Mansi Sharma vs Vokkaligara Sangha Dental ...
2023 Latest Caselaw 3389 Kant

                              1


        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 16TH DAY OF JUNE, 2023

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

         WRIT PETITION NO.544 OF 2021 (EDN-RES)

BETWEEN:

     MANSI SHARMA
     D/O KAILASH CHANDRA SHARMA
     AGED ABOUT 23 YEARS,
     R/AT E-213, SHASTRI NAGAR
     MEERUT, UTTAR PRADESH-250004

                                               ...PETITIONER

(BY SRI LEELESH KRISHNA, ADVOCATE)

AND:

1.     VOKKALIGARA SANGHA
       DENTAL COLLEGE AND HOSPITAL
       K R ROAD, V V PURAM
       BENGALURU-560004
       REPRESENTED BY ITS PRINCIPAL

2.     CONSORTIUM OF MEDICAL ENGINEERING
       AND DENTAL COLLEGES OF KARNATAKA (COMEDK)
       HAVING ITS CORPORATE OFFICE AT
       NO.132, SECOND FLOOR
       11TH MAIN, 17TH CROSS
       MALLESHWARAM, BENGALURU-560055
       REPRESENTED BY ITS
       AUTHORIZED SIGNATORY
                             2



3.   RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES,
     4TH T BLOCK, JAYANAGAR
     BENGALURU-560041
     REPRESENTED BY ITS REGISTRAR

4.   UNIVERSITY GRANTS COMMISSION
     HAVING ITS OFFICE AT
     BAHADHURSHAH ZAFAR MARG
     NEW DELHI-110002
     REPRESENTED BY ITS UNDER SECRETARY

5.   DENTAL COUNCIL OF INDIA
     HAVING ITS OFFICE AT
     AIWAN-E-GHALIB MARG
     KOTLA ROAD, NEW DELHI-110002
     REPRESENTED BY ITS SECRETARY

                                           ...RESPONDENTS

(BY SRI A.V.NISHANTH, ADVOCATE FOR R1;
SMT. FARAH FATHIMA, ADVOCATE FOR R2;
SRI B.S.KARTHIKEYAN, ADVOCATE FOR R3;
SRI H.R.SHOWRI, ADVOCATE FOR R4;
SRI G.S.BHAT, ADVOCATE FOR R5)

      THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 HEREIN TO
REFUND THE SUM OF RS.15,60,000/- TO THE PETITIONER ALONG
WITH COMMERCIAL RATE OF INTEREST AT 18% PER ANNUM AND
ETC.,


     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.06.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

The captioned writ petition is filed by a medical student

seeking mandamus against respondent No.1-Institution to

refund the sum of Rs.15,60,000/- along with interest at the

rate of 18% p.a. and also damages for having caused mental

agony and harassment to the petitioner.

2. The facts leading to the case are as under:

The petitioner appeared for NEET examination for the

year 2016-17 and secured 103023 ranking. The petitioner

had applied for Medical and Dental Counseling vide application

No.MED-1029038 for the year 2016-17. The respondent No.2

issued a counseling merit card on 06.09.2016 and on

09.09.2016, the petitioner herein paid a sum of Rs.5,75,000/-

to respondent No.2 by way of Demand Draft. The petitioner

further paid a sum of Rs.3,90,000/- on 21.09.2016 which was

also by way of Demand Draft.

The petitioner was allotted a confirmed seat for Dental

course in the respondent No.1-Institution under COMEDK

UGET-2016. The Counseling committee had obtained all

original documents. The petitioner had also applied for

UPCPMT counseling which was held on 23.09.2016 and

therefore, the petitioner approached respondent No.1-

Institution with a request to return the originals to enable her

to participate in UPCPMT at Uttar Pradesh. The respondent

No.1 returned the original documents after securing deposit of

fee for three years. The petitioner alleges that she was

compelled to deposit three years tuition fees as she was

intending to participate for counseling at Uttar Pradesh which

was scheduled to be conducted on 23.09.2016.

