# Shivangi Sharma v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Writ C No. 6606 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivangi-sharma-v-state-of-u-p-ors-51427
- **Pages:** 4

## Headnote

Government Order dated 21.10.2022 -
Paragraph 7(a) - Refund of Fees - NEET
Counselling - Unjust Enrichment - Writ of
Mandamus -The petitioner, Shivangi Sharma,
sought a writ of mandamus to direct the refund
of Rs. 8,25,000/- (tuition fees) and Rs.
2,00,000/- (security deposit) paid during the
first round of NEET UG 2022 counselling for
allotment to F.H. Medical College, Agr She
resigned from this allotment on 13.11.2022 (or
17.11.2022, as per respondents) due to
dissatisfaction and was subsequently allotted
NIMS University, Jaipur, in the second round of
counselling on 26.11.2022. The petitioner relied
on paragraph 7(a) of the Government Order
dated 21.10.2022, which permits refund of fees
(minus 10% deduction) if a student resigns
after first-round allotment upon securing a seat
in
second-round
counselling,
subject
to
providing proof of the new allotment. The
respondents argued that the second proviso to
paragraph 7(a), which allows a 50% deduction
for resignations due to personal reasons without
second-round allotment, applie Held: The
court interpreted the mandatory requirement in
paragraph 7(a) for submitting proof of secondround allotment at the time of resignation as
directory, given the beneficial nature of the
refund
provision.
Retaining
fees
without
2 All. Shivangi Sharma Vs. State of U.P. & Ors.
369
imparting
education
constitutes
unjust
enrichment, as fees are a quid pro quo for
studies. The petitioner's resignation letter clearly
St.d reasons for withdrawal, and her subsequent
allotment in the second round was undispute
Thus, the case fell under paragraph 7(a), not
the second proviso, as the petitioner secured a
second-round allotment. The court issued a
mandamus
directing
the
refund
of
the
permissible amount (after 10% deduction)
within two weeks. The writ petition was allowe
....

Shivangi Sharma Vs St. of U.P. & ors., (2024) 2
ILRA, Writ C No. 6606 of 2023, decided on
25.01.2024 (All. HC, Lucknow Bench)

## Text

368 INDIAN LAW REPORTS ALLAHABAD SERIES
court shall order that such percentage of
the amount deposited shall be paid to the
supplier, as it considers reasonable under
the circumstances of the case subject to
such conditions as it deems necessary to
impose."

11. It is noticed that even as per
Section 36, it is provided that where time
for making an application to set aside the
award under Section 34 of Arbitration and
Conciliation Act, 1996has expired, then,
subject to provisions of Sub-section 2 such
award shall be enforced in accordance with
the provision of the CPC in the same
manner as if it were a decree of the Court.

12. It is noticed that the consequences
not assailing the award within the time
prescribed have been provided under
Section 36 and the award has to be
challenged as per the provisions of Section
36(3) of Arbitration and Conciliation Act,
1996 and the time period, accordingly is
mandatory within which the award has to
be assailed undoubtedly the time for
challenge of award has expired.

13. Accordingly, this Court is of
the
considered
view
that
where
statutory prescription has already been
provided for challenging the award and
the dispute in between private parties a
writ petition in this regard would not be
maintainable. Further, it has been
informed that execution proceedings are
pending where the petitioner, if so
advised,
can
take
objections
in
accordance with law.

