Shah Utkarsh Nikunjk... v. Smt. N.H.L Municipal...

CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE MR. K.S RADHAKRISHNAN)

The question that has come up for our consideration in these cases is whether Smt. NHL Medical College is an unaided professional educational college within the meaning of Section 2(m) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees, Act, 2007 (Act No. 3 of 2008) (for brevity ‘the Act’) so as to be governed by the fee structure determined by the Fee Regulatory Committee constituted under Section 10 of the Act.

2. Petitioners have approached this Court seeking a declaration that the above mentioned Medical College is an aided college within the meaning of Section 2(b) of the above mentioned Act and hence, can charge fees only at the rate applicable to Government Medical Colleges. They have also sought for a declaration that Sections 2(b) and 2(m) of the above Act is arbitrary, unreasonable, discriminatory and violative of Articles 14 and 21 of the Constitution of India, since they do not include the colleges which are aided by the instrumentality of the State, and also for other consequential reliefs.

3. Petitioners are students studying in Smt. NHL Medical College, challenging the action of the first respondent College in increasing and revising the fees structure of the Government seats from Rs. 6,000/- to Rs. 2,15,000/- in an year. Petitioners are selected by respondent No. 6 Committee for admission to the NHL Medical College (local quota). Previous year the first respondent College was collecting fee of Rs. 6,000/- per year. Higher fee was claimed based on the fee fixation made by R.J Shah Committee applicable only to unaided colleges and institutions. Petitioners have also stated that the action of Smt. NHL Medical College in demanding higher fees as if it is an unaided institution, is illegal and violative of various principles laid down by the Apex Court in Mohini Jain (Miss) v. State of Karnataka - (1992) 3 SCC 666, Unni Krishnan v. State of A.P - (1993) 1 SCC 645, T.M.A Pai Foundation v. State of Karnataka(2002) 8 SCC 481 and Islamic Academy of Education v. State of Karnataka - (2003) 6 SCC 697.

4. Learned counsel for the petitioners also submitted that 1st respondent College is an instrumentality of the State within the meaning of Article 12 of the Constitution of India, discharging public functions and duties, hence not justified in demanding higher fees than the fees applicable to the Government Medical Colleges. Further it is also submitted that NHL Medical College is being run with the aid and support of State Government, so also its hospital and hence, it is an aided college within the meaning of Section 2(b) of the Act and the fees fixed by the Regulatory Committee is not applicable.

5. 1 respondent has taken up the stand that it is not a Government College or Institution and not receiving any finance or grant-in-aid from State Government or Central Government for running its Medical College. 1 respondent was started by the Ahmedabad Municipal Corporation in the year 1962 with the private aid/donation to the tune of Rs. 14,25,000/- received from a private Trust ‘Nathiba Hargovandas Laxmichand Charity Trust. 1 respondent Medical College receives funds from the Ahmedabad Municipal Corporation for the purpose of discharging education in the field of medicine and the Corporation does not receive funds from the State Government for running this institution. The status of 1 respondent college as an unaided college has already been recognized by R.J Shah Committee and the 1 respondent College is strictly following the fees structure prescribed by R.J Shah Committee under Section 10(1) of the Act. It is also stated that the costs incurred by the Ahmedabad Municipal Corporation for running the medical college has nothing to do with the costs incurred for running V.S Hospital. It is also stated that Corporation would be put to great prejudice if 1 respondent college is directed to collect only the fees fixed for the Government colleges, since the Corporation has to incur enormous expenditure for running the medical college.

6. We heard learned counsel for the petitioners Ms. Sangeeta Pahwa as well as learned Senior Counsel appearing for 1 respondent College. Learned counsel appearing for the petitioners has referred to various provisions of the Bombay Provincial Municipal Corporations Act, 1949 (for brevity ‘BPMC Act’) and submitted that under Section 63(15) of the BPMC Act, the Corporation has a duty to maintain, aid and suitably accommodate schools for primary education. Reference was also made to Section 66 of the BPMC Act and has submitted that in furtherance of educational ethics other than those mentioned in subsection (15) of Section 63, the Corporation in its discretion may provide various matters like organization, maintenance or management of institutions within or without the City for the care of persons who are infirm, sick or incurable. Learned counsel also referred to Article 243W of the Constitution of India to show the powers, authorities and responsibilities of the Municipality. Learned counsel submitted that Municipal Corporation is discharging a public function and it is a unit of self-Government and therefore, institution cannot demand any fees more than what has been fixed for Government Medical colleges.

