The Principal Kannur Medical College v. Kunhammed S/o Moideen 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 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** ## **WP(C).No.28803 OF 2019(A)** ## **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 KUNHAMMED, S/O.MOIDEEN, AGED 52 YEARS, CHERUVATTA, MOOZHIKARA KANOTH HOUSE, KOZHIKODE-673012. 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-695014, REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. KUM.THULASI K. RAJ R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1206-2020, THE COURT ON 16-06-2020 DELIVERED THE FOLLOWING:** W.P (C) No.28803/2019 -2- ## **J U D G M E N T** ## Dated this the 16[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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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 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. W.P (C) No.28803/2019 -3- 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 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 Hanan Kunhammed. W.P (C) No.28803/2019 -4- 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) 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. W.P (C) No.28803/2019 -5- 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 Smt. A. Aruna, 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 the double the amount of Rs.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 first 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 W.P (C) No.28803/2019 -6- 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**_ . 7. The ASC has, on 30-07-2019 determined the amount payable to student/complainant to be a sum of Rs.59,39,000/- after deducting the amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 30-07-2019 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. W.P (C) No.28803/2019 -7- |**Sl. No.**|**Particulars**|**Document**<br>**number referred**<br>**to in the order of**<br>**the ASC**| |---|---|---| |1|Affidavit filed by Kunhammed Kanoth (father of<br>the student).|Produced as<br>Ext.P9 in this<br>writpetition| |2|Statement of Account of Sri. Kunhammed<br>Kanoth with IDBI Bank, Kottooli Branch,<br>Kozhikode.|A1| |3|Statement of loan account of Sri. Kunhammed<br>Kanoth and Mrs.Khadeeja with Kozhikode<br>Distrtict Co-operative Bank.|A2| |4|Receipt given by Sri. Kunhammed Kanoth<br>regarding receipt of Rs.5.5 lakhs from his<br>brother Kanoth Kunjabdulla.|A3| |5|Sale Deed relating to sale of property by Sri.<br>Kunhammed Kanoth.|A4| 9. As already noticed, the ASC passed Ext.P10 order directing the college to refund an amount of Rs.59,39,000/- 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.47,17,000/- 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.35,52,000/-. 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. W.P (C) No.28803/2019 -8- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fee includinghostel fee|Rs.11,65,000/-| |2|Twice the amount collected over and above<br>the fee(Rs.35,52,000 x 2)|Rs.71,04,000/-| |3|Amount alreadyrefunded|Rs.23,30,000/-| |4|Balancepayable(1 + 2)- 3|Rs.59,39,000/-| 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.47.17 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.47,17,000/-. The Committee accepted the version with reference to Exts.A1 to A4. 11. We have perused the documents referred to as Exts.A1 to A4 and the proof affidavit filed by Sri. Kunhammed Kanoth (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.47,17,000/- 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 would show that a total sum of Rs.30,50,000/- has been withdrawn from the account of Sri. Kunhammed Kanoth with IDBI Bank, Kottooli Branch, Kozhikode. Exhibit A2 would show that an amount of Rs.15,00,000/- was availed as mortgage loan from the Kozhikode District Co-operative Bank and that the same was withdrawn on W.P (C) No.28803/2019 -9- 25-03-2015. The learned counsel for the petitioner would point out that this amount should not be taken into consideration at all for the reason that it was withdrawn as early as on 23-03-2015 and there is nothing to suggest that this amount was kept apart for paying the college in 2016. Exhibit A3 is a document prepared in the form of a receipt regarding the receipt of a sum of Rs.5,50,000/- from one Kanoth Kunjabdulla, brother of Sri. Kunhammed Kanoth on 03-09-2016. A total of the amounts mentioned above and covered by Exts.A1 to A3 documents will show that Sri. Kunhammed Kanoth had the source for a the total amount of Rs.45,50,000/-. However, we are unable to accept the case of Sri. Kunhammed Kanoth that he had received Rs.5,50,000/- from his brother and he had executed the documents marked as Ext.A3 for the reason that neither Sri. Kanoth Kunjabdulla nor the witnesses mention in Ext.A3 were examined before he ASC. We need not consider the effect of the sale document (Ext.A4) as the specific case of Sri. Kunhammed Kanoth is that he had paid the amount of Rs.47.17 lakhs by withdrawing Rs.26 lakhs from IDBI Bank, Rs.15 lakhs from the Kozhikode District Co-operative Bank and by borrowing Rs.5.50 lakhs from his brother. Naturally when amounts are received in addition to the regular fee, no receipt would be issued. Therefore, the source of fund is the only method for any person to prove their claim. We find that there is sufficient source for the availability of Rs.41,00,000/- paid to the college. There is no dispute that Rs.11,65,000/- W.P (C) No.28803/2019 -10- was received towards tuition fee and hostel fee which means that the balance amount is collected over and above the fee. 12. In view of our finding that the parent of the student had sufficient source for payment of Rs.41,00,000/-, in the manner indicated above we hold that that amounts directed to be paid by the ASC shall be redetermined 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.29,35,000/- x 2)|Rs.58,70,000/-| |3|Total amount payable in terms of the direction<br>of the Supreme Court|Rs.70,35,000/-| |4|Amount already paid|Rs.23,30,000/-| |5|Balance amountpayable|Rs.47,05,000/-| Exhibit P10 order shall stand modified accordingly. In the result the writ petition is allowed in part. The college shall refund an amount of Rs.47,05,000/- 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.28803/2019 -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 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 IN SLP (C)NO.23225/2018 DATED 27.9.19. EXHIBIT P5 TRUE COPY OF THE COMPLAINT 8.6.2018. 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)64/18/HO/TVPM/MBBS/KMC DATED 30.7.2019.**