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Podar International School Through Principal Avinash Ojha v/s Fee Revision Committee

    R. Special Civil Application No. 4312 of 2019

    Decided On, 22 July 2022

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE BHARGAV D. KARIA

    For the Petitioner: Mitul Shelat, Namrata B. Maheshwari (10280), Advocates. For the Respondent: Manisha L. Shah, Senior Advocate, K.M. Antani, Advocate.



Judgment Text

Cav Judgment:

1. Rule. Learned advocate Mr. K.M. Antani waives service of notice of rule on behalf of the respondents.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 17.01.2019 passed by the Fee Revision Committee, Gandhinagar and further prayed to direct the Fee Revision Committee to decide the revision application against the order dated 22.11.2018 passed by the Fee Regulatory Committee (FRC) at Ahmedabad on merits.

3. Brief facts of the case are that the petitioner no.1 school is run by petitioner no.2 trust. Petitioner no.1 submitted the proposal before the FRC under Rule 6 of the the Gujarat Self Financed Schools (Regulation of Fees) Rules, 2017(for short "Rules,2017") stating that the petitioner no.1-school was offering education from Pre-Primary school to Class-V and there was no student in Class-VI to Class-VIII. The said proposal was submitted for a period of block of three years from 2018-2019 to 2020-2021. The petitioners also sought permission for commencing education in Class-VI to Class- VIII and accordingly, the petitioners also submitted the proposal on 19.7.2018 for the year 2019-2020 for fixation of the fees for Class-VI to Class-VIII as well.

4. FRC thereafter passed the order dated 6.8.2018 and fixed the provisional fees.

5. The petitioners filed objection on 16.8.2018 against the provisional order. Thereafter, hearing was granted by FRC on 10.9.2018.

6. FRC passed the final order on 22.11.2018 determining the fees for the academic years 2018-2019 and 2019-2020.

7. Being aggrieved by the aforesaid order, the petitioners preferred revision application before the Fee Revision Committee on 24.12.2018.

8. It is the case of the petitioners that during the course of hearing on 16.1.2019 before the Fee Revision Committee, the Committee was of the view that petitioner-school could not have submitted its proposal for Class-VI to Class-VIII since it did not have the permission for the said classes. According to the petitioners, the petitioners brought to the notice of the Committee the fact that the petitioner no.1 did not commence education in the said classes and further it had no intention to commence classes without due permission and since the fees were to be fixed for block of three years i.e. 2018- 2019, 2019-2020 and 2020-2021 and during the year 2019-2020, the petitioner would have received the permission for Class-VI to Class-VIII, it submitted its proposal for the same. It was also clarified by the petitioners before the Committee that petitioner no.1 school could not be assumed to have any other intention as even proposal for Class-VI to Class-VIII was accepted since there were no students in the year 2018-2019 which would not result into loss to any parent or benefit to the petitioners. Hearing thereafter was concluded.

9. According to the petitioners on the next date, representative of the petitioners appeared before the office of the Fee Revision Committee and desired to submit its affidavit in reference to the hearing held on 16.01.2019. However, the same was not accepted and at the request of the petitioners, the petitioners were permitted to represent before the Chairperson of the Committee. The petitioners were informed that its representation was understood during the hearing and therefore, the Committee did not deem it necessary to take the affidavit on record. The petitioners however, with an intention of ensuring that affidavit is taken on record, sent the same vide post on 23.1.2019.

10. The Fee Revision Committee by order dated 17.1.2019 refused to consider the revision application preferred by the petitioners against the fixation of the fees by the FRC and further directed to refund twice the amount fixed by FRC and fine of Rs. 5,00,000/- is imposed upon the petitioners.

11. Learned advocate Mr. Mitul Shelat for the petitioners submitted that the order of the Fee Revision Committee is in breach of principles of natural justice as it did not provide a fair opportunity to the petitioners to be heard by not taking into consideration the submissions of the petitioners on merits and by not allowing the petitioners to place the affidavit on record which would have direct ramification upon the impugned order.

