# Dr. Vaibhav Sharma v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-29
- **Case number:** Writ-C No. 24763 of 2017
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vaibhav-sharma-v-state-of-u-p-ors-50346
- **Pages:** 5

## Headnote

Civil Law - Limitation Act, 1963-Section
17 (c)-Petitioner took admission in the
M.B.B.S. course and deposit the fees as per
structure-64 students identically placed -
claimed refund of excess fees in reference to
certain Government orders, etc. by filing
Writ-allowed-two special appeals were filed
against the said order in connected matters
which were dismissed-filed Special leave
petitions by the College-dismissed in 2016present petition filed in 2017 immediately
after dismissal of SLPs-cannot be said to be
filed with inordinate delaylitigation began in
2004 and finally ended up in 2016 -W.P. filed
in 2017-cannot be treated as barred by
laches to deny interference-Limitation Act
has no application in exercise of Writ
Jurisdiction-Bona
fide
mistake
pleadedcovered u/s 17 ( C) of the Limitation Actmandamus issued to refund excess amount
of fees.

W.P. allowed in part. (E-9)

List of Cases cited:

Tukaram Kana Joshi & ors. Vs Maharashtra
Industrial Development, (2013) 1 SCC 353

## Text

6 All. Dr. Vaibhav Sharma Vs. State of U.P. & Ors.
703
----------
(2023) 6 ILRA 703
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 24763 of 2017

Dr. Vaibhav Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Avanish Mishra, Sri Anurag Sharma

Counsel for the Respondents:
C.S.C., Sri Nipun Singh

Civil Law - Limitation Act, 1963-Section
17 (c)-Petitioner took admission in the
M.B.B.S. course and deposit the fees as per
structure-64 students identically placed -
claimed refund of excess fees in reference to
certain Government orders, etc. by filing
Writ-allowed-two special appeals were filed
against the said order in connected matters
which were dismissed-filed Special leave
petitions by the College-dismissed in 2016present petition filed in 2017 immediately
after dismissal of SLPs-cannot be said to be
filed with inordinate delaylitigation began in
2004 and finally ended up in 2016 -W.P. filed
in 2017-cannot be treated as barred by
laches to deny interference-Limitation Act
has no application in exercise of Writ
Jurisdiction-Bona
fide
mistake
pleadedcovered u/s 17 ( C) of the Limitation Actmandamus issued to refund excess amount
of fees.

W.P. allowed in part. (E-9)

List of Cases cited:

Tukaram Kana Joshi & ors. Vs Maharashtra
Industrial Development, (2013) 1 SCC 353

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Anurag Sharma, learned
Advocate, holding brief of Shri Avanish
Mishra, learned counsel for the petitioner,
learned Standing Counsel appearing for
State-respondent and Shri Nipun Singh,
learned counsel appearing on behalf of
respondents 2 and 3.

2. The petitioner took admission in
the
M.B.B.S.
Course
run
by
the
respondent-college in the academic year
2002-03 and deposited the fees as per the
structure laid down by the college. It
appears that 64 students, identically placed
as that of the petitioner, claimed refund of
excess fees deposited by them in reference
to the certain Government orders, etc.
When the fees was not refunded by the
college, the said 64 students filed Writ-C
No.12333 of 2004 (Abhishek Kadian and
others vs. State of UP and others). Learned
Single Judge of this Court, by a very
detailed judgment, allowed the writ petition
along with connected matter with following
directions:

