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B.V. Nagarathna, J.—W.A. No. 3175/2005 is filed by the management of Malnad College of Engineering, while W.A. No. 350/2006 is filed by the University of Mysore, challenging the order of the learned Single Judge, passed in W.P. No. 4431/2000 dated 30/6/2005.
The facts of the case leading to the filing of these appeals are that the management of the Engineering College had filed the writ petition challenging the order dated 6/8/1998 passed by the Mysore University, whereby it permitted excess students admitted by the college for B.E. Course for the academic year 1995-96 to appear in the 6th semester examination, subject to the payment of penalty of Rs. 10 lakhs and certain other conditions Vide Annexure ''A'' to the Writ Petition. The Engineering College, which is affiliated to Mysore University, in respect of academic year 1995-96 had admitted 5% of its management quota by 16/10/1995 out of total of 570 seats and out of the remaining 542 seats, the Government filled up 471 seats by 16/10/1995, which left a balance of 71 seats as unfilled seats on the said date. That 49 seats out of 71 seats had remained unfilled but were unilaterally filled up by the management of the college and thereafter CET Cell sent 71 students after 26/10/1995. As a result, it had admitted 619 students even though 570 seats was the intake capacity, resulting in 49 excess admissions. According to the College, since 16 students did not join the course, the excess admissions were 33 seats. The college therefore sought regularisation of excess admissions by making a representation to the State Govt. by its communication dated 12/3/1996 but the request of the college was rejected. Being aggrieved by the said communication, the Petitioner college had filed W.P. No. 7295/96 and W.P. Nos. 7401-7476/1996 questioning the communication of the State Government and seeking regularisation of the admission of 77 students i.e., 28 students admitted in NRI quota and 49 students admitted by the College after the order of the Hon''ble Supreme Court i.e., 26/10/1995. This Court by order dated 27/5/1996 dismissed the said writ petitions. Being aggrieved by the said order, the Petitioner - College had filed W.A. No. 6445 to 6521/96 and other connected cases, which were also dismissed on 22/10/1997, against which, SLP (Civil) No. 5346-5422/98 were filed before the Hon''ble Supreme Court. During the pendency of the S.L.Ps, the All India Council for Technical Education (hereinafter, referred to as ''AICTE'') by its communication dated 28/8/98, granted exemption for excess admission to the Petitioner - College for the academic year 1995-96 and as a result, the S.L Ps were disposed of. In the meanwhile, the Petitioner - College had requested the Mysore University to permit the students to appear in the examination and the Syndicate of the University permitted the students to appear in the 6th semester examination, pending regularisation of admission by the AICTE, by imposing a penalty of Rs. 10 lakhs on the Petitioner - College, for making excess admission by its order dated 6/8/1998. Consequently, Petitioner - College was permitted to allow the excess students to appear in the 6th semester examination on payment of the said amount. It is thereafter, the Petitioner - College filed W.P. No. 4431/2000 seeking quashing of the order dated 6/8/1998 and a mandamus directing the University to refund the amount of Rs. 10 lakhs paid by it together with interest from the date of receipt till the date of payment.
The University filed its objections to the W.P. by contending that in W.A. No. 6445-6521/96 disposed of on 22/10/1997, liberty was reserved to the Petitioner - College to approach the University or any other competent authority for regularisation of the admission, if permissible in law that the college by its letter dated 4/8/1998 had informed the University that it was prepared to abide by its decision even if penalty had to be paid by it or otherwise, as the excess admissions were at stake. Pursuant to the undertaking of the college in its letter dated 4/8/1998, the University passed an order dated 6/8/1998 imposing a penalty of Rs. 10 lakhs for the irregularity committed by the college in admitting excess students and the said amount was paid by the college and since the AICTE had not regularised the excess admissions made by college but had only granted only a one-time exemption for the excess admissions made during the academic year 9/5/1996, it was the University which had to regularise the excess admissions. Therefore, it was contended that having paid the penalty for admitting excess students and thereafter having had the benefit of the order of the repolarization, the writ petition was not maintainable to seek refund of the said amount. It was also contended that the amount of Rs. 10 lakhs collected from the college was appropriated towards general administrative expenses and was utilised for purchase of equipment, and other development activities during the year 1998-99. Subsequently, the Petitioner - college amended its writ petition to contend that the penalty was paid by it in order to get permission for the students to appear in the 6th Semester Examination being under the impression that the University was competent to levy penalty and on an understanding that the payment of the amount was an interim decision subject to the decision of the AICTE.
