Principal Kannur Medical College, Anjarakkandi, Kannur v. Admission and Fee Regulatory Committee for Professional Colleges in Kerala and Moosa KV

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **WP(C).No.29016 OF 2019(B)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE ANJARAKKANDI, KANNUR, KERALA-670612.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** **1 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P APPAN ROAD, VACHUTHACAUD, THIRUVANANTHAPURAM-695014, REPRESENTED BY THE CHAIRMAN.** **2 MOOSA K V, S/O. KUNHI MOHAMMED, AGED 59 YEARS, KOTTAPILAKKAL HOUSE,CHULLIPPARA P O, VENNIYUR, THIRURANGADI TALUK, MALAPPURAM DISTRICT-676508.** **R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1606-2020, THE COURT ON 19-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.29016/2019 -:2:- ## **J U D G M E N T** Dated this the 19[th] day of June, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 2. On 25.07.2018 there was a recommendation by the WP(C) No.29016/2019 -:3:- 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 have not been paid/refunded in terms of the directions issued by the Supreme Court. Therefore, a further direction was issued by WP(C) No.29016/2019 -:4:- 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 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 WP(C) No.29016/2019 -:5:- 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.George Poonthottam, learned Senior Counsel and Smt.Nisha George for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 1[st] respondent (the Admission and Fee Regulatory Committee) and Sri.P.V.S.Sudhir, learned Counsel appearing for the 2[nd] respondent, the complainant before the 1[st] respondent Committee. The learned counsel for the petitioner would contend that the ASC WP(C) No.29016/2019 -:6:- 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 `11.65 lakhs and therefore no further liability could be fastened on the college since an amount of `23.30 lakhs being the double the amount of `11.65 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 first 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 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. WP(C) No.29016/2019 -:7:- 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 16-07-2019 determined the amount payable to student/complainant to be a sum of `39,05,000/- after deducting the amount of `23,30,000/- 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. 8. The complainant contended that they had paid a total amount of `37,00,000/- to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including hostel fee), the Committee held that the amount illegally collected was WP(C) No.29016/2019 -:8:- `25,35,000/-. 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|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`25,35,000 x 2)|`50,70,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`39,05,000/-| 9. According to the complainant, he had paid an amount of `37 lakhs for the admission of his daughter. The college authorities took up a contention that they have received `11.65 lakhs towards tuition fee and hostel fee. No other amount was received. 10. According to the complainant, he has paid `37 lakhs to the petitioner college of which `20 lakhs was paid on 9/9/2016 and `17.7 lakhs on 19/9/2016. In order to prove the aforesaid payment, complainant only produced Ext.A1, which is a sale deed executed by CW1, the father of the student, along with two others for a total consideration of `33,87,500/-. CW1 in his evidence stated that he did not share the amount with the other WP(C) No.29016/2019 -:9:- two co-owners who were the executants to the sale deed and the entire amount was utilized for the purpose of payment of `37 lakhs to the college. The Committee placed reliance upon the said evidence and found that the complainant had the source to pay the amount. The petitioner had denied having received `37 lakhs. According to them, only `11.65 lakhs was received by them. Learned counsel for the petitioner would point out that the complainant was only a co-owner of the property and if he had taken the sale consideration received by the other co-owners, some material ought to have been produced. In the absence of any such evidence, the evidence of CW1 to that extent cannot be believed. Apparently, this is a case in which CW1 was only a coowner having 1/3[rd ] share over the property covered by Ext.A1 in which the total consideration is only `33,87,500/-. His contention is that the other co-owners had permitted him to take the entire amount. But other than the statement of CW1, there is absolutely no evidence. The other two co-owners were not examined. Not even an affidavit of those persons were filed to prove the said fact. Therefore, at best, 1/3[rd] of the sale consideration covered by Ext.A1 alone can be taken as the money received by CW1. If that be so, the petitioner college is justified in contending that they WP(C) No.29016/2019 -:10:- have received only `11.65 lakhs. In such circumstances, we cannot agree with the Committee that there is source to show payment of `37 lakhs. The complainant had received back `23.30 lakhs which the college had already paid, being the double amount collected by them as tuition fee and hostel fee. In view of the above finding, we are of the view that the complainant was not entitled for any further amount. 11. In the light of the above discussion, the Committee was not justified in directing payment of `39,05,000/-. In the result, the writ petition is allowed setting aside Ext.P10 order dated 16/7/2019. ## **Sd/-** ## **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** WP(C) No.29016/2019 ## -:11:- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER NO. KMC/ASC/2016-REFUND/2018-2 DATED 13.08.2018 SUBMITTED BY THE COLLEGE TO THE COMMITTEE.** - **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLA(C) NO.23225/2018 DATED 29.08.2018.** - **EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN MA NO.2354/2018 IN SLA(C) NO.23225/2018 DATED 04.10.2018** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT FORWARDED TO THE COMMITTEE BY THE 2ND RESPONDENT VIA E-MAIL DATED 18.07.2018.** - **EXHIBIT P5 TRUE COPY OF THE STATEMENT/OBJECTION FILED BY THE PETITIONER BEFORE THE COMMITTEE.** - **EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 24.09.2016 ISSUED BY THE PETITIONER COLLEGE FOR THE REMITTANCE OF THE FEE.** - **EXHIBIT P7 TRUE COPY OF THE JOINT UNDERTAKING FILED BY THE 2ND RESPONDENT AND HER DAUGHTER DATED 18.01.2018.** - **EXHIBIT P8 TRUE COPY OF THE PROOF AFFIDAVIT DATED 04.05.2019 ALONG WITH ENCLOSED DOCUMENTS.** - **EXHIBIT P9 TRUE COPY OF THE ORDER NO.ASC 100/16/MBBS/KMC DATED 06.09.2016 AND ISSUED ON 09.09.2016 BY THE ADMISSION SUPERVISORY COMMITTEE.** WP(C) No.29016/2019 -:12:- **EXHIBIT P10 TRUE COPY OF THE ORDER NO. ASC(P)91/18/HO/TVPM/MBBS/KMC DATED 16.07.2019.** **EXHIBIT P11 TRUE COPY OF THE DEPOSITION OF WITNESS BEFORE THE 1ST RESPONDENT DATED 12/07/2019.** **RESPONDENT'S/S EXHIBITS:** ## **EXHIBIT R2(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.**