KMCT College of Engineering, Kallanthode v. Junaid Madathilam Thodi (H) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940 **W.P.(C).No. 13956 of 2017** ## **PETITIONER(S)** KMCT COLLEGE OF ENGINEERING KALLANTHODE, NIT P.O., KOZHIKODE 673 601, REPRESENTED BY ITS PRINCIPAL. BY ADVS.SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR ## **RESPONDENT(S):** 1. JUNAID MADATHILAM THODI(H), MAVOOR P.O., KOZHIKODE-673 661. 2. ADARSH B.M. BHAGAVATHI MANNIL (H), KARANTHUR P.O., KOZHIKODE-673 571. 3. ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA T.C.15/1533-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY ITS CHAIRMAN. 4. STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1&2 BY ADV. SRI.R.SUDHISH R1&2 BY ADV. SMT.M.MANJU WP(C).No. 13956 of 2017 (T) R4 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE R3 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13956 of 2017 (T) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT-P1: TRUE COPY OF THE CONSENSUAL AGREEMENT DATED 16.06.2015 ENTERED INTO BETWEEN THE STATE GOVERNMENT AND KSFECMA. EXHIBIT-P2: TRUE COPY OF THE G.O.(MS) NO.372/2015/H.EDN DATED 03.07.2015. EXHIBIT-P3: TRUE COPY OF THE LETTERS DATED 30.09.2015 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE PETITIONER COLLEGE AUTHORITIES. EXHIBIT-P4: TRUE COPY OF THE LETTERS DATED 30.09.2015 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE PETITIONER COLLEGE AUTHORITIES. EXHIBIT-P5: TRUE COPY OF THE UNDERTAKINGS DATED 17.08.2015 DULY SIGNED BY THE 1ST RESPONDENT ALONG WITH THEIR PARENTS. EXHIBIT-P6: TRUE COPY OF THE UNDERTAKINGS DATED 17.08.2015 DULY SIGNED BY THE 2ND RESPONDENT ALONG WITH THEIR PARENTS. EXHIBIT-P7: TRUE COPY OF THE REPLY DATED 29.01.2016 FILED BY THE PETITIONER BEFORE THE DEAN OF STUDENT'S WELFARE, DEPARTMENT OF STUDENT'S WELFARE. EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 02.03.2016 PASSED BY THE DEPARTMENT OF STUDENT'S WELFARE. EXHIBIT-P9: TRUE COPY OF THE COMMUNICATION DATED 06.09.2016. EXHIBIT-P10: TRUE COPY OF THE UNDERTAKINGS DATED 10.11.2016 GIVEN BY THE 1ST RESPONDENT. EXHIBIT-P11: TRUE COPY OF THE UNDERTAKINGS DATED 10.11.2016 GIVEN BY THE 2ND RESPONDENT. EXHIBIT-P12: TRUE COPY OF THE NOTICE DATED 31.01.2017 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P13: TRUE COPY OF THE JOINT COMPLAINT DATED 24.01.2017 FILED BY THE 1ST AND 2ND RESPONDENT BEFORE THE 3RD RESPONDENT. ## WP(C).No. 13956 of 2017 (T) |EXHIBIT-P14:|TRUE COPY OF THE OBJECTIONS DATED 13.02.2017| |---|---| ||FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.| |EXHIBIT-P15:|TRUE COPY OF THE ORDER DATED 21.03.2017 ISSUED BY| ||THE 3RD RESPONDENT.| |EXT. P16 :|TRUE COPY OF THE PROSPECTUS ISSUED BY THE| ||PETITIONER FOR MBA AND MCA COURSES FOR THE| ||ACADEMIC YEAR 2015-16.| |EXT. P17 :|TRUE COPY OF THE FEE RECEIPT DATED 15.09.2015| ||ISSUED TO THE 1ST RESPONDENT BY THE PETITIONER| ||COLLEGE.| |EXT. P17(a) :|TRUE COPY OF THE FEE RECEIPT DATED 18.09.2017| ||ISSUED TO THE 2ND RESPONDENT BY THE PETITIONER| ||COLLEGE.| |EXT. P18 :|TRUE COPY OF THE AFFILIATION EXTENSION DATED| ||25.07.2015 GRANTED BY THE UNIVERSITY OF CALICUT| ||FOR THE ACADEMIC YEAR 2015-16.| |EXT. P19 :|TRUE COPY OF THE EXTENSION OF APPROVAL DATED| ||07.04.2015 GRANTED BY THE AICTE FOR THE ACADEMIC| ||YEAR 2015-16.| |EXT. P20 :|TRUE COPY OF THE APPROVAL ORDER DATED 02.02.2016| ||ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2015-16.| |EXT. P21 :|TRUE COPY OF THE APPROVAL ORDER DATED 19.04.2017| ||ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2017-18.| |EXT. P22 :|TRUE COPY OF THE APPROVAL ORDER DATED 21.02.2018| ||ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2018-19.| |EXT. P23 :|TRUE COPY OF THE EXTENSION OF AFFILIATION ISSUED| ||BY THE CALICUT UNIVERSITY FOR THE ACADEMIC YEAR| ||2013-14 DATED 30.05.2013.| |EXT. P24 :|TRUE COPY OF THE EXTENSION OF AFFILIATION ISSUED| ||BY THE CALICUT UNIVERSITY FOR THE ACADEMIC YEAR| ||2014-15 DATED 06.08.2014.| |EXT. P25 :|TRUE COPY OF THE EXTENSION OF APPROVAL FOR THE| ||ACADEMIC YEAR 2013-14 DATED 19.03.2013 ISSUED BY| ||AICTE AND 2014-15 DATED 04.06.2014.| WP(C).No. 13956 of 2017 (T) RESPONDENTS' EXTS: EXT. R1(a) : COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT'S FATHER DATED 30.9.2015. - EXT. R1(b) : COPY OF THE LETTER ISSUED BY THE GUARDIAN OF THE 2ND RESPONDENT DATED 30.9.2015. - EXT. R1(c) : COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 30.9.2015 - EXT. R1(D) : COPY OF THE TRANSFER CERTIFICATES ISSUED BY THE KMCT SCHOOL OF BUSINESS PRODUCED BEFORE THE 3RD RESPONDENT, WHICH WAS OBTAINED BY THESE RESPONDENTS BY WAY OF RIGHT TO INFORMATION ACT. //TRUE COPY// SD/- P.S. TO JUDGE ## K. SURENDRA MOHAN & SHIRCY V, JJ. - - - - - - - - - - - - - - - - - W.P. (C) No. 13956 of 2017 - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of August, 2018 ## JUDGMENT ## Surendra Mohan, J. The petitioner, a Public Charitable Trust conducting a Self Financing College, has filed this writ petition aggrieved by Ext.P15 order passed by the third respondent. As per Ext.P15, the petitioner has been directed to return the fees paid by two students, respondents 1 and 2 herein, after deducting an amount of Rs.2,000/- towards processing expenses. 