14. Subject to the aforesaid, this
Court has not find any merit in the
present writ petition, accordingly, the
writ petition being devoid of merits and
is dismissed.
----------
(2024) 2 ILRA 368
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2024
BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 6606 of 2023

Shivangi Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shiv
Prakash
Dwivedi,
Ashish
Kumar
Dwivedi

Counsel for the Respondents:
C.S.C., Abhinav Trivedi

Government Order dated 21.10.2022 -
Paragraph 7(a) - Refund of Fees - NEET
Counselling - Unjust Enrichment - Writ of
Mandamus -The petitioner, Shivangi Sharma,
sought a writ of mandamus to direct the refund
of Rs. 8,25,000/- (tuition fees) and Rs.
2,00,000/- (security deposit) paid during the
first round of NEET UG 2022 counselling for
allotment to F.H. Medical College, Agr She
resigned from this allotment on 13.11.2022 (or
17.11.2022, as per respondents) due to
dissatisfaction and was subsequently allotted
NIMS University, Jaipur, in the second round of
counselling on 26.11.2022. The petitioner relied
on paragraph 7(a) of the Government Order
dated 21.10.2022, which permits refund of fees
(minus 10% deduction) if a student resigns
after first-round allotment upon securing a seat
in
second-round
counselling,
subject
to
providing proof of the new allotment. The
respondents argued that the second proviso to
paragraph 7(a), which allows a 50% deduction
for resignations due to personal reasons without
second-round allotment, applie Held: The
court interpreted the mandatory requirement in
paragraph 7(a) for submitting proof of secondround allotment at the time of resignation as
directory, given the beneficial nature of the
refund
provision.
Retaining
fees
without
2 All. Shivangi Sharma Vs. State of U.P. & Ors.
369
imparting
education
constitutes
unjust
enrichment, as fees are a quid pro quo for
studies. The petitioner's resignation letter clearly
St.d reasons for withdrawal, and her subsequent
allotment in the second round was undispute
Thus, the case fell under paragraph 7(a), not
the second proviso, as the petitioner secured a
second-round allotment. The court issued a
mandamus
directing
the
refund
of
the
permissible amount (after 10% deduction)
within two weeks. The writ petition was allowe
....

Shivangi Sharma Vs St. of U.P. & ors., (2024) 2
ILRA, Writ C No. 6606 of 2023, decided on
25.01.2024 (All. HC, Lucknow Bench)

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned counsel
for
petitioner, learned State Counsel for
opposite party no.1 and Mr. Abhinav N.
Trivedi, learned counsel for opposite party
no.2. In view of order being passed,
notices to opposite party no.3 stand
dispensed with.

2. Petition has been filed seeking a
direction to opposite parties to refund an
amount of Rs.8,25,000/- and security
amount of Rs.2,00,000/- deposited at the
time of first counselling for the purposes of
allotment of a medical college to petitioner.

3. It is submitted that petitioner
participated in the National Eligibilitycum-Entrance Test (NEET) for the undergraduate programme in year 2022 and was
allotted F.H. Medical College, Agra in the
first counselling. It is submitted that at the
same time, petitioner was also participating
in the counselling pertaining to NIMS
University,
Jaipur
under
the
general
category but prior to conclusion of
counselling
in
Jaipur,
F.H.
Medical
College, Agra was allotted to petitioner in
the first counselling.

4. Learned counsel for petitioner
submits that subsequently on 26.11.2022,
petitioner was allotted NIMS University,
Jaipur in the second counselling. In the
intervening period, petitioner submitted
resignation with regard to first counselling
vide letter dated 13.11.2022 on the ground
that petitioner was dissatisfied with the
College allotted and sought refund of the
fees already deposited by petitioner.

5. Learned counsel for petitioner
places reliance on paragraph 7(a) of
Government Order dated 21.10.2022 to
submit that petitioner is entitled for refund
in terms thereof.

6. Learned counsel appearing on
behalf of opposite party no.2 has refuted
the submissions advanced by learned
counsel for petitioner with the submission
that petitioner in fact submitted her
resignation on 17.11.2022.

7. It is submitted that petitioner's case
instead of being covered by paragraph 7(a)
of aforesaid Government Order is in fact
covered by second Proviso to paragraph
7(a) of the Government Order.