The State Government also filed objections supporting the stand of the University and contended that the Petitioner - college had to approach the Civil Court for refund of the amount of Rs. 10 lakhs.
Learned Single Judge on hearing the parties framed two points for consideration and held that the order levying penalty is a quasi-judicial decision involving exercise of discretion and that the payment of penalty was not voluntary and it was not legally permissible for the University to collect penalty or compounding fee. The learned Single Judge also granted liberty to the petitioner - college to file civil suit claiming refund of the amount only if the Petitioner could establish that it had not placed the financial burden on the students and the same was paid out of its own funds and with the above liberty, the writ petition was dismissed.
Being aggrieved by the order of the learned Single Judge, the Petitioner - college as well as the University have filed its these writ appeals.
We have heard Sri G. Krislmamuithy, learned Counsel appearing for the Petitioner - College Appellant, herein, Sri T.P. Rajendra Kumar, learned Counsel appearing for the Respondent No. 2 - Mysore University Appellant herein, and Sri K. Krishna, learned A.G.A. appearing for the Respondent No. 1 - State.
It is contended on behalf of the Appellant - college that the learned Single Judge held that the university had no power to impose penalty and therefore, ought to have ordered for refund of the said amount collected as penalty. That the amount of penalty had been paid by the college out of its funds and had not been collected from the students and therefore, the learned Single Judge was not right in presuming that since the amount had had been collected from the students, the college could not refund the amount of Rs. 10 lakhs as it would result in unjust enrichment. According to the learned Counsel, no amount was collected from the students by way of penalty and hence, the learned Single Judge ought not to have directed the Appellant to approach the Civil Court for recovery of the said amount. He has also submitted that the admissions were pursuant to the orders of the Hon''ble Supreme Court and that infact, there were no excess admissions and therefore, the University could not have imposed any penalty on the college. He therefore, submits that the order of the learned Single Judge ought to be set aside and a direction be issued to the University to refund the amount of Rs. 10 lakhs to the Appellant - college.
Learned Counsel appearing for the University, on the one hand while supporting the order of the learned Single Judge has contraverted the submissions of the learned Counsel for the Appellant -college by contending that though the learned Single Judge dismissed the petition of the college, nevertheless held that the University was not entitled to impose penalty on the Institutions and thereby directed the college to approach the Civil Court for recovery of the amount by filing a suit. According to him, by an order dated 4/8/1998, the Appellant - college stated that it was willing to abide by any decision of the University including the payment of penalty and therefore, the college had also paid the penalty, on the basis of which, excess admissions were regularised and after the students had taken examinations and completed their course and had obtained their Degrees, the college cannot turn around and contend that the University had no authority impose the penalty. He submits that by way of penal action, penalty of Rs. 10 lakhs was imposed on the Appellant - college in order to ensure that Institutions would not admit excess students than what is prescribed by the University or a competent authority in future and therefore, there was a purpose behind imposing the penalty. According to him, no material has been produced to evidence the fact that the amount of penalty was paid by the college out of its own funds and that the same has not been passed on to the students and therefore, it has to be held that the penalty amount was collected from the students by the college and paid to the University and therefore, the University cannot refund the said amount to the college. He submits that while dismissing the writ petition, the learned Single Judge ought not to have reserved liberty to the college to file a civil suit for claiming a refund of the amount and hence, that portion of the order of the learned Single Judge requires modification.
In the light of the aforesaid rival contentions and on perusal of the material on record, the point that arises for our consideration are as follows:
1) Whether the learned single Judge was right in holding that the university had no right to impose penalty of Rs. 10 lakhs by its order dt.6.8.1998?
2) It the answers to Point No. 1 is in the negative, whether the learned single Judge was right in reserving liberty to the Appellant college to file a civil suit and recover the amount of Rs. 10 lakhs?
3) What order?
At the outset, it is necessary to extract the Order No. AC.5/506/95-96 dated 6/8/1998:
ORDER No. AC 5/506/95-96, DATED 6TH AUGUST, 1998
Pursuant to the decision of the Syndicate at its meeting held on 6th August, 1998:
(a) the results of V Sem. Examination of March 1998 in respect of excess admissions batch of 1995-96 of Malnad College of Engineering, Hassan, will be announced; and
(b) the eligible students of the above mentioned batch will also be allowed to appear for the VI Sem. Examination subject, to the following conditions:
(i) that this permission is subject to the final decision of the Hon''ble Supreme Court of India;
(ii) that this decision is an interim arrangement pending regularisation of these excess admissions by the AICTE;
(iii) that the Management should pay a penalty of Rs. 10 lakhs (Rupees Ten Lakhs) to the University for the irregularity and illegal action committed by it by admitting 77 students in excess of the intake prescribed by the University and thereby contravening the provisions of the Section 53 of KSU Act, 1976.
