Principal Kannur Medical College, Anjarakandi, Kannur v. Mashida Ansar and The Admission and Fee Regulatory Committee for Professional Colleges in Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.29944 OF 2019(P)** ## **PETITIONER:** **THE PRINCIPAL KANNUR MEDICAL COLLEGE, ANJARAKANDI P.O., MAMBA, KANNUR-670612.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** **1 MASHIDA ANSAR W/O.ANSAR, HIRAH, BHARAT NAGAR 93, VADAKKEVILLA PO, KOLLAM-691020. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014, REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R1 BY ADV. SMT.A.MEGHA R1 BY ADV. SMT.KARTHIKA M.R. R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0907-2020, THE COURT ON 14-07-2020 DELIVERED THE FOLLOWING:** WP(C) No. 29944/19 -:2:- ## **J U D G M E N T** Dated this the 14[th ] day of July, 2020 ## _**Shaffique, J.**_ The admissions granted by the Kannur Medical College to the MBBS Course in that college, in the year 2016-17, were found to be illegal and contrary to law by the Admission Supervisory Committee (hereinafter also referred to as the 'ASC') constituted in terms of Section 4 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016. The Supreme Court refused to interfere with this order and it became final. As a consequence, the admissions granted to nearly 150 students had to be cancelled. Though the State promulgated an ordinance to regularize the admission, the said ordinance was declared unconstitutional by the Supreme Court. WP(C) No. 29944/19 -:3:- 2. On 25.07.2018 there was a recommendation by the ASC to the Kerala University of Health Sciences to withdraw the affiliation/recognition of Kannur Medical College for the academic year 2018-2019. These proceedings were found to be in order by a Division Bench of this Court through a judgment dated 1.8.2018 in W.P.(C) No.25895 of 2018. The matter was carried to the Supreme Court of India through S.L.P (C) No. 23225 of 2018 and connected cases. A consent order was passed on 29.08.2018 in S.L.P (C) No.23225 of 2018 and connected cases which order is on record in this case. We are concerned here only with the 1[st] direction that forms part of the consent order dated 29.08.2018 which provides that the college shall return an amount equivalent to the double of the amount collected from the students together with refund of the fee deposited by each one of the 150 students, with the college, by 04-09-2018. There was a further direction that the Admission Supervisory Committee shall ascertain and report as to whether the amounts in question have been refunded, as directed. On 1.9.2018, the Admission Supervisory Committee filed its report which _inter alia_ suggested that the amounts directed to be paid/refunded to each of the students WP(C) No. 29944/19 -:4:- have not been paid/refunded in terms of the directions issued by the Supreme Court. Therefore, a further direction was issued by the Supreme Court on 4.10.2018 through which it was directed that the Admission Supervisory Committee shall determine the amount payable to each one of the students. The ASC has passed individual orders in respect of claims raised before it by the students/guardians. In this writ petition, we are concerned with an order passed by the Admission Supervisory Committee, in terms of the direction issued by the Supreme Court, determining the amount payable by the petitioner college on account of the fees and other amounts collected from the applicant. 3. The question of maintainability of this Writ Petition under Article 226 of the Constitution of India having been questioned at the admission stage, a Division Bench of this Court, to which one amongst us (myself) was a party, came to the conclusion through an order dated 20.2.2020, that the Writ Petition was maintainable. Therefore, we do not propose to go into that issue again. 4. Before we proceed to determine the correctness or otherwise of the impugned order, we must notice the WP(C) No. 29944/19 -:5:- observation of the Supreme Court in the order dated 4.10.2018 that the quantum of amount collected by the College from each student and what amount has been refunded is a seriously disputed fact and also notice the following direction issued to the Admission Supervisory Committee (ASC) by the Supreme Court. _“The ASC_ _**to consider the material which may be placed on record by the respective parties and take a decision in accordance with law on the basis of the evidence adduced** in each of the case with respect to each of the students_ . (emphasis is ours) Thus it is clear that the direction given to the ASC was to individually determine the case of each student, in accordance with law, having due regard to the material which may be placed on record and the evidence adduced by the parties. Since the entire exercise undertaken by the ASC was in terms of the aforesaid direction of the Supreme Court, it goes without saying that the ASC was bound to conclude its determination strictly in terms of the direction issued by the Supreme Court. 