The University Of Kerala vs Locus Academy For Arts
2021 Latest Caselaw 20624 Ker

W.A.No1029 of 2021                  1



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                    &
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                         WA NO. 1029 OF 2021
 AGAINST THE ORDER/JUDGMENT IN WP(C) 27404/2013 OF HIGH COURT OF
                          KERALA, ERNAKULAM
APPELLANT/RESPONDENTS:

     1      THE UNIVERSITY OF KERALA
            REPRESENTED BY ITS REGISTRAR, UNIVERSITY OF KERALA,
            KERALA UNIVERSITY P.O., THIRUVANANTHAPURAM - 695 034.

     2      VICE CHANCELLOR
            UNIVERSITY OF KERALA, KERALA UNIVERSITY P.O.,
            THIRUVANANTHAPURAM - 695 034.

     3      REGISTRAR, UNIVERSITY OF KERALA
            KERALA UNIVERSITY P.O., THIRUVANANTHAPURAM - 695 034.

     4      THE DIRECTOR,
            INSTITUTE OF DISTANCE EDUCATION, UNIVERSITY OF KERALA,
            UNIVERSITY SENATE HOUSE CAMPUS P.O., PALAYAM - 695
            034, THIRUVANANTHAPURAM DISTRICT.

            BY ADV THOMAS ABRAHAM

RESPONDENTS:

            LOCUS ACADEMY FOR ARTS
            MANAGEMENT AND SCIENCE STUDIES, PULIMOOTTIL PLAZA,
            NEAR PRIVATE BUS STAND, PALA ROAD REPRESENTED BY ITS
            EXECUTIVE DIRECTOR M.MUHAMMED NIZAR, NIZAR BHAVAN,
            KUTHIATHODU P.O. - 688 533.

            BY ADV.SRI.T.P.SAJAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No1029 of 2021                    2




                                  JUDGMENT

Dated this the 5th day of October, 2021

SHAJI P.CHALY,J.

This appeal is preferred by respondents viz., University of Kerala and

its officials, challenging the judgment of the learned Single Judge dated

17.3.2020 in W.P.(C) No.27404 of 2013, whereby the learned Single

Judge allowed the writ petition and directed the University to return the

registration fee of Rs.25,000/- to the writ petitioner/respondent, within a

period of three months from the date of receipt of a copy of the

judgment. According to the learned Single Judge, there is no quid pro

quo so far as the amount of Rs.25,000/- collected towards the

registration fee to conduct an Off-campus institution outside the area of

the University of Kerala without conducting any field study, and further

that, only an interview was conducted, which will not enable the

University to retain the registration charge prescribed as per Exhibit P1

notification issued by the University of Kerala inviting application for

starting Learners Supporting Centres.

2. The contention raised by the writ petitioner was that on the

basis of the applications invited by the University for the academic year

2013-2014, the writ petitioner submitted an application for selection to

conduct Learners Support Centre at Thodupuzha, Idukki District. Writ

petitioner remitted an amount of Rs.27,000/-, of which Rs.2,000/- as

application fee and Rs.25,000/- as registration fee for registration of the

writ petitioner with the University. Writ petitioner was called for an

interview and since there was no communication thereafter, petitioner

has forwarded Exhibit P3 letter on 5.6.2013 and thereupon, the Registrar

of University informed that the registration fee is not refundable.

Thereupon, petitioner has caused to issue Exhibit P5 lawyer notice dated

20.9.2013 to the Registrar of University of Kerala and on receipt of the

same, it was informed that amount deposited as registration fee was not

collected as registration fee but instead, it was intended and collected as

processing fee of the application. The case put forth by the petitioner was

that the University being a statutory authority is bound to act fairly and

reasonably and that if the registration fee was collected as processing

fee, the University should have mentioned in the notification that the

registration fee is not refundable. Therefore, according to the petitioner,

in the absence of such a clause in the notification, the present reasoning

of the University contained in Exhibits P4 communication, and P6 notice

issued by the University as a reply to the lawyer notice cannot be

sustained under law. That apart it was contended that, if registration fee

is meant for processing of the application, the amount of fee levied

should be based on the expenses incurred by the University in rendering

service. However, in the instant case, there is total absence of any

correlation between the expenses incurred by the University and the

amount collected as registration fee and therefore, no service was

rendered by the University for the amount collected as registration fee.

According to the petitioner, the collection of registration fee is to keep it

as a security or for an assurance that the selected agency will function as

Learners Support Centre and in case the selected agency do not start

functioning as Learners Support Centre or remit the Caution Deposit, the

said registration fee can be forfeited.

