Gujarat High Court
Sheth Chaturbhuj Lajpatrai Commerce ... vs Gujarat University & Ors on 22 August, 2013
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
SHETH CHATURBHUJ LAJPATRAI COMMERCE COLLEGE....Petitioner(s)V/SGUJARAT UNIVERSITY C/SCA/10435/2013 CAV JUDGEMNT
SCA104352013Cj 6.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10435 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA sd/-
HONOURABLE MR.JUSTICE J.B.PARDIWALA sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
yes 2 To be referred to the Reporter or not ?` yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
no 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
no 5 Whether it is to be circulated to the civil judge ?
no ========================================================= SHETH CHATURBHUJ LAJPATRAI COMMERCE COLLEGE Versus GUJARAT UNIVERSITY & ORS.
========================================================= Appearance:
MR Y N OZA, SR. ADVOCATE with MS ROMA I FIDELIS, ADVOCATE for the Petitioner.
MS TEJAL A VASHI, ADVOCATE for the Respondent No. 3 NOTICE SERVED BY DS for the Respondents No. 1 - 2 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/08/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By filing this Special Civil Application under Article 226 of the Constitution of India, the Petitioner, a College affiliated with Gujarat University, has prayed for the following relief:-
9. On consideration of the above grounds and facts as well as other grounds those may be urged at the time of hearing of this petition, this Hon ble Court may be pleased to :
A. admit and allow this petition;
B. issue writ of mandamus and/or writ of certiorari and/or any other appropriate writ in the nature of mandamus and/or writ of certiorari and/or any other writ, order or direction:
(i) declaring the Resolution dated 11.10.2009 passed by the Respondent No.2 Executive Council, quoted in the circular dated 23.02.2010 issued by the Respondent No.1
-Vice Chancellor as void and unconstitutional as it is hit by Article 19(1)(g) of the Constitution of India; and further, that the Respondents do not have any authority or competence to pass such circular or resolution and quashing and setting aside the impugned circular as well as resolution and the proceedings emanating there from;
(ii) declaring the action on the part of the Respondents of demanding the development fund to the tune of Rs.5,00,000/- per annum from the Petitioner, as unjust, arbitrary and violative of principles of natural justice and against the rules and regulations as well as ordinance of the Respondent-University;
(iii) directing the Respondents herein not to take any coercive action against the Petitioner in pursuance of the impugned circular as well as resolution;
(iv) directing the Respondents herein to accept the amount of affiliation fee from the Petitioner;
BB. Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus by quashing and setting aside the resolution of the Respondent-University dated 4.8.2010 as illegal by further holding that it is beyond the competence of the University to charge the said fees.
C. pending admission, hearing and final disposal of this petition, this Hon ble Court may be pleased to restrain the Respondents herein from taking any coercive action against the Petitioner in pursuance of the impugned circular as well as resolution as well as the proceedings emanating therefrom;
CC. Pending the hearing and final disposal of the aforesaid writ petition, be pleased to stay the operation, enforcement, execution and further implementation of two circulars/resolution issued by the University dated 11.10.2009 as reflected vide letter dated 23.2.2010 and Government Resolution dated 4.8.2010.
D. pass such other orders that may be just and necessary in the facts and circumstances of the case in favour of the Petitioner.
2. The case made out by the Petitioner may be summed up thus:
[a]. The Petitioner-College is run by a Public Charitable Trust registered under the Bombay Public Trusts Act viz:
Hindi Bhasha Prachar Sangh, and its Trustees are citizens of India.
[b]. The Petitioner-College is affiliated with the Respondent-University since May 2005 and since then, the Petitioner has been running the course of B. Com. as a self-financed College.
[c]. At the time of granting affiliation, the Petitioner had paid a lump sum amount of Rs.13,50,000/- towards deposit and development fund.
[d]. For getting affiliation with the Respondent-University, each College has to enter into an agreement with the Respondent-University, and, if anyone wants to open a College in Ahmedabad, he is left with no other option but to sign the agreement which contains exploitive terms as stated in it. Since the Petitioner had no other option, the Petitioner had also entered into such an agreement with the Respondent-University.
[e]. After obtaining affiliation, the Petitioner, being a linguistic minority institution as it is imparting education in Hindi language, applied to the State Government for granting it the status of grant-in-aid college, being a linguistic minority institution, and even though Her Excellency, the Governor of Gujarat, through the Under Secretary to the Governor, vide communication dated 21st May 2011, had recommended the case of the Petitioner for grant of such recognition, the said application is still pending with the State Government.
