V.DHANAPALANW.A. NO. 3090 OF 20021. The Syndicate of the Manonmaniam Sundaranar University v. 1. Sri Kumaraguru Swamigal Arts College Arulnandhinagar, Sri Vaikundam V.O.C. District

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 13 .04.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.A. NO. 3090 OF 20021. The Syndicate of the Manonmaniam Sundaranar University, rep. by its Chairman, Tirunelveli – 9.2. The Inspection Commission appointed by the Manonmaniam Sundaranar University, rep. by its Chairman, C/o. Registrar Manonmaniam Sundaranar University Tirunelveli – 9... Appellant- Vs -1. Sri Kumaraguru Swamigal Arts College Arulnandhinagar, Sri Vaikundam V.O.C. District, rep. by its Correspondent, Prof. P.Velappapillai2. Government of Tamil Nadu rep. by its Secretary Education Department Fort St. George, Madras – 9.3. The Commissioner of Collegiate Education, College Road Madras – 6... RespondentsWrit Appeal filed against the order passed by the learned single Judgein W.P. No.7378/95 dated 17th July, 2002, calling for the records relatingto the order of the 4th respondent dated 13.8.1993 and the consequentialresolution to the 3rd respondent dated 25.10.1993 and quash the same anddelcare that the prosectuion thereby launched against the petitoner by the1st respondent through the 2nd respondent under Section 3 of the Tamil NaduEducational Institutions [Prohibition and Capitation fee] Act T.N.Act57/1992 as null and illegal. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr. N.G.R.Prasad, for M/s. Row & ReddyFor Respondents : Mr. K.Doraiswamy, SC, for Mr. K.Ravichandra Babu for R-1 Mr. V.Arun, GA for RR-2 & 3JUDGMENTS.J.MUKHOPADHAYA, J.This writ appeal has been preferred by Manonmaniam SundaranarUniversity (hereinafter referred to as 'University') against judgmentdated 17th July, 2002, passed in W.P. No.7378/95 whereby and whereunder theResolution of the University, No.22 dated 25th Oct., 1993 and the reportsubmitted by the 4th respondent, dated 13th Aug., 1993, were set aside andthe writ petition was allowed in favour of the respondent/writ petitioner,Sri Kumaraguru Swamigal Arts College (hereinafter referred to as'College').2. The questions involved in this appeal are :-i) Whether it is open to the University to enquire intothe matter of the College through a Commission orCommittee ?ii) Whether the University could take any penal actionagainst its affiliated college, including the college inquestion, if found collecting capitation fee.3. For determination of the aforesaid issues, it is necessary todiscuss the relevant facts, as mentioned hereunder :-The college in question was established by Sri Kasi Mutt, which wasgranted a declaration by the Court of Sub Judge, Kumbakonam, that it is areligious denomination within the meaning of Article 26 of theConstitution of India. Later on, a question arose whether the college canclaim status of a minority institution under Article 30 of theConstitution of India. A Division Bench of this Court, by its judgmentreported in AIR 1997 Madras 386 (Manonmaniam Sundaranar University & Ors.- Vs – Kumaragurubara Swamigal Arts College & Ors.) while held that theUniversity cannot be permitted to raise question of nullity of a civilcourt degree, further observed that a reading of the judgment of the firstappellate court in A.S. No.62/86 shows that a right has been claimed bythe head of the Kasi Mutt, both under Article 26 and under Article 30 ofthe Constitution of India, which were considered by both the first andappellate court and thus the matter stand decided.4. The college in question was established in the year 1961 and wasearlier affiliated with Madras University. Initially it was curbed out ofMadras University and placed under the jurisdiction of Madurai KamarajUniversity. Later on, again the area was curbed out and the college wasplaced under Manonmaniam Sundaranar University (University in question).5. The University received certain complaints that the college ischarging capitation fee at the time of admission. To enquire into thematter, three member commission (Committee) was appointed including former https://hcservices.ecourts.gov.in/hcservices/ Registrar, Alagappa University, Karaikudi and two Syndicate members.After due inspection of the college, the Committee submitted its reportdated 13th Aug., 1993. It appears that similar complaint was received