Principal Kannur Medical College v. Fathima Aliya Anvar Koroth & The Admission and Fee Regulatory Committee

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** **WP(C).No.28768 OF 2019(U)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE, ANJARAKANDI P.O., MAMBA, KANNUR - 670 612.** **BY ADVS.** **SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH** ## **RESPONDENTS:** **1 FATHIMA ALIYA ANVAR KOROTH, D/O.ANVARKAROTH, NOOR MAHAL, VATAKARA, KOZHIKODE - 673 101. 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 - 695 014, REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2008-2020, THE COURT ON 24-08-2020 DELIVERED THE FOLLOWING:** WP(C) No. 28768/2019 -:2:- ## **J U D G M E N T** Dated this the 24[th] day of August, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 28768/2019 -: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. 28768/2019 -: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. 28768/2019 -: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. 28768/2019 -: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 `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 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. 28768/2019 -: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 21/06/2019 determined the amount payable to the student/complainant to be a sum of `35,05,000/after deducting the amount of `11,65,000/- 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. 28768/2019 -: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|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`23,35,000 x 2)|`46,70,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|` 35,05,000/-| 9. By the impugned order (Ext.P10) dated 21/6/2019, the petitioner college was directed to pay an amount of `35,05,000/to the complainant. 10. Petitioner submits that the above finding is absolutely baseless as no materials were available to prove the source of funds which the complainant is alleged to have paid to the college. There is no dispute about the fact that the student had paid `11.65 lakhs towards tuition fee and hostel fee. But, according to the complainant/student, including the aforesaid `11.65 lakhs, `35 lakhs was paid to the college. 11. The evidence in the case consists of the oral testimony WP(C) No. 28768/2019 -:9:- of CW1, who is the cousin brother of the student. Apparently, he does not have any personal knowledge relating to the case. He however produced Ext.A1 statement of account of Sri.Anwar Koroth maintained at State Bank of India, Vadakara Branch. Sri.Anwar Koroth is the father of the student. Ext.A2 is a copy of print out of gold loan taken by Sri.Anwar Koroth from State Bank of India for an amount of `13 lakhs in October, 2015. The Committee on the aforesaid materials found that the student had the source to pay `35 lakhs and accordingly allowed the application as stated above. 12. Learned counsel for the petitioner/College submitted that the accounts produced in the case do not reflect the source of `35 lakhs as alleged. Further it is argued that initially a power of attorney holder of the student had filed an affidavit stating that the student's parents raised the amount by arranging personal loans from relatives, by pledging gold ornaments of her mother and by withdrawing cash from the Bank. But only two documents had been produced, which are produced in the case as Exts.P11 and P12. It is pointed out that in Ext.A1 relied upon by the Tribunal (Ext.P11), Tribunal relied upon a withdrawal of `10 lakhs WP(C) No. 28768/2019 -:10:- on 4/5/2016. But the counsel points out that the said amount had been sent back to the account on 12/5/2016. Learned counsel for the 1[st] respondent also did not dispute the said fact. `5 lakhs each is seen withdrawn on 20/5/2016 and 24/5/2016. This amount also has been taken note of by the Committee. Learned counsel for the petitioner points out that one amount is transferred to the account of Sri.Anwar Koroth (father of student) and another cash cheque is given to one Sri.Abdul Kareem. There is no evidence as to who Sri.Abdul Kareem was. The petitioner however fairly submits that there is a cash withdrawal of `2 lakhs on 20/8/2016, `1 lakh on 9/9/2016 and `9 lakhs on 9/9/2016 for which there is no dispute. He further submits that yet another amount is relied upon by the Committee i.e., `5 lakhs withdrawn on 5/10/2016. That amount is being taken after the admission process. Ext.A2 is with reference to a gold loan taken for an amount of `13 lakhs from State Bank of India. Though there is nothing to indicate that the said amount had been withdrawn, counsel for 1[st] respondent has produced a memo producing Ext.R1(a), which is the statement of account of Sri.Anwar Koroth from which it could be seen that `13 lakhs was withdrawn on WP(C) No. 28768/2019 -:11:- 30/8/2016. From the aforesaid materials, the withdrawals of `5 lakhs on 20/5/2016, `2 lakhs on 20/8/2016, `1 lakh on 9/9/2016, `9 lakhs on 9/9/2016 and `13 lakhs on 30/8/2016 can be taken as sufficient proof. 13. According to the complainant, he had paid `35 lakhs. We do not find any source to prove payment of `35 lakhs, but the complainant was able to establish that `30 lakhs was available with them for payment to the college. The finding of the Committee therefore to that extent cannot be sustained. The amount to be refunded and worked out in terms of the Apex Court judgment will be as under: |Sl. No.<br>Particulars<br>Amount<br>1<br>Fees including hostel fee<br>`11,65,000/-<br>2<br>Double the amount collected over and<br>above the fee (`18,35,000 x 2)<br>`36,70,000/-<br>3<br>Total amount payable in terms of the<br>direction of the Supreme Court<br>`48,35,000/-<br>4<br>Amount already paid<br> `23,30,000/-<br>5<br>Balance amount payable<br> `25,05,000/-<br>Exhibit P10 order therefore shall stand modified accordingly.|Sl. No.|Particulars|Amount| |---|---|---|---| ||1|Fees including hostel fee|`11,65,000/-| ||2|Double the amount collected over and<br>above the fee (`18,35,000 x 2)|`36,70,000/-| ||3|Total amount payable in terms of the<br>direction of the Supreme Court|`48,35,000/-| ||4|Amount already paid|`23,30,000/-| ||5|Balance amount payable|`25,05,000/-| 14. In the result, this writ petition is partly allowed as under:- The college shall refund an amount of `25,05,000/- (Rupees WP(C) No. 28768/2019 -:12:- Twenty five lakhs five 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 **JUDGE** WP(C) No. 28768/2019 -:13:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY KMC TO ASC ON 13/08/2019.** **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 SLP (C) NO.23225/2018 DATED 4/10/2018.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN ORDER DATED 27/9/2019.** **EXHIBIT P5 TRUE COPY OF THE COMPLAINT OF THE 1ST RESPONDENT 5/7/2018.** **EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE.** **EXHIBIT P8 TRUE COPY OF THE UNDERTAKING DATED 18/1/2018.** **EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION. EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC (P) 80/18/H0/TVPM/MBBS/KMC DATED 21/6/2019. EXHIBIT P11 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** WP(C) No. 28768/2019 -:14:- **EXHIBIT P12** **TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE STATEMENT OF ACCOUNT, ISSUED BY THE STATE BANK OF INDIA, VADAKARA BRANCH.**