12. It was submitted that the Fee Revision Committee proceeded to pass impugned order without reference to the material facts and the process in relation to the affiliation in general and facts of the case in particular, inasmuch as application for grant of affiliation to Class-VI to Class-VIII was preferred by the petitioners and accordingly, the proposal was made for fixation of the fees in case such affiliation is granted and the petitioners are permitted to start Class- VI to Class-VIII.

13. It was submitted by the learned advocate Mr. Shelat that no show cause notice was issued to the petitioners by the Fee Revision Committee before imposing penalty and the petitioners are deprived of opportunity of hearing before passing the impugned order.

14. It was further submitted that the Fee Revision Committee has also not considered the revision application filed by the petitioner on merits while exercising statutory jurisdiction under the provisions of section 12 of the Gujarat Self Financed Schools (Regulation of Fees) Act, 2017 (For short "the Act, 2017") inasmuch as the Fee Revision Committee failed to appreciate the factors that are to be taken into consideration prior to passing of any order determining the fees structure under the provisions of the Act, 2017.

15. It was submitted that the Fee Revision Committee has erred in holding that it was an intentional act of the petitioner to mislead not only FRC but also Fee Revision Committee though relevant data was already placed on record by the petitioners before the FRC as well as Fee Revision Committee and there is no suppression or misstatement made by the petitioners before either of the authority.

16. It was submitted that though the petitioners had made clarification in respect of the alleged discrepancy and had given detailed explanation in respect of the present position of the school with regard to the inclusion of Upper Primary and Secondary section after obtaining the requisite permission, the Fee Revision Committee refused to consider the same and even did not consider the revision application on merits by rejecting the same only on the ground of alleged discrepancy. It was submitted that such approach of the Fee Revision Committee by relying upon the Form No.II in which proposal was made to attribute deliberate intentional act on part of the petitioners to mislead FRC was also not correct inasmuch as Form-II in which fee proposal was made as well as order of the FRC make it clear that the petitioners disclosed all necessary, relevant and complete facts in its proposal.

17. It was submitted that the proposal for determination of fees clearly stated that fee structure was being proposed for three years 2018-2019, 2019-2020 and 2020-2021 and alleged discrepancy is merely a result of calculation error and could not have resulted into non consideration of the revision application of the petitioners on merits.

18. It was submitted that the Fee Revision Committee therefore, committed an error in directing the school to refund twice the amount of fees to Pre-Primary and Primary students though there is no discrepancy insofar as those sections are concerned and therefore, the impugned order is contrary to the provisions of section 14 of the Act, 2017. It was submitted that levy of fine of Rs. 5,00,000/- by the Fee Revision Committee is also without any basis inasmuch as the findings given by the Fee Revision Committee in form of allegations against the petitioners have no basis in rationale, fairness and practically are merely a product of prejudice and arbitrariness.

19. It was pointed out that certificate granted by the District Primary Education Board allowing the petitioners to commence the school from June 2018 from Classes I to V and validity of the Certificate being till June 2021 does not preclude the petitioners from making an application for Upper Primary and Secondary sections and accordingly, the petitioners had made an application to start Upper Primary and Secondary section upto Class-VI to Class-VIII from the academic year 2019-2020 and in anticipation of receiving the certificate to commence Upper Primary and Secondary section, the petitioner made the fee proposal for Class-VI to Class-VIII.

20. On the other hand, learned Senior Advocate Ms. Manisha Luvkumar Shah for the respondents submitted that the petitioners have deliberately submitted the fee proposal for Class-VI to Class-VIII by misleading the FRC as well as the Fee Revision Committee though Class-VI to Class-VIII were not in existence which is an admitted fact. It was submitted that the object of the Act, 2017 is the determination of the fees in case of Self Financed school in the State regulating fee structure to ensure that the profiteering through levy of fees is prohibited. Reliance was placed on definition of "fees" as per section 2(g) of the Act, 2017 as well as definition of "profiteering" as per section 2(r) of the Act, 2017. It was therefore, submitted that the facts are not in dispute inasmuch as, as per the provisions of section 14 of the Act, 2017, the Fee Revision Committee is empowered to impose penalty without issuance of notice. In the facts of the case, penalty is levied by the Fee Revision Committee based upon the conduct of the petitioners which is evident from the material available on record.

