BAPUJI EDUCATIONAL ASSOCN Vs. STATE

JUDGEMENT

(1.) In this batch of Writ Petitions, in which the petitioners, who are the managements as also individuals, who are members of the management of various private engineering colleges in the State, have questioned the constitutional validity of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 ('the Act' for short) and orders issued thereunder, the following main question arises for consideration : Where the fundamental rights guaranteed to the citizens under Arts. 19(1)(c), 19(1)(g) and 21 of the Constitution includes the right to establish and administer the Educational Institutions of their choice? and if so, whether the Act which prohibits the collection of Capitation Fee for admission to Education Institutions except to the extent permitted by an order made under the proviso to S. 3 of the Act is violative of all or any of those Articles and Arts. 14, 31A and 300 A of the Constitution? 1. Facts of the Case :

(2.) Originally the Writ Petitions were presented questioning the constitutional validity of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Ordinance, 1984 promulgated by the Governor on 9-7-1984 and the order dt.18-7-1984 issued thereunder fixing the intake of the petitioner-institutions and also the number of Government seats at 40% of the intake. Subsequently, during the pendency of these petitions, the Act has come into force and consequently applications were made for amendment of the prayer in the petitions praying for striking down the Act as unconstitutional and also for quashing the Government Order dated 16-8-1984 issued thereunder fixing the rate of Capitation Fee and tuition fees. There is, however, no change either in the averments or pleadings or grounds as the provisions of the Act are similar to that of Ordinance.

(3.) The Preamble to the Act and some of the sections, the constitutional validity of which are challenged in these petitions, read : "An Act to prohibit the collection of Capitation Fee for admission to educational institutions in the State of Karnataka and matters relating thereto. Whereas the practice of collecting capitation fee for admitting students into educational institutions is widespread in the State : And whereas this undesirable practice beside contributing to large scale commercialisation of education has not been conducive to the maintenance of educational standards; And whereas it is considered necessary to effectively curb this evil practice in public interest by providing for prohibition of collection of Capitation Fee and matters relating thereto. Be it enacted by the Karnataka State Legislature in the Thirty-fourth Year of the Republic of India as follows : xx xx xx 2(b) "Capitation fee" means any amount by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed under S.5, but does not include the deposit specified under the proviso to S.3. 2(c) "Educational Institution" means any institution by whatever name called, whether managed by Government, private body, local authority, trust, University or any other person carrying on the activity of imparting education in medicine or engineering leading to a degree conferred by a University established under the Karnataka State Universities Act, 1976 (Karnataka Act 28 of 1976) and any other educational institution, or class or classes of such institution as the Government may, by notification, specify. XX XX XX XX 2(e) "Government Seats" means such number of seats in such educational institution or class or classes of such institution in the State as the Government may, from time to time, specify for being filled up by it in such manner as may be specified by it by general or special order on the basis of merit and reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and such other categories as may be specified by the Government from time to time without the requirement of payment of capitation fee or cash deposit. 3. Collection of capitation fee prohibited : Notwithstanding anything contained in any law for the time being in force, no capitation fee shall be collected by or on behalf of any educational institution or by any person who is in charge of or is responsible for the management of such institution : Provided that subject to such rules as may be prescribed or such conditions as may be specified by general or special order, from time to time, the Government may, notwithstanding anything contained in this Act permit any educational institution established before the date of commencement of this Act and maintained or developed solely or substantially out of amounts collected as Capitation Fee or any class or classes of such institutions, to continue to receive such Capitation Fee or cash deposits in such manner, to such extent and for such period as the Government may, by order, specify, so however, that such, period shall not in any case extend beyond five years from such date.