2. The short facts of the case are the following: The Trust is conducting an Engineering College as well as other courses like MCA, MBA, Hotel Management etc. The present dispute relates to two students, respondents 1 and 2, who had been admitted to the MBA course by the KMCT WPC.13956/2017. 2 School of Business, in the Management quota. An amount of Rs.86,500/- was paid by each one of them as advance fees. On 30.9.2015, they submitted requests expressing their intention to discontinue the course and requesting that the original certificates produced by them as well as the fees paid by them may be refunded. The request submitted by the first respondent is evidenced herein by Ext.P3. The same is seen to have been received by the petitioner as per the endorsement at the bottom of Ext.P3. The second respondent's request is evidenced by Ext.P4, which is also seen to have been received on the same date, going by the endorsement at the bottom. However, the College did not refund the fee remitted by them. It is not in dispute that both of them discontinued the course from 30.9.2015. On 10.11.2016, the College returned all the documents and the transfer certificate produced at the time of admission. However, they refused to return the fee that was paid. The students thereupon filed a complaint before the WPC.13956/2017. 3 third respondent, the Admission Supervisory Committee for Professional Colleges in Kerala. 3. The complaints were considered by the third respondent after issuing notice to the petitioner College. The College put forward a contention that, they were entitled to claim and recover liquidated damages from the students for the reason that the students had discontinued the course after taking admission. It was contended that the fees already paid by them was being retained in lieu of the claim for liquidated damages. It was contended that the complaints raised after having received their original certificates without any objection was unsustainable. 4. The third respondent on a consideration of the respective contentions found that, the closing date for admissions for the said year was 30.9.2015. Since the intimation that the students were discontinuing the course was given on the said date, it was incumbent on the petitioner to WPC.13956/2017. 4 have returned the fees paid also. Therefore, as per Ext.P15 order, respondents 1 and 2 have been found entitled to refund of the fee paid by them less an amount of Rs.2,000/- that the petitioner was permitted to deduct from each of the students towards processing expenses. The petitioner is aggrieved by the said order. 5. According to Adv. Shyam Padman who appears for the petitioner, Ext.P1 is the consensus agreement that the College had entered into, with the Government. As per Clause 21 thereof, the fee paid by a student was not necessary to be refunded where he discontinues the course after 1.8.2015. Ext.P2 Government Order issued incorporating the terms of Ext.P1 agreement, provides as per clause 21 thereof that, where a student discontinues the course after 15.8.2015, the fee need not be refunded. Since the request of the guardian was made only on 30.9.2015, well after the last date stipulated by Clause 21 of Ext.P2, it is contended that, the WPC.13956/2017. 5 third respondent erred in directing refund of the fee paid. It is pointed out that, as per Ext.P7 letter from the Dean dated 29.1.2016, a direction to return the fee as well as the original certificates to the students had been issued. Later on, by Ext.P8, the University also had issued a direction on the same terms. On 10.11.2016, the certificates were returned. It was understood by all that, the claim of the College for liquidated damages would not be pressed in view of the fact that the fee already paid was being retained in lieu of the said claim. According to the learned counsel, it was only long thereafter that, the present complaints were made before the third respondent. The said complaints, according to the learned counsel, were therefore unjustified and liable to be rejected. The counsel also places reliance on the decision in Malankara Orthodox S.C.M. College v. Fee Regulatory Committee (2007 (4) K.L.T. 530) to contend that, in the matter of stipulation of fees, the third respondent Committee has no role and the Self WPC.13956/2017. 