The Principal Kannur Medical College, Anjarakandi, Kannur v. Udayakumar Dharmarajan 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.** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **WP(C).No.27981 OF 2019(W)** ## **PETITIONER:** **THE PRINCIPAL KANNUR MEDICAL COLLEGE, ANJARAKANDI P.O., MAMBA, KANNUR-670 612.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** |**1**|**UDAYAKUMAR DHARMARAJAN**| |---|---| ||**AGED 55 YEARS,S/O. DHARMARAJAN,**| ||**'NEST', PARIPALLY P.O., KOLLAM DISTRICT.**| |**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 CHAIRMAN.**| ||**R1 BY ADV. SRI.KALEESWARAM RAJ**| ||**R1 BY ADV. SRI.VARUN C.VIJAY**| ||**R1 BY ADV. KUM.A.ARUNA**| ||**R1 BY ADV. KUM.THULASI K. RAJ**| ||**R1 BY ADV. SMT.RIYA RAYMOL IYPE**| ||**R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE**| ||**R1 BY ADV. SMT.K.C.AISHWARYA**| ||**R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY**| ||**COMMITTEE FOR PROF. COLLEGES**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-062020, THE COURT ON 24-06-2020 DELIVERED THE FOLLOWING:** W.P (C) No.27981/2019 -2- ## **J U D G M E N T** Dated this the 24[th] day of June 2020 ## **Gopinath, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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 2018-2019. These proceedings were found to be in order by a Division Bench of this Court W.P (C) No.27981/2019 -3- 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 04-092018. 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 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 W.P (C) No.27981/2019 -4- 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 one Miss. Daya Uday. 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 (A.M.Shaffique.J.) 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) W.P (C) No.27981/2019 -5- 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 and Smt. Mary Benjamin, Learned Standing Counsel for the 2[nd] respondent (the Admission and Fee Regulatory Committee) and Smt. Aruna A. 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 Rs.11.65 lakhs and therefore no further liability could be fastened on the college since an amount of Rs.23.30 lakhs being double the amount of Rs.11.65 lakhs has already been refunded. The Learned Counsel appearing for the ASC would point W.P (C) No.27981/2019 -6- 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 2[nd] 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 material 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 & ors - (2016) IX SCC 263**_ . W.P (C) No.27981/2019 -7- 7. The ASC has, on 14-06-2019 determined the amount payable to student/complainant to be a sum of Rs.64,05,000/- after deducting the amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 14-06-2019 which is 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 ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student / complainant. |**Sl. No.**|**Particulars**|**Document**<br>**number referred**<br>**to in the order of**<br>**the ASC**| |---|---|---| |1|Proof affidavit filed by Sri. Udayakumar D.,<br>father of the student / complainant.|Produced as<br>Ext.P9 in this<br>writpetition| |2|Statement of SB Account of Smt. Suja<br>Sudhakar (mother of the student) with Kollam<br>District Co-operative Bank.|A1| |3|Chitty payment voucher showing that Smt. Suja<br>Sudhakar received Rs.23,81,025/- from KSFE<br>on 08-09-2016.|A2| |4|Chitty payment voucher showing that Sri.<br>Udayakumar received Rs.48,12,889/- from<br>KSFE on 01-02-2016.|A3| W.P (C) No.27981/2019 -8- 9. As already noticed, the ASC passed Ext.P10 order directing the college to refund an amount of Rs.64,05,000/- to the student. This figure was arrived at by accepting the case of the father of the student that he had paid a total amount of Rs.49.50 lakhs to the college authorities. After deducting a sum of Rs.11,65,000/- which was the amount collected as fee (including hostel fee), the Committee held that the amount collected over and above the fee was Rs.37,85,000/-. In terms of Ext.P1 order of the Supreme Court 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. No.|Particulars|Amount| |---|---|---| |1|Fee includinghostel fee|Rs.11,65,000/-| |2|Twice the amount collected over and above<br>the fee(Rs.37,85,000 x 2)|Rs.75,70,000/-| |3|Amount alreadyrefunded|Rs.23,30,000/-| |4|Balancepayable(1 + 2)- 3|Rs.64,05,000/-| 10. According to the college, they have received only Rs.10 lakhs towards fee and Rs.1,65,000/- towards hostel fee. In order to prove the source of Rs.49.50 lakhs, the proof affidavit referred to above had been filed by the father of the student _inter alia_ stating the source of funds for raising the total amount of Rs.49.50 lakhs. The Committee accepted the version with reference to Exts. A1 to A3. W.P (C) No.27981/2019 -9- 11. We have perused the documents referred to as Exts.A1 to A3 and the proof affidavit filed by the father of the student, in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.49,50,000/- to the college. As already noticed the Supreme Court had clearly indicated in its order dated 04-10-2018 that the determination of the amount payable shall be on the basis of the evidence and the materials placed before the Committee. Exhibit A1 statement of account would disclose that a total of Rs.22 lakhs was withdrawn by the mother of the student in between 08-09-2016 and 28-09-2016. The source of