ARSHID DIJOO Vs. KASHMIR TIBBIA COLLEGE

JUDGEMENT

(1.) THE petitioner in the year 1999 filed complaint No. 60/99 herein with the allegations that after passing the 12th Standard examination, he was looking for better prospects in his career and came across a notification issued by the respondent judgment debtor (Kashmir Tibbia College Hospital and Research Centre, Srinagar, Tengpora) incorporating therein that college had been recognized by the Central Council of Indian Medicines and admissions were open for the courses stated therein. After perusing the prospectus, the petitioner decree holder got admission in Bachelor of Unani Medicine and Surgery (BUMS) course for the session 1996 -97. The petitioner decree holder had taken the admission after being influenced and convinced that the college had been recognized by the Central Council of Indian Medicines and stood affiliated with Kashmir University for conducting the examination. He deposited the requisite coaching fee in advance to the tune of Rs. 1.00 lakh for undergoing the said course for the session 1996 -97 and attended the classes regularly held in the college. He had spent money for the purchase of books. It was like a bolt from the blue for him to learn when no examination was conducted for the session 1996 -97 as well as for the next year session i.e. 1997 -98. Because of these breaches of contract, the petitioner decree holder approached the Commission alleging in the complaint that it was "deficiency" in service. The parties contested the case and finally on 14.7.2004 order was passed by the Commission whereby the complaint of the petitioner decree holder was accepted and respondent judgment debtors were directed to return the advance fee of Rs. 1.00 lakh with 8% interest per annum from the date of deposit i.e. 26.9.1996 plus Rs. 20,000 as compensation and Rs. 3000 as litigation charges. The whole amount was made payable within 5 weeks failing which enhanced rate of interest @ 9% per annum was made payable. Respondent judgment debtors have failed to satisfy the order and on 20.9.2004 this execution petition was filed wherein the names of the persons who are presently office bearers of the respondent judgment debtors have been mentioned with a prayer to attach their bank accounts towards the satisfaction of the decree.

(2.) IN response to the communications issued by the Commission in the execution petition, Mr. Mohd. Nazir Ahmed, Advocate filed the objections taking inter alia the grounds that the order passed is an ex parte order and has been obtained by practising fraud and misrepresentation, so the order becomes unexecutable. He has attached annexures with the objections in order to show that the Commission had failed to pursue them and the order suffers from patent legal infirmity. As instances he has shown, Annexure C which indicates that the Kashmir Tibbia College was granted permission for establishing the college and conducting the course of BUMS. Annexure D is dated 6.9.1996 and shows that permission to conduct BUMS course (Kamil -Tibb -O -Jarahat course) was granted. Annexure E is regarding verification of some documents stated therein. Annexure F is a letter written by Central Council of Indian Medicines to this Commission and is dated 23.7.2003 which shows that the college was approved by the CCIM for the academic year 1995 -96, 1996 -97 onward. Annexure G is dated 27.9.1996 and written by the Secretary of CCIM to the respondent judgment debtor No. 1 wherein information was given that in its meeting held on 30.8.1996 the first batch of the year 1995 -96 was regularized and respondent judgment debtor No. 1 was directed by the Secretary to approach the concerned university for the registration of the college and conducting the examinations of the students undergoing training. Annexure H is the letter written by the Under Secretary to Government, to the University of Kashmir whereby the authorities of the university were informed about the issuance of no -objection certificate in favour of respondent judgment debtor No. 1 and Govt. of India had been informed for such action in response to their letter. The university was requested to take suitable action regarding the affiliation of the college with the university. Annexure I is the affiliation granted by the university. Annexure K is the extract which shows that Kamil -Tibb -O -Jarahat is Bachelor of Unani Medicine and Surgery which is a degree course and not a diploma course. Annexure L. LI and L2 are the qualification certificates of Mr. Ghulam Ali Gulzar who is a retired XEN and regarding whom in the order it is stated that he was not qualified to teach in the Unani medical system. Annexure M has been placed on the record to show that "for the subject of Arabic and Mantiq -o -Falsafa the required qualification is Fazil in Arabic or equivalent Exam approved by the CCOM". That said Mr. Gulzar is a degree holder of Fazil in Arabic vide Annexure L, LI and L2 and Darul -Uloom Deoband has issued the degree of Fazil -e -Adab in Arabic and it is recognized by CCIM. Annexure N indicates that nowhere it was stated therein that respondent judgment debtor No. 1 had been affiliated at that time with the University of Kashmir.

(3.) HEARD the arguments.