5. We have heard Sri.Abdul Raoof, learned counsel for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 2[nd] respondent (the Admission and Fee Regulatory Committee) WP(C) No. 29944/19 -:6:- and Sri.P.V.S.Sudhir, learned counsel appearing for the 1[st] respondent, the complainant before the 2[nd] respondent Committee. The learned senior Counsel for the petitioner would contend that the ASC had determined the issue based on mere surmises and conjectures and that there was no reliable material before the Committee to hold that the amount in question was payable to the complainant/student. He states that the college has not received any amount other than the admitted amount of `19.65 lakhs and therefore no further liability could be fastened on the college. An amount of `35.15 lakhs has already been refunded. The learned counsel appearing for the ASC would point out that the ASC which was a committee under Act 19 of 2006 has not been impleaded in this writ petition and this, according to her, is a fatal defect. She states that the second respondent herein is the body constituted under the enactment which repealed and replaced Act 19 of 2006, namely Act 15 of 2017. On merits, she would contend that the College had indulged in severe malpractices resulting in the orders against them which have already been noticed above. She would urge that we must not interfere with the orders which have been issued by the ASC WP(C) No. 29944/19 -:7:- after careful scrutiny of all materials placed before it. The learned counsel for the student/complainant would support the findings in the order and urge that we should not interfere with the order. 6. We must first consider the question as to whether the non-impleadment of the ASC should be a ground to refuse consideration of the matter on its merits. We are of the considered opinion that the ASC is not a necessary party to these proceedings since the Committee is not required to justify its findings before this Court in any manner. We are fortified in taking such a view in the light of the law laid down by a 3 Judge Bench of the Supreme Court in _**M.S Kazi v. Muslim Education Society & Others**_ [(2016) 9 SCC 263]. 7. The ASC has on 23/07/2019 determined the amount payable to the student/complainant to be a sum of `27,54,000/after deducting the amount of `35,15,000/- already paid by the college. We have gone through the order impugned before us and perused the material produced before the ASC in order to determine whether the order passed by the ASC was sustainable and in accordance with the directions issued by the Supreme Court. WP(C) No. 29944/19 -:8:- 8. In terms of the Supreme Court order, the college was required to refund the fees and double the amount collected over and above the fees. Therefore, the Committee determined the amount to be refunded in the following manner:- |Sl.<br>No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`19,65,000/-| |2|Twice the amount collected over and above<br>the fee (`21,52,000 x 2)|`43,04,000/-| |3|Amount already refunded|`35,15,000/-| |4|Balance payable (1 + 2 - 3)|` 27,54,000/-| 9. According to the complainant, he had paid a total amount of `41.17 lakhs to the college for admission to the MBBS Course. This fact had been denied by the college and according to them, they had collected only `19.65 lakhs. However, the matter was settled between the parties in an Adalath and the college had paid a total amount of `35.15 lakhs in full and final settlement of the claim. Hence it was contended that the complainant cannot claim any other amount. It is also pointed out by the learned counsel for the petitioner that the complainant was unable to prove the source of payment of `41.17 lakhs. 10. Before the Committee, the complainant placed reliance on the source of funds as reflected in Ext.P14(1), which WP(C) No. 29944/19 -:9:- ## reads as under:- ## _“Source of money raised_ - _SNV Bank Paravur fixed deposit withdraw - 8 lakh_ - _SNV Bank Paravur withdrawal of chitty fund - 4.6 lakh_ - _My NRE account withdraw Federal Bank - 8 lakh_ - _Property sale share in Trivandrum - 9 lakh_ - • _LIC loan taken - 5 lakh_ • _Loan return from Navas, given from_ - _NRE federal bank 23/5/2016 - 5.5 lakh_ • _From Navas 30/5/16 NRO account Federal_ - _Bank - 2 lakh_ _**Total – 42,10,000** ”_ 11. The Committee having taken note of the evidence in the form of Exts. A1 to A5 arrived at a conclusion that the complainant had the source to pay such amount. The learned counsel for the petitioner points out that Ext.A1 only proves that the complainant had received `27 lakhs which is the consideration for the sale of property as referred by CW1 in his evidence and produced as Ext.A4. Even according to CW1, out of `27 lakhs received as sale consideration, only `9 lakhs was due to Sri.Abdul Latheef Ansar, father of CW1. The learned counsel for the petitioner points out that Ext.A1 proves that payments were made to other co-owners by way of transfer of funds. The receipt WP(C) No. 29944/19 -:10:- of `27 lakhs is evident from the entry dated 20/5/2016. On 23/5/2016 a sum of `5,50,000/- was transferred to Navas. Again a sum of `1,50,000/- was transferred to him on 30/5/2016. Similarly, `9 lakhs was transferred to Sri.Abdul Jaleel, another coowner on 23/5/2016. Further, A1 proves that the complainant's father had collected only `8 lakhs by cash from the said account on 17/6/2016 which is reflected in the source of money as well. Therefore, the contention that `9 lakhs was received separately by sale of property is