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2023 DIGILAW 1478 (ALL)

Vaibhav Sharma v. State of U. P.

2023-05-29

KSHITIJ SHAILENDRA

body2023
JUDGMENT : Kshitij Shailendra, J. Heard Shri Anurag Sharma, learned Advocate, holding brief of Shri Avanish Mishra, learned counsel for the petitioner, learned Standing Counsel appearing for State-respondent and Shri Nipun Singh, learned counsel appearing on behalf of respondents 2 and 3. 2. The petitioner took admission in the M.B.B.S. Course run by the respondent-college in the academic year 2002-03 and deposited the fees as per the structure laid down by the college. It appears that 64 students, identically placed as that of the petitioner, claimed refund of excess fees deposited by them in reference to the certain Government orders, etc. When the fees was not refunded by the college, the said 64 students filed Writ-C No. 12333 of 2004 (Abhishek Kadian and others v. State of U.P. and others). Learned Single Judge of this Court, by a very detailed judgment, allowed the writ petition alongwith connected matter with following directions: ''Both the writ petitions are consequently allowed. The Subharti KKB Charitable Trust Meerut and Subharti Medical College, Meerut are held entitled to charge the college fees of payment seats of the student admitted in 2002-03 academic session and for all subsequent years of the same batch @ 1,26,500/- per month as fixed by the Government Order dated 8.1.2003. The Trust and the College will refund the entire excess amount collected from all the 64 students admitted on the payment seats of 2002-03 batch, and for subsequent years for the same batch, within one month. The 17 petitioners in writ petition No. 38368 of 2006 will be allowed to appear in 4th professional examination in the next examinations to be held by the University. They will be allowed to adjust the excess fees paid by them in the three years and will only pay the differences, (sic) any @ Rs. 1,26,500/- per annum. This judgment will be confined only to the students admitted on payment seats to the MBBS Course of the academic session 2002-03 and in subsequent years for the same batch. The College will pay Rs. 10,000/- as costs of these petitions to the students by depositing it in the students' welfare fund of the College.'' 3. Two special appeals were filed against the said order in connected matters. However, the same were dismissed by a Division Bench of this Court by a detailed judgment dated 29.9.2010. The College will pay Rs. 10,000/- as costs of these petitions to the students by depositing it in the students' welfare fund of the College.'' 3. Two special appeals were filed against the said order in connected matters. However, the same were dismissed by a Division Bench of this Court by a detailed judgment dated 29.9.2010. The matter was carried by the college to the Hon'ble Supreme Court in which an interim order was passed on 10.12.2010 directing the college to deposit Rs. 4 crores in the Registry within a period of three months. Later on, special leave petitions were dismissed on 8.5.2015. Certain curative petitions and review petitions were filed by the college, however, the same were also dismissed on 13.7.2016. 4. The present writ petition was filed in the year 2017 with a prayer that a writ of mandamus be issued to respondents 2 and 3 to refund the entire excess amount of fees realized from the petitioner in violation of the Government Order dated 8.1.2003 alongwith interest @ 12% per annum on the excess amount. 5. Counter and rejoinder-affidavits have been exchanged between the parties and the writ petition is being finally decided. 6. The contention of learned counsel for the petitioner is that since identically placed students have already been refunded the amount of excess fees, the petitioner is also entitled for the same relief. 7. Per contra, Shri Nipun Singh, learned counsel for the college, has vehemently argued that the petitioner is not entitled to claim any benefit of the orders passed by the Writ Court or Special Appellate Bench or the Apex Court as the 64 students had agitated their claim in the year 2004 whereas the petitioner has approached this Court in 2017 and his claim is barred by laches. Learned counsel has further argued that limitation for claiming refund of any amount is three years as per the Limitation Act, 1963 and, therefore, the petitioner cannot claim refund of excess fees. He has also argued that since the petitioner had given an undertaking before the college at the time of taking admission that he would pay the fees as per the fee-structure and that the fees once paid would not be refunded in any circumstances, the petitioner is estopped from claiming any relief. 8. He has also argued that since the petitioner had given an undertaking before the college at the time of taking admission that he would pay the fees as per the fee-structure and that the fees once paid would not be refunded in any circumstances, the petitioner is estopped from claiming any relief. 8. To this argument of learned counsel for the college, it has been argued by learned counsel for the petitioner that Limitation Act, 1963, would not apply in exercise of powers under Article 226 of the Constitution of India and whenever fundamental right is denied to a litigant or where demand for justice is so compelling, delay in approaching the High Court would not defeat the grant of relief as it is within the discretion of the Court to exercise jurisdiction fairly and justly so as to promote justice and not to defeat it. In support of his submission, learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in the case of Tukaram Kana Joshi and others v. Maharashtra Industrial Development, (2013) 1 SCC 353 , with reference to paragraphs 13 and 14 of the same, which are reproduced as follows: ''13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not defeat it. The validity of the party's defence must be tried upon principles substantially equitable. 14. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not defeat it. The validity of the party's defence must be tried upon principles substantially equitable. 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the even that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of anon-deliberate delay. The Court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners.'' 9. Having heard learned counsel for the parties, I find that the order of Writ Court passed in the case of Abhishek Kadian (supra) is in declaratory form whereby it has been declared that the colleges are held entitled to charge the college fees as fixed by the Government Order dated 8.1.2003. Meaning thereby that the colleges are not entitled to claim fees, over and above, what has been decided by this Court. As far as the delay aspect is concerned, though the writ petitions were filed in the year 2004 and decided in the year 2007, the college carried it to the Special Appellate Bench where the special appeals were dismissed in 2010 and then the matter was carried to the Apex Court where an interim order was passed in the year 2010, but the special leave petitions were dismissed in 2015 and curative and review petitions were dismissed in 2016. 