The captioned writ petition is filed alleging that inspite of

several representations and e-mails addressed to respondent

No.1 requesting to return the tuition fee to the tune of

Rs.15,60,000/-, there is inaction on the part of respondent

No.1 in not acting upon the representation submitted by the

petitioner requesting for refund.

3. The respondent No.1-Institution has filed statement

of objections on 25.03.2022 and stoutly denied the

contentions urged in the writ petition. Referring to the

representation submitted by the petitioner vide Annexure-C,

the respondent No.1 has taken a contention that petitioner

while securing originals has voluntarily given an undertaking

that she would deposit entire fees of Rs.11,70,000/- and this

undertaking is unequivocal and therefore, it is contended that

petitioner is bound by the undertaking given vide Annexure-C

and therefore, the present writ petition is not maintainable. A

specific contention is raised that it is well within the rights of

respondent No.1-Institution to demand fee if students leave

the college after admission. On these set of defences,

respondent No.1-Insitution has sought for dismissal of the writ

petition.

4. Respondent No.5-Dental Council of India has also

filed statement of objections and has placed on record the

meeting held by the Ethics and Grievance Committee of the

Dental Council of India and has also recommended the copy of

comments to be served on the petitioner.

5. Learned counsel appearing for the petitioner

reiterating the grounds urged in the writ petition would

vehemently argue and contend that petitioner was

unfortunately compelled to submit a representation vide

Annexure-C. He would point out that as petitioner had a

counseling at Uttar Pradesh on 23.09.2016, she had no option,

but to deposit the entire course fee as she was in need of all

original documents to participate in counseling at Uttar

Pradesh. He would further contend that petitioner was

successful in securing a seat at Uttar Pradesh and therefore,

she had immediately sent a mail on 30.09.2016 about 4.33

p.m. and similar reminders were sent to respondent No.1-

Institution, but no action was taken by respondent No.1-

Institution to reconsider refund of tuition fees. He would

further contend that physical copy was also served on

respondent No.1-Institution on 12.04.2017 as per Annexure-F

which is not in dispute, while mail sent vide Annexure-D which

is dated 30.09.2016 is also not disputed.

6. To counter the claim of respondent No.1-Institution

that this seat has gone vacant purely on account of petitioner

not availing seat, he has relied on affidavit filed by the college

indicating that this seat was not filled up subsequently and in

all 13 seats have gone vacant and therefore, respondent No.1-

Insitution is not entitled to retain tuition fees. Placing reliance

on the notification issued by respondent No.4, he would

contend that in the present case on hand, petitioner is entitled

for 100% refund as she has withdrawn from the program of

study 15 days before formally notified last date of admission

and therefore, respondent No.1-Institution cannot withhold

the amount which is legally due to the petitioner.

7. To buttress his arguments, he has placed reliance

on the judgment rendered by this Court in the case of Sanjat

Suman Lenka vs. Medical Council of India1 and has also

placed reliance on Division Bench judgment in batch of writ

appeals in JJM Medical College vs. Sanjat Saman Lenka

and Others2 and in the case of Miss Smruthy B.S. vs. D.A.

Pandu Memorial R.V. Dental College & Hospital3.

8. Learned counsel appearing for respondent No.1-

Institution, however, has strongly objected to the claim made

by the petitioner. Reiterating the defence set up in the

statement of objections, he would lay emphasis on the letter

written by the petitioner vide Annexure-C. While persuading

this Court to go through the contents of Annexure-C, he would

2017 SCC Online Kar 1275

W.A.No.1521 of 2017 and connected cases Dtd: 10.10.2022

W.P.No.13792 of 2009 Dtd: 18.03.2014

point out that she has voluntarily deposited the entire fee.

The allegation that she was forced to deposit the tuition fee for

the remaining period of 3 years is only an after thought and

therefore, he would contend that the writ petition is devoid of

merits and is liable to be dismissed. He would further

vehemently argue and contend that petitioner having taken

back the original documents and having completed MBBS at

Uttar Pradesh has created documents which suits her and has

come up with a stale claim by knocking the doors of the writ

Court. Referring to the judgments indicated in the statement

of objections, he would contend that if petitioner has

voluntarily deposited the tuition fee for the remaining years,

she is not entitled for any relief and therefore, sought for

dismissal of the petition.

