Principal Kannur Medical College v. Abdulla Kutty and The Admission Supervisory Committee

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.2188 OF 2020(W)** ## **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 ABDULLA KUTTY AGED 59 YEARS S/O.ABOOBAKKER, RESIDING AT THACHARATHODIYIL HOUSE, THRITHALA.P.O, PALAKKAD-679534** - **2 THE ADMISSION SUPERVISORY COMMITTEE** **FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4, PRASANTHI BUILDING, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014, REPRESENTED BY THE CHAIRMAN** **R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **SMT. MARY BENJAMIN -S.C. FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-072020, THE COURT ON 22-07-2020 DELIVERED THE FOLLOWING:** 2 W.P.(C).No.2188/2020 ## **JUDGMENT** Dated this the 22[nd] 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 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 3 W.P.(C).No.2188/2020 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 ASC shall ascertain and report as to whether the amounts in question have been refunded, as directed. On 1.9.2018, the ASC 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 the Supreme Court on 4.10.2018 through which it was directed that the ASC 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 ASC in terms of the direction issued by the Supreme Court, determining the amount payable by the petitioner 4 W.P.(C).No.2188/2020 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 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 5 W.P.(C).No.2188/2020 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) and Sri.P.V.S.Sudheer, learned Counsel appearing for the 1[st] respondent, the complainant before the 2[nd] respondent Committee. The learned 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 `11.65 lakhs and therefore no further liability could be fastened on the college. An amount of `23.30 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 6 W.P.(C).No.2188/2020 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. 6. We must first consider the question as to whether the nonimpleadment 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, by order dated 8/8/2019 determined the amount payable to student/complainant to be a sum of `39,39,000/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. 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 7 W.P.(C).No.2188/2020 ## be refunded in the following manner:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`11,65,000/-| |2|Twice the amount collected over and above the<br>fee (`25,52,000 x 2)|`51,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`39,39,000/-| 9. According to the complainant, he had paid `37,17,000/(Thrifty seven lakhs seventeen thousand only) for the admission of his daughter. The College denied the said allegation and according to them, they received only `11,65,000/- (Eleven lakhs sixty five thousand only) being the tuition fee and the hostel fee. 10. In order to prove the claim, the complainant was examined as CW1 and he placed reliance on Exts.A1 to A14 documents. The Committee after evaluating the materials found that the complainant had sufficient source to pay `37,17,000/-. While impugning the aforesaid order, the learned counsel appearing for the petitioner/College would submit there there is absolutely no evidence to prove the source of funds and the complainant had taken a contradictory stand in the matter. In the affidavit filed by the complainant, he stated that he had sold immovable properties on 1.8.2016 for `5,00,000/- (Rupees five lakhs only) and another item on 1.9.2016 for `8,50,000/-(Rupees eight lakhs fifty thousand only) in order to meet his daughter's studying expenses. Further, property 8 W.P.(C).No.2188/2020 allotted to his wife was sold in the year 2016 to meet his daughter's financial need. He stated that he had nine brothers who were all doing business abroad and had borrowed `7,00,000/- (Rupees seven lakhs only) from five brothers to meet the expenses. He also stated that in the year 2016, jewellery items were pledged with Trithala Service Co-operative Bank for an amount of `10,00,000/-(Rupees ten lakhs only) which was also utilised for his daughter's studying expenditure. Remaining jewellery his wife had, was sold in the year 2016 for `3,00,000/- (Rupees three lakhs only). According to the complainant, the last payment was made on 22.9.2016. Further, while being examined before the Committee, he admitted that the agreement for sale of property was executed on 25.10.2016 (Ext.A1). The contention urged by the counsel for the petitioner is that, when the agreement for sale of property was executed only on 25.10.2016, the averment that `5,00,000/- (Rupees five lakhs only) was received by sale of property cannot be accepted. Yet another agreement which is produced is dated 6.9.2016 which indicate that certain item of property is sought to be sold and `8,00,000/- (Rupees eight lakhs only) was received as advance. Ext.A3 is the statement of account of State Bank of India. During cross examination, CW1 was unable to point out any entry for withdrawing money prior to 22.9.2016. Same is the position with reference to Exts.A4 and A5. Ext.A6 is the statement of account of Trithala Service Co-operative Bank which only indicates that 9 W.P.