Principal Kannur Medical College vs Anees Jalaludheen and the Admission and Fee Regulatory Committee, 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.1848 OF 2020(E)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE, ANJARAKANDI, P.O.MAMBA, KANNUR-670 612** **BY ADV. SRI.ABDUL RAOOF PALLIPATH** ## **RESPONDENTS:** - **1 ANEES JALALUDHEEN, S/O. JALALUDHEEN, RESIDING AT KUZHIYATHUVEEDU, KUNNICODE P.O., KOLLAM-691 508** - **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-S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0907-2020, THE COURT ON 14-07-2020 DELIVERED THE FOLLOWING:** WP(C) No. 1848/2020 -: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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 2. On 25.07.2018, there was a recommendation by the WP(C) No. 1848/2020 -: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 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 WP(C) No. 1848/2020 -:4:- 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 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 WP(C) No. 1848/2020 -:5:- 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) and Sri.P.V.S.Sudhir, 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 WP(C) No. 1848/2020 -:6:- 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 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 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. 1848/2020 -: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, by order dated 23/10/2019 determined the amount payable to student/complainant to be a sum of `27,39,000/- 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 WP(C) No. 1848/2020 -:8:- 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 (`19,52,000 x 2)|`39,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`27,39,000/-| 9. According to the complainant, `31.17 lakhs was paid at the time of admission. The college disputed the aforesaid claim. According to them, the student had paid only `11.65 lakhs. In order to prove the source of funds, CW1 was examined and he produced Exts.A1 to A5 documents. Based on the aforesaid materials, the Committee came to a conclusion that the complainant had the source to pay `31.17 lakhs as contended. 10. While impugning the aforesaid order, learned counsel would submit that when a complaint was given earlier to the Committee by the student, his statement was that only `26,17,000/- was paid to the college whereas, later a contention has been urged stating that `5 lakhs was paid as advance which cannot be believed. It is also pointed out that the complainant was unable to prove any source of funds. The main document WP(C) No. 1848/2020 -:9:- produced is that a sum of `23,05,000/- was received as chitty amount on 28/3/2016 by the mother of the complainant and certain other documents were also shown for having received certain amount during 2018 and 2019. The Committee however observed that Ext.A1 proves receipt of `23.05 lakhs by the mother of CW1. Ext.A2 ledger copy of the Service Co-operative Bank would prove that CW1 had taken a loan of `10 lakhs on 4/10/2016 and Ext.A4 ledger would show that his wife had taken a loan of `5 lakhs on 15/4/2016. He had also produced a sale deed Ext.A5 dated 10/2/2017. According to him, the actual value was much more than the amount shown in the document and he has received `23 lakhs as advance. 11. Learned counsel for the petitioner would point out that initially a contention had been raised that he had received `23 lakhs from his mother. But later, when he was asked regarding the said source, he had come with a contradictory stand that he had received advance of `10 lakhs by sale of property. Later, he was again examined and he took up a contention that the property was sold for `48 lakhs. Though there is inconsistency in the evidence of the complainant, materials produced on record WP(C) No. 1848/2020 -:10:- show that the complainant had sufficient source to pay the amount. But as far as payment of `5 lakhs is concerned, there is no such statement in Ext.P5 sent to the committee. It is the first document that was sent by the student to the Committee and he had only mentioned about payment of `26,17,000/-. The complainant has a version that advance amount was paid by CW1 which his son was not aware of. Taking into consideration the over all factual situation, we do not think that any error had been committed by the Committee in adjudicating the claim. We do not find any ground to interfere with the order. Writ petition is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **GOPINATH P.** Rp **JUDGE** WP(C) No. 1848/2020 -:11:- ## **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 MA NO 2345/2018 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 908/19 IN SLP (C) NO.23225/2018 DATED 27.9.2019** **EXHIBIT P5 TRUE COPY OF THE COMPLIANT DATED 29.08.2018** - **EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE UNDERTAKING DATED 18.01.2018** - **EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT FILED BY PETITIONER'S FATHER** - **EXHIBIT P9 TRUE COPY OF THE 2ND AFFIDAVIT DATED 20.09.2019 ALONG WITH DEPOSITION** **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC (P) 91/18/HO/TVPM/MBBS/KMC DATED 23.10.2019**