7. Learned Advocate General appearing for respondent No. 1 has referred to the affidavit filed by 1 respondent College as well as the Municipal Corporation and reiterated that the college is not running with the Government's assistance or aid and it is fully supported by the funds of the Municipal Corporation. Learned Advocate General further submitted that 1 respondent college is an unaided college within the meaning of Section 2(m) of the Act and therefore, it is governed by the fees fixed by the Fee Regulatory Committee under Section 10 of the Act. Learned counsel referred to various provisions of the BPMC Act, and referring to Section 66, learned Advocate General also submitted that discretion has been conferred upon the Corporation in making grants to the educational institutions in furtherance of its objects other than those mentioned in sub-section (15) of Section 63 of the BMPC Act. Sub-section (15) of Section 63 deals with primary education. Learned Advocate General also submitted that it will be impossible for the Municipal Corporation to run the Medical College if it is prevented from collecting fees fixed by the Fee Regulatory Committee.

8. We have gone through the provisions of Act No. 3 of 2008, which is enacted to make special provisions for regulation of admission in the professional educational medical colleges or institutions in the State and for fixation of fees in such colleges and institutions. Section 2(b) defines aided college, which means a professional educational college or institution including the university run or managed by the Trust, Society or Association of persons or organizations receiving financial aid or grant in aid from the State Government or Central Government. No materials have been produced before this Court to show that first respondent College is receiving any financial aid or grant-in-aid from the State Government or Central Government for running the medical college. The respondent college is therefore, not an aided college within the meaning of Section 2(b) of the Act. Section 2(m) of the Act defines unaided college or institution to mean a professional educational college or institution including the university not receiving the financial aid or grant-in aid from the State Government or the Central Government. Since 1 respondent college is not receiving any financial aid or grant-in-aid, it squarely falls within the definition of Section 2(m) of the Act. As per sub-section (3) of Section 10 of the Act, unaided professional colleges or institutions are bound by the fee structure determined by the Fee Regulatory Committee. On facts we have clearly found that 1 respondent college is an unaided college within the meaning of Section 2(m) of the Act and hence it is obligatory on the part of the 1 respondent to follow the fee structure prescribed by the Fee Regulatory Committee. We find ourselves unable to accept the contention that mere fact that 1 respondent college is managed by Municipal Corporation, and Municipal Corporation being a ‘State’ within the meaning of Article 12 of the Constitution of India, 1 respondent college has to be treated as an aided college or institution within the meaning of Section 2(b) of the Act. In the absence of any material to show that 1 respondent college is receiving any financial aid or grant-in-aid from the State Government or Central Government, mere fact that Corporation is discharging public duties and functions under the BPMC Act or discharge constitutional obligations does not mean that 1 respondent college is an aided institution within the meaning of Section 2(b) of the Act. Section 2(b) and Section 2(m) are not arbitrary, unreasonable, irrational or discriminatory so as to violate Articles 14 and 21 of the Constitution of India.

9. Municipal Corporation cannot be equated with a State Government, which has got lot of resources to run and manage a medical college. Municipal Corporation has got only limited financial resources. Large amounts are required for running a medical college and a hospital attached to such medical college. Fees received from the students may be a major source of income for running the medical college. Under these circumstances, we are not prepared to say that 1 respondent college has committed any illegality in following the fees structure fixed by the Fee Regulatory Committee. We therefore hold that 1 respondent college being an unaided college within the definition of Section 2(m) of the Act, is governed by the fees fixed by the Fee Regulatory Committee. These petitions lack merit and they are accordingly dismissed.