(C).No.2188/2020 a total amount of less than `1,10,000/- (Rupees one lakh ten thousand only) was withdrawn prior to 22.9.2016. Exts.A7 and A8 also do not help the complainant in any manner. Ext.A9 series documents are with reference to gold loans which are seen closed on 14.8.2017 and 2.11.2018. The complainant admits that there is no document to prove that he had taken gold loan on 22.9.2016. Therefore complainant could only prove the document produced as Ext.A2 wherein `8,00,000/-(Rupees eight lakhs only) was received as advance and none of the other documents would help the complainant in any manner. 11. The complainant was again examined on 30.7.2019 and he produced Exts.A10 to A14. It is pointed out that in an additional affidavit filed by the complainant, he had stated that he received `23,30,000/- (Rupees twenty three lakhs and thirty thousand only) from his wife's family which they received by sale of property. Further, he received `5,00,000/-(Rupees five lakhs only) from his son-in-law, Muhammed Jamal, `4,00,000/- (Rupees four lakhs only) from his brother Habeebulla and `4,87,000/-(Rupees four lakhs eighty seven thousand only) from his own account maintained with the Federal Bank. He was cross examined by the counsel for the petitioner. Ext.A10 is the document produced to prove sale of certain items of property. The assignors were 7 co-owners and the total sale 10 W.P.(C).No.2188/2020 consideration is `23,30,000/- (Rupees twenty three lakhs thirty thousand only). He admitted that his wife was entitled for a share of `3,32,857/- (Rupees three lakhs thirty two thousand eight hundred and fifty seven only). CW1 however stated that the entire sale consideration was given to his wife. Ext.A11 is produced to prove the said fact. He further stated that there is no record from the Bank to prove the receipt of `23,30,000/-. According to him, the entire amount was received as cash. When the complainant was questioned regarding the difference in signature in Exts.A10 and A11 in respect of some of the co-owners, he denied any knowledge about the same. The Bank statement of Jamal is produced as Ext.A12. CW1 stated that Jamal had paid the said amount of `5,00,000/- on different occasions. He however admitted that most of the withdrawals were from ATM. With reference to the receipt of `4,00,000/-, the evidence adduced is Ext.A13. Ext.A13 is the statement of account of Habeebulla. Ext.A14 is the statement of account of the complainant himself. 12. The arguments raised by the counsel for the petitioner is that the complainant had taken a contradictory stand in the matter. Initially an affidavit dated 5.4.2019 was filed stating that the source of funds are by sale of his property and his wife's property, loan from his brothers, pledge and sale of jewellery. Subsequently, after cross examination, and after noticing the fact that the source of funds could 11 W.P.(C).No.2188/2020 not be proved, yet another affidavit dated 29.6.2019 is filed taking a totally different stand, wherein the source of funds was differently shown. Counsel for the petitioner would submit that CW1's change in stand by itself would indicate that they had no consistent case regarding the source of funds. The Committee however placed reliance on the evidence of CW1 had observed that there is no reason to disbelieve CW1. 13. When a person takes a different stand with reference to his source of funds, necessarily, we have to consider whether the claims are genuine. The complainant was initially examined on 11.4.2019. Evidence in the form of Exts.A1 to A9 series did not prove the source of funds except for the fact that he had received Rs.8,00,000/- as advance based on Ext.A2 agreement. With reference to the additional documents, share of the petitioner's wife is only `3,32,857/-. A letter had been produced as Ext.A11 which indicates that the other coowners had permitted the complainant's wife to receive the entire sale consideration of `23,30,000/-. There is no reason to disbelieve the said version when the source of aforesaid amount is rather proved. Further, the statement of account of Habeebulla (Ext.A13) would indicate withdrawal of `4,00,000/- between 26/05/2016 to 29/9/2016. There is also some evidence to show that the complainant himself had certain amount with him. 12 W.P.