( 1 ) APPELLANT 1 is an engineering college in the State of Maharashtra. Other appellants are office-bearers of the college. In the year 1997-98, respondent 1 secured admission against payment seat and paid Rs 96,000 by way of tuition fees and Rs 500 by way of caution money. He also made certain other payments with which we are not concerned. This admission was secured after the process of admission was over. However, within two months from the date of admission the respondent withdrew his admission as he had got admission elsewhere. He sought for a refund of the tuition fee and the caution money paid by him. The refund having been not allowed by the appellants, the respondent filed a writ petition under Article 226 of the constitution seeking a writ of mandamus directing the appellants to make the refund.

( 2 ) THE High Court has allowed the petition directing a sum of Rs 95,500 to be refunded. The figure of Rs 95,500 has been arrived at by the High Court by deducting an amount of Rs 1000 from the tuition fees as according to a go issued by the State Government Rs 1000 was liable to be deducted while making the refund. The only plea which was raised before the High Court on behalf of the appellants was that Appellant 1 being a private unaided educational institution, a petition under Article 226 of the Constitution did not lie against it. No other plea was raised before the High Court. The factum of payment of the tuition fee and caution money by the respondent to appellant 1 is not disputed. The preliminary objection raised by the appellants has been overruled by the High Court relying on the decision of this Court in Shri Andi Mukta Sadguru Shree Muktajee Vandas Swami suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani.

( 3 ) AN order of the Government of Maharashtra which admittedly governs the payment of tuition fees etc. has been placed on record as Annexure P-1, according to which, in the event of admission being cancelled after the process of admission was over but up to 31st October, refund of tuition fee shall be made after making deduction of 40% or Rs 10,000 whichever is lesser. The applicability of the government order to Appellant 1 is not disputed.

( 4 ) IN the memo of appeal filed before this Court also the principal plea raised on behalf of the appellants is that the High Court should not have entertained the writ petition under Article 226 of the Constitution as the appellant is not amenable to writ jurisdiction of the High Court.

( 5 ) IN our opinion, on the admitted facts of this case, the impugned order of the High Court is not liable to be interfered with in exercise of our discretionary jurisdiction under Article 136 of the Constitution. The respondent had sought admission against a payment seat. In the event of the admission being cancelled at the behest of either side, the caution money and the tuition fee were liable to be refunded subject to the permissible deductions. We do not deem it appropriate to uphold the technical plea of the appellants and drive the respondent student to the need of filing a civil suit. The view taken by the High Court is just and equitable and therefore need not be interfered with.

( 6 ) HOWEVER, still the appellant is entitled to a limited relief. It appears that the High Court while directing a deduction of Rs 1000 only out of the tuition fee of Rs 96,000 paid by the respondent relied on a government circular of the year 1994, which circular, it is conceded at the Bar had ceased to be applicable to the admissions during the period 1997 to 1999, wherein the circular Annexure P-1, referred to hereinabove was in force.

( 7 ) THE impugned order is, therefore, modified only to the extent that the appellants -were entitled to a deduction of Rs 10,000 out of the tuition fees and, therefore, the respondent shall be entitled to a refund of Rs 86,000 out of the tuition fee and of Rs 500, being caution money making a total of rs 86,500. The order under appeal is modified according