BY ORDER
REGISTRAR
The background to the said order is that the issue regarding excess admissions of the students to the Petitioner - college for the academic year 1995-96 was considered by the syndicate of the University wherein, it was noted that the excess admissions made above the intake fixed by the Government was contrary to Section 53(10)(b) of the Karnataka State Universities Act, 1976 (hereinafter, referred to as the ''Act'') and that the said excess admissions had not been approved by the State Government or the University, that this Court had seriously. deprecated the action of the college, management in admitting the students in excess of the intake in its order dated 22/10/1997 whereby, the writ petitions and writ appeals filed for the regularisation of the admissions were dismissed with costs and liberty was given to the students to approach the competent authorities for regularization, if it was permissible under law and that this Court had also observed that the University should take appropriate action against excess admissions; that the State Government in its letter dated 24/3/1998 had informed the University that it had recommended for the regularisation of the excess admission but AICTE, which is the competent authority to sanction the intake of students and subject to the condition of obtaining the approval of AICTE, the Syndicate University at its meeting held on 16/1/1998 considered the issue and resolved to declare the resolutions of the 4th Semester Examination that were withheld and to permit the students to continue their education subject to the condition that the students and management should give an undertaking in a form of an Indemnity Bond but the students did not submit any undertaking but approached the Hon''ble Supreme Court which had passed an interim order on 27/2/1998 permitting the students to appear for the 5th Semester Examination in March, 1998 and accordingly, they were permitted but their results were withheld. The State Government i.e., Education Department by its letter dated 29/6/1998 had requested that the students be allowed to appear for 6th Semester Examinations and the college by its letter dated 4/8/1998 had informed the University that since the students were agitated and were on hunger strike, the management - College shall abide by the decisions including whatever penalty was to be imposed by the University. It is in this background that the aforesaid order dated 6/8/1993 was passed by the syndicate of the Mysore University and the results of the 5th Semester Examination of the excess students were ordered to be announced and the excess students were held eligible to appear for the 6th Semester Examinations, subject to conditions, one of which was that the management was to pay penalty of Rs. 10 lakhs and since the matter was urgent, the consent of the Chairman of the Management - College, was obtained over telephone and accordingly, it was ordered that a Demand Draft for Rs. 10 lakhs be paid in the name of the University of Mysore. Thereafter, a representation was made to the State Government, seeking annulment of the resolution dated 6/8/1998 of the Syndicate of Mysore University with regard to the imposition of penalty in order dated 6/8/1998, but by Govt. Order No. ED.133.UMV.98, Bangalore, dated 8/8/1999, the proceedings to annul the resolution dated 6/8/1998 was ordered to be dropped by the State Government.
From the material on record, it is evident that before the unfilled seats were made over to the Petitioner - college, for the purpose of filling up of those seats by the management, the college had unilaterally admitted the students without waiting for any communication from the CET Cell. The college had filled up 49 seats out of 71 seats and thereafter, CET Cell sent 71 students after 26/10/1995, thus, the college had admitted 619 students even though 570 seats were allotted and there wee 49 seats excess admissions and since 16 students did not join the course, excess admissions made by the college were 33. It is in respect of these excess admissions that regularisation was sought by the Petitioner - college by tiling Writ Petition Nos. 7295/96 and 7401-7476/96 seeking a direction for announcement of results of 77 students of the B.E., B.Tech., Degree Examinations held in March, 1996 and other consequential reliefs. Being unsuccessful in the aforesaid writ petitions, the Petitioner - college had filed Writ Appeal Nos. 6445-6251/96 along with other such colleges The Division Bench in its judgment dated 22/10/1997 has made the following pointed observations:
These appeals project yet another Instance and efforts of the Management of the Private educational institutions attempting to play with the career of the students with a sole object of filing up their coffer taking shelter under one or the other pretext, lacunae or loopholes in the laws governing educational system.