10. 10. The present writ petition having been filed in the year 2017, immediately after dismissal of the special leave petition, cannot be said to have been filed with inordinate delay particularly when all the students were defending the matter up to the Supreme Court where even an interim order was passed in 2010, which remained operative till 2015-16 with no benefits to the said students. 11. Even otherwise, insofar as limitation aspect is concerned, it is well-settled that Limitation Act, 1963, has no application in exercise of jurisdiction under Article 226 of the Constitution of India. Even if by any stretch of imagination, Limitation Act, 1963 or its principles are said to be applicable in writ jurisdiction, insofar as the controversy covered by the present case is concerned, reference to Section 17 of the Limitation Act, 1963 is required to be made. Section 17 of the said Act reads as follows : ''17. Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,? (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the CONSEQUENCE OF MISTAKE; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him. The period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production.'' 12. I find that in case any suit or application is for relief from the consequences of a MISTAKE, Section 17 (c) of the Limitation Act, 1963 would come for the rescue of the person seeking relief and in such matters, the period of limitation shall not begin to learn until the applicant has discovered the mistake or could, with reasonable diligence, had discovered it. 13. 13. In the present case, it has been pleaded in paragraphs No. 22 and 23 of the writ petition that since various students had approached this Court and the receipts of fees of the petitioner were also annexed alongwith Writ-C No. 12333 of 2004 filed by Abhishek Kadian and others, the petitioner was under a BONA FIDE MISTAKE or belief that his cause was also being agitated before this Court. However, the said MISTAKE STOOD REVEALED when the petitioner came to file contempt application, but he was informed that he was not a party in Writ-C No. 12333 of 2004 and, therefore, he could not file a contempt application on account of violation of the order passed by the learned Single Judge. 14. Insofar as the averments made in paragraphs 22 and 23 of the writ petition, I find that in paragraph-9 of the counter-affidavit, it has been stated that the judgment of this Court could be applicable only in respect of the petitioners of the writ petition being Writ-C No. 12333 of 2004 and in the connected matters and insofar as the mistake or belief of the petitioner as pleaded in paragraphs No. 22 and 23 of the writ petition, it has not been denied specifically and only this much has been stated that even counsel for the students had informed the petitioner that he was not amongst those who had filed Writ-C No. 12333 of 2004. 15. Therefore, on the point of alleged delay, the case is not only covered by the decision of Hon'ble Supreme Court in the case of Tukaram Kana Joshi (supra), but also applicability of the principle enshrined under Section 17 (c) of the Limitation Act, 1963. 16. Even otherwise, if I ignore the aforesaid provisions, I find that the litigation began in 2004 and finally ended in 2016 with dismissal of the curative and review petitions and, therefore, if the writ petitioner filed writ petition in 2017, the same cannot be treated as barred by laches so as to deny interference in the matter. 17. 16. Even otherwise, if I ignore the aforesaid provisions, I find that the litigation began in 2004 and finally ended in 2016 with dismissal of the curative and review petitions and, therefore, if the writ petitioner filed writ petition in 2017, the same cannot be treated as barred by laches so as to deny interference in the matter. 17. Insofar as the argument of Shri Nipun Singh, learned counsel for the college, to the effect that the petitioners had given an undertaking at the time of taking admission that fees deposited shall not be refunded under any circumstances, I find that the said aspect has already been dealt with by Special Appellate Court in its judgment dated 29.9.2010 in special appeals and I cannot take a contrary view. The said decision of Division Bench has been affirmed even up to the Hon'ble Apex Court. 18. Even otherwise, the said undertaking is in the form of affidavit in a printed proforma forming part of supplementary counter-affidavit as Annexure SCA-1 and such an affidavit was designed and framed by the officers of the University and college itself and considering the plight of a student, who comes to the college to take admission, filling up all documents of this nature cannot be said to operate as estoppel against him while seeking any relief that the law permits in the facts and circumstances of a particular case. 19. In the present case, once this Court as well as the Apex Court have already examined the entitlement of the college to charge excess fees and has decided the issue against the college and once other students have already been refunded the excess amount of fees pursuant to the aforesaid judgments, I do not find any ground to deny the same relief to the petitioner on the principles of equity, equality as well as Constitutional parity enshrined under Article 14 of the Constitution of India. 20. Even otherwise denying relief to the petitioner would amount to undue enrichment of the college by withholding the amount of fees, which it is not entitled as learned Single Judge had passed the order declaring entitlement of the college to charge fees as per the Government Order dated 8.1.2003 and not beyond that. 21. For all the aforesaid reasons, the writ petition succeeds and is allowed in part. 22. 21. For all the aforesaid reasons, the writ petition succeeds and is allowed in part. 22. A writ of mandamus is issued to the respondents 2 and 3 to refund the excess amount of fees realized from the petitioner by following the judgment of this Court dated 14.8.2007 passed in Writ-C No. 12333 of 2004 (Abhishek Kadian and others v. State of U.P. and others) within a period of three months from the date, a certified copy of this order is produced before the said respondents. 23. Relief of cost of Rs. 10,000/- as awarded under the order dated 14.8.2007 is denied to the petitioner. Further, the petitioner shall not be entitled to any interest on the excess amount, which is lying with the respondents.