Gujarat High Court
Mulani Akash Jaysukhbhai & 26 vs Union Of India & 22....Opponent(S) on 18 March, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, J.B.Pardiwala
C/MCA/2960/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 2960 of 2015
In SPECIAL CIVIL APPLICATION NO. 16600 of 2010
With
MISC. CIVIL APPLICATION NO. 2961 of 2015
In
SPECIAL CIVIL APPLICATION NO. 715 of 2011
With
MISC. CIVIL APPLICATION NO. 2962 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3518 of 2011
==========================================================
MULANI AKASH JAYSUKHBHAI & 26....Applicant(s) Versus UNION OF INDIA & 22....Opponent(s) ========================================================== Appearance:
MR TULSHI R SAVANI, ADVOCATE for the Applicant(s) No. 1 - 27 MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER for the Opponent(s) No. 2 - 4 MR MITUL K SHELAT, ADVOCATE for the Opponent(s) No. 8 MS MANISHA LAVKUMAR, ADVOCATE for the Opponent(s) No. 9 NOTICE NOT RECD BACK for the Opponent(s) No. 5 NOTICE SERVED for the Opponent(s) No. 6 - 7 , 10 - 11 , 15 - 23 NOTICE UNSERVED for the Opponent(s) No. 13 UNSERVED-EXPIRED (N) for the Opponent(s) No. 12 , 14 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 18/03/2016 ORAL COMMON ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 7 HC-NIC Page 1 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER 1 Since the issue raised in all the captioned applications is more or less the same, those were heard analogously and are being disposed of by this common order.
2 The applicants before us are the original petitioners of a public interest petition being Special Civil Application No.16600 of 2010.
3 The main petition in the public interest was filed by the applicants who, at the relevant point of time, were all students studying in the second year of M.B.B.S. Degree course at the opponent No.8's college, namely, K.M. Mehta General Hospital and College of Medical Science, Bhavnagar. The public interest litigation was disposed of by this Court issuing various directions. One of those directions read as under:
"(8) Respondent no.8 - College is directed to refund the fees if paid by each of the students of 2nd M.B.B.S. course to the tune of Rs.1,37,000=00 with 8% interest, to the petitionersstudents within a period of three months from today. The College is also directed to refund the N.R.I. fees if paid by any of the N.R.I. students, as per the statement made at the Bar by learned senior counsel appearing for respondent no.8 - College."
4 The case of the applicants is that the college has failed to comply with the direction referred to above fully. According to the applicants, substantial amount of more than Rs.40,000/ (Rupees Forty Thousand only) has been deducted from the amount of Rs.1,37,500/ (Rupees One Lac Thirty Thousand Five Hundred only) while refunding the fees.
5 Notice was issued to the respondents. The respondent No.8 - college has appeared. Mr. Mitul Shelat, the learned advocate appearing Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER for the respondent No.8 has filed an affidavitinreply inter alia stating as under:
"2a) I state that the Answering Respondent is established and managed by "K.J. Mehta TB Hospital Trust". K.J. Mehta TB Hospital Trust is established as a Society under the Society Registration Act, and upon enactment of the Bombay Public Trust Act was registered as a Public Charitable Trust. The Trust is today running the K J Mehta General Hospital. Prior to its development as a General Hospital in the year 2004, it was exclusively a TB and Thoracic Institute since inception (1945).
b) I state that during the academic year 20092010 the Government of India had granted permission to the Society to commerce a medical college with an intake of 150 students. I state that in terms of the permission, the College was administered by the Society.
c) I state that the Government of India did not grant renewal permission for the academic year 201011. I state that this Honourable Court by its judgment and order dated 26/08/2011 directed that the students admitted in the College be transferred to other Government Medical Colleges. I state that since the students were being transferred in the Second Year of the Course, the Court directed that the fees of the second MBBS, if paid by the students be refunded to the students and in reference thereto the Court directed that a sum of Rs 1,37,000 be refunded to the students. I state that in fact no lis regarding the fees actually paid and liable to be refunded was adjudicated by this Honourable Court.
d) I state that the College by its letter dated 19.11.2011 informed by all the students to submit the fee receipt and obtain refund of the fees paid by them. I state that in so far as the petitioners are concerned they are the students who had failed in the 1st MBBS Course and had therefore repeated the course. I state that as per the norms prescribed by the Justice RJ Shah Committee, a college is entitled to charge 25% of the prescribed annual fees in respect of the repeater students. I state that in accordance with the said norms, the College after deducting the amount due towards fees refunded the balance amount vide account payee cheque drawn on State Bank of India, Amargarh Branch. I state that the said amount was duly credited into the account of the petitioners as is set out in the table reproduced by the petitioners in the respective petitions. I state that the specific order passed by the fee committee in the case of the Answering Respondent is not available on record, however in all cases similar conditions have been imposed as regards repeater fees.
A copy of the general conditions prescribed by the Justice R J Shah Committee, is annexed herewith and marked Annexure R8/1.