21. It was submitted that the petitioners cannot invoke the principles of natural justice when it has not come with clean hands before the authority, more particularly, when the petitioners failed to present even before this Court any evidence which would negate the findings of the Fee Revision Committee. It was therefore, submitted that the petitioners cannot take recourse to the principles of natural justice to submit that the Fee Revision Committee could not have passed the impugned order of imposing penalty and directing the petitioners to refund twice the fees collected by it.

22. It was submitted that the petitioners have misled FRC as well as Fee Revision Committee and therefore, such deplorable conduct of the petitioners have earned penalty and fine imposed by the Fee Revision Committee.

23. With regard to the contention raised by the petitioners that the Fee Revision Committee ought to have considered the revision application on merits, it was submitted by learned Senior Advocate that it was the Fee Revision Committee while considering the matter on merits and during scrutiny and verification of the record came to the conclusion that the petitioners have misled not only the Fee Revision Committee but also the FRC by furnishing inconsistent record and in light of such facts, the Fee Revision Committee has rightly not considered the question of determining the fees in absence of true and correct information.

24. It was further submitted that the petitioners are not entitled to get the entire evidence re-appreciated as per its understanding and the petitioners cannot invoke the writ jurisdiction for the same, as cogent reasons are granted by the Fee Revision Committee to come to the conclusion that the petitioners have misled it and FRC and therefore, the impugned order is not required to be interfered with.

25. On perusal of the order passed by the Fee Revision Committee imposing the fine of Rs.5,00,000/- and directing the petitioners to refund twice the fees collected by it on the basis of the facts which are not in dispute, it appears that admittedly no show cause notice was issued to the petitioners or any opportunity of hearing was given to the petitioners before invoking section 14 of the Act, 2017. Though section 14 of the Act, 2017 or Rule 17 of the Rules, 2017 do not stipulate for any requirement to issue show cause notice, however, the Fee Revision Committee being quasi-judicial authority, principles of natural justice ought to have been followed. It is pertinent to note that the affidavit filed on behalf of the petitioners was also refused by the Fee Revision Committee and the same is also not considered while passing the impugned order though sent by the petitioners through post.

26. Therefore, without entering into the merits of the case as to whether there was a simple mistake as explained on behalf of the petitioners or there was a deliberate attempt to mislead the FRC as well as the Fee Revision Committee while considering the revision application filed by the petitioners with regard to the factum of mentioning of the proposed fees for Class-VI to Class-X, though application for recognition and permission to start such classes was yet to be made.

27. The Fee Revision

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Committee has therefore, passed the impugned order by making assumption and presumption that the petitioner-school would have collected the fees even for Upper Primary and Secondary section by illegally running such section without permission and that there was no mistake on part of the petitioner but it was an intentional act on part of the petitioner to mislead the FRC and Fee Revision Committee and no such proposal was made to start Upper Primary and Secondary classes. The Fee Revision Committee ought to have considered the affidavit of the petitioners and ought to have granted an opportunity of hearing to the petitioners before invoking the provisions of section 14 of the Act, 2017 read with Rule 17 of the Rules, 2017 for levy of fine and directing the petitioners to refund twice the fees collected by it. The Fee Revision Committee ought to have also considered the revision application on merits without being swayed away by the alleged action on part of the petitioners for submitting the fee proposal for Upper Primary and Secondary sections for subsequent two years. 28. Therefore, without entering into the merits of the case, the impugned order passed by the Fee Revision Committee is hereby quashed and set aside and the matter is remanded back to decide afresh after giving an opportunity of hearing to the petitioners in the interest of justice. 29. Rule is made absolute to the aforesaid extent. No order as to costs.
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