W.P.(C) Nos.1362 of 2020 (U) and 3588 of 2020 (W) - Principal Kannur Medical College, Kannur v. Admission Supervisory Committee for Professional Colleges in Kerala; and K.S. Prakash

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **WP(C).No.1362 OF 2020(U)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE, ANJARAKKANDY.P.O, MAMBA, KANNUR-670 612.** **BY ADVS.** **SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** - **1 K.S.PRAKASH S/O M.SAMBAN, AGED 54 YEARS, SANATHANAM, ARAYATHUKONAM.P.O, KIZHUVILAM VILLAGE, MAMAM, THIRUVANANTHAPURAM-695 101.** **2 THE ADMISSION AND FEE REGULATORY COMMITTEE, FOR PROFESSIONAL COLLEGES IN KERALA, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHAVAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.B.KRISHNA MANI SMT.MARY BENJAMIN, SC FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2020, ALONG WITH WP(C).3588/2020(W), THE COURT ON 0708-2020 DELIVERED THE FOLLOWING:** WP(C) Nos.1362 & 3588/2020 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **WP(C).No.3588 OF 2020(W)** ## **PETITIONER:** **K.S.PRAKASH AGED 57 YEARS ADVOCATE,RESIDING AT SANADANAM, PARAYATHUKONAM POST,KIZHUVILAM VILLAGE, MAMAM,ATTINGAL,CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS:** - **1 ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA REPRESENTED BY ITS CHAIRMAN,HEAD OFFICE, T.C.15/1553-4,PRASANTHI BUILDINGS, M.P.APPAN ROAD,VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.** - **2 THE PRINCIPAL, KANNUR MEDICAL COLLEGE, KANNUR-670612.** **R2 BY ADV. SRI.K.R.AVINASH R2 BY ADV. SRI.ABDUL RAOOF PALLIPATH R1 BY SMT.MARY BENJAMIN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2020, ALONG WITH WP(C).1362/2020(U), THE COURT ON 0708-2020 DELIVERED THE FOLLOWING:** WP(C) Nos.1362 & 3588/2020 -:3:- ## **J U D G M E N T** Dated this the 7[th] day of August, 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 ASC to the Kerala University of Health Sciences to withdraw the WP(C) Nos.1362 & 3588/2020 -:4:- 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 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) Nos.1362 & 3588/2020 -:5:- 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 WP(C) No. 1362/2020, 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 the applicant. 3. The question of maintainability of WP(C) No. 1362/2020 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 WP(C) Nos.1362 & 3588/2020 -:6:- 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.Abdul Raoof P., learned counsel for the petitioner college, Smt.Mary Benjamin, learned Standing Counsel for the Admission and Fee Regulatory Committee and Sri.B.Krishnamani, learned counsel appearing for the complainant before the Committee. The learned counsel for the petitioner college would contend that the ASC had determined the issue WP(C) Nos.1362 & 3588/2020 -:7:- 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 WP(C) No. 1362/2020 and this, according to her, is a fatal defect. She states that the Admission and Fee Regulatory Committee is a 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 WP(C) Nos.1362 & 3588/2020 -:8:- interfere with the order. 6. We must first consider the question as to whether the non-impleadment of the ASC in WP(C) No. 1362/2020 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 21/8/2019 determined the amount payable to the student/complainant to be a sum of `55,39,000/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 WP(C) Nos.1362 & 3588/2020 -:9:- 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 (`33,52,000 x 2)|`67,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`55,39,000/-| quash Ext.P10 order passed by the ASC for Professional Colleges in Kerala. By the impugned order dated 21/8/2019, the ASC had directed the petitioner college to pay the complainant `55,39,000/-. According to the complainant, he had paid an amount of `45.17 lakhs for admission of his daughter. According to the college, they received only an amount of `11.65 lakhs and the contrary contention was absolutely baseless. 10. In order to prove the source of funds, the complainant was examined as CW1 and he relied upon Exts.A1 to A4 documents. In the proof affidavit filed by the complainant, he stated that he received `40 lakhs from his brother-in-law Sri.Sreekumar and the balance amount was obtained from his wife Smt.Veena Sasidas. Ext.A3 is a copy of the promissory note executed by the complainant in favour of Sri.Sreekumar on WP(C) Nos.1362 & 3588/2020 -:10:- 24/9/2016 for having received `40 lakhs. Ext.A1 is the statement of account of Sri.Sreekumar issued by Axis Bank, Sharjah. According to the Committee, the statement showed withdrawal of huge amounts in May, June and July 2016. CW1 further stated that `11 lakhs was diverted and paid to him from the business of Sri.Sreekumar. Ext.A2 is the chitty prize money payment voucher issued by KSFE on 20/10/2016 which indicates that Smt.Veena Sasidas has received an amount of `4,74,599/- as prize money. CW1 also stated that he had pledged gold ornaments of his sister's daughter and the said amount was also utilized for the admission of his daughter. Committee observed that in so far as nothing has been brought out to discredit the evidence of complainant, his version has to be believed. 