"Both
the
writ
petitions
are
consequently allowed. The Subharti KKB
Charitable Trust Meerut and Subharti
Medical College, Meerut are held entitled
to charge the college fees of payment seats
of the student admitted in 2002-03
academic session and for all subsequent
years of the same batch @ 1,26,500/- per
month as fixed by the Government Order
dated 8.1.2003. The Trust and the College
will refund the entire excess amount
collected from all the 64 students admitted
on the payment seats of 2002-03 batch, and
for subsequent years for the same batch,
within one month. The 17 petitioners in
writ petition No.38368 of 2006 will be
allowed to appear in 4th professional
examination in the next examinations to be
held by the University. They will be allowed
704 INDIAN LAW REPORTS ALLAHABAD SERIES
to adjust the excess fees paid by them in the
three years and will only pay the
differences, (sic) any @ Rs.1,26,500/- per
annum. This judgment will be confined only
to the students admitted on payment seats
to the MBBS Course of the academic
session 2002-03 and in subsequent years
for the same batch. The College will pay
Rs.10,000/- as costs of these petitions to the
students by depositing it in the students'
welfare fund of the College."

3. Two special appeals were filed
against the said order in connected matters.
However, the same were dismissed by a
Division Bench of this Court by a detailed
judgment dated 29.9.2010. The matter was
carried by the college to the Hon'ble
Supreme Court in which an interim order
was passed on 10.12.2010 directing the
college to deposit Rs.4 crores in the
Registry within a period of three months.
Later on, special leave petitions were
dismissed on 8.5.2015. Certain curative
petitions and review petitions were filed by
the college, however, the same were also
dismissed on 13.7.2016.

4. The present writ petition was filed
in the year 2017 with a prayer that a writ of
mandamus be issued to respondents 2 and 3
to refund the entire excess amount of fees
realized from the petitioner in violation of
the Government Order dated 8.1.2003
along with interest @ 12% per annum on
the excess amount.

5. Counter and rejoinder affidavits
have been exchanged between the parties
and the writ petition is being finally
decided.

6. The contention of learned counsel
for the petitioner is that since identically
placed students have already been refunded
the amount of excess fees, the petitioner is
also entitled for the same relief.

7. Per contra, Shri Nipun Singh,
learned counsel for the college, has
vehemently argued that the petitioner is not
entitled to claim any benefit of the orders
passed by the Writ Court or Special
Appellate Bench or the Apex Court as the
64 students had agitated their claim in the
year 2004 whereas the petitioner has
approached this Court in 2017 and his
claim is barred by laches. Learned counsel
has further argued that limitation for
claiming refund of any amount is three
years as per the Limitation Act, 1963 and,
therefore, the petitioner cannot claim
refund of excess fees. He has also argued
that since the petitioner had given an
undertaking before the college at the time
of taking admission that he would pay the
fees as per the fee-structure and that the
fees once paid would not be refunded in
any
circumstances,
the
petitioner
is
estopped from claiming any relief.

8. To this argument of learned counsel
for the college, it has been argued by
learned counsel for the petitioner that
Limitation Act, 1963, would not apply in
exercise of powers under Article 226 of the
Constitution
of
India
and
whenever
fundamental right is denied to a litigant or
where demand for justice is so compelling,
delay in approaching the High Court would
not defeat the grant of relief as it is within
the discretion of the Court to exercise
jurisdiction fairly and justly so as to
promote justice and not to defeat it. In
support of his submission, learned counsel
for the petitioner has placed reliance upon a
decision of the Supreme Court in the case
of Tukaram Kana Joshi and others vs.
Maharashtra
Industrial
Development,
(2013) 1 SCC 353 with reference to
6 All. Dr. Vaibhav Sharma Vs. State of U.P. & Ors.
705
paragraphs 13 and 14 of the same, which
are reproduced as follows:

"13. The question of condonation of
delay is one of discretion and has to be
decided on the basis of the facts of the case
at hand, as the same vary from case to
case. It will depend upon what the breach
of fundamental right and the remedy
claimed are and when and how the delay
arose. It is not that there is any period of
limitation for the courts to exercise their
powers under Article 226, nor is it that
there can never be a case where the courts
cannot interfere in a matter, after the
passage of a certain length of time. There
may be a case where the demand for justice
is so compelling, that the High Court would
be inclined to interfere in spite of delay.
Ultimately, it would be a matter within the
discretion of the Court and such discretion,
must be exercised fairly and justly so as to
promote justice and not defeat it. The
validity of the party's defence must be tried
upon principles substantially equitable.

