Gujarat High Court
Jayvirsinh T Atodariya & 24 vs State Of Gujarat Through Additional ... on 10 October, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8147/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8147 of 2010
With
CIVIL APPLICATION NO. 8984 of 2014
In
SPECIAL CIVIL APPLICATION NO. 8147 of 2010
With
CIVIL APPLICATION NO. 6614 of 2013
In
SPECIAL CIVIL APPLICATION NO. 8147 of 2010
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JAYVIRSINH T ATODARIYA & 24....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH ADDITIONAL SECRETARY &
6....Respondent(s)
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Appearance:
MR AJ YAGNIK, ADVOCATE for the Petitioner(s) No. 1 - 25
MR NIRAJ ASHAR AGP for the Respondent(s) No. 1 - 2
MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 3
MR PARTHIV A BHATT, ADVOCATE for the Respondent(s) No. 5 - 6
NOTICE SERVED BY DS for the Respondent(s) No. 7
RULE SERVED BY DS for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 10/10/2014
ORAL ORDER
1. When the matters are called out and taken up for hearing, Mr. Umang A Vaghela, learned advocate for Mr. Yagnik, learned advocate for the petitioners, Mr. Niraj Ashar, learned AGP for Page 1 C/SCA/8147/2010 ORDER respondent Nos. 1 and 2, Mr. Purohit, learned advocate for respondent Nos. 3 and 4 and Mr. Bharat Naik, learned Senior Counsel for Mr. Bhatt, learned advocate for the respondent Nos. 5 and 6 are present.
2. Ms. Pahwa, learned advocate submitted that her client i.e. Alchemist Holdings Limited has filed civil application no. 6614 of 2013 with the request for permission to joint the proceedings of Special Civil Application no. 8174 of 2010.
3. Any order until now granting or refusing the said application is not passed.
4. In present petition the petitioners have prayed, inter alia, that:-
"8(A) to direct respondents and respondent Surat Mahanagar Municipal Medical College to return to the petitioner medical students an amount of Rs.1,26,500/- with interest thereupon at the rate that may be decided by this Hon'ble Court; (B) to direct the respondent State of Gujarat to reimburse the respondent Surat Mahanagar Municipal Medical College the amount of Rs. 1,26,500/- per petitioner medical student;"
Page 2 C/SCA/8147/2010 ORDER
5. So far as relevant facts are concerned, the 25 petitioners in present petition were admitted in respondent No.5 Medical College. 5.1 At the relevant time the petitioners had paid prescribed fees.
5.2 Subsequently, the petitioners came to be transferred, in midst of the semester / academic year, to the respondent no.3 institute. 5.3 The petitioners have claimed that after they were transferred to the respondent No.3 institute they were asked to again pay the fees though fees were already paid by them while they were with the respondent no.5 institute.
5.4 It is also claimed that the petitioners, so that their admissions and their studies may not be destructed, paid the fees under protest on the Page 3 C/SCA/8147/2010 ORDER ground that they should not be made to pay the fees twice for the same academic year / term. 5.5 Subsequently, the petitioners filed present petition and prayed for above quoted relief.
6. Initially the respondent contested the petition.
6.1 On 16.7.2010 the Court passed below mentioned order:-
Learned Assistant Government Pleader Mr. Pranav Trivedi accepts notice on behalf of 1st and 2nd respondents. Notice waived. Notice on rest of the respondents. Direct notice permitted. Special Civil Application will be disposed of at the stage of admission. Post the matter on 9th August, 2010. 6.2 Subsequently on 8.3.2011 below mentioned order came to be passed:-
It appears from the reply affidavit that certain amounts are to be recovered from respondent No.6 by the District Collector, Surat by holding public auction of the property of respondent No.6 in accordance with the Bombay Land Revenue Code and the Rules framed thereunder as the Bank Guarantee given Page 4 C/SCA/8147/2010 ORDER by the institute for Rs.5 crores is stated to have lapsed.
Learned counsel for the petitioner (students) sought for and is allowed time to file rejoinder to the reply affidavit. Post the matter on 23rd March 2011.
6.3 The said order dated 8.3.2011 is followed by order dated 21.9.2011 which reads thus:-
"Leave to join District Collector, Bharuch District as party respondent No.7.
It prima facie appears that no concrete action has been taken on the part of the concerned authority to recover the amount, apart from the aspect that the guarantee, which was otherwise required to be continued, has lapsed in 2007 on account of no proper action taken well in time for ensuring the continuation thereof. The affidavit filed on behalf of the State Government and more particularly at Paragraph Nos.7, 8 and 9 shows that there are various properties of the Trust from which the money can be realized.