The Division Bench noted that by order dated 11/8/1995, the Apex Court had permitted the colleges including the Petitioner''s college herein, to fill up the seats which remained unallotted or unfilled on 16/10/1995 and that by another order dated 20/10/1995, the Apex Court had extended the time limit for admissions and it is on the basis of the said order that CET Cell had allotted the students of the Institution in question. But before the CET could allot the seats to the students in respect of the Government, the Management of the Petitioner - Institution had already made admissions and as a result, it led to excess admissions. The Division Bench refused to regularise their admissions and reserved liberty to the students to claim damages from the management and liberty was also given to the management of the colleges to approach the University or any other competent authority for regularisation of the students admission, if permissible under law but without affecting the rights of the genuine and bona fide students, directed to be admitted by allotment of seats by the CET and accordingly, dismissed the writ appeals. It is on the strength of the liberty reserved by the Division Bench of this Court in the aforesaid writ appeals in order dated 22/5/1997 that representation was made by the Petitioner - college by its letter dated 4/8/1998 for allowing the excess students to appear for 6th Semester Examination to pursue their further education and also to declare their results with regard to the 5th Semester Examination and it is pursuant to the said representation that order dated 6/8/1998 was passed by the Syndicate of the University. It is pertinent to note that at that point of time, AICTE had not regularised the excess admissions made by the college but had only granted a onetime exemption for the academic year 1995-96 and had stated that the same would not amount to regularisation of excess admissions made by the Petitioner - college. However, excess students who were admitted in the academic year 1995-96 had by then appeared in the 5th Semester Examination in March, 1998 and in the absence of there being any regularisation of their admissions and since the writ petitions and writ appeals filed by the College - Management had been dismissed, the results of the 5th Semester Examination had not been declared and as a result, their eligibility to appear in the 6th Semester Examination was at stake. It is in this context that pending regularisation of their admissions by AICTE and pending final decision of the Hon''ble Supreme Court that the penalty of Rs. 10 lakhs was levied for the illegality committed by the college for admitting 77 students in excess of the intake prescribed by the University as there was contravention of Section 53 of the Act. It is not as if the college was not aware of the proceedings pending before the Apex Court before making the excess admissions. The said admissions were made before the CET had a reconciliation meeting with the college, by making over the unfilled seats in the Government quota to the management. The college had no right to fill up the unfilled seats in the Government quota unilaterally, without the reconciliation meeting being held as per the Admission Rules applicable for professional colleges.
Section 53 of the Karnataka State University Act, 1976, (''the Act'' for short) pertains to affiliation of colleges and recognition of Institutions and Section 53(10)(b) states that the maximum number of students to be admitted to a course of study shall not exceed the intake fixed by the University or the Government, as the case may be and any admission made after this section came into force in excess of the intake shall be invalid. The said section was inserted by Act 23 of 1986. Further, Section 53(10)(c) states that no student whose admission has become invalid under Clause (b) shall be eligible to appear nor shall be prescribed by the college to appear at any examination conducted by the University. The affiliation to university is a sine qua non for the recognition of the educational Institutions and its courses.
From the material on record it is seen that by letter dated 18/12/1997 (Annexure ''K'') written by the Under Secretary, Education Department, State Government, to the AICTE, New Delhi, it was categorically stated that the students admitted in excess of the approved intake in the college in questions had already completed 4th Semester Examination and were pursuing their studies in the 5th Semester and if their admissions were not regularised, their career and interest would be in jeopardy and in that context, the college had requested the State Government to regularise the excess admissions made by them during the academic year 1995-96. It was also stated that since the State Government was not in a position to regularise the excess admissions made by the college as AICTE was requested to grant approval of excess admission of 77 students. It is a matter of record that AICTE did not regularise the admissions but only granted a onetime exemption for the excess admissions made by the college during the year 1995-96 and also stated that the same would not amount to regularisation of the excess admission made by the Petitioner. In fact, AICTE had also directed that an undertaking be given by the college that it would not indulge in any such practice in future vide Annexure ''L'' dated 28/8/1998. Therefore, it is clear that with regard to the excess admissions made by the college during the academic year 1995-96 there was no regularisation of the said admission by the AICTE and the University has granted permission for the students who were admitted in excess to appear for the examination by imposing "penalty" of Rs. 10 lakhs on the college for violating the admission norms of the State Government. In fact, on a request made by the college for annulling the proceedings of the university dated 6/8/1998, the State Government passed an order dated 8/8/1999 by stating that the proceedings to annul the regularisation dated 6/8/1998 by the Syndicate of the Mysore University has to be dropped.