14. No hard-and-fast rule can be laid
down as to when the High Court should
refuse to exercise its jurisdiction in favour
of a party who moves it after considerable
delay and is otherwise guilty of laches.
Discretion must be exercised judiciously
and reasonably. In the even that the claim
made
by
the
applicant
is
legally
sustainable, delay should be condoned. In
other words, where circumstances justifying
the conduct exist, the illegality which is
manifest, cannot be sustained on the sole
ground of laches. When substantial justice
and technical considerations are pitted
against each other, the cause of substantial
justice deserves to be preferred, for the
other side cannot claim to have a vested
right in the injustice being done, because of
anon-deliberate delay. The court should not
harm innocent parties if their rights have in
fact emerged by delay on the part of the
petitioners."

9. Having heard learned counsel for
the parties, I find that the order of Writ
Court passed in the case of Abhishek
Kadian (supra) is in declaratory form
whereby it has been declared that the
colleges are held entitled to charge the
college fees as fixed by the Government
Order dated 8.1.2003. Meaning thereby that
the colleges are not entitled to claim fees,
over and above, what has been decided by
this Court. As far as the delay aspect is
concerned, though the writ petitions were
filed in the year 2004 and decided in the
year 2007, the college carried it to the
Special Appellate Bench where the special
appeals were dismissed in 2010 and then
the matter was carried to the Apex Court
where an interim order was passed in the
year 2010, but the special leave petitions
were dismissed in 2015 and curative and
review petitions were dismissed in 2016.

10. The present writ petition having
been filed in the year 2017, immediately
after dismissal of the special leave petition,
cannot be said to have been filed with
inordinate delay particularly when all the
students were defending the matter up to
the Supreme Court where even an interim
order was passed in 2010, which remained
operative till 2015-16 with no benefits to
the said students.

11. Even otherwise, insofar as
limitation aspect is concerned, it is wellsettled that Limitation Act, 1963, has no
application in exercise of jurisdiction under
Article 226 of the Constitution of India.
Even if by any stretch of imagination,
Limitation Act, 1963 or its principles are
said to be applicable in writ jurisdiction,
insofar as the controversy covered by the
706 INDIAN LAW REPORTS ALLAHABAD SERIES
present case is concerned, reference to
Section 17 of the Limitation Act, 1963 is
required to be made. Section 17 of the said
Act reads as follows :

"17. Effect of fraud or mistake.?

(1) Where, in the case of any suit or
application for which a period of limitation
is prescribed by this Act,?

(a) the suit or application is based
upon the fraud of the defendant or
respondent or his agent; or

(b) the knowledge of the right or title
on which a suit or application is founded is
concealed by the fraud of any such person
as aforesaid; or

(c) the suit or application is for relief
from
the
CONSEQUENCE
OF
MISTAKE; or

(d) where any document necessary to
establish the right of the plaintiff or
applicant has been fraudulently concealed
from him.

The period of limitation shall not
begin to run until plaintiff or applicant has
discovered the fraud or the mistake or
could, with reasonable diligence, have
discovered it; or in the case of a concealed
document, until the plaintiff or the
applicant first had the means of producing
the concealed document or compelling its
production."

12. I find that in case any suit or
application
is
for
relief
from
the
consequences of a MISTAKE, Section 17
(c) of the Limitation Act, 1963 would come
for the rescue of the person seeking relief
and in such matters, the period of limitation
shall not begin to learn until the applicant
has discovered the mistake or could, with
reasonable diligence, had discovered it.

13. In the present case, it has been
pleaded in paragraphs No.22 and 23 of the
writ petition that since various students had
approached this Court and the receipts of
fees of the petitioner were also annexed
along with Writ-C No.12333 of 2004 filed
by Abhishek Kadian and others, the
petitioner was under a BONA FIDE
MISTAKE or belief that his cause was also
being agitated before this Court. However,
the said MISTAKE STOOD REVEALED
when the petitioner came to file contempt
application, but he was informed that he
was not a party in Writ-C No.12333 of
2004 and, therefore, he could not file a
contempt
application
on
account
of
violation of the order passed by the learned
Single Judge.