9. Heard learned counsel appearing for the petitioner

and learned counsel appearing for the respondents.

10. The petitioner applied for Medical and Dental

counseling and respondent No.2 issued a counseling merit

card to the petitioner on 06.09.2016. Thereafter, on

09.09.2016, the petitioner paid a sum of Rs.5,75,000/- to

respondent No.2 and a further sum of Rs.3,90,000/- was

deposited on 21.09.2016 and on 22.09.2016, petitioner was

allotted a confirmed seat for Dental course at respondent

No.1-Institution under COMEDK UGET-2016. These facts are

undisputed. The petitioner had also participated at the CET

entrance conducted by State of Uttar Pradesh and therefore,

she was in need of original documents to participate in the

first counseling which was scheduled on 23.09.2016. It would

be useful for this Court to refer to the contents of the letter

submitted by the petitioner which is totally a voluntary act.

Annexure-C reads as under:

"Respected Sir,

With due respect, I Mansi Sharma, ComedK Application Number MED1029038 wants to put forward my desire to attain my original documents back from the college.

Sir, I need my original documents for the verification process during UPCPMT-2016 first counselling held on 23rd September 2016.

I am ready to pay the tuition fee for the rest of the session i.e, 11,70,000/-. If by any chance, I am unable to get a MBBS confirmed seat during UPCPMT counselling, I would like to continue with my admission in BDS course at Vokkaligara Sangha Dental College and Hospital, Bangalore before 30th September 2016.

Kindly accept my application and return my original documents as soon as possible for the verification process during counselling."

11. The unnumbered third paragraph would clinch the

controversy between the parties. She has unconditionally

come forward to deposit the tuition fee for the rest of the

session and she has further expressed that in the event she

does not secure MBBS seat at her native State, she would

continue with her admission in BDS course at respondent

No.1-Institution. Now this letter is dated 22.09.2016. The

respondent No.1-Institution has acted upon this letter and has

accepted the tuition fee to the tune of Rs.11,70,000/- and all

original documents are returned to the petitioner to enable her

to participate in the CET entrance conducted by the State of

Uttar Pradesh.

12. It would be also useful for this Court to cull out the

relevant portion of Annexure-F which is a request letter sent

by the petitioner addressed to the respondent No.1-Institution

and this communication is not disputed by respondent No.1-

Institution. The unnumbered third paragraph reads as under:

"Fortunately, within one month of taking admission in BDS course I got selected in MBBS course in a reputed college of UP. It was my preferred choice for better future career options and college location was also very close to my native place. Limited time, as usual, was given by the college, to take admission in the course. I had to rush for that, but I immediately informed your college about my request to withdraw admission from BDS course of VS Dental College and return my fee but no response has been received so far."

13. In the letter addressed to the respondent No.1 vide

Annexure-F, the petitioner has not whispered about the earlier

communication sent through e-mail. The communication sent

by the petitioner through e-mail vide Annexure-D is seriously

disputed by the respondent No.1-Institution. Though

petitioner claims that she had sent an e-mail on 30.09.2016 at

4.33 p.m., the said communication is seriously disputed by the

respondent No.1-Institution.

14. The question that needs consideration at the hands

of this Court is, as to whether the prayer sought in the instant

writ petition can be entertained when petitioner admittedly is

knocking the doors of the writ Court after almost 4 years. If

her correspondence dated 30.09.2016 was not considered by

respondent No.1-Institution, this Court is unable to

understand as to why petitioner has not immediately

approached the Court seeking appropriate reliefs. It is only in

2020, the petitioner has filed the writ petition seeking refund.

It is stated across the Bar that now petitioner has completed

her MBBS course.

15. The doctrine of delay and laches is based on the

principle that claimant should assert their rights or grievances

in a timely manner. It is intended to prevent situations where

a party, after an unreasonable delay, seeks legal recourse

when the circumstances have significantly changed or when it

would be unjust to grant the relief. This Court has been

taking note of the fact that litigants are consistently exploiting

the doctrine of delay and laches in knocking the doors of the

writ Courts potentially to their advantage thereby deliberately

delaying the filing of writ petitions. The litigants are often

found in not deliberately questioning the endorsements issued

by the competent authorities and then strategically wait until

circumstances change. It is in this context, the Courts often

to protect the rights and interest of students, faculty or other

stake holders within the educational system, grant reliefs.