withregard to some other affiliated colleges also. Those colleges were alsoinspected and reports were submitted. Having noticed such report, theSyndicate passed Resolution No.22 on 25th Oct., 1993, relevant portion ofwhich is quoted hereunder :-"RESOLVED on the basis of reports of InspectionCommissions, to request the Government of Tamil Nadu toinitiate prosecution against the managements of thefollowing six colleges under the provisions of Tamil NaduEducational Institutions (Prohibition of Collection ofCapitation Fee) Act, 1992 (Act 57 of 1992).1. Scott Christian College, Nagercoil2. Women's Christian College, Nagercoil3. Nesamony Memorial Christian College, Marthandam4. Sri Kumara Gurupara Swamigal Arts College,Srivaikuntam5. Vivekananda College, Agasteeswaran6. Muslim Arts college, ThiruvithancodeRESOLVED FURTHER THAT no Ph.D. centre be recognised in theabove colleges and no further affiliation be given to themtill they stop making unauthorised collections. They areto be severely warned that further action is contemplatedif the practice continues."6. The Syndicate in its subsequent meeting held on 15th Dec., 1993,resolved not to consider the applications received from the colleges asshown in the resolution, including the college in question for furtheraffiliation of course for the year 1994-95.7. The college challenged both the report of the Commission(Committee) dated 13th Aug., 1993 and the Resolution No.22 dated 25th Oct.,1993 in a writ petition, W.P. No.7378/95. Learned single Judge, byimpugned judgment dated 17th July, 2002, noticed a judgment passed bylearned single Judge of this Court in Arumugam Pillai Seethai AmmalCollege, etc. - Vs – Registrar, Madurai Kamaraj University, reported in1996 WLR 143 and held that the issue being covered by aforesaid decision,the University had no jurisdiction to appoint a Commission or to recommendthe State Government to take action under the Capitation Fee Act, 1992.Both the report of Commission and the Resolution were set aside.8. Section 4 of the Capitation Fee Act, 1992, empowers the Governmentto regulate tution fee or any other fee or deposit that may be received orcollected by any educational institution or class or class of sucheducational institutions in respect of any or all class or classes ofstudents. Sub-section (2) to Section 4 prohibits educational institutionsfrom receiving or collecting any fee or to accept deposit in excess of theamount as may be notified by the Government. Under sub-section (3) toSection 4, every educational institution is to issue an official receiptfor deposit or fee collected by it. While Section 7 prescribes penalty,Section 11 deals with congizance of offence as per which no Court can takecognizance of any offence under the said Act except with the sanction ofthe Government or such officer as may be authorised in this behalf. https://hcservices.ecourts.gov.in/hcservices/

9. The relevant provisions of Capitation Fee Act, 1992, fell forconsideration before a learned single Judge of this Court in Arumugam(supra) wherein taking into consideration the different provisions of thesaid Act and the Madurai Kamaraj University Act (Act XXXIII of 1965),learned single Judge held that the Capitation Fee Act is a self-containedcode, which overrides all other law so far as they are inconsistent(Section 12 of the said Act) and as Section 11 prohibits even takingcongizance of any offence by any Court except with the previous sanctionof the State Government or such officer as the Government may authorise,the University had no jurisdiction and authority either under the MaduraiKamaraj University Act governing it or other law to appoint a commissionto enquire into the allegation made against the college, i.e., the writpetitioner of the said case relating to collection of capitation fee.10. In fact, the aforesaid judgment has been relied on by the learnedsingle Judge to grant relief in favour of the college in question.11. In this case, we are not raising any doubt relating to thecorrectness of the decision in Arumugam (supra), though we may have somereservation, as we are not deciding the case of any affiliated college ofMadurai Kamaraj University, who are guided by a different Act. We areconcerned with the Act and the Statute, which is binding on the college inquestion, namely, Manonmaniam Sundaranar University Act, 1990 (hereinafterreferred