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2021 DIGILAW 180 (JK)

Mubashir Ashraf Bhat v. Union Territory of JK

2021-04-20

ALI MOHAMMAD MAGREY, VINOD CHATTERJI KOUL

body2021
JUDGMENT : Magrey; J 1. Both these appeals are directed against the common judgment dated 19th of January, 2021 passed by the learned Single Judge in two Writ petitions filed by the Writ petitioner/appellant before us, being WP(C) No. 1216/2020 (subject matter of LPA No.38/2021); and WP(C) No. 379/2020 (subject matter of LPA No.42/2021). That being so, we propose to decide both these appeals by virtue of this common judgment. 2. The background facts essential for appreciation of the controversy involved in the matter, as emerge from the perusal of the pleadings of the parties, are that the Writ petitioner/appellant had approached the Jammu and Kashmir Women’s Development Corporation (for short ‘the Corporation’) under the Scheme floated by the National Minorities Development and Finance Corporation (for short ‘the NMDFC’) for pursing MBBS course in the Community Based Medical College, Bangladesh. The aforesaid College issued admission offer letter dated 3rd of September, 2018 in favour of the appellant, on the basis of which education loan in the amount of Rs.30.00 lac was sanctioned by the respondent-Corporation in favour of the appellant for pursing MBBS course in the aforesaid College. Accordingly, sanction letter dated 24th of December, 2018 was issued by the respondent-Corporation after verifying the antecedents of the appellant and upon execution of a Mortgage Deed by the father of the appellant in favour of the respondent-Corporation. Thereafter, it is claimed by the appellant that there was delay on the part of the respondent-Corporation to sanction the loan, as such, the first instalment of loan could not be released in favour of the aforesaid College by 20th of November, 2018, the last date stipulated for deposition of the fee. Since, as stated, the first instalment of loan was released by the respondent-Corporation only on 24th of February, 2019, the College authorities refused to admit the appellant, as a corollary whereof, the appellant approached M/S Khwaja Yunus Ali Medical College, Bangladesh, through her Consultancy service, and secured her admission in the said College. Since, as stated, the first instalment of loan was released by the respondent-Corporation only on 24th of February, 2019, the College authorities refused to admit the appellant, as a corollary whereof, the appellant approached M/S Khwaja Yunus Ali Medical College, Bangladesh, through her Consultancy service, and secured her admission in the said College. It is contended that the first instalment of fee, that had been transferred by the respondent-Corporation to the Community Based Medical College, Bangladesh was, in turn, transferred to M/S Khwaja Yunus Ali Medical College, Bangladesh, however, the respondent-Corporation issued letter dated 31st of January, 2020 directing the appellant to repay the amount of loan which had been released in her favour, constraining the appellant to file Writ petition bearing WP(C)No. 379/2020. Meanwhile, the appellant claims to have completed her first year of MBBS course in M/S Khwaja Yunus Ali Medical College, Bangladesh and is now pursing her second year of the said Course in the College aforesaid. It is stated by the appellant that the College authorities, thereafter, issued a notice to her for depositing the second year fee before appearing in the examination and, when she approached the respondent-Corporation for release of second instalment, the respondent-Corporation refused to do so, thereby putting her career at risk, the appellant was left with no other option but to file the second Writ petition, being WP(C) No.1216/2020 before the Writ Court. The learned Single Judge, after hearing the learned counsel for the parties, dismissed both the Writ petitions filed by the appellant in terms of the common judgment dated 19th of January, 2021, that is impugned in these two appeals. 3. Mr Mohammad Ayoub Bhat, the learned counsel representing the Writ petitioner/appellant, submitted that the Writ Court has failed to appreciate the controversy involved in its true and correct perspective inasmuch as there was no violation of any rule or any of the terms/conditions stipulated in the process of sanction of loan which would have warranted the respondent Corporation not to release the due instalment(s) of the already sanctioned loan amount in favour of the appellant. It is contended that the impugned action of the respondent Corporation has, in essence, defeated the very object of the Scheme aimed at extending loans/advances to the eligible members belonging to the minority communities for pursuing general/professional/technical education for training at graduate and higher