6 Financing Colleges were free to stipulate the same. Reliance is placed on two decisions rendered by another Division Bench of this Court, Sree Narayana Mangalam Institute of Management and Technology v. Fee Regulatory Committee for Professional Colleges in Kerala (2016 (4) K.L.T. 671) and Namboothiri Trust v. Government of Kerala (2016 KHC 934) to contend that, discontinuance by a student after the last date of admission would entail forfeiture of the fee paid by him. 6. Adv. R. Sudhish who appears for respondents 1 and 2 takes up a preliminary contention regarding the maintainability of the writ appeal itself pointing out that the petitioner before us is the KMCT College of Engineering, whereas the entity against which Ext.P15 order has been passed is the Principal, KMCT School of Business. Since the petitioner herein is not the person who was the respondent before the third respondent, it is contended that, the petitioner cannot be aggrieved by the order in any way. The WPC.13956/2017. 7 challenge against Ext.P15 at the instance of the present petitioner is therefore pointed out to be unsustainable and liable to be rejected for the said reason alone. In support of the said contention, our attention is drawn to the documents of the College itself to contend that respondents 1 and 2 were students of the KMCT School of Business and not of the petitioner College. 7. It is further contended that, respondents 1 and 2 had taken admission and paid the fees only on 18.9.2015 as evident from Exts.P17 and P17(a). 30.9.2015 was the last date of closing of the admissions. They had submitted their requests for discontinuance of the course on the said date itself. Therefore, it is contended that, their request ought to have been accepted and the fees paid by them refunded. Even the original documents produced by them were returned only on 10.11.2016 after a considerable lapse of time. It is therefore contended that the third respondent was fully WPC.13956/2017. 8 justified in passing the order Ext.P15. 8. Adv. Mary Benjamin, who appears for the third respondent, points out that reliance placed by the counsel for the petitioner on Exts.P1 and P2 is without any basis for the reason that, Ext.P1 agreement relates only to the conduct of Engineering Courses which the KMCT College of Engineering was conducting. The terms thereof have no application to the conduct of MBA Course, which is the subject matter of the present dispute. The learned counsel also points out that, the impugned order having been passed against the KMCT School of Business, the petitioner herein has no right to maintain a challenge against the same. We have heard the learned Government Pleader also, who has advanced contentions more or less on the same lines as the counsel appearing for the other respondents. 9. We have considered the contentions advanced before us anxiously. In the first place, it is worth noticing that 9 WPC.13956/2017. respondents 1 and 2 had paid fees only on 18.9.2015 as evident from Exts. P17 and P17(a). Though the date appearing in Ext.P17 is not clear, it is admitted that it is 18.9.2015. It does not make any difference even if the date is taken as 15.9.2015. It is not in dispute that, the last date for closing of the admissions for the said year was 30.9.2015. As already noticed above, the endorsements in Exts.P3 and P4 show that the intention of the students to discontinue their course was communicated in clear terms to the College on the said date, going by the acknowledgments at the bottom of the said documents. Though there is nothing on record to show at what time of day the requests were submitted, the fact remains that, the request for discontinuance of the course was submitted on the said date, leaving time for the petitioner to admit some other students to the said course. There is nothing on record to show that any student had actually been admitted. Be that as it may, it is worth taking note of the fact WPC.13956/2017. 10 that, the student would have only attended classes from 18.9.2015 to 30.9.2015. However, the learned counsel for the petitioner draws our attention to paragraph 5 of the counter affidavit filed on behalf of respondents 1 and 2, where it is stated that they had joined the College on 17.8.2015 by paying an amount of Rs.86,500/- as fees. Even if it is assumed that they had joined the College on 18.9.2015, the fact remains that classes had admittedly started only on 1.9.2015. Assuming that the students had attended classes from 1.9.2015, on 30.9.2015, it cannot be disputed that, the intention to discontinue the course was made known to the College on the last date for closing the admissions itself. The above being the factual situation, we are not satisfied that the claim for liquidated damages made by the College has any substance. The third respondent Committee have therefore rightly held respondents 1 and 2 entitled to recover the fee paid by them less an amount of Rs.2,000/- to be deducted WPC.13956/2017. 11 from each one of them towards processing fee. We find no grounds warranting an interference with the said finding. Since we have found that there are no grounds to interfere with Ext.P15 order, we refrain from considering the contentions regarding the locus standi of the petitioner and other issues raised before us. For the foregoing reasons, this writ petition is dismissed. Sd/- K. SURENDRA MOHAN JUDGE Sd/SHIRCY V JUDGE sb