8. For purposes of adjudication of
present dispute, it would be necessary to
advert to provisions of paragraph 7 of
Government
Order
dated
21.10.2022,
which is as follows:-

ß7& R;kx&i= fn;s tkus ds laca/k esa&

vH;FkhZ dks ek= lhV dk vkacVu
(Allotment) izos'k ugha ekuk tk;sxkA
vkoaVu
ds
i'pkr~
vH;FkhZ
dks
lacf/kr
dkyst@uksMy lsaVj ij mifLFkr gksdj izos'k
izfdz;k lEiUu djus ds i'pkr gh izos'k ekuk
tk;sxkA rRi'pkr~ gh izosf'kr vH;FkhZ izosf'kr lhV
ls R;kxi= ns ldsxkA
370 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄4d1⁄2 ;fn vH;FkhZ 'kS{kf.kd l=
2022&23 dh izFke dkamflafyx ls vkoafVr gksdj
izns'k ds fdlh Hkh esfMdy@Ms.Vy dh lhV ij
izos'k izkIr dj ysrk gS rRi'pkr~ vH;FkhZ vky
bf.M;k ;k vU; izns'k dh dkmaflfyax ds ek/;e
ls fdlh vU; lhV ij vkoaVu izkIr djrk gS vkSj
og izns'k dh izFke dkamflfyax ls izosf'kr lhV ls
R;kxi= nsuk pkgrk gS 1⁄4R;kxi= ds le; vU;
dkamflfyax ls vkoaVu dk izek.k i= izLrqr djuk
vfuok;Z gksxk1⁄2 rks ,sls vH;FkhZ m0iz0 jkT; dh
f}rh; dkamflfyax dh PokbZl fQfyax ls nks fnu
iwoZ rd 1⁄4mnkgj.kkFkZ ;fn f}rh; pdz dh
dkamflfyax fnukad 24-112022 ls izkjEHk gksuh gS]
rks vH;FkhZ 21-11-2022 dks lka; 04-00 cts rd1⁄2
viuh lhV ls R;kxi= ns ldrk gSA ,slh fLFkfr
esa vH;FkhZ }kjk tek dh x;h flD;ksfjVh /kujkf'k
rFkk f'k{k.k 'kqYd ls fuEukuqlkj dVkSrh djrs gq,
'ks"k /kujkf'k okil dh tk;sxh%&

& jktdh; rFkk futh {ks= ds
esfMdy@Ms.Vy dkystksa esa izosf'kr vH;fFkZ;ksa dh
tek f'k{k.k 'kqYd ls 10 izfr'kr dh dVkSrh djrs
gq, 'ks"k /kujkf'k rFkk /kjksgj /kujkf'k (Security
Money) okil ns; gksxhA

& izFke pdz dh dkamflfyax ls
vkoaVu ds i'pkr ;fn vH;FkhZ }kjk vkoafVr
dkyst esa izos'k ys fy;k tkrk gS rFkk vH;FkhZ dks
vky bf.M;k@vU; izns'kksa dh dkamflfyax ls dksbZ
Hkh vkoaVu izkIr ugh gksrk gS] fQj Hkh vH;FkhZ
O;fDRkxr dkj.kksa ls fu/kkZfjr frfFk 1⁄4f}rh; pdz
dh Pokbl fQfyax ls nks fnu igys rd1⁄2 ls iwoZ
R;kx i= nsrk gS rks ,slh n'kk esa f'k{k.k 'kqYd esa
ls 50 izfr'kr dh dVkSrh djrs gq;s 'ks"k /kujkf'k
,oa /kjksgj /kujkf'k (Security Money) okil
fd;k tk;xkA

&&&&&&&&&&&&&&&&ß

9. A perusal of aforesaid provisions
makes it evident that there is provision for
refund of fees in case a student participates
in the counselling in the first round but
subsequently forsakes the seat which has
been allotted. While paragraph 7(a) states
that such resignation from the College
allotted
in
the
first
counselling
is
permissible subject to a student being
allocated a Medical College in the second
counselling but such a fact is required to
be indicated specifically in the resignation
letter and by annexing a certificate
regarding his allotment made in the second
counselling.

