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Subharati K.K.B. Chairatable Trust Thru' President & Another v. Abhishek Kadian & Others - SPECIAL APPEAL No. - 1212 of 2007 [2007] RD-AH 15436 (12 September 2007)

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CJ's Court




Subharati K. K. B. Charitable Trust,

Garh Road, Meerut through is President,

Dr. Atul Krishna and another ..........Appellants.


Abhishek Kadian and others .............. Respondents.

Hon'ble H. L. Gokhale, C.J.

Hon'ble Anjani Kumar, J.

Date: 12th September, 2007

P. C.

1. Heard Mr. Dinesh Dwivedi, learned Senior Advocate assisted by Mr. Anurag Khanna for the appellants and Mr. S. N. Shukla appearing for the respondents.

2. The appellants herein, seek to challenge the judgement and order dated 14th August, 2007 rendered by the learned Single Judge on two writ petitions which were filed by two groups of students who were pursuing their studies for M. B. B. S. course in the college of appellant no. 2 which is run by appellant no. 1. The writ petition filed by the students, respondents herein, have been allowed by the learned Single Judge and learned single Judge has held that the appellant no. 2 is entitled to charge the fees from the students admitted on payment seats for the academic session 2002-03 @ 1,26,500/- as fixed by the Government Order dated 8.1.2003. He further directed that the college will refund the entire excess amount collected from all the 64 students admitted on the payment seats of that batch. So far as 17 students of writ petition No. 68368 of 2006 are concerned, they have been allowed to appear in 4th professional examination and their fees have been directed to be adjusted and further that they will pay only the difference, if any.

3. The appellant's are principally contending that this Government Order prescribing the fee structure will no longer survive. According to the appellants precursor to this Government Order was a previous Government Order dated 27th September, 1997 and this was on the basis of the interim order passed by the Apex Court on 9th January, 1996 during the pendency of the matter, T. M. A. Pai Foundation and others Versus State of Karnataka and others.

4. The submission of the counsel for the appellant is that once the judgement in T. M. A. Pai Foundation case was pronounced on 31st October, 2002, the interim order as well as these Government Orders no longer survive. So far as the academic session 2003-04 is concerned, the appellants did not dispute the fact that the fee structure will be governed by the committee appointed under the judgement in the case of Islamic Academy of Education and another Versus State of Karnataka and others rendered on 14th August, 2003.

5. Sri Shukla, learned counsel for the respondents on the other hand pointed out that even in the judgement of T. M. A. Pai Foundation case one of the Judges (S. N. Variava, J.) has obsreved that "there could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to." Sri Shukla therefore submits that these Government Orders can be traced to these observations also. According to him, the fee structure regulated by the Government is not dependent merely on the Fee Fixation Committee appointed after the judgment in Islamic Academy's case reported in (2003) 6 SCC 697.

6. The question is to be examined for the academic session 2002-03. The matter requires consideration, hence the appeal is admitted. Mr. Shukla has also pointed out that so far as these Government Orders are concerned, there were separate challenges to these and they were repelled.

7. There are two operative directions in the order of the learned Single Judge. One is for refund of the excess amount to 64 students. That can wait disposal of the appeal. So far as the matter of 17 students of writ petition no. 68368 of 2006 is concerned, Mr. Dwivedi has drawn our attention to the interim order passed on 21st December, 2006 during the pendency of writ petition no. 68368 of 2006 whereunder the Court had directed that the petitioners may be permitted to appear in 4th professional examination provisionally and that will be on each of the petitioners depositing Rs. 2,00,000/- within 15 days of that order : Sri Dwivedi further submits that 17 students have not paid the amount as per that direction and the appellants will be satisfied if this amount is paid in terms of interim order.

8. Sri Shukla submits that interim order dated 21st December, 2006 looses its validity after the final decision of the Fee Fixation Committee dated 19.12.2006 and the respondents are expected to abide by this order. The question of applicability of the report of the Fee Fixation Committee to the year 2002-2003 is yet to be examined. During the interregnum, the petitioners can not refuse to abide by the interim order in their own petition.

9. In the circumstances, we permit the respondents to make this payment within fifteen days from today if they have not already paid and thereafter they will be allowed to appear in 4th year examinations. The refund of the amount by the appellants to the 64 students is stayed.

10. The hearing of the appeal be expedited. Liberty to parties to apply for an early date of hearing.

Dated: 12.09.2007.


(Chief Justice)

(Anjani Kumar,J.)


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