Respondent Nos.5 and 6 are served but none appears on their behalf. Hence, NOTICE to the newly added respondent No.7, returnable on 04.10.2011. It is further directed that respondent No.7 shall report to this Court about the status of the properties, whose descriptions are available at Page 171 as communicated by the Charity Commissioner. Further, if any vacant land is available, the possession thereof shall be taken by the District Collector and report shall be made to this Court before the next date. It Page 5 C/SCA/8147/2010 ORDER is also directed that until further orders, respondent Nos.5 and 6 shall maintain status-quo qua the properties. Direct service permitted."
6.4 At this stage, it is relevant to mention that so as to support and justify their request against recovery of the amount, respondent nos. 5 and 6 deposited a sum of Rs.15,82,000/- somewhere in 2011, (being 50% of the total amount claimed by above mentioned 25 petitioners). 6.5 In view of the said deposit by respondent Nos. 5 and 6, order dated 20.12.2011 came to be passed. The said order reads thus:-
"1. RULE. Mr. Rakesh R. Patel, learned AGP for respondent Nos.1, 2 and 7, Mr. Mrugen K. Purohit, learned advocate for respondent No.3 and Mr. Parthiv A. Bhatt, learned advocate for respondent Nos.5 and 6, waive service of rule for the respective respondents. Direct service is permitted to respondent No.4.
2. Considering the issue involved in the present petition, pending this petition, respondent Nos.1 and 2 are directed to consider the details as regards payment of fees made by the petitioners to respondent Nos.5 and 6 and to file a report along with the affidavit. Such an exercise shall be undertaken by Page 6 C/SCA/8147/2010 ORDER respondent Nos.1 and 2 as early as possible and latest by 30.4.2012.
3. After the aforesaid report is submitted, it would be open for the petitioners as well as the respondents to apply for final hearing of this matter.
4. Mr. B.B. Naik, learned Senior Counsel with Mr. Parthiv A. Bhatt for respondent Nos.5 and 6 has drawn attention of this Court to the fact that pending hearing of this petition vide order dated 25.10.2011, coercive actions were taken by respondent No.7. Mr. A.J. Yagnik, learned advocate for the petitioners also pointed out that as the earlier orders passed by this Court were not complied with, the petitioners were constrained to approach this Court by resorting to the proceedings under the Contempt of Court Act, 1971. However, considering the fact that respondent Nos.5 and 6 have made payment to the tune of Rs.15,82,000/-, the order of attachment is stayed. However, respondent Nos.5 and 6 shall not alienate any of its property without specific prior permission of this Court.
6.6 As mentioned above during pendency of the main petition Alchemist Holdings Limited preferred Civil Application No. 6614 of 2013. The said application is pending.
Page 7 C/SCA/8147/2010 ORDER 6.7 Thereafter in August 2014, the respondent Nos. 5 and 6 preferred application being Civil Application No. 8984 of 2014 wherein said respondent (i.e. applicant of civil application no. 8984 of 2014) have prayed, inter alia, that:-
"8(B) This Honourable Court may be pleased to direct to disburse the amount in the sum of Rs. 1,26,500/- to each of the original petitioner and opponent Nos. 1 to 25 herein on the deposit being made by the applicants before this Hon'ble Court.
(C) This Honourable Court may be pleased to direct the State of Gujarat i.e. the opponent No. 26 herein to release the bank guarantees given by the applicant No. 2 Trust to the State Government at the time of issuance of Essentiality Certificate in the year 2002 of the Punjab National Bank forthwith."
6.8 With reference to the relief prayed for in the said civil application, Mr. Naik, learned Senior Counsel with Mr. Bhatt, learned advocate submitted that after depositing Rs.15,82,000/- in 2011 the applicants i.e. original respondent Nos. 5 and 6 have further deposited balance 50% amount in question i.e. Rs.15,82,000/- on or around 19.8.2014.
Page 8 C/SCA/8147/2010 ORDER 6.9 It is also submitted that entire amount is deposited with the registry of this Court. 6.10 It is in connection with the said amount which is deposited by the respondent Nos. 5 and 6 that the above quoted relief is prayed for in civil application no. 8984 of 2014.
7. Learned Senior Counsel for the applicant would submit that the applicants i.e. respondent No.5 institute and respondent No.6 trust, request that the said amount may be paid / disbursed to the petitioners and that they do not have any objection if the amount deposited by them is paid / disbursed amongst student (according to their respective claims) by way of individual cheque to be issued in the name of each of the students. 7.1 It is also requested that the cheque of Rs.1,26,500/- (representing the amount paid / Page 9 C/SCA/8147/2010 ORDER claimed towards fees by each of the petitioners) may be disbursed amongst them and accordingly the fees deposited by the petitioners may be refunded to them.