[f]. During the pendency of the said application, the Vice Chancellor of the Respondent-University issued a circular dated 23rd February 2010 on the basis of a Resolution dated 11th October 2009 passed by the Respondent No.2-Executive Council of the University whereby the Respondent-University directed all the Self Finance Colleges indicated therein, where the number of students is more than 1000, to make payment of Rs.5,00,000/- per annum, and, where the number of students is less than 1000, to make payment of Rs.2,50,000/- per annum, towards Development Fund. However, none of the Colleges including the Petitioner has been provided with a copy of the said Resolution dated 11th October 2009 passed by the Respondent No.2-Executive Council of the University though it is the basis of the Circular dated 23rd February 2010.
[g]. Prior to the issue of the said resolution dated 11th October 2009 as quoted in the Circular dated 23rd February 2010, an agreement dated 31st May 2005 was in vogue, whereby the Petitioner was to make payment of Rs.1,50,000/- per annum towards Development Fund but suddenly, in the year 2010, the abovesaid Circular has been issued by the Respondent-University, which, according to the Petitioner, is against the Ordinances as well as rules and regulations of the Gujarat University, unjust, arbitrary, unconstitutional and ultra vires.
[h]. The Respondent-University issued many notices to the Petitioner asking it to pay the development fund and time and again, the Petitioner-College gave reply to the said notices. However, ultimately, the Respondent-University issued a notice dated 5th June 2013 directing the Petitioner to make payment of development charges at the earliest, and in default, it was threatened that it would put the college in No Admission List .
[i]. The Petitioner, therefore, was constrained to file Special Civil Application No. 9800 of 2013 before this Court, which ultimately came to be disposed of vide order dated 17th June 2013, directing the Respondent-University to hear the Petitioner and to decide its case in accordance with law.
[j]. Pursuant to the said order, the Petitioner submitted a representation dated 17th June 2013 to the Respondent University and the Respondent University called the Petitioner College along with other such Colleges for hearing on 19th June 2013. However, without appreciating the case in it s proper perspective, the Respondent-University passed an order dated 21st June 2013 rejecting the representation of the Petitioner. Hence this writ-application.
3. This writ-application is opposed by the Respondent No.3 by filing affidavit-in-reply and it s contentions therein may be summed up thus:
[i]. Several petitions have been filed by different Colleges whereby those Colleges have challenged the Circular and Resolution impugned in this writ-application and such petitions are pending before the learned Single Judge, and, therefore, the Petitioner should be also directed to approach the learned Single Judge along with other similarly situated colleges who are litigating before the learned Single Judge.
[ii]. The Petitioner is a college affiliated with the Respondent-University and is running the courses in commerce. The executive council of the Respondent University, in the year 2003, decided to grant affiliation to the colleges based upon their need and other factors.
[iii]. A Need Committee was formed, and after surveying the need for opening of colleges, the Need Committee submitted its report before the Respondent-University and looking to the need for commerce colleges, the Academic Council as well as the Executive Council of the Respondent-University passed resolutions to grant affiliation to 9 institutions as mentioned in the said resolution. The said resolution of the Academic Council and the Executive Council was confirmed by the Vice Chancellor of the University. Based upon the said resolutions, the Respondent University invited the colleges for getting affiliation for Commerce / BBA / B.Sc. etc. colleges by issuing an advertisement in local newspapers.
[iv]. The Vice Chancellor, in exercise of his powers under Section 11(4) of the Gujarat University Act, passed a resolution for the Academic Year 2005-2006 whereby it was decided on behalf of the Academic Council as well as the Executive Council to levy development fees of Rs.5,00,000/- every year towards development of educational activities of the University.
[v]. Therefore, in the aforesaid advertisements, in the conditions for affiliation, it was categorically mentioned that the colleges desirous of obtaining affiliation with the Respondent University were to pay development charges to the tune of Rs.5,00,000/- for Commerce course every year in advance. It was further categorically mentioned that the said development charges are not based upon the number of students getting admission in the College.
[vi]. Pursuant to the above advertisement, the Petitioner filled up the requisite form for getting affiliation and as per columns No.3(a)(5), the Petitioner college was required to state the expected number of students per annum.
[vii]. Looking to the need as well as the facts mentioned by the Petitioner-College in the said form, affiliation was granted to the Petitioner based upon the terms and conditions as mentioned by the University in the said form. Condition No.10 of the said form prescribes that the Petitioner-College will abide by all the terms and conditions for the purpose of getting the affiliation.
[viii]. Thus, the Petitioner was granted affiliation by way of letter dated 1st June 2005 which contains various terms and conditions which clearly stated that the said development fees are not charged based upon the number of students available to the Petitioner college. Apart from that, the Petitioner has also given an undertaking that it will abide by all the terms and conditions as enumerated in the order of affiliation as well as in the undertaking. Therefore, the Petitioner cannot now come up with a case that it does not have the sufficient number of students and, therefore, is not in a position to pay the development fees.