(C).No.2188/2020 Taking into account all these facts, despite the contradictory stand taken by the complainant in the affidavit, we don't think that we should interfere with the order passed by the Committee. The writ petition is, therefore, dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/GOPINATH P.** kp True copy **JUDGE** P.A. To Judge 13 W.P.(C).No.2188/2020 ## **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 29.08.2018 EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN M.A.NO.2354/18 IN SPL(C)NO.23225/2018 DATED 4.10.2018 EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CONTEMPT PETITION 908/9 IN SPL(C)NO.23225/2018 DATED 27.09.19 EXHIBIT P5 TRUE COPY OF THE COMPLAINT 19.7.2018 EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE EXHIBIT P8 TRUE COPY OF THE UNDERTAKING DATED 18.01.2018 EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDIVT ALONG WITH DEPOSITION EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC (P) 91/18/HO/TVPM/MBBS/KMC DATED 8.8.2019 EXHIBIT P11 TRUE COPY OF THE AFFIDAVIT FILED BEFORE THE 2ND RESPONDENT DATED 5/4/2019 EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT FILED BEFORE THE 2ND RESPONDENT DATED 25/10/2016 EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT FILED BEFORE THE 2ND RESPONDENT DATED 6-9-2016 EXHIBIT P14 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT EXHIBIT P15 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT** 14 W.P.(C).No.2188/2020 **EXHIBIT P16 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT** **EXHIBIT P17 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT** **EXHIBIT P18 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P19 TRUE COPY OF THE BANK STATEMENT FILED BEFORE THE 2ND RESPONDENT** **EXHIBIT P20 TRUE COPY OF THE RECEIPTS FILED BEFORE THE 2ND RESPONDENT** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE AFFIDAVIT GIVEN BY THE SIBLINGS OF SAFIA, BEFORE THE CHAIRMAN, ADMISSION AND FEE REGULATORY COMMITTEE.** - **EXHIBIT R1(B) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE INCOME TAX DEPARTMENT IN FAVOUR OF MOHAMMAD ALI P. KUNHUMOHAMMED.** - **EXHIBIT R1(C) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF ABDUL NAZAR.** - **EXHIBIT R1(D) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF YAHUTTY.** **EXHIBIT R1(E) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF FATHIMA.** - **EXHIBIT R1(F) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF SULAIKHA.** - **EXHIBIT R1(G) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF JAMEELA.** **EXHIBIT R1(H) TRUE COPY OF THE IDENTITY CARD, ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF SAFIA.** **EXHIBIT R1(I) TRUE COPY OF THE SALE DEED EXECUTED ON 25/06/2016 BY MOHAMMED ALI, ABDUL NAZAR, YAHUTTY, FATHIMA, SULAIKHA, JAMEELA AND** 15 W.P.(C).No.2188/2020 **SAFIA IN FAVOUR OF ONE KUNHAHAMMED.** **EXHIBIT R1(J) TRUE COPY OF THE CONSENT DEED GIVEN BY MUHAMMED JAMAL VADAKKEKARA.** **EXHIBIT R1(K) TRUE COPY OF THE PAGES 1 AND 2 OF THE PASSPORT IN RESPECT OF MUHAMMED JAMAL VADAKKEKARA.** **EXHIBIT R1(L) TRUE COPY OF THE STATEMENT OF ACCOUNT FROM 01/01/2016 TO 31/12/2016, ISSUED BY THE STATE BANK OF INDIA, PERTAINING TO THE ACCOUNT NO. 00000067802314124 MAINTAINED BY THE MUHAMMED JAMAL VADAKKEKARA.** **EXHIBIT R1(M) TRUE COPY OF THE CERTIFICATE OF MARRIAGE BETWEEN MUHAMMED JAMAL AND AMINA T.T.** **EXHIBIT R1(N) TRUE COPY OF THE CONSENT DEED GIVEN BY HABEEBULLA T.T. EXHIBIT R1(O) TRUE COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA IN FAVOUR OF HABEEBULLA. EXHIBIT R1(P) TRUE COPY OF THE STATEMENT OF ACCOUNTS FOR THE PERIOD FROM 01/01/2016 TO 30/09/2016, PERTAINING TO THE ACCOUNT OF HABEEBULLA T.T., WITH THE THRITHALA SERVICE COOPERATIVE BANK, THRITHALA.** - **EXHIBIT R1(Q) TRUE COPY OF THE STATEMENT OF ACCOUNT FOR THE PERIOD FROM 01/01/2016 TO 30/09/2016 RELATING TO ACCOUNT NO. 17050100001714, WITH THE FEDERAL BANK, THRITHALA.** - **EXHIBIT R1(R) TRUE COPY OF THE STATEMENT OF ACCOUNT FOR THE PERIOD FROM 01/01/2016 TO 31/12/2016 RELATING TO ACCOUNT NO. 0742101002729, MAINTAINED WITH THE CANARA BANK, THRITHALA.** - **EXHIBIT R1(S) TRUE COPY OF THE STATEMENT OF ACCOUNT FOR THE PERIOD FROM 01/01/2016 TO 30/09/2016 RELATING TO ACCOUNT NO. 782, MAINTAINED WITH THE THRITHALA SERVICE CO-OPERATIVE BANK, THRITHALA.** **EXHIBIT R1(T) TRUE COPY OF THE FURTHER DEPOSITION, INCLUDING THE 1ST RESPONDENT'S CROSS EXAMINATION.**