7.2 It is also submitted that if the said request which is prayed for in the application is granted then the claim / relief prayed for by the petitioners in main petition would stand granted and the cause for petition would then not survive.
8. Mr. Umang A Vaghela, learned advocate for Mr. Yagnik, learned advocate for the petitioners has, on instruction from the petitioners submitted that though petitioners have made claim for interest in the petition, the petitioners do not insist that payment of interest and waive their claim for interest and each and every petitioner is ready to accept Rs.1,26,500/- (per student) towards full and final payment of their claim and Page 10 C/SCA/8147/2010 ORDER if the said amount is paid to them it will settle their entire claim made in the petition.
9. Mr. Naik, learned Senior Counsel for the applicants i.e. respondent Nos. 5 and 6 in the petition submitted that such amount (i.e. Rs.1,26,500/- per petitioner) may be disbursed from the amount of Rs.31,64,000/- deposited by them.
9.1 Mr. Naik, also submitted that after payment as aforesaid if any amount remains in balance then the same may be returned to the respondent Nos. 5 and 6
10. Mr. Umang A Vaghela, learned advocate for Mr. Yagnik, learned advocate for the petitioners submitted that the petitioners are ready to accept the said amount as full and final payment towards their claim / settlement of their entire claim.
Page 11 C/SCA/8147/2010 ORDER
11. At this stage Mr. Purohit, learned advocate for the respondent No.3 submitted that in view of pendency of the petition the respondent no.3 had set aside the amount of fees paid by the students after they were transferred to the respondent no.3 institute.
11.1 However, since now the respondent nos. 5 and 6 are returning the amount paid by the petitioners towards fees, while the petitioners with respondent No.5, the respondent No.3 may be allowed to appropriate the amount towards fees of the said 25 students as payment of fees by them. 11.2 The learned advocate for the petitioners and respondent No.5 and 6 and learned AGP submitted that they have no objection if the respondent No. 3 is allowed to appropriate the fees, but only after each student - petitioner is paid the refund of the fees - amount paid by Page 12 C/SCA/8147/2010 ORDER him / them.
12. The above mentioned aspects bring out that there is broad consensus between the petitioners on one hand and respondent Nos. 3, 5 and 6 and respondent State on the other hand and it is jointly accepted that appropriate order / direction in light of the said broad consensus between the parties may be passed.
13. In that view of the matter, following order is passed:-
After obtaining satisfactory documentary evidence as regards identity of each of the students - petitioners and upon being satisfied about identity of the student, registry will issue individual cheque in name of 25 petitioners, in the sum of Rs. 1,26,500/-. The petitioners shall issue receipt acknowledging the payment.
The said payment by the registry on behalf of Page 13 C/SCA/8147/2010 ORDER respondent nos. 5 and 6 and in view of the request made by respondent Nos. 5 and 6, will constitute settlement of the claim of the petitioners as made out in the petition and the said claim will stand settled fully and finally.
After the said amount is paid to all petitioners, it would be open to the respondent no.3 institute to appropriate the fees paid by the petitioners and the petitioners have no objection against such appropriation by respondent no.3, but after the refund of fees paid by them.
The petitioners shall acknowledge the receipt of the payment by the registry by issuing appropriate receipt.
If any amount remains in balance after making payment of Rs.1,26,500/- per petitioner, then such balance amount may be returned to the respondent No.5 and 6.
Mr. Naik, learned Senior Counsel further stipulated that the amount deposited by the Page 14 C/SCA/8147/2010 ORDER respondent nos. 5 and 6 on 19.8.2014 is not from the amount of bank account mentioned between Alchemist Holdings Limited the applicant in Civil Application No. 6614 of 2013 on one hand and respondent No.6 on other hand before Hon'ble Supreme Court.
In view of said statement by Mr. Naik, learned Senior Counsel for respondent nos. 5 and 6, Ms. Pahwa, leanred advocate for the applicant in Civil Application No. 6614 of 2013 submitted that she withdraws the application.
It is clarified that after the entire payment is made to each of the petitioners of present petition and after they acknowledge payment by issuing appropriate receipt, it would be open to the applicants to request State Government to return the bank guarantee.
On receipt of such application and after verification of the above mentioned aspects government may, upon being satisfied that the government does not have any claim, against Page 15 C/SCA/8147/2010 ORDER respondent No. 5 / 6 and any amount is not to be recovered from the respondent Nos. 5 and 6 return the bank guarantee to the respondent Nos. 5 and
6.
In view of the foregoing clarification and direction the petition stands party allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
In view of the order passed in Special civil Application No. 8147 of 2010 the Civil Application No. 8984 of 2014 stands disposed of.
The Civil Application No. 6614 of 2013 stands disposed of as withdrawn.
(K.M.THAKER, J.) Suresh* Page 16