2015-16 onwards. In other words, to that extent the notification

dated March 10, 2016 shall be illegal. The Institutions shall be

within their right to claim the fee structure as recommended for a

particular course for the year 2015-16 only. The appeals are

partially allowed in terms of the above. No costs.

CM Nos. 41569/2017 (for stay) & 9883/2018 (for directions) in

LPA 733/2017

CM No. 41584/2017 (for stay) in LPA 734/2017

Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

JANUARY 28, 2019/aky

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