WP(C) No.18122/2019 (Kannur Medical College v. Admission Supervisory Committee for Professional Colleges in Kerala and Khadeeja Luhulu)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **WP(C).No.18122 OF 2019(M)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE, ANJARAKKANDI, KANNUR, KERALA 670 612** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** **1 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** **2 KHADEEJA LuHULU, AGED 22 YEARS D/O. T. ISHAK, NOUSHINAZ HOUSE, NEERVELI P.O, KANNUR DISTRICT 670 701** **R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.PHIJO PRADEESH PHILIP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0206-2020, THE COURT ON 08-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.18122/2019 -:2:- ## **J U D G M E N T** Dated this the 8[th ] day of June, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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.18122/2019 -: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 WP(C) No.18122/2019 ## -:4:- 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 Khadeeja Luhulu. 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 WP(C) No.18122/2019 -:5:- 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. 5. We have heard Sri.George Poonthottam, learned Senior Counsel and Smt.Nisha George for the petitioner, WP(C) No.18122/2019 -:6:- Smt.Mary Benjamin, learned Standing Counsel for the 1[st] respondent (the Admission and Fee Regulatory Committee) and Sri.Phijo Pradeesh Philip, learned Counsel appearing for the 2[nd] respondent, the complainant before the 1[st] 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 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 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 WP(C) No.18122/2019 -:7:- 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. 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 20-04-2019 determined the amount payable to student/complainant to be a sum of `39,39,000/- after deducting the amount of `23,30,000/- already paid by the college. We have gone through the order dated 20-04-2019 which is impugned before us and perused the material produced before WP(C) No.18122/2019 -:8:- 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.**<br>**No.**|**Particulars**|**Document**<br>**number referred**<br>**to in the order of**<br>**the ASC**| |---|---|---| |1|Statement filed by Smt. Nazhinin Ishak<br>mother of the student / complainant.|Produced as Ext.P6<br>in this writ petition| |2|Statement of SB Account of Smt. Nazhinin<br>Ishak (mother of the student / complainant)|A1| |3|Statement of SB Account of Sri. Ishak (father<br>of the student / complainant)|A2| |4|Affidavit of one M.C Nasar - uncle of Smt.<br>Nazhinin Ishak|-| 9. As already noticed, the ASC passed Ext.P7 order directing the college to refund an amount of `39,39,000/- to the student. This figure was arrived at by accepting the case of the parents of the student that they had paid a total amount of `37,17,000/- to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including hostel fee), the Committee held that the amount illegally collected was WP(C) No.18122/2019 -:9:- `25,52,000/-. 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:- |Sl.<br>No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`25,52,000 x 2)|`51,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`.39,39,000/-| 10. According to the student/parent, an amount of `1,00,000 was paid on 16-09-2016, another `9,00,000/- on 19-092016 and `27.17 lakhs on 21-09-2016, thus making the total of `37.17 lakhs. According to the college, they have received only `10 lakhs towards fee and `1,65,000/- towards hostel fee. In order to prove the source of `37.17 lakhs, the statement referred to above had been filed by the mother of the student _inter alia_ stating their source of funds for raising the total amount of `37,17,000/-. The Committee accepted the version with reference to Exts.A1 & A2 and the submission of the mother of the student that she had received `9,00,000/- from her uncle WP(C) No.18122/2019 -:10:- whose affidavit together with a bank statement were produced before the ASC. 11. We have perused the documents referred to as Exts.A1 & A2, the affidavit filed by Sri.M.C.Nasar (uncle of the student's mother) and the statement of Mrs.Nazhnin Ishak, mother of the student, in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of `37,17,000/- 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. Ext.A1 would