[ix]. Non-compliance of the terms and conditions of affiliation as well as the undertaking is nothing but a breach of the undertaking. Since last 6 years, the Petitioner college has not deposited the development fees to the tune of Rs.5,00,000/- per annum whereas various other colleges affiliated with the Respondent-University are regularly paying the development fees in accordance with their undertaking and affiliation order.
[x]. The resolution dated 23rd February 2010 relied upon the Petitioner was never given any effect and was never implemented by the University but the subsequent resolution passed by the Academic Council and Executive Council [at Annexure R-3] is at present in operation.
[xi]. The Petitioner College having once accepted the terms and conditions of granting the affiliation and having given the undertaking, is now estopped from going back and saying that the Respondent-University cannot charge any development fee from the Petitioner. Apart from that, a detailed order was passed by the Respondent-University after considering all the aspects of the matter and in consonance with the provisions and the terms and conditions of the order of affiliation and undertaking given by the Petitioner.
[xii]. The University is charging development fees from the Colleges affiliated with it to meet with various expenses which the University is incurring at various levels and the break-up of the expenses as stated in the affidavit-in-reply justifies the development fee charged by the Respondent, and, therefore, the petition is liable to be dismissed.
4. Thus, the only question that arises for determination in this writ-application is whether the University is justified in directing the Petitioner to make payment of Rs.5,00,000/- per annum as development fee with a further direction that in default, the college will be put in No Admission List .
5. Mr. Oza, the learned senior advocate appearing on behalf of the Petitioner, strenuously contended before us that the Gujarat University Act or the Rules or the Ordinances framed there under do not permit the University authorities to collect any amount as development charges, and thus, the resolution passed by the Respondent to collect Rs.5,00,000/- per annum is without jurisdiction. Mr. Oza further contends that merely because under compulsion the Petitioner had undertaken to pay development fee every year, such fact cannot stand in the way of the Petitioner in challenging the resolution as ultra vires.
At any rate, according to Mr. Oza, the University being a statutory authority cannot act in violation of the statute and, therefore, notwithstanding the undertaking given by the Petitioner to abide by the terms and conditions of the affiliation, the Petitioner is entitled to challenge the said demand.
6. Ms. Tejal Vashi, the learned advocate appearing on behalf of the Respondent No.3-Registrar, Gujarat University, has, on the other hand, opposed the aforesaid contentions of Mr. Oza and submitted that Section 20 (1)(xxxii) of the Gujarat University Act authorizes the University to charge any amount as fees and other charges. By relying upon Ordinance 120-C
(b) of the Ordinances framed under the above Act, she submits that the said demand is quite justified as in the form prescribed by the Executive Committee, the amount is indicated. Ms. Vashi further submits that having given an undertaking and thereby agreed to pay the amount of development fee, the Petitioner is estopped and cannot come up with the present writ-application challenging the vires of the said demand. She, therefore, prays for dismissal of the writ-application .
7. In order to appreciate the question involved in this writ-application, it will be profitable to refer to Section 20(1)(xxxii) of the Gujarat University Act as well as Ordinance 120.C relied upon by Ms. Vashi, which are quoted below:
Section 20(1)(xxxii) of the Gujarat University Act
20. (1) Subject to such conditions as may be prescribed by or under the provisions of this Act, the Executive Council shall exercise the following powers and perform the following duties, namely :-
(i) to (xxxi) xxx xxx xxx (xxxii) to fix, demand and receive such fees and other charges as may be prescribed by Ordinances;
(xxxiv) to (xliii) xxx xxx xxx Ordinance 120.C O. 120-C :
(a) An institution other than a college applying for recognition as an institution of research or specialised studies shall satisfy the Executive Council in the first instance regarding the following requirements :
(1) That it has at least five years standing as an institution of higher learning and research in the subject to its credit.
(2) That it has on its roll the following minimum staff in the subject:
(i) Director in the scale of University Professor.
(ii) In addition to Director, one teacher in the scale of Reader and one teacher in the scale of Lecturer.
(iii) Adequate number of research fellows with a consolidated fixed pay prescribed by the University.
(3) That it has a well-equipped library with an adequate number of books, periodicals, old numbers of periodicals, manuscripts, if necessary, etc. in the subject.
(4) That in the case of experimental subjects it has adequate Laboratory and/or museum facilities for post-graduate teaching and research.
(5) That it has adequate quantum of published work through the research activities of its staff in the form of research papers, articles, reports, etc..