belied by their own evidence. On a perusal of Exts.A1 and A4, we are also satisfied with the contention of the petitioner that the complainant's father had received only `8 lakhs from the account on 17/6/2016 and the contention that `9 lakhs was yet another source cannot be believed. The said amount had already been deposited along with the total consideration on 20/5/2016 out of which complainant's father had collected as cash only `8 lakhs which is shown as item No.3 in the source of money. Ext.A2 indicates that a sum of `5,02,700/- was taken as loan by the complainant's father on 29/6/2016 from Life Insurance Corporation of India. There is no reason to doubt the genuineness of the said document. Ext.A3 relates to receipt of `8 WP(C) No. 29944/19 -:11:- lakhs on 9/6/2016 after closing the fixed deposits in the name of complainant's father and receipt of `4,60,000/- by way of loan from the group deposit scheme. There is no reason to doubt the genuineness of the aforesaid source which are shown as item Nos.1 and 2 in the source of money. Complainant had a case that `5.5 lakhs was taken as loan from Navas. As rightly pointed out by the learned counsel for the petitioner, Navas was a coowner of the property which was sold as per Ext.A4 sale deed and he was entitled for his share and on 23/5/2016, the said amount was paid to him. Similarly, on 30/5/2016, `1,50,000/- was paid to Navas which also cannot be taken on record. Therefore from the evidence on record, the total source would only come to `25,60,000/-. Therefore, the finding of the Committee that the complainant was able to prove the source of entire funds is not based on sufficient material and on an erroneous appreciation of facts available in the case. However it could be seen that the matter was settled before the Adalath as evident from Ext.P8 dated 10/7/2018 which was prior to the judgment of the Apex Court. The settlement is for `19,65,000/- in full and final satisfaction of the claim. But it appears that, on the very same WP(C) No. 29944/19 -:12:- day, i.e., on 10/7/2018, the complainant had sent an e-mail to the Committee stating that they received `19.65 lakhs as Demand Draft and `9.85 lakhs as cash on 10/7/2018 and that the full and final settlement was issued under threat. It is also pointed out by the learned counsel for the petitioner that in addition to the aforesaid amount, a further amount of `5.65 lakhs was paid. Therefore, the total amount repaid by the college authorities was `35.15 lakhs. We are of the view that the aforesaid amount is the admitted amount that is refundable by the college, in which event, the said amount can be taken as the source and the amount to be refunded and worked out in terms of the Apex Court judgment will be as under: |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`19,65,000/-| |2|Double the amount collected over and<br>above the fee (`15,50,000 x 2)|`31,00,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`50,65,000/-| |4|Amount already paid|`35,15,000/-| |5|Balance amount payable|`15,50,000/-| Exhibit P15 order therefore shall stand modified accordingly. 12. In the result, this writ petition is partly allowed as under:- WP(C) No. 29944/19 -:13:- The college shall refund an amount of `15,50,000/- (Rupees Fifteen lakhs fifty thousand only) to the 1[st] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 2[nd] respondent in accordance with law. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P.** Rp True Copy **JUDGE** PS to Judge WP(C) No. 29944/19 -:14:- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.08.2018.** - **EXHIBIT P2 TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C) NO.23225/2018 OF THE HON'BLE SUPREME COURT DATED 29.8.2018.** - **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN M.A.NO.2354/18 IN SLP(C) NO.23225/2018 DATED 4.10.2018.** - **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP (C) NO.23225/2018 DATED 4.10.2018.** - **EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 19.3.2018.** - **EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 05.05.2018.** - **EXHIBIT P7 TRUE COPY OF THE MINUTES OF ASC PROCEEDINGS DATED 12.06.2018.** - **EXHIBIT P8 TRUE COPY OF THE MEDIATION SETTLEMENT BEFORE LOK ADALAT IN NO.PLP.6068/18 DATED 10.07.2018 AND AFFIDAVIT.** - **EXHIBIT P9 TRUE COPY OF THE APPLICATION FOR WITHDRAWAL OF THE COMPLAINT FILED BEFORE ASC DATED 10.07.2018.** **EXHIBIT P10 TRUE COPY OF THE COMPLAINT DATED 10.07.2018.** **EXHIBIT P11 TRUE COPY OF THE STATEMENT FILED BEFORE THE 2ND RESPONDENT.** WP(C) No. 29944/19 -:15:- **EXHIBIT P12 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE.** - **EXHIBIT P13** **TRUE COPY OF THE UNDERTAKING DATED 19.1.2018.** **EXHIBIT P14** - **TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION.** **EXHIBIT P15** **TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC (P)24/18/HO/TVPM/MBBS/KMC DATED 23.7.2019.** **EXHIBIT P16 TRUE COPY OF THE BANK STATEMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **EXHIBIT P17 TRUE COPY OF THE BANK STATEMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A)** **TRUE COPY OF THE STATEMENT CONTAINING A LIST OF THE PAYMENT, MADE TO THE COLLEGE, THE DATE OF PAYMENT, REFUNDABLE AMOUNT ASSESSED BY THE COMMITTEE, AMOUNT REFUNDED BY THE COLLEGE ETC.**