3. The University has filed a counter affidavit in the writ court

basically contending that there was no mention anywhere in the

notification or in the application that the amount was collected in advance

in anticipation of selection of the writ petitioner for starting a Learners

Support Centre; and that the fee collected by the University for affiliation

of colleges are not refunded as in the case of Learners Support Centres

and therefore, there is no merit in the contention advanced by the writ

petitioner.

4. The paramount contention advanced in the writ appeal is that the

learned Single Judge was not right in arriving at the conclusion that

there was no element of quid pro quo so far as the amount of

Rs.25,000/- collected towards the registration fee is concerned; that fee

collected allowed the educational agency to register and take part in the

selection process for being approved as a Learners Support Centre; and

since the amount collected was not for granting affiliation, there arose no

question of returning the same to the failed applicants and in fact those

educational agencies, which were selected as Learners Support Centres

have remitted Rs.2 lakhs while executing agreement with the University.

It is also submitted that the stipulations contained in Exhibit P1

notification that Rs.25,000/- should be paid for being allowed to register

and take part in the selection process was not challenged by the writ

petitioner educational agency. That apart it was also contended that the

registration fee collected was for the purpose of processing the

applications and carrying out interviews and to conduct inspection if the

educational agency satisfied the minimum marks criteria. According to the

University, the petitioner has failed to secure the minimum marks criteria,

which is quite evident from Exhibit P4 issued by the Registrar to the writ

petitioner, wherein it is specified that the total marks secured by the writ

petitioner for starting the centre at Thodupuzha is below 60 and it was

on that count the application was rejected.

5. We have heard Sri.Thomas Abraham, learned counsel appearing

for the appellants, Sri.T.P.Sajan appeared for the writ petitioner and

perused the pleadings and materials on record.

6. In Exhibit P1 notification, under the heading "Registration Fee",

the applicant seeking for establishment of an institution of distance

education outside the area of Kerala University is directed to pay

Rs.25,000/-. The notification also prescribes the minimum infrastructure

requirements such as one computer for four students, LCD projector,

digital copier, printers, FAX, telephone, internet connection, apart from

the number of faculties prescribed thereunder.

7. Therefore, obviously apart from the application fee of Rs.2,000/-,

the University collected Rs.25,000/- to carry out necessary inspection in

order to ascertain as to whether the minimum requirements are complied

with by the writ petitioner. Admittedly, only an interview was conducted

and that the writ petitioner could not secure the minimum marks of 60,

which was the cause of elimination of the petitioner from registration with

the University for starting the Off-campus study centre outside the area

of the University. It is well settled in law that whenever a fee is collected,

there should be an equivalent obligation from the part of the agency

collecting the fees to render necessary service. It was taking into account

the said aspect the learned Single Judge found that there is no quid pro

quo to collect the amount of Rs.25,000/-. when it is an admitted fact that

inspection that was expected to be conducted by the University in order

to ascertain the minimum requirements was not done, the University

cannot claim any service rendered by it in order to process the application

of the writ petitioner fully and in terms of the notification, or rather the

writ petitioner was not found eligible in the preliminary scrutiny itself and

before the requisite exercises were undertaken . The legal position with

respect to the quid pro quo is very clear from various judgments

rendered by the Apex Court and in that regard we propose to discuss

some of the judgments of the Apex Court relevant to the context .

8. In Sreenivasa General Traders v. State of A.P. [1983)4 SCC

353] the Apex Court held thus:

"31. The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest if the

element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered".....

9. In B.S.E. Brokers' Forum v. Securities and Exchange

Board of India [(2001) 3 SCC 482], the Apex Court held thus:

"32. In the case of Sirsilk Ltd. v. Textiles Committee [1989 Supp (1) SCC 168 : 1989 SCC (Tax) 219 : AIR 1989 SC 317] this Court held that when the entire proceeds of the fee are utilised in financing the various projects undertaken by the Textiles Committee, it cannot be said that there is no reasonable and sufficient correlation between the levy of fee and the services rendered by the Textiles Committee. It further held that when the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered and the services rendered to the industry as a whole. "

10. Taking into account the factual and legal circumstances, we

have no hesitation to hold that the appellants have not made any case for

interference with the judgment of the learned Single Judge, there being

no jurisdictional error or other legal infirmities, justifying this Court to

interfere in the judgment in an intra court appeal filed under section 5 of

the High Court Act, 1958. Needless to say, writ appeal fails, accordingly it

is dismissed.

Sd/-

S. MANIKUMAR, CHIEF JUSTICE.

Sd/-

                                                     SHAJI P. CHALY,
smv                                                        JUDGE.