W.P.(C) Nos.1274/2020 (H) and 14139/2020 (N)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** **WP(C).No.1274 OF 2020(H)** ## **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 AMINA HASHIM, D/O. HASHIM A.M., RESIDING AT KADAYILBANGLOW, KANYAKULANGARA, VEMBAYAM P.O., TRIVANDRUM-695615. 2 THE ADMISSION AND FREE 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.B.KRISHNA MANI R2 BY ADV. SMT. MARY BENJAMIN, SC, ASC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-072020, ALONG WITH WP(C).14139/2020(N), THE COURT ON 16-07-2020 DELIVERED THE FOLLOWING:** W.P (C) Nos.1274 & 14139/2020 -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** ## **WP(C).No.14139 OF 2020(N)** ## **PETITIONER:** **AMINA HASHIM D/O.HASHIM A.M, RESIDING AT KADAYIL BUNGLOW, KANYAKULANGARA, VEMBAYAM POST, NEDUMANGAD, THIRUVANANTHAPURAM-695 615, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, DR.SAJID B., S/O.E.BASHEER, AGED 33 YEARS, RESIDING AT KADAYIL BUNGLOW, KANYAKULANGARA, VEMBAYAM POST, NEDUMANGAD, THIRUVANANTHAPURAM-695 615.** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS:** **1 ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONSAL COLLEGES IN KERALA, REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, TC 15/1553-4, PRASANTHI BUILDINGS, MP APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014. 2 THE PRINCIPAL KANNUR MEDICAL COLLEGE, KANNUR-670 612.,** ## **OTHER PRESENT:** **R1 BY ADV. SMT. MARY BENJAMIN, SC, ASC R2 BY ADV. SRI. ABDUL RAVOOF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1507-2020, ALONG WITH WP(C).1274/2020(H), THE COURT ON 16-07-2020 DELIVERED THE FOLLOWING:** W.P (C) Nos.1274 & 14139/2020 -3- ## **J U D G M E N T** Dated this the 16[th] day of July 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) Nos.1274 & 14139/2020 -4- 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 Amina Hashim. W.P (C) Nos.1274 & 14139/2020 -5- 3. The question of maintainability of a Writ Petition under Article 226 of the Constitution of India challenging orders in the nature of Ext.P11 in W.P (C) No.1274/2020 was questioned at the admission stage, in connected matters. 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 a 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 W.P (C) Nos.1274 & 14139/2020 -6- strictly in terms of the direction issued by the Supreme Court. 5. W.P (C) No.1274/2020 has been filed challenging Ext.P11 order of the ASC directing the payment of a sum of Rs.39,39,000/- to Ms. Amina Hashim whose claim has been determined by the ASC in terms of the direction issued by the Supreme Court. W.P (C) No.14139/2020 has been filed by Ms. Amina Hashim through her power of attorney holder seeking directions for implementation of the order impugned in W.P (C) No.1274/2020. We have heard Sri. Abdul Raoof, Learned Counsel for the petitioner in W.P (C) No.1274/2020, Sri. B. Krishna Mani learned counsel appearing for the 1[st] respondent in that writ petition and also for the petitioner in W.P (C) No.14139/2020 and Smt. Mary Benjamin, Learned Standing Counsel for the 2[nd] respondent in W.P (C) No.1274/2020 (the Admission and Fee Regulatory Committee). The parties and the exhibits are hereinafter referred to as they appear in W.P (C) No.1274/2020. 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 W.P (C) Nos.1274 & 14139/2020 -7- 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 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**_ . 7. The ASC has, on 19-09-2019 determined the amount payable to student/complainant to be a sum of Rs.39,39,000/- after deducting the W.P (C) Nos.1274 & 14139/2020 -8- amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 19-09-2019 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 figure of Rs.39,39,000/- ordered to be refunded was arrived at by accepting the case of the student that she had paid a total sum of Rs.37.17 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.25,52,000/-. In terms of Ext.P2 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.25,52,000/- x 2)|Rs.51,04,000/-| |3|Amount alreadyrefunded|Rs.23,30,000/-| |4|Balancepayable(1 + 2)- 3|Rs.39,39,000/-| 9. According to the college, they have received only Rs.10 lakhs towards fee and Rs.1,65,000/- towards hostel fee. We have perused the documents and the proof affidavit filed initially by the father of the student, and the proof affidavit and documents filed by the brother-in-law of the W.P (C) Nos.1274 & 14139/2020 -9- student (who stepped in to tender evidence in the case before the ASC on account of the unfortunate demise of the father of the student after the filing of the proof affidavit) in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.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. 