14. Insofar as the averments made in
paragraphs 22 and 23 of the writ petition, I
find that in paragraph-9 of the counter
affidavit, it has been stated that the
judgment of this Court could be applicable
only in respect of the petitioners of the writ
petition being Writ-C No.12333 of 2004
and in the connected matters and insofar as
the mistake or belief of the petitioner as
pleaded in paragraphs No.22 and 23 of the
writ petition, it has not been denied
specifically and only this much has been
stated that even counsel for the students
had informed the petitioner that he was not
amongst those who had filed Writ-C
No.12333 of 2004.

15. Therefore, on the point of alleged
delay, the case is not only covered by the
decision of Hon'ble Supreme Court in the
case of Tukaram Kana Joshi (supra), but
also applicability of the principle enshrined
under Section 17 (c) of the Limitation Act,
1963.

16. Even otherwise, if I ignore the
aforesaid provisions, I find that the
litigation began in 2004 and finally ended
6 All. Vijay Pal Singh Vs. State of U.P. & Ors.
707
in 2016 with dismissal of the curative and
review petitions and, therefore, if the writ
petitioner filed writ petition in 2017, the
same cannot be treated as barred by laches
so as to deny interference in the matter.

17. Insofar as the argument of Shri Nipun
Singh, learned counsel for the college, to the
effect that the petitioners had given an
undertaking at the time of taking admission that
fees deposited shall not be refunded under any
circumstances, I find that the said aspect has
already been dealt with by Special Appellate
Court in its judgment dated 29.9.2010 in special
appeals and I cannot take a contrary view. The
said decision of Division Bench has been
affirmed even up to the Hon'ble Apex Court.

18. Even otherwise, the said undertaking
is in the form of affidavit in a printed proforma
forming part of supplementary counter affidavit
as Annexure SCA-1 and such an affidavit was
designed and framed by the officers of the
University and college itself and considering
the plight of a student, who comes to the
college to take admission, filling up all
documents of this nature cannot be said to
operate as estoppel against him while seeking
any relief that the law permits in the facts and
circumstances of a particular case.

19. In the present case, once this Court as
well as the Apex Court have already examined
the entitlement of the college to charge excess
fees and has decided the issue against the
college and once other students have already
been refunded the excess amount of fees
pursuant to the aforesaid judgments, I do not
find any ground to deny the same relief to the
petitioner on the principles of equity, equality as
well as Constitutional parity enshrined under
Article 14 of the Constitution of India.

20. Even otherwise denying relief to the
petitioner would amount to undue enrichment
of the college by withholding the amount of
fees, which it is not entitled as learned Single
Judge had passed
the
order
declaring
entitlement of the college to charge fees as per
the Government Order dated 8.1.2003 and not
beyond that.

21. For all the aforesaid reasons, the writ
petition succeeds and is allowed in part.

22. A writ of mandamus is issued to
the respondents 2 and 3 to refund the excess
amount of fees realized from the petitioner
by following the judgment of this Court
dated 14.8.2007 passed in Writ-C No.12333
of 2004 (Abhishek Kadian and others vs.
State of UP and others) within a period of
three months from the date, a certified copy
of this order is produced before the said
respondents.

23. Relief of cost of Rs.10,000/- as
awarded under the order dated 14.8.2007 is
denied to the petitioner. Further, the petitioner
shall not be entitled to any interest on the excess
amount, which is lying with the respondents.
----------
(2023) 6 ILRA 707
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 66886 of 2006

Vijay Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders, Sri Akhilesh Tripathi, Sri
Anoop Trivedi, Sri S.P.S. Rajput, Shilpa Ahuja,
Sri Shivam Yadav