(b) All applications for recognition, extension of recognition or continuation of recognition of an institution shall be sent to the Registrar in the form prescribed by the Executive Council so as to reach him on or before the first of August of the year preceding the year from which recognition is intended to take effect.
Every application for recognition shall be accompanied with a deposit of Rs.1,000/- provided, however, that application for continuation or extension of recognition shall be only Rs.200/-. This deposit will be returned after the application is finally disposed of but will be forfeited in case the application is withdrawn or the recognition asked for is not accepted. No request for postponement of consideration of the application for recognition, renewal of recognition or extension of recognition, as the case may be, shall be entertained.
The Executive Council may, however, consider any application received after the aforesaid date for reasons deemed sufficient by it.
8. After hearing the learned counsel for the parties and after going through the aforesaid material, we are of the view that, at the outset, we should bear in mind the provisions contained in Article 265 of the Constitution of India according to which no tax shall be levied or collected except by the authority of law. It is also a well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory body, it is just the other way. The statutory body has no power to do anything unless powers are conferred on it by the statutes which creates it. [see MANIRUDDIN BEPARI V. CHAIRMAN OF MUNICIPAL COMMISSIONERS, DACCA, reported in 40 CWN 17].
9. At this stage, we may also profitably refer to the following observations of the Supreme Court in the case of AHMEDABAD URBAN DEVELOPMENT AUTHORITY V. SHARAD KUMAR JAYANT KUMAR PASSAWALLA reported in AIR 1992 SC 2038.
...
it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power.
10. As pointed out above, Section 20(1) (xxxii) of the Gujarat University Act definitely authorizes the University to fix, demand and receive such fees and other charges as may be prescribed by Ordinances.
Therefore, if the Ordinance specifically authorizes the University to demand an amount of Rs.5,00,000/- per annum for development charges from the affiliated colleges, the University will be entitled to realize that amount.
11. We have gone through the entire Ordinance and particularly 120-C strongly relied upon by Ms. Vashi. It appears from 120-C (b) of the Ordinance that all applications for recognition, extension of recognition or continuation of recognition of an institution shall be sent to the Registrar in the form prescribed by the Executive Council so as to reach him on or before the first of August of the year preceding the year from which recognition is intended to take effect. In the next paragraph it is stated that every application for recognition shall be accompanied with a deposit of Rs.1,000/- provided, however, that application for continuation or extension of recognition shall be only Rs.200/-. Thus, by the aforesaid Ordinance, the University has been permitted to take a sum of Rs.1000/- for an application for recognition and a sum of Rs.200/- for an application for continuation or extension of recognition.
12. However, merely because in the form prescribed by the Executive Council, a sum of Rs.5,00,000/- is mentioned, by taking aid of the said prescribed form, the University cannot contend that it was the amount prescribed by the Ordinance. As pointed out earlier, the Supreme Court, in the case of Ahmedabad Urban Development Authority [supra], has specifically stated that the power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. Thus, in the absence of specific power under the Ordinance specifying the amount of development fee, by taking aid of the form prescribed by the Executive Council, the University authorities cannot demand any amount of fees or charges according to its whims.
13. We also do not find any substance in the contention of Ms. Vashi that having given an undertaking and agreed to pay the amount of development fees, the Petitioner is estopped from challenging the vires of the said demand. In our opinion, merely because the Petitioner agreed to pay the said amount, it has not waived its right to contend that such demand is violative of the provisions of the Statute which created the University.
14. There is no dispute that the mandate of Article 265 of the Constitution of India is based upon public policy and the violation thereof at the instance of a State or it s instrumentality amounts to deprivation of the right of equality before law or equal protection of law as envisaged in Article 14 of the Constitution of India.
15. The true intent and effect of Article 14 of the Constitution of India has been elaborated by a Constitutional Bench of the Supreme Court in the case of BASHESHAR NATH v. COMMISSIONER OF INCOME TAX, DELHI AND RAJASTHAN AND ANR. reported in AIR 1959 SC 149 through S.R. Das, C.J. [for himself and Kapur, J.] which is the part of the majority judgment, in the following way:-
13.
