Delhi High Court
Dr. R. N. Gupta Technical ... vs Union Of India And Anr. on 17 August, 2018
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8649/2018
DR. R. N. GUPTA TECHNICAL EDUCATIONAL
SOCIETY ..... Petitioner
Through Mr Aseem Mehrotra, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Ms Monika Arora, CGSC with
Mr Kushal Kumar, Advocate.
Mr T. Singhdev, Ms Biakthan Sangi Das,
Advocates for MCI.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 17.08.2018
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, impugning a
letter dated 09.05.2014 (hereafter „the impugned letter‟) issued by the
Medical Council of India (respondent no.2 - hereafter „MCI‟) and further
praying that directions be issued to the respondents for refunding
₹7,00,000/- with interest.
2. The aforesaid amount of ₹7,00,000/- was deposited by the petitioner
along with its application for establishment of a new Medical College at
Agra, Uttar Pradesh. This application was made for the academic year
commencing in 2014. This application was rejected by the MCI by a letter
dated 21.01.2014 as the petitioner did not have the Essentiality Certificate
from the concerned State Government - State of Uttar Pradesh.
3. The petitioner made an application for refund of the fee deposited
along with its application; however, the said application was also rejected by
the impugned letter.
4. At this stage, it would be relevant to refer to Regulation 4 of the
Establishment of Medical College Regulations, 1999, which reads as under:-
" 4. APPLICATION FEE.
The application shall be submitted by registered post only to the
Secretary (Health), Ministry of Health and Family Welfare,
Government of India, Nirman Bhawan, New Delhi-110 Oil
along with a non-refundable application fee of Rs 3.5 lakhs in
the form of demand draft/pay order in favour of „Medical
Council of India‟ payable at New Delhi. The Fee is for
registration, technical scrutiny, contingent expenditure and for
five inspections. Beyond five inspections, the normal inspection
fee prescribed by the Council shall apply. The Schedule for
receipt of the application for establishment of new medical
colleges and processing of the applications by the Central
Government is given in the Schedule annexed with these
regulations."
5. In terms of the notification dated 29.07.2008 issued by the MCI, the
fee referred under Regulation 4, as quoted above, was enhanced to ₹7 lakhs
for private medical colleges/institutions. It is apparent from the plain reading
of the aforesaid Regulation that the application fee is non-refundable.
6. The learned counsel appearing for the petitioner states that
notwithstanding the aforesaid regulation, the petitioner would be entitled to
refund of the application fee by virtue of the decision of the Board of
Governors of MCI taken at a meeting held on 09.11.2012. He referred to the
minutes of the said meeting, which indicate that the Board of Governors of
MCI had decided that the fee would be proportionately returned depending
on the stage at which the application is withdrawn, in support of his
contention. He further states that the petitioner‟s claim for refund of fee is
also not barred by limitation, as its request was accepted by the Central
Government in its letter dated 29.05.2014.
7. This Court does not find any merit in the contentions advanced on
behalf of the petitioner. First of all, the applicable Regulation (Regulation 4)
clearly indicate that the application fee is not refundable. Secondly, it is also
not disputed that the petitioner had sought to withdraw its application after it
was rejected on 21.01.2014. Thus, it is difficult to accept that the petitioner‟s
request for refund of the fee could be considered in terms of the decision of
the Board of Governors of MCI, which is relied upon by the petitioner.
Thirdly, the Court is informed that the aforesaid minutes (of the meeting
dated 09.11.2012) were sent to the Central Government for approval but the
approval has not been granted as yet and the relevant Regulations have not
been amended. Thus, the said decision is not effective as yet. Lastly, the
petitioner‟s claim is also hopelessly barred by limitation. The MCI had
denied the petitioner‟s request for refund of application fee by the impugned
letter and the present petition has been filed more than four years thereafter.
There is no credible explanation for the delay in approaching this Court.
Although, the Limitation Act, 1963 may not strictly apply to the proceedings
under Article 226 of the Constitution of India, it is settled law that courts
would not extend the discretionary remedy to applicants who have failed to
approach the court within time. It is also well settled that recourse to
proceedings under Article 226 of the Constitution of India is not available
for recovering any amount where a suit for recovery of that amount would
be barred by limitation.
8. In Rosa Power Supply Co. Ltd. v. Union of India & Ors.: 2014 (307)
ELT 638 (Del.)), this Court while taking note of a judgment rendered by a
Division Bench of this Court in Government of NCT of Delhi v. New
Variety Tent House: 189 (2012) DLT 65, held as under:
"8. The matter in fact is not res integra. A Division Bench
of this Court (of which one of us Rajiv Sahai Endlaw, J.
was a member), in Government of NCT of Delhi Vs. New
Variety Tent House 189 (2012) DLT 65 has held that
money claim, suit for which has become barred by time /
limitation, cannot be allowed in writ jurisdiction. Reliance
was placed on State of Madhya Pradesh Vs. Bhailal Bhai
AIR 1964 SC 1006 laying down that though the provisions
of Limitation Act do not apply to the grant of relief under
Article 226 of the Constitution of India however the
maximum period fixed by the Legislature as the time
within which the relief by a suit in a Civil Court must be
brought may ordinarily be taken to be a reasonable
standard by which delay in seeking remedy under Article
226 of the Constitution of India can be measured and on
Tilokchand Motichand supra laying down that the
extraordinary remedies under the Constitution are not
intended to enable the claimant to recover monies, the
recovery of which by suit is barred by limitation and that
where the writ remedy under Article 226 corresponds to a
remedy in an ordinary suit and the latter remedy is subject
to the bar of a statute of limitation, the Court in its writ
jurisdiction acts by analogy to the statute, adopts the
statute as its own rule of procedure and in the absence of
special circumstances imposes the same limitation on the
summary remedy in writ jurisdiction..."
9. The contention that the Central Government had accepted the
petitioner‟s request for refund and therefore the petitioner‟s claim is not
barred by limitation, is also unmerited. A mere perusal of letter dated
29.05.2014 indicates that the petitioner‟s application was forwarded to the
Secretary, MCI to take "the necessary action in the matter of refund as per
Indian Medical Council Act, 1956 and Establishment of Medical College
Regulations, 1999." Thus, the said letter only required the MCI to take
decision in the matter and not to grant refund as contended by the petitioner.
The MCI had clearly declined the petitioner‟s request for refund way back
on 09.05.2014, and there is nothing placed on record, which would even
remotely indicate that the MCI or the Central Government had
acknowledged any liability towards the petitioner.
10. In view of the above, the petition is dismissed.
VIBHU BAKHRU, J
AUGUST 17, 2018
pkv