Page 3 of 7HC-NIC Page 3 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER
e) I state that the students were aware of the above circular and accepted the payments made to them without protest. I state that MCA No.979/2013 was filed before this Honourable Court by certain students raising a grievance that fees as directed were not paid since deductions were made towards repeater fees. I state that when the said proceedings were instituted and decided, the Society was under the administration of a Committee appointed by this Honourable Court and the records reveals that no appearance was filed on behalf of the Society and no representations were made on behalf of the Society before this Honourable Court. I state in the said circumstances, this Honourable Court has by its order held that the said students were entitled to seek the entire amount due to them without any deductions more particularly since no clarification in this regard was sought by the Society from the Court.
f) I state that thereafter a period of another 2 years and more, the petitioners have filed these applications seeking direction for compliance of the order of this Honourable Court in SCA 3518 of 2011 and for payment of the amount deducted towards repeater fees.
g) I submit that the order in question has been passed on 26/08/2011. I state that the present applications have been filed after a period of more than 5 years from the date of the judgment and from the date of compliance thereof. I submit that as such the deduction made by the college while making the payments was bonafide and in accordance with the regulations of the Fee Regulatory Committee.
h) I state that in view of the above there is no disobedience by the college of the judgment and order of this Honourable Court. I submit that the petitioners were only entitled to the refund of the fees payable for the 2nd year. There was no direction for repayment of the fees of the 1st year which the petitioner had repeated. I submit that after adjustment of the repeater fees the balance amount has been refunded to the petitioner."
6 Thus, it appears from the stance of the college that the applicants were having A.T.K.T. in the first year, and according to the Justice R.J. Shah Fee Regulatory Committee recommendations', the college could have retained a portion of the fees.
7 We take notice of the fact that identical applications being Miscellaneous Civil Application No.979 of 2013 and allied were filed by the similarly situated students, who were not refunded the full fees, despite the direction issued by this Court referred to above. Those Page 4 of 7 HC-NIC Page 4 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER applications were disposed of by a Division Bench of this Court vide order dated 12th December, 2014, which reads as under:
"1. These applications are filed by some of the original petitioners. This Court in various petitions, raising common issue of the medical education in a college run by respondent no.8 College, disposed of the petitions by a common judgment and order dated 26.08.2011 interalia giving following directions.
(8) Respondent no.8 College is directed to refund the fees if paid by each of the students of 2nd M.B.B.S. Course to the tune of Rs.1,37,000=00 with 8% interest, to the petitionersstudents within a period of three months from today. The College is also, directed to refund the N.R.I. Fees if paid by any of the N.R.I. students, as per the statement made at the Bar by learned senior counsel appearing for respondent no.8 College.
2. These applicants complain that such direction has not been complied in full. The College has withheld a portion of refundable fees of the students of Rs.1,37,000=00. They have therefore filed these applications seeking a direction to the respondent no.8 to refund the full fees with interest as directed by the High Court.
3. Though served, no one appeared for the respondent no.8. Learned counsel Mr. Mitul Shelat appearing for respondents nos.10 and 11 erstwhile Trustees of the Trust, which run the College stated that the said respondents no longer are in the position of the Trustees. They had no personal liability. They are wrongly joined in this proceedings. He further submitted that the applicants students had A.T.K.T. in the 1st year of the medical course. As provided by the Justice R.J. Shah Fee Regulatory Committee, the College was therefore entitled to charge 25% of the fees from such students. It was perhaps therefore that the College withheld a part of the refundable fee out of Rs.1,37,000=00 while releasing rest of the fees of the applicants students, which even the applicants did not dispute.
4. In so far as the respondent nos.10 and 11 are concerned, they cannot be personally held liable for refund of the fees as erstwhile Trustees of the Trust. However, their alternative stand that since the students were having A.T.K.T. in the 1st year and as per the Justice R.J. Shah Fee Regulatory Committee recommendations, the College could have retained a portion of the fee, cannot be accepted for the simple reason that such facts were never placed before the Court at the time of final disposal of the original petitions. Even, if the general directions for refund of the fee of Rs.1,37,000=00, could not have been made applicable to such special cases, it was the duty of the concerned respondent to bring such facts to Page 5 of 7 HC-NIC Page 5 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER the notice of the Court at the time of disposal of the petitions and at any rate thereafter through applications for modification or clarification of the order. The College simply cannot take upon itself to modify the order of the Court in the guise that such general directions cannot be made applicable to all students.
5. Under the circumstances, the respondent no.8 is directed to release the remaining portion of the fees of the concerned students out of total of Rs.1,37,000=00 required to be paid under the judgment of the High Court. This shall be paid latest by 31st January 2015.
With the above directions, all these applications are disposed of."
8 We propose to take the very same view referred to above. The explanation offered by the college for not refunding the entire fees and retaining a portion is not justified. While disposing of the main petition, the college had not raised the issue as regards the refund of fees which is now sought to be raised for the first time. In such circumstances, we should not look into or consider an absolute new plea.
9 Mr. Shelat invited our attention to the averments made in para 3 of the reply which reads as under:
"I submit that without prejudice to the above, the Society has resolved to abide by any directions as may be issued by this Honourable Court. The Answering Respondent has determined the amount payable on the basis of the information provided by the petitioners and is making arrangements for ensuring that the amount if and as may be directed by this Honourable Court be made to the petitioners."
10 Mr. Shelat, however, submitted that some relief may be granted so far as the interest part is concerned.
11 We are not inclined to accept such plea as almost five years have passed and the students have been deprived of the amount which the college was otherwise obliged to pay in accordance with the directions issued by this Court.
Page 6 of 7HC-NIC Page 6 of 7 Created On Wed Mar 23 01:34:32 IST 2016 C/MCA/2960/2015 ORDER 12 In the result, all these applications are allowed. The respondent No.8 - college is directed to release the remaining portion of the fees of the applicants out of total Rs.1,37,000/ (Rupees One Lac Thirty Seven Thousand only) required to be paid under the judgment of this Court. The details of the fees paid, fees refunded, fees not refunded with the necessary remarks are in para - 3 of the applications. The college shall take note of those figures and refund the amount with 8% interest within a period of three months from the date of receipt of the writ of this order.
(R. SUBHASH REDDY, CJ) (J.B.PARDIWALA, J.) chandresh Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed Mar 23 01:34:32 IST 2016