Learned Single Judge has considered the imposition of penalty by the University in the context of punishment for an office committed by the college and has held that unless such liabilities are found in a statute made by a competent authority, the same cannot be imposed. The learned Single Judge has referred to decisions of the Apex Court as well as this Court to hold that unless the pecuniary liabilities imposed on the college are unambiguously expressed in statutes or previsions, the same cannot be imposed. Accordingly, learned single Judge has held that the University had no authority to levy penalty when the same was not otherwise provided and that if the University was of the view that the college had failed to observe any condition of affiliation or had conducted in any manner prejudicial to the interest of education, then the University could withdraw affiliation in accordance with law and that even if the college in questions had paid penalty voluntarily, the University could not have accepted the same without any support of the law.
In our view, the learned Single Judge was not correct in considering the payment made by the college as imposition of penalty, for an offence being punishable in law and the consequent imposition of penalty for the said offence being established. Neither could the issue be considered in the light of levying penalty in the context of quasicriminal proceedings. The context in which the "penalty" was levied in the instant case has to be considered in its proper perspective.
The Apex Court has held that the word penalty is a word of wide significance. Sometimes it means recovery of an amount as a penal measure even in a civil proceeding. An exaction which is not of compensatory character is also termed as a penalty even though it is not being recovered pursuant to an order finding the person concerned guilty of crime. In common parlance the word ''Penalty'' is understood to mean a legal or official punishment such as a term of imprisonment. In some context it is also understood to mean some other form of punishment such as fine or forfeiture for not fulfilling a contract. But gathering the meaning of this word in the context in which it is used is significant vide Shiv Dutt Rai Fateh Chand and Others Vs. Union of India (UOI) and Another, and N.K. Jain and others Vs. C.K. Shah and others, .
In the case of The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, , it has been held that recognition and/or affiliation is essential for a meaningful exercise of the right to establish an administered educational institution, recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to educational institutions. In other words, it is open to a person to establish an educational institution and admit students impart education, conduct examination and award certificates to them but the educational institution has no right to insist that the certificates or degrees awarded by such institution should be recognized by the State much less have they the right to say that the students trained by the Institution should be admitted to examination conducted by the University or by the Government or by any other authority as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency.
In the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , which although has been over ruled with regard to the scheme of admission formulated in the said case, by a larger Bench of the Apex Court, in the case of T.M.A. Pai nevertheless, it has been stated in the said case that the grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a university is a power to be exercised with great care keeping in view the interest of the general public. It is a matter of substantial significance for a private educational institution. No Institution can run unless it is recognized by the Govt. or the appropriate authority and/or is affiliated to one or the other university in the Country as unless it is recognized and/or affiliated its certificates will be of no use. It is for this reason, that all private educational institutions seek recognition and/or affiliation with a view to enable them to appear at the examination conducted by the Government or the University. Therefore, no private educational Institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities in the State in such a situation it is obligatory in the interest of general public upon the authority of granting recognition or affiliation on such conditions as are appropriate to ensure not only education or requisite standard but also fairness and equal treatment in the matter of admission of students. Affiliation or recognition is not there for any body to get it gratis or unconditionally. According to the Apex Court, the Government authority or University is justified or is entitled to grant recognition or affiliation by imposing conditions.
In the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, it has been stated that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they cannot forego and disregard the principle of merit. It would therefore be permissible for the University or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students.
In the case of Islamic Academy of Education and Another Vs. State of Karnataka and Others, at Paragraphs 18 and 25, it is stated that Para 68 of the majority judgment in T.M.A. Pai''s case referred to supra only permits the University of the State to provide at the time of granting recognition or affiliation but the said recognition or affiliation was not a one time event repelling the contention that recognition or affiliation granted to unaided professional colleges was only at the initial stage. It was held that a provision can be made for granting recognition or affiliation subsequently, even after the grant of such initial recognition or affiliation.
Similarly at Para 25 of the said judgment it is held that the right to establish an educational institution although guaranteed under the constitution; recognition or affiliation is not and that recognition or affiliation of professional institutions must be in terms of the statute.
Infact, in the case of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537 while dealing with the right of admission by private educational institutions, it is held that post-admission checks or audits as an alternative to ex ante checks or audits as suggested by the educational Institution were unacceptable and that the right to seek recognition or affiliation or subject to restrictions imposed in the national interest and to prevent exploitation of students or the teaching community.