these funds is the sum of Rs.23,81,025/received by her from KSFE Chitty. Similarly Ext.A3 will show that the father of the student, Sri. Udayakumar, had received a sum of Rs.48,12,889/from KSFE as Chitty payment. However, that amount was ultimately transferred to the business account of Sri. Udayakumar, who was running a Margin Free Market. Sri. Udayakumar had filed an affidavit dated 17-062020 before us showing the amounts withdrawn from the business account (account of the Margin Free Market) in between 04-02-2016 to 29-09-2016. It is his case that the entirity of these withdrawals amounting to Rs.32 lakhs in total was used to pay the amounts alleged to have been paid to the college. He has also produced before us a document showing that he had W.P (C) No.27981/2019 -10- received a sum of Rs.4,02,762/- by way of gold loan from one 'Amma Enterprises and Gold Loans'. We have perused the affidavit dated 17-062020. The learned counsel for the petitioner would state that all the amounts withdrawn from the business account cannot be for the purpose of paying the college as most of these withdrawals which are in sums of Rs.50,000/- each can only be for the purpose of business and not for paying the college. We notice that apart from the withdrawal of amounts of Rs.50,000/- each there are withdrawals of Rs.5,00,000/- on 21-03-2016, another Rs.5,00,000/- on 22-03-2016, Rs.3,50,000/- on 30-06-2016 and Rs.5,00,000/- on 01-09-2016. We feel that we can accept the case of the father of the student that these withdrawals totaling to Rs.18,50,000/- can be accepted as amounts withdrawn to pay the college. Though the learned counsel for the petitioner strongly argues that we must at any rate ignore the withdrawals of Rs.50,000/- on various dates, we feel that we can accept the withdrawals of Rs.50,000/- each on 11-08-2016, 17-08-2016, 23-08-2016, 30-08-2016, 05-09-2016, 23-09-2016 and 28-09-2016 as withdrawals for making the payment to the college considering the date of the alleged payments to the college. When amounts are received over and above the fee, source of funds is the only method for any person to prove their claim. There is no dispute that Rs.11,65,000/- was received towards W.P (C) No.27981/2019 -11- tuition fee and hostel fee. The amounts withdrawn from the account of Mrs. Suja Sudhakar amounting to Rs.22 lakhs, the amounts of Rs.18,50,000/withdrawn in sums of Rs.5,00,000/- on 3 occasions as indicated above and Rs.3,50,000/- on one occasion, as indicated above and withdrawal in sums of Rs.50,000/- on 7 occasions as indicated above (total of Rs.3,50,000/-) can be accepted as amounts withdrawn for payment to the college. We also accept the case of the father of the student that the amount received as Gold loan can be treated as a source to make payment to the college. We find that though the contention regarding the gold loan being a source was placed before the Committee, the Committee did not examine that question on account of the fact that it found that the parents of the student had sufficient source even without taking into account the amount of gold loan. Since we have not accepted the case of the father of the student that all the withdrawals from his business account can be treated as a source for making payment to the college we deem it appropriate to consider the gold loan for an amount of Rs.4,02,762/- as a source to make payment to the college. Therefore we find that the student / her parent has sufficient proof regarding payment of a total sum of Rs.48 lakhs to the college. Therefore after reducing the amount of fee, of Rs.11,65,000/-, the amount additionally collected will be Rs.36,35,000/-. Double that amount has to be W.P (C) No.27981/2019 -12- refunded together with the amount of fees of Rs.11,65,000/-. The determination by the committee is modified as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees includinghostel fee|Rs.11,65,000/-| |2|Double the amount collected over and above<br>the fee(Rs.36,35,000/- x 2)|Rs.72,70,000/-| |3|Total amount payable in terms of the direction<br>of the Supreme Court|Rs.84,35,000/-| |4|Amount already paid|Rs.22,30,000/-| |5|Balance amountpayable|Rs.62,05,000/-| Thus this writ petition will stand allowed in part. The college shall refund an amount of Rs.62,05,000/- to the 1[st] respondent without any further delay and at any rate within four weeks from the date of receipt of a copy of this judgment, failing which further steps in accordance with law shall be taken by the 2[nd] respondent. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **AMG** W.P (C) No.27981/2019 -13- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DATED 13.8.2019.** **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 DATED 27.9.2019 IN SLP(C) NO.23225/2018. EXHIBIT P5 TRUE COPY OF THE COMPLAINT 1.6.2018. EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE IST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE. EXHIBIT P8 TRUE COPY OF THE UNDERTAKING 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)46/18/HO/TVPM/MBBS/KMC/DATED 14.6.2019.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 A TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT WITHOUT ANNEXURES BEFORE THE HON'BLE SUPREME COURT DATED 4/9/2018** - **EXHIBIT R1 B TRUE COPY OF RELEVANT PAGES OF THE ORDER DATED 19/9/2017 IN CRL.M.C NO.1161/2017 PASSED BY THE COURT OF SESSIONS, THALASSERY**