UNIVERSITY OF KERALA v. LOCUS ACADEMY FOR ARTS, MANAGEMENT AND SCIENCE STUDIES

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 5[TH] 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 5[th] 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 W.A.No1029 of 2021 3 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 W.A.No1029 of 2021 4 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. W.A.No1029 of 2021 5 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 W.A.No1029 of 2021 6 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, W.A.No1029 of 2021 7 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 W.A.No1029 of 2021 8 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. “ W.A.No1029 of 2021 9 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.**