prove that the mother of the student had withdrawn a sum of `5,00,000/- from her account on 20-09-2016. Ext.A2 will show that the father of the student had substantial funds at his disposal and that there was a withdrawal of `22,00,000/- on 20/9/2016. The affidavit filed by Sri.M.C.Nasar together with his bank statement would show that he had an amount of `5,00,000/- which he had deposited in his account on 12-10-2015. It appears that he had withdrawn an amount of `2,50,000/- on 29/01/2016. According to him, he had lent that amount to his WP(C) No.18122/2019 -:11:- sister and she had returned the amount to him in cash. He states that he had another `1,50,000/- with him and he borrowed `2,50,000/- each from one M.C.Hussain and M.C.Abootty. Thus, according to him, he had the amount of `9,00,000/- with him to make the payment alleged to have been made on 19-09-2016. We are of the view that the statement of M.C.Nasar cannot be accepted in the absence of any corroborative evidence. The sister of M.C.Nasar who is alleged to have returned `2,50,000/- to him in cash has not been examined. The brothers of M.C.Nasar from whom he states that he has borrowed money were not examined. We are therefore of the opinion that there is no acceptable proof regarding payment of `9,00,000/- on 19-09-2016. However, considering the financial position of the parents of the student, we accept the version of the student's mother that an amount of `1,00,000/- was paid on 16-09-2016. We also have no hesitation to accept the version regarding payment of `27.17 lakhs on 21/09/2016 in view of the clear evidence of such amount having been withdrawn from the accounts of the parents of the student as already indicated above. Naturally when amounts are received in excess of the regular fee, no receipt would be issued. WP(C) No.18122/2019 -:12:- 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 a total of `28,17,000/-. We cannot for reasons already indicated accept the case of the mother that she had borrowed `9,00,000/- from her uncle to make the payment alleged to have been made on 19-09-2016. There is another reason by the version regarding borrowing from M.C.Nasar cannot be accepted. From the bank statement of Sri.Ishak (A2), it is seen that he had balance of nearly `80,00,000/- in his account on 20/09/2016 on which date he withdrew a sum of `22,00,000/-, as above. It is quite unbelievable that when he had such substantial sums in his account on 20-09-2016, he would have borrowed a sum of `9,00,000/- from his wife's uncle. 12. There is no dispute about the fact that `11,65,000/was received towards tuition fee and hostel fee which means that the balance amount is collected in excess of the fee. Therefore, `16,52,000/- would be the additional amount collected. The amounts payable/refundable by the college is redetermined as under:- WP(C) No.18122/2019 -:13:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`11,65,000/-| |2|Double the amount collected over and<br>above the fee (`16,52,000 x 2)|`33,04,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`44,69,000/-| |4|Amount already paid|`23,30,000/-| |5|Balance amount payable|`21,39,000/-| Exhibit P7 order shall stand modified accordingly. In the result, this writ petition is partly allowed as under:- The college shall refund an amount of `21,39,000/- (Rupees Twenty one lakh thirty nine thousand only) to the 2[nd] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 1[st] respondent in accordance with law. ## **Sd/-** Rp **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** WP(C) No.18122/2019 ## -:14:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLA (C) NO. 23225/2018 DATED 29-08-2018.** - **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN M.A NO. 2354 OF 2018 IN SLA (C) NO. 23225/2018 DATED 04-102018** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT FORWARDED TO THE CHAIRMAN OF THE ADMISSION SUPERVISORY COMMITTEE BY THE 2ND RESPONDENT DATED 1807-2018.** - **EXHIBIT P4 TRUE COPY OF THE OBJECTIONS/ STATEMENT GIVEN BY THE PETITIONER BEFORE THE COMMITTEE** **EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 24-09-2016 ISSUED BY THE COLLEGE FOR THE REMITTANCE OF FEE OF RS. 11.65 LAKHS** **EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE COPY OF THE BANK STATEMENT OF THE MOTHER AND RELATIVES OF THE 2ND RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE ORDER NO. ASC(P) 91/18/HO/TVPM/MBBS/KMC DATED 20-04-2019 ISSUED BY THE ADMISSION SUPERVISORY COMMITTEE.**