levels. It is contended that the impugned action of the respondent Corporation has, in essence, defeated the very object of the Scheme aimed at extending loans/advances to the eligible members belonging to the minority communities for pursuing general/professional/technical education for training at graduate and higher levels. The learned counsel submitted that the Writ Court also did not take into consideration the fact that it was only because of the delay in disbursing the first instalment of the sanctioned loan amount on the part of the respondent Corporation that the admission of the appellant in the Community Based Medical College, Bangladesh was cancelled, constraining the appellant to take admission in the Khwaja Yunus Ali Medical College, Bangladesh. 4. Mr Feroz Ahmad Sheikh, the learned Deputy Advocate General, appearing on behalf of the respondents, submitted that since the documents and the sanction order disclosed that the appellant had been admitted to 5-year MBBS Course at the Community Based Medical College, Bangladesh, the loan instalment could not have been sent to the Khwaja Yunus Ali College, Bangladesh as the student, according to records, was not admitted in the said College. It is pleaded that the form filled up by the appellant was duly authenticated along with the letter of selection and fee structure which was forwarded by the Community Based Medical College, Bangladesh so the Corporation was not in a position to release the 2nd instalment of the loan amount, unless the appellant completes the formalities besides having not informed the Corporation that she has got the amount back from M/S Community Based Medical College, Bangladesh herself and later on deposited into the Khawja Younis Ali College, Bangladesh. Thus, by keeping the Corporation in dark and without seeking any permission, the appellant has virtually committed a fraud as such is liable to deposit the amount of first instalment back to the Corporation and, thereafter, she can seek the grant of loan for education at Khawja Younus Ali College Bangladesh after completing al the formalities. The aforesaid factual would clearly demonstrate the behaviour and intention of the appellant for which she needs to be proceeded accordingly. 5. We heard learned counsel for the parties, perused the pleadings on record and have considered the matter. 6. At the first blush, we would like to highlight the nature and object of the Scheme under which the loan in question was granted in favour of the Writ petitioner/appellant. 5. We heard learned counsel for the parties, perused the pleadings on record and have considered the matter. 6. At the first blush, we would like to highlight the nature and object of the Scheme under which the loan in question was granted in favour of the Writ petitioner/appellant. It was way back on 30th of September, 1994, the National Minorities Development and Finance Corporation (NMDFC) was incorporated as a Government company under Section 25 of the Companies Act, 1956 (now Under Section 8 of the Companies Act, 2013). This NMDFC was set up to promote the economic and developmental activities for the benefit of ‘Backward Sections’ amongst the Minority communities. As per the Memorandum of Association, among others, the objective of the NMDFC is to extend loans and advances to the eligible members belonging to the Minority communities for pursuing general/professional/technical education for training at Graduate and higher levels. Keeping in view its objectives, the NMDFC flouted various credit financial schemes for empowering its target groups socio-economically, one such scheme being the ‘Education Loan Scheme’. This Scheme, which is also for individual beneficiaries and is implemented through the State Channelising Agencies (SCAs), is provided to facilitate professional and job-oriented education for the eligible persons from the targeted Minority communities. 7. In the case on hand, the Writ petitioner/appellant, who belongs to the ‘Muslim’ community which community stands notified as belonging to the Minority Communities by the Central Government under the National Minorities Commission Act, 1992, claims to have applied for the grant of loan to the tune of Rs.30.00 lacs under the ‘Education Loan Scheme’ of the NMDFC for undergoing MBBC Course at the Community Based Medical College, Bangladesh. Thereafter, upon fulfilment of all the terms and conditions stipulated in the Scheme aforesaid, the respondent Corporation, in terms of communication No. JKWDC/Edu-NMDFC/2018-19/17916-17919 dated 24th of December, 2018, sanctioned the loan amount of Rs.30.00 lacs under the ‘Education Loan Scheme’ of the NMDFC for completion of MBBS Course (5-year) in the Community Based Medical College, Bangladesh, as per the following break-up: Course Duration Year NMDFC Share @ 90% JKWDC share @ 