In the case of Medical Council of India Vs. State of Karnataka and Others, , the Apex Court held that Chapter IX of the Karnataka Universities Act which contains provision for affiliation of colleges and recognition of institutions, applies to all types of colleges including the professional colleges and 10 of Section 53 of the Act provides for the maximum number of students to be admitted to a course of study in a college and that number shall not exceed the intake fixed by the university or any other authority. The Apex Court also stated that if any institute wishes to increase the admission capacity, it has to apply to the concerned authority for permission along with the permission of the State Government and the university with which it is affiliated in conformity with the regulation framed i.e., AICTE Regulation in the instant case, as well as the Act.
In the instant case without there being any increase in the intake capacity, students were admitted suo moto by the college. This led to excess intake, which was not in accordance with law. Under the circumstances order dt.6.8.98 was passed by the University.
Therefore, on a reading of the aforesaid dicta, it has to be held that in the instant case when there was no regularization of the admissions of the excess students for the academic year 1995-96 by the AICTE, it was left to the hands of the university to balance the competing Interest of the students who had already by then completed the 5th semester and were to enter the 6th semester on the one hand, and the duty of the college to legalise the excess admissions on the other hand. It is in that context particularly when the AICTE had only granted onetime exemption with regard to the excess admissions made by the college and did not regularise the excess admissions, the university thought that the glaring and serious irregularity committed by the college in admitting the students even before the CET sent the students in respect of the unfilled seats could be set right, by imposing a financial levy on the college. The said penalty was in the form of a deterrent not only to the college in question but to other colleges affiliated or recognized by the university and it is in that context the penalty has to viewed. It is also to be noted that on the payment of the aforesaid amount, the university not only declared the 5th semester results of the students i.e. the excess students but also permitted them to appear in the 6th semester and subsequently they have completed their study in the said college, have obtained degrees which have been recognized to be valid degrees. At a subsequent point of time, after obtaining the benefit by the college with regard to the excess students admitted by them, it is not proper or just on the part of the college to seek refund of the amount paid by it to the university.
Hence, we hold that the learned Single Judge was not right in concluding that the University was not justified and infact, had no right to impose penalty on the college. Accordingly, Point No. 1 is answered against the Appellant - College in favour of the University.
As far as the issue regarding refund of the amount collected by the University by way of penalty is concerned, it is the contention of the college that the said penalty was not leviable in the first instance and was paid out of its funds and the same was not collected from the 77 excess students admitted by it or from any other students. While, on the other hand, it is the contention of the University that the penalty was paid in accordance with law and the college had passed on the amount to its students and if any refund is ordered the college would be unjustly enriched, which is not permissible in law.
The learned Single Judge has considered the said contention in the context of decisions of the Apex Court dealing with refund of Excise and Custom duties collected contrary to law and has held that the penalty collected by the University may be due to the college only to the extent that it has not been passed on to the students and accordingly, has reserved liberty to the college to file a suit claiming refund of the amount in terms of the refund of the amount. This aspect of the matter is challenge both by the college as well as the University. The college has contended that when the penalty levied was illegal, then a direction ought to have been issued to the university to refund the said amount while it is the contention of the University that when the penalty was levied on account of the serious irregularities committed by the University on the basis of the payment of the said penalty, the excess students were permitted to complete their education in the college, then there is no question of either refunding the amount by a direction from this Court or by the Appellant - college being permitted to file a civil suit so as to claim refund of the said amount. Since we have held that the payment of amount by the college to the University was just and proper, keeping in mind the peculiar circumstances of the case, the question of refund of the said penalty infact, does not arise. Even if it is assumed for a moment, that the college is entitled to refund, there is no material on record to demonstrate that the penalty paid by the college to the University was out of the funds of the college and had not been collected from the students. Under the circumstances, the learned Single Judge was not right in reserving liberty to the college to file a civil suit in order to claim refund of the amount. Therefore, the decisions with regard to unjust enrichment are not applicable to the facts of the case. Hence, the liberty reserved to the learned Single Judge to the Petitioner - college to file a civil suit in order to claim refund of the amount is also set aside by answering Point No. 2 against the Appellant - college.
Consequently, the appeal filed by the Appellant - college fails and is accordingly, dismissed, while, the appeal filed by the Respondent - University succeeds and is accordingly, allowed. No costs.