Article 14 runs as follows:-
''The State shall not deny to any Person equality before the law or the equal protection of the laws within the territory of India.'' It is the first of the five Articles grouped together under the heading "Right to Equality." The underlying object of this Article is undoubtedly to secure to all persons, citizens or non- citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall "deny to any person within its jurisdiction the equal protection of the laws" .There can, therefore be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted, first and foremost that this Article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e. g., Art. 19, do. The obligation thus imposed on the State no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but it available to any person within the territory of India. In the third place it is to be observed that, by virtue of Art. 12, the State" which is, by Art. 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Art. 13. Cl. (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void. Likewise cl. (2) of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause shall, to the extent of the contravention, be void. It will be observed that, so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles, e.g., Art. 19, cls. (2) to (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary, for the purpose of this, appeal to consider whether an-executive order is a "law" within the meaning of Art. 13, for even without the aid Art. 13, our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also. In this connection the observations of Lord Atkin in Eshugbayi Eleko v. Officer Administration Government of Nigeria, 1931 A C 662 (A I R 1981 P .C 248) are apposite. Said his Lordship at page 670 (of A C) : (at p. 252 of A I R) that in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice.
That apart, the very language of Art. 14 of the Constitution expressly directs that "the State", which by Art. 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Art. 14 protects us from both legislative and executive tyranny by way of discrimination.
(Emphasis supplied by us.) 15.1 His Lordship in the very next paragraph has dealt with the question of waiver of Article 14 of the Constitution of India in the following way:
14.
Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it." I do not think the state will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear,' on the language of Art. 14 that it is a command issued by the Constitution to the State a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.
(Emphasis supplied by us.) 15.2 The above view of S.R. Das, C.J. has been also adopted by N.H. Bhagwati, J. by the following observations:
27. The question then arises whether a breach of the obligation thus imposed on the State can be waived by a citizen. To borrow the words of My Lord the Chief justice "In the face of such unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the Constitutional mandate merely because a citizen told the State that it may do so ? It the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that 'True, you directed me not to take away or abridge the rights conferred by this Part, but this citizen said that I could do so, for he had no objection to my doing so.' I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit."
It is absolutely clear on a perusal of Art. 13 (2) of the Constitution that it is a constitutional mandate to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by Art.13 (2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
15.3 Subba Rao, J., in His Lordship s separate judgment went further by holding that none of the fundamental rights conferred under Part III of the Constitution of India can be waived. Thus, two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N. H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. The other judge of the bench, viz. S. K. Das J was, however, of the view that where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals.
16. Therefore, the University of Gujarat being an instrumentality of the State within the meaning of Article 12 of the Constitution of India cannot successfully plead that in view of the agreement between the parties, the Petitioner cannot force the University to comply with the requirement of Article 265 of the Constitution of India which is based on public policy and that in disobedience of the provisions contained in Section 20 (1)(xxxii) of the Act and Ordinance 120-C of the Ordinance, it can realize Rs.5,00,000/- every year from the Petitioner for continuation of the affiliation.
17. Section 11 (4) of the Act does not authorise the Vice Chancellor to ignore the provisions contained in the Act, the Statutes, Ordinances and Regulations as would appear from section 11(3) of the Act. The provisions contained in Sections 11(3) and 11(4) of the Act are quoted below:
11(3). It shall be the duty of the Vice-Chancellor to ensure that this Act, the Statutes, Ordinances and Regulations are faithfully observed and he shall have all powers necessary for this purpose.
(4)(a). In any emergency which in the opinion of the Vice-Chancellor requires that immediate action should be taken, he shall take such action as he deems necessary and shall at the earliest opportunity thereafter furnish information regarding his action to such officer, authority or body as would have in the ordinary course dealt with the matter.
[b]. When action taken by the Vice-Chancellor under this sub-section affects any person in the service of the University such person shall be entitled to prefer an appeal through the said officer, authority or body to the Executive Counsel within fifteen days from the date on which such action is communicated to him.
17.1 Thus, in the case before us, the decision taken by the Vice-Chancellor in exercise of power under section 11(4) of the Act not having been approved by the Ordinance, the same cannot be enforced by the University so long the levy of Rs.5,00,000/- as development fee is not prescribed by the Ordinance.
18. We, thus, find that in the present case, the University Authorities have acted without jurisdiction in demanding the amount as development fees which is not authorized by law.
19. We, consequently, allow this writ-application and quash Resolution dated 11th October 2009 passed by the Respondent No.2 Executive Council, quoted in the circular dated 23rd February 2010 issued by the Respondent No.1-Vice Chancellor and also resolution dated 4th August 2010 and hold that the demand of Rs.5,00,000/- per annum from the Petitioner College is illegal as it is not warranted under the Ordinance.
19.1 In the facts and circumstances of the case, there shall be, however, no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) mathew FURTHER ORDER:
After this order was pronounced, Ms. Vashi, the learned advocate appearing on behalf of the respondent No.3-University prays for stay of operation of our above order.
In view of what has been stated above, we find no reason to stay the order. The prayer is rejected.
sd/-
BHASKAR BHATTACHARYA, CJ.) sd/-
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