5% Beneficiary share @ 5% Total 1st Year 2018-19 Rs.5,40,000.00 Rs.30,000.00 Rs.30,000.00 Rs.6,00,000.00 2nd Year 2019-20 Rs.5,40,000.00 Rs.30,000.00 Rs.30,000.00 Rs.6,00,000.00 3rd Year 2020-21 Rs.5,40,000.00 Rs.30,000.00 Rs.30,000.00 Rs.6,00,000.00 4th Year 2021-22 Rs.5,40,000.00 Rs.30,000.00 Rs.30,000.00 Rs.6,00,000.00 5th Year 2022-23 Rs.5,40,000.00 Rs.30,000.00 Rs.30,000.00 Rs.6,00,000.00 Total Rs.27,00,000.00 Rs.1,50,000.00 Rs.1,50,000.00 Rs. 30,00,000.00 After grant of admission by the Community Based Medical College, Bangladesh in favour of the appellant on 3rd of September, 2018, the first instalment of fee was to be deposited with the College by or before 20th of November, 2018, however, since the said instalment of loan was delayed by the respondent Corporation and was only released/transferred in favour of the Community Based Medical College, Bangladesh on 24th of February, 2019, admission of the appellant was cancelled by the Community Based Medical College due to non-receipt of first instalment of fee amount within time. Faced with the situation of her career being at stake, the Consultants of the Writ petitioner/appellant managed to get the admission of the appellant in the Khwaja Yunus Ali Medical College, Bangladesh. Thereafter, upon request of the Consultants of the appellant, the first instalment of fee was, accordingly, transferred by the Community Based Medical College, Bangladesh in favour of the Khwaja Yunus Ali Medical College, Bangladesh. The case of the respondent Corporation is that since the amount was transferred from one College to another without intimation to it, it sought refund of the first instalment so released in favour of the Writ petitioner/appellant. This action of the respondent Corporation was challenged by the Writ petitioner/appellant in the first petition, being WP(C) No. 379/2020. Thereafter, as per the mandate of the Scheme, the Khwaja Yunus Ali Medical College, Bangladesh, where the Writ petitioner/appellant was undergoing the MBBS Course (5-year) and was in second year, sought second instalment of fee which was, despite repeated requests, not released in favour of the said College by the respondent Corporation, constraining the Writ petitioner/appellant to file the second Writ petition bearing WP(C) No.1216/2020. 8. Having regard to the above facts, which are substantiated by the pleadings on record, the admitted position as emerge before us is that the loan amount was originally sanctioned in favour of the Writ petitioner/appellant for pursuing MBBS Course (5-year) in the Community Based Medical College, Bangladesh, but it was only because of the reason that the first instalment of fee having not been released by the respondent Corporation in favour of the College aforesaid within the stipulated time, the admission of the Writ petitioner/appellant was cancelled, whereafter the Writ petitioner/appellant was left with no other option but to take admission in some other College, viz. Khwaja Yunus Ali Medical College, Bangladesh. Khwaja Yunus Ali Medical College, Bangladesh. Although, the Writ petitioner/appellant seems to have completed all the formalities for grant of the loan under the ‘Education Loan Scheme’ for the 5-year MBBS course in Community Medical College, Bangladesh and the same was, accordingly, sanctioned in her favour, but the first instalment of the fee, which was to be released by the respondent Corporation in favour of the aforesaid College, was not released in time, resulting in cancellation of the admission of the Writ petitioner/appellant. In the said process of cancellation of her admission in the originally registered College for which the loan under the Scheme was sanctioned, no fault can be attributed towards the Writ petitioner/appellant inasmuch as she, on her part, had completed all the formalities and it was only because of the fact that the first instalment of the fee was not received by the College on time that the admission of the Writ petitioner/appellant was cancelled. The Writ petitioner/appellant, faced with this situation, was also well within her right to seek admission in some new College upon cancellation of her admission in the Community Based Medical College, Bangladesh so that her career is saved. Had the Writ petitioner/appellant not adopted this course of action by taking admission in the Khwaja Yunus Ali Medical College, Bangladesh, the same would have resulted in serious prejudice to her educational rights, thereby defeating the very object of the Scheme. 