Principal, Kannur Medical College v. Majeed Puliyullathil 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 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** **WP(C).No.1273 OF 2020(F)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE KANNUR MEDICAL COLLEGE, ANJARAKANDI P.O., MAMBA, KANNUR-670612.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENT:** **1 MAJEED PULIYULLATHIL AGED 45 YEARS S/O.ABDULLA, BUSINESS, RESIDING AT BAITHUL MASHOOBA, CHERUVANCHERY PO, THALASSERY, KANNUR-670671. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANTHAPURAM-695014, REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.JOSE ABRAHAM R1 BY ADV. SRI.ANIL THOMAS (MELEMALAYIL) R2 BY ADV.SMT.MARY BENJAMIN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0508-2020, THE COURT ON 11-08-2020 DELIVERED THE FOLLOWING:** WP(C) No. 1273/2020 -:2:- ## **J U D G M E N T** Dated this the 11[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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 1273/2020 -: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. 1273/2020 -: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. 1273/2020 -: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 P., learned counsel for the petitioner college, Smt.Mary Benjamin, learned Standing Counsel for the Admission and Fee Regulatory Committee and WP(C) No. 1273/2020 -:6:- Sri.Jose Abraham, learned counsel appearing for the complainant before the Committee. The learned counsel for the petitioner college 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 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 WP(C) No. 1362/2020 and this, according to her, is a fatal defect. She states that the Admission and Fee Regulatory Committee is a 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 WP(C) No. 1273/2020 -:7:- 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 non-impleadment of the ASC in this writ petition 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 20/8/2019 determined the amount payable to the student/complainant to be a sum of `29,39,000/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 WP(C) No. 1273/2020 -:8:- 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 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 (`20,52,000 x 2)|`41,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`29,39,000/-| 9. The Principal of Kannur Medical College has filed this writ petition challenging Ext.P10 order dated 20/8/2019 by which the petitioner/college was directed to pay an amount of `29,39,000/-. 10. The counsel for petitioner/college would submit that there is no evidence to substantiate the aforesaid claim. By virtue of the directions issued by the Apex Court, the college had been directed to refund the fee and any amount collected in excess of the fee. The college admits to have received `11.65 lakhs being the tuition fee and the hostel fee. They disputed receipt of any WP(C) No. 1273/2020 -:9:- other amount. 11. In order to prove that the complainant had paid the aforesaid amount of `32.17 lakhs, father of the student Sri.Majeed was examined as CW1. His contention was that he obtained `25 lakhs from his brother Sri.Maharoof by executing a promissory note dated 25/8/2016. He had also produced a statement of account of Sri.Maharoof issued by State Bank of India, Panoor. Sri.Maharoof had obtained a housing loan of `35 lakhs, of which, according to CW1, Sri.Maharoof had advanced `25 lakhs based on Ext.A3 promissory note. He further submitted that he had received `1.75 lakhs as loan from one Sri.Nelleri Latheef on 2/9/2016 by executing Ext.A4 promissory note. He also stated that he had taken a gold loan of `3 lakhs and he had with him personal funds of `3 lakhs which was utilized for payment of advance of `6 lakhs on 16/4/2016. Learned counsel for the petitioner would submit that though there is evidence to prove that Sri.Maharoof had taken a housing loan of `35 lakhs, it is seen from the statement of accounts, which have been produced that he had withdrawn `10,30,000/- on 18/2/2016, `14 lakhs on 22/2/2016 and `10,20,000/- on 22/3/2016. That is most WP(C) No. 1273/2020 -:10:- of the loan amount had been withdrawn by March, 2016. The argument of the learned counsel for the petitioner is that there is no evidence to prove that Sri.Maharoof had paid these amounts to the complainant whereas the complainant relies upon the promissory note executed by him agreeing to repay the aforesaid amount to Sri.Maharoof on or before 30/12/2021. It is stated that the said amount was received on 25/8/2016. According to the complainant, he had `3 lakhs with him as cash and he received `3 lakhs by way of gold loan on 19/11/2015. Ext.A1 proves the gold loan of 19/11/2015. During evidence, CW1 admitted that he does not have any record to prove that he was having `3 lakhs with him. In the affidavit filed by the complainant, he had stated that he paid an advance of `6 lakhs on 16/4/2016 of which he received `3 lakhs by crediting gold ornaments and the balance `3 lakhs from his personal account. Evidence is available only for withdrawal of `2,99,000/- and that too on 19/11/2015 much before the alleged payment. A promissory note executed by CW1 in favour of Sri. Nellery Latheef has been produced as evidence to prove receipt of `1,75,000/- agreeing to repay the said amount on or before 25/11/2019. Promissory note is seen executed on WP(C) No. 1273/2020 -:11:- 2/9/2016. From the aforesaid evidence, though there is some lack of clarity in the matter, the source of funds to the extent of `25 lakhs, `2,99,000/- and `1,75,000/- lakhs stands proved. Though it is stated that the complainant had cash with him amounting to `3 lakhs, there is no evidence to substantiate the same. Therefore, the source of funds available with the complainant can be computed at `29,74,000/- 12. In the result, we are of the view that the complainant was able to prove only the source of `29,74,000/-, in which event, the amount payable as per the directions issued by the Apex Court will be as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`11,65,000/-| |2|Double the amount collected over and<br>above the fee (`18,09,000 x 2)|`36,18,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`47,83,000/-| |4|Amount already paid|`23,30,000/-| |5|Balance amount payable|`24,53,000/-| Exhibit P10 order therefore shall stand modified accordingly. 13. In the result, this writ petition is partly allowed as under:- WP(C) No. 1273/2020 -:12:- The college shall refund an amount of `24,53,000/- (Rupees Twenty four lakhs fifty three 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. JUDGE** Rp WP(C) No. 1273/2020 -:13:- ## **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.2354/2018 IN SLP (C) NO.23225/2018 DATED 4.10.2018.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CONTEMPT PETITION NO.908/2019 IN SLP (C) NO.23225/2018 DATED 27.9.2019.** **EXHIBIT P5 TRUE COPY OF THE COMPLAINT 17.7.2018. 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 AFFIDAVIT ALONG WITH DEPOSITION. EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC (P)91/18/HO/TVPM/MBBS/KMC DATED 20.8.2019.** WP(C) No. 1273/2020 -:14:- **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE EXTRACT OF THE PASS BOOK OF NRO ACCOUNT NO.67353309407 OF MAHAROOF C.** **EXHIBIT R1(B)** **TRUE COPY OF THE EXTRACT OF THE PASSBOOK OF THE HOUSING LOAN ACCOUNT NO.67353508550 OF MAHAROOF C.** **EXHIBIT R1(C)** **TRUE COPY OF THE STATEMENT OF TRANSACTIONS IN ACCOUNT NO.67353309407 OF MAHROOF C.** True Copy PS to Judge Rp