10. In the considered opinion of this
Court, although it has been couched in
mandatory terms that at the time of
resignation from allotment made in first
counseling, reasons thereof and annexing
of certificate pertaining to allotment in the
second counselling has been made but in
view of the beneficial provision pertaining
to refund of fees, such a mandatory
condition can be read down to be directory
in nature particularly in case where the
student
subsequently
also
indicates
allotment of a seat in the second
counselling and indicates reasons for
forsaking the allotment made in the first
counselling. The reason for reading down
aforesaid condition although couched in
mandatory terms, is quite evident that fees
is deposited as a consideration for studies
imparted by a College. In case a student
resigns from the allotment made in the first
counselling itself, clearly no studies have
been imparted to such a student and
therefore permitting such a College to
retain fees deposited by a student would in
fact amount to unjust enrichment. It is the
opinion of this Court, that fees deposited by
a student is as a quid pro quo for studies
imparted to such student. This is more so,
as in the present case where subsequent
rounds of counselling including mop up
rounds of counselling have taken place.

11. In the present case, it is quite
evident from resignation letters submitted
by petitioner either on 13.11.2022 or
17.11.2022 that reasons for resigning the
allotment made in first counselling have
2 All. M/S Sundaram Developers Pvt. Ltd. Vs. State of U.P. & Ors.
371
been clearly indicated by petitioner. It is
also evident that at the time of resignation,
allotment as per the second counselling had
not been made, which was subsequently
done on 26.11.2022 and has been brought
on record as annexure-7 to writ petition.

12. The opposite parties have not
denied the fact that petitioner has in fact
been allotted a Medical College in her
home state in the second round of
counselling. The reason therefore for
resigning from allotment made in the first
counseling is evident as is the fact that
petitioner has definitely been allotted a
Medical College in the second counselling.

13. In the considered opinion of this
Court, conditions indicated in paragraph
7(a) are therefore substantially complied
with. It is also the opinion of this Court
that provisions of paragraph 7(a) of
Government Order dated 21.10.2022 have
been specifically inserted so as not to
permit unjust enrichment by a College for
retaining fees without imparting studies to
a student.

14. So far as reliance placed by
learned counsel for opposite party no.2
upon second proviso to paragraph 7(a) is
concerned, it is evident that the same will
be inapplicable in the present case since it
pertains to those situation where a student
has not been provided any seat allocation
even in second counselling.

15. In view of discussions made
herein above, it is evident that case of
petitioner is covered under paragraph 7(a)
of Government Order dated 21.10.2022.

16. Therefore, a writ in nature of
Mandamus is issued commanding opposite
party no.2 to refund the permissible amount
as per 7(a) of Government Order dated
21.10.2022 to petitioner within a period of
two weeks from the date of certified copy
of this order is produced before the said
authority.

17. Consequently, the writ petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2024) 2 ILRA 371
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2024
BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE MANISH KUMAR, J.

Writ C No. 9211 of 2011
with
Writ C No. 5539 of 2013
with
Writ C No. 5591 of 2013

M/S Sundaram Developers Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sachin Garg, Jaspreet Singh, Sachin Garg

Counsel for the Respondents:
C.S.C., Rajesh Singh Chauhan, Shailendra
Singh Chauhan, Shashi Prakash Singh

Civil Law - U.P. Municipal Corporations
Act, 1959 - Section 129 - Land Acquisition
Act, 1894 - Sections 4 & 6 - Cancellation of
Lease Deed - Principles of Natural Justice -
Public Trust Doctrine - Malafide Exercise of
Power - Article 226

The petitioners, M/s Sundaram Developers Pvt.
Lt and M/s Eldeco Housing and Industries,
challenged the cancellation of a lease deed
dated
24.06.1995
executed
by
Lucknow
Municipal
Corporation
in
favor
of
M/s