9. The learned Single Judge, while dealing with the matter, observed that the sanction and release of loan amount by a Financial Institution in favour of a borrower is purely a contractual matter governed by the terms and conditions of the loan agreement and that it, accordingly, had to approach the matter by keeping in mind the principles governing the scope of Writ jurisdiction in contractual matters. On this premise and after applying the law relating to the jurisdiction of the Writ Court in contractual matters, the learned Single Judge dismissed both the petitions filed by the Writ petitioner/appellant by holding that it did not find any scope to interfere in the action of the respondent Corporation in not releasing the instalments of loan in favour of the petitioner/appellant herein which is purely a matter relating to contractual obligations of the parties. We, in the given circumstances as set out hereinabove, do not, however, concur with the observation of the learned Single Judge that the matter is of purely contractual nature as the said view may have the result of defeating the very object of the Scheme flouted by the NMDFC of extending loans and advances to the eligible members belonging to the Minority communities for pursuing general/professional/technical education for training at Graduate and higher levels. The learned Single Judge, on mere technicality qua the matter being of contractual nature, has dismissed the Writ petitions filed by the Writ petitioner/appellant, which if allowed can derail the entire future educational career of the Writ petitioner/appellant. We feel that a holistic and pragmatic view of the matter was/is required to be taken keeping in view the object of the Scheme-‘Education Loan Scheme’ flouted by the NMDFC, more so, when there was no allegation of violation of any of the terms/or conditions prescribed in the sanction order dated 24th of December, 2018 issued by the respondent Corporation. 10. Apart from the above perspective, it needs to be appreciated here that the role of the respondent Corporation is only to ensure that the benefits of the schemes flouted by the NMDFC, including the ‘Education Loan Scheme’, reach to the ultimate beneficiaries. The respondent Corporation, upon fulfilment of all the terms and conditions on the part of the Writ petitioner/appellant, which is not in dispute, was supposed to take further course of action as mandated in terms of the Scheme with due dispatch, which it did not resulting, firstly, in delay in release of first instalment of the fee in favour of the College concerned and, secondly, cancellation of the admission of the Writ petitioner/appellant. Consequently, the Writ petitioner/appellant was compelled to take admission in the Khwaja Yunus Ali Medical College, Bangladesh for pursuing her 5-year MBBS course, for which, in our opinion, the respondent Corporation could neither have demanded back the first instalment of the loan amount nor could it have withheld the subsequent instalments of the loan amount as per the Scheme. The basis for this action of the respondent Corporation, as comes to the fore from the pleadings on record, has been provided as the non-communication of the factum of change in college on the part of the Writ petitioner/appellant. The basis for this action of the respondent Corporation, as comes to the fore from the pleadings on record, has been provided as the non-communication of the factum of change in college on the part of the Writ petitioner/appellant. This ground of non-communication of change in college, which although is rebutted by the Writ petitioner/appellant by stating that she had clearly informed the respondent Corporation about the same and had occasioned only due to the delayed approach of the respondent Corporation itself in releasing the first instalment of fee in favour of the originally- registered College, could, in our opinion, not have become the basis for defeating the ultimate object of the Scheme. This aspect of the matter has also skipped consideration of the learned Single Judge, thus warranting setting aside of the impugned judgment passed by the learned Single Judge. 11. For the foregoing reasons, we find merit in both these appeals which are, accordingly, allowed and the impugned judgment of the learned Single Judge set aside. Consequently, both the Writ petitions filed by the Writ petitioner/appellant are allowed and the communication bearing No. JKWDC/Estt/2019-20/923-924 dated 31st of January, 2020 issued by the respondent Corporation seeking refund of released amount of Rs.6.00 lacs from the Writ petitioner/appellant is quashed. The respondent Corporation is further directed to release the remaining instalments of the sanctioned loan amount under ‘Education Loan Scheme’ of the NMDFC in favour of the Writ petitioner/appellant for completion of her 5-year MBBS Course through Khwaja Yunus Ali Medical College, Bangladesh strictly in accordance with the Scheme as well as sanction order dated 24th of December, 2018. 12. Both these appeals shall stand disposed of on the above terms, along with the connected CM(s). 13. Registry to place a copy of this judgment on each file.