This is precisely what is done in the present case on hand.

This Court as a Constitutional Court is not only duty bound

to protect the rights of the citizens but, simultaneously

the writ Court has to keep itself alive to the primary principles

that when a aggrieved person without adequate reason

approaches the Court at his own leisure or pleasure, the Court

would be under the legal obligation to scrutinize whether the

lis at a belated stage can be entertained.

16. Even otherwise on merits, I am not inclined to

grant the relief sought in the instant petition. The question as

to whether petitioner had immediately made a request by way

of mail addressed to the respondent No.1-Institution are all

disputed questions of facts and the same cannot be examined

in a writ jurisdiction. What is borne out from the records is

that petitioner was allotted a dental seat by the respondent

No.2 in respondent No.1-Institution. She paid the requisite

tuition fees and her seat for dental course was confirmed by

the respondent No.2 on 22.09.2016. The contents of

Annexure-C clearly demonstrates that she has voluntarily paid

the entire tuition fees. Further, in her correspondence made

vide Annexure-F, she has clearly stated that her preferred

choice for a better career option was to pursue MBBS course

at a reputed college at Uttar Pradesh and she has completed

her course at Uttar Pradesh. Probably at the fag end of her

medical course, she has made a feeble attempt by

approaching this Court. The entire case made out in the

instant writ petition appears to be an afterthought and the

averments made in the writ petition runs contrary to what is

stated in Annexure-C which was voluntarily submitted by the

petitioner at an undisputed point of time.

17. If the college cannot insist for deposit of tuition

fees for the entire course and can only insist for a bank

guarantee and in the event, there is default, have to seek

redressal of their grievance before a competent civil Court, the

same principle is also applicable to the petitioner. All disputed

question of facts cannot be examined in the present case on

hand and therefore, she ought to have approached the civil

Court.

18. Be that as it may, the balance tuition fees was

deposited by the petitioner which is evident from Annexure-C.

If at all petitioner had any grievance, she ought to have

approached the Court in 2016 itself and had she done so, then

the principles laid down by the Hon'ble Apex Court in the case

of Islamic Academy of Education vs. State of Karnataka4

would have atleast come to her aid. The Hon'ble Apex Court

in the said case held that the Institution can only insist for

deposit of tuition fees for the relevant semester. By the time

this captioned writ petition is filed, all the semesters were

over. Therefore, I am of the view that this is not a fit case

where she can seek refund of tuition fees.

19. As evident from Annexure-F, the petitioner has

clearly expressed in her communication that she had better

option and better reputed colleges at Uttar Pradesh and

therefore, she opted to pursue Medical course at Uttar

Pradesh. The petitioner, in all probability, had a better goals

and better opportunity at Uttar Pradesh.

(2003) 6 SCC 697

20. Institutions usually specify deadlines for refund

requests. These deadlines are typically tied to specific dates

or milestones in the academic calendar. Institutions often

have a tiered refund system where the refund amount

decreases as the academic term progresses. Therefore, if

petitioner had approached the Court in 2016, things would

have been different.

21. What is borne out from the records is that the

allotted confirmed seat in Dental course has been kept vacant

and therefore, the respondent No.1-Institution was justified in

appropriating the tuitions fees deposited by the petitioner. If

the principles laid down by the Hon'ble Apex Court in the case

of Islamic Academy of Education (supra) is taken into

consideration, the entire tuition fees fell due with the

commencement of each semester and as there is total laxness

on the part of petitioner in not approaching the Court at the

earliest point of time, appropriation of tuition fees for the

entire course is found to be justified in the present case on

hand.

22. For the foregoing reasons, I pass the following:

ORDER

The writ petition is dismissed.

The pending interlocutory application, if any, does not

survive for consideration and stands disposed of.

Sd/-

JUDGE

CA