to as 'Act, 1990') and Statute framed thereunder, namely, 'TheStatute of Manonmaniam Sundaranar University' (hereinafter referred to as'Statute').12. Section 24 of Act, 1990 deals with power of a Syndicate, includingthe power to prescribe conditions for affiliation of colleges or towithdraw affiliation from colleges, to prescribe fee, inspection ofcolleges and delegation of its power to a Committee, etc., relevantprovisions of which are quoted hereunder :-"24. (a) The Syndicate shall have the following powers,namely :-*******(8) to prescribe the conditions for affiliating collegesto the University and to withdraw affiliation fromcolleges;*******(16) to prescribe the fees to be charged for the approvaland affiliation of colleges, for admission to theexaminations, degrees, titles and diplomas of theUniversity, for the registration of graduates, for therenewal of such registration and for all or any of thepurposes specified in section 4;*******(34) to arrange for and direct, the inspection of allUniversity colleges, affiliated and approved colleges andhostels;*******(50) (a) to delegate any of its powers to the Vice-Chancellor, to a committee from among its own members orto a committee appointed in accordance with the Statutes. https://hcservices.ecourts.gov.in/hcservices/ (b) The Syndicate may consult the Standing Committee onAcademic Affairs in respect of any academic matter, whereit considers such consultation is necessary."13. Chapter XVIII of the Statute deals with "Affiliation, Approval tocolleges and Autonomous colleges", including procedure to be adopted ingranting affiliation or approval. While a college is to apply foraffiliation or approval under Rule 21 of the Statute, it is required togive certain information and undertaking under clause (h) of Rule 21 andto undertake that no capitation fee will be charged, as evident from thesaid provision and quoted hereunder :-"21. A college applying for affiliation or approval shallsend a formal letter of application to the Registrarbetween the 1st July and 31st October preceding the academicyear in which the courses are proposed to be started andshall give full information in the letter of applicationon the following matters :-******** (h) An undertaking that no capitation fee or donations ofany will be collected from students/parents guardiansanyone else in consideration of admission."14. Under Section 24 (a) (8) of the Act, 1990, while the University isinvested with power to withdraw affiliation from colleges in appropriatecases, Rule 3 of Statute (Chapter XVIII) prescribes the procedure towithdraw or suspend affiliation. The said provision, i.e., Rule 3 readsas follows :-"3. The Syndicate shall have the power at any time afterdue enquiry, to withdraw or suspend the affiliation orapproval granted to a college: provided the Syndicateshall inform the management of college concerned of itsfindings after the enquiry and shall allow it anopportunity of making such representation as it may deemfit. The report of the enquiry the representation made bythe Management, if any, and thereon shall be placed beforeStanding Committee on Academic Affairs along with therecommendation of the Syndicate. The Syndicate shallcarry out the decision of the Standing Committee onAcademic Affairs on the recommendation. The decision ofthe Syndicate is final."15. From the provisions as noticed and discussed above, it is evidentthat for affiliation of a college, an undertaking is to be given by thecollege that no capitation fee or donation will be collected from anystudent/parents or guardian. In respect of an affiliated college, whichis already affiliated with one University (Madras University or MaduraiKamraj University), when such college is curbed out and made a deemedaffiliated college of Manonmaniam Sundaranar University, in such case thecollege will be deemed to have given undertaking that it will not chargeany capitation fee or donation from the student/parents or their guardianat any time. https://hcservices.ecourts.gov.in/hcservices/