10. The father of the student filed Ext.P9 proof affidavit stating that he had raise the funds for making the payment of Rs.37.17 lakhs from out of the Rs.9,67,062/- which he received as gratuity from his employer, on retirement; from the GPF amount of Rs.5,38,125/- received by him and by withdrawing a sum of Rs.20,00,000/- from his account with the State Bank of Travancore. The proof affidavit filed by the brother-in-law of the student reiterated the case of the father of the student however that a further amount of Rs.5 lakhs was shown to have been withdrawn by his father-inlaw from the State Bank of Travancore. It appears that the brother-in-law of the student had subsequently filed an affidavit through which he produced some further documents to show that his father-in-law had borrowed an amount of Rs.6 lakhs from his friend (one Mr. Sharafudheen) in order to make the payment to the college. It is also stated therein that the father of the student had used the money from a chit which he had prized in 2017 to W.P (C) Nos.1274 & 14139/2020 -10- repay the sum of Rs.6 lakhs to the aforesaid Sharafudheen. A receipt stated to have been executed by Mr. Hashim (father of the student) regarding receipt of Rs.6 lakhs from Sharafudheen was also produced. A perusal of the bank statement of the account maintained by Mr. Hashim at the relevant time which, is on record shows that the amounts received by him from his employer (KSEB) as gratuity, GPF etc., was credited by him in his account with SBT, Vembayam branch. The following amounts have been withdrawn in cash from that account on the dates shown below: |Sl. No.|Date|Amount| |---|---|---| |1|16-07-2016|Rs.1,00,000| |2|09-08-2016|Rs.3,00,000| |3|03-09-2016|Rs.5,00,000| |4|07-09-2016|Rs.20,00,000| |Total||Rs.29,00,000| 11. In cases like these where amounts are alleged to have been collected in cash the source of funds is the only reliable method for any person to prove their claim. In the facts of the present case, we have seen that there is sufficient evidence to show that substantial amounts totaling to Rs.29,00,000/- has been withdrawn from the bank account of the father of the student. The date of withdrawal shows that the case of the father of the student that he paid the amounts to the college in September 2016. However we are unable to accept the case of the brother-in-law of the student that the father of the student had borrowed a sum of Rs.6,00,000/from Sharafudheen on account of the fact that the father of the student had W.P (C) Nos.1274 & 14139/2020 -11- no such case when he filed Ext.P9 proof affidavit. In Ext.P9 the entire source has been shown to be amounts received from the KSEB where the father of the student was employed and later withdrawn from the State Bank of Travancore, Vembayam Branch. There are other cash withdrawals in small sums from the very same account. In the totality of the facts and circumstances of the case, we find that there is sufficient source for the availability of a total amount of Rs.30,00,000/- with the father of the student at the relevant time. 12. In view of our finding that the parent of the student had sufficient source for payment of Rs.30,00,000/-, 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.18,35,000/- x 2)|Rs.36,70,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|Rs.48,35,000/-| |4|Amount already paid|Rs.23,30,000/-| |5|Balance amountpayable|Rs.25,05,000/-| In the result W.P (C) No.1274/2020 is allowed in part and Exhibit P11 order will stand modified in the manner indicated above. Both writ petitions will stand disposed of directing the college to refund an amount of Rs.25,05,000/- to the 1[st] respondent in W.P (C) No.1274/2020 / petitioner in W.P (C) No.14139/2020 without any further delay and at any rate within -12- W.P (C) Nos.1274 & 14139/2020 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 Admission Supervisory Committee. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **==> picture [22 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> AMG<br>**----- End of picture text -----**<br> W.P (C) Nos.1274 & 14139/2020 -13- ## **APPENDIX OF WP(C) 1274/2020** ## **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 29/08/2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME**| ||**COURT IN SLP(C) NO.23225/2018 DATED 04/10/2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME**| ||**COURT IN CMP 908/2009 IN SLP(C) NO.23225/2018**| ||**DATED 27/09/2019.**| |**EXHIBIT P5**|**TRUE COPY OF THE COMPLAINT DATED 18/06/2018.**| |**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 FILED BY THE**| ||**FATHER OF THE 1ST PETITIONER.**| |**EXHIBIT P10**|**TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH**| ||**DEPOSITION.**| |**EXHIBIT P11**|**TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN**| ||**ASC (P) 67/18/HO/TVPM/MBBS/KMC DATED 19/09/2019.**| W.P (C) Nos.1274 & 14139/2020 -14- ## **APPENDIX OF WP(C) 14139/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AN ORDER DTED 19/8/20 ISSUED BY THE CHAIRMAN, ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 4/10/2018 PASSED BY THE HON'BLE SUPREME COURT OF INDIA EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16/1/2019 PASSED BY THE HON'BLE SUPREME COURT OF INDIA. EXHIBIT P4 TRUE COPY OF THE PROCEEDING DATED 13/7/2016. EXHIBIT P5 TRUE COPY OF THE PROCEEDING DTED 13/7/2016. EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTION OF THE PASS BOOK ISSUED BY THE STATE BANK OF TRAVANCORE. EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 20/9/2015. EXHIBIT P8 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER'S FATHER BEFORE THE ADMISSION SUPERVISORY COMMITTEE. EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDAVIT DATED 20/8/2019. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 28.6.2017.**