16. It will be evident from sub-clause (34) of clause (a) of Section24 of the Act, 1990 that the Syndicate could investigate any of itscollege, including affiliated college or its University, such power couldbe delegated to a Committee under sub-clause (50) of clause (a) of Section24 of the Act. For withdrawal of affiliation, it is mandatory to holdsuch enquiry after informing the management of the college and order ofwithdrawal of affiliation can be passed by giving opportunity to thecollege to file representation. This will be evident from Rule 3 (ChapterXVIII) of the Statute. Thus, the Syndicate of the University is not onlyempowered to inquire into any allegation of its college, affiliatedcollege or hostel by itself or through a Committee, it is mandatory to doso before withdrawal of affiliation, if University intends to do so.17. We, therefore, find no illegality in the decision taken by theSyndicate of the University to constitute a Committee to inquire into theallegations relating to charging of capitation fee and the report of suchthree member committee dated 13th Aug., 1993 cannot be held to be withoutjurisdiction merely because 'Committee' has been addressed as a'Commission'. If the Syndicate is invested with such power, giving awrong nomenclature of the Committee will not ipso facto render the reportof such Committee as void or without jurisdiction.18. So far as the action under the Capitation Fee Act, 1992 isconcerned, the University has not taken any decision under the Act norpassed any order. The resolution dated 25th Oct., 1993 is a meresuggestion/recommendation to the State Government to take action inaccordance with law, which is always open, not only to the University, butto any aggrieved person, including student(s)/parents or their guardian,who can bring the illegality to the notice of the competent authority ofthe State Government and may request to inquire into the mater and passorder in accordance with law.19. From the documents enclosed with the typed set, where referenceto the resolution dated 25th Oct., 1993 has been made, it has been noticedthat the Syndicate in its subsequent meeting held on 15th Dec., 1993resolved not to consider the application received from six colleges,including the respondent/writ petitioner for further affiliation of thecourse for the year 1994-95. Such subsequent decision dated 15th Dec.,1993 having not been challenged, the college in question cannot derive anyadvantage, if a recommendation to take action in accordance with law isset aside or if it is not acted upon.20. The case of Arumugam (supra) decided by a learned single Judge ofthis Court is not applicable in the present case, as there is nocorresponding provision has been made under the Madurai Kamaraj UniversityAct prohibiting its affiliated colleges from taking capitation fee. Thosecolleges, for the purpose of capitation fee, will be guided by theCapitation Fee Act, 1992. On the other hand, the college in question andother colleges under the control of the Manonmaniam Sundaranr University,will not only be guided by the prohibition imposed under the CapitationFee Act, 1992, but also in view of the undertaking given under Rule 2 (h)of the Statute in question. https://hcservices.ecourts.gov.in/hcservices/

21. Further, as no person can be prohibited from lodging anycomplaint before a court of law or from lodging FIR in a police station,it is not open to the Court to preempt any action, if one or otherauthority or persons request the competent authority to lodge FIR.22. In view of the reasons given in the foregoing provisions, wecannot subscribe to the finding dated 17th July, 2002, given by the learnedsingle Judge in W.P. No.7378/95 and, accordingly, the said judgment is setaside.23. It is open to the University to proceed in the matter and to takeappropriate action in accordance with the Acts and Statute after givingopportunity to the affected party and it may also pursue the State to actas per its recommendation made pursuant to Resolution dated 25th Oct., 1993and report dated 13th Aug., 1993. The competent authority of the State ofTamil Nadu will apply its mind independently before coming to a definiteconclusion in the matter. The writ appeal is allowed, but there shall beno order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLNTo1. The Secretary to Government Education Department Fort St. George, Chennai.2. The Registrar Manonmaniam Sundaranar University Tirunelveli.3. The Commissioner of Collegiate Education,College Road, Madras 6.+ 1 CC To Mr. Ravi Chandra Babu, Advocate SR NO.23997+ 1 CC to the Government Pleader SR NO 24531+ 1 CC To M/S.Row and Reddy, Advocate SR NO.24473 W.A. NO. 3090 OF 2002 mbs[co]Gp/20.4