11. WP(C) No. 3588/2020 has been filed by the complainant seeking to implement the direction issued by the Committee. They have also produced certain additional documents as evidence in the case. 12. Learned counsel for the petitioner college would however submit that the entire evidence adduced by the complainant is self contradictory. It is pointed out that CW1 WP(C) Nos.1362 & 3588/2020 -:11:- himself is a lawyer who was appearing in most of the cases filed by other students/parents. In the affidavit filed by CW1, he stated that he got the said amount of `45.17 lakhs from 5 withdrawals from the account of Sri.Sreekumar, petitioner's brother-in-law, through Axis Bank during the period from 16/9/2016 to 24/9/2016. The statement of account of Sri.Sreekumar from 1/9/2016 to 30/11/2016 has been produced as Ext.P8 in WP(C) No. 3588/2020. Ext.P8 would show that there was a cash withdrawal of `7 lakhs on 17/9/2016 and 3 fund transfers of `5 lakhs each on 23/9/2016. The amount transferred during the period from 16/9/2016 to 24/9/2016 is only `22 lakhs. Learned counsel points out that even the fund transfers have not been shown in the name of the complainant. Yet another fund transfer of `7 lakhs is in the name of Sri.Salim Mohammed Haneefa, who is a total stranger. That was on 17/9/2016. It is pointed out that if `5 lakhs each taken on 3 occassions viz., 23/9/2016 is considered, the said transfer ought to be to another account which is not produced. Therefore, it is submitted that the basic document produced by the complainant shows only a cash withdrawal of `7 lakhs and nothing more than that. It is submitted that the WP(C) Nos.1362 & 3588/2020 -:12:- Committee did not apply its mind while considering the statement of account of Sri.Sreekumar especially when the complainant has a definite case that he got the amount from Sri.Sreekumar between 16/9/2016 and 24/9/2016. Even the amount withdrawn by the Sri.Salim Mohammed Haneefa was treated as a fund transferred to the complainant when the complainant did not have such a case. 13. Learned counsel for the complainant submitted that letters issued by the complainant as Exts.P4 and P5 were received by the college. Similarly Ext.P6 _e-mail_ was also received by the college. In Ext.P5, reference is made to payment of `45,17,000/- and Ext.P6 _e-mail_ had been sent on 31/8/2018 after the judgment of the Apex Court referring to the payment of `45,17,000/-, giving the account number which also was received by the college. It is further pointed out that a promissory note had been executed by the complainant in favour of Sri.Sreekumar for having received `40 lakhs and offering to repay the same on demand. Learned counsel points out that from the promissory note itself it is clear that `40 lakhs was given by Sri.Sreekumar. He points out that the transaction from 17/9/2016 to 23/9/2016 is WP(C) Nos.1362 & 3588/2020 -:13:- for an amount of `29 lakhs. He also states that the balance of `11 lakhs was given in cash by Sri.Sreekumar which will reveal that `40 lakhs was received as consideration for the promissory note. That apart, it is pointed out that Ext.P9 would prove receipt of `3,97,718/- from Kerala State Financial Enterprises being the prize amount which is evident from the statement of account produced as Ext.P10. 14. Despite the arguments of the learned counsel for the complainant, we are not satisfied with the nature of evidence adduced in the case. First of all, the specific case of the complainant was that he had received `45.17 lakhs from his brother-in-law Sri.Sreekumar through Axis Bank during the period from 16/9/2016 to 23/9/2016. The said statement of account during the relevant period, which is produced in WP(C) No. 3588/2020 as Ext.P8 does not disclose any such transaction. As already stated, on 16/9/2016, there is no withdrawal. On 17/9/2016, `7 lakhs is transferred to one Sri.Salim Mohammed Haneefa. In the absence of any explanation, it can only be inferred that the said amount had been transferred to another person. Evidence also discloses that there were separate WP(C) Nos.1362 & 3588/2020 -:14:- transactions with Sri.Salim Mohammed Haneefa. Complainant during evidence deposed that they were business partners in Gulf and in India and they used to transfer money occasionally. The only other evidence is regarding withdrawal of `7 lakhs on 17/9/2016 and three fund transfers of `5 lakhs each on 23/9/2016. Even assuming that these fund transfers can be to the account of the complainant, the total amount thus transferred is only `22 lakhs. From the additional documents, there is evidence to show that his wife had received `3,97,124/- from KSFE. But that is on 1/11/2016. The main case set up by the petitioner/complainant is based on the promissory note. There is no reference in his affidavit regarding execution of a promissory note. He had specifically stated in his affidavit that he had received the amount from his brother-in-law's account from 16/9/2016 to 24/9/2016. When it discloses only payment of `22 lakhs, we are of the view that the complainant could prove only the source of `22 lakhs as on the date of payment, which, according to him, is before 1/10/2016. The promissory note executed by him are all self serving documents. When such huge amounts are being transferred from bank accounts, that too from WP(C) Nos.1362 & 3588/2020 -:15:- the bank account of Sri.Sreekumar, it has to be by a bank to bank transfer, which is lacking in the case. Therefore, the promissory note also cannot be taken into account to contend that a Non Resident Indian had paid cash to the complainant. 15. CW1 has also stated that he had pledged the gold ornaments of his sister's daughter in Malabar Gramin Bank, Attingal branch and on receiving the amount from KSFE, the gold ornaments were taken back, in which event, the amount received from KSFE can also be taken into account, which is `3,97,124/-, which can be rounded as `3,97,000/- in which event, the source for `25,97,000/- can be taken as proved. 16. In the result, we are of the view that the complainant was able to prove only the source of `25,97,000/-, in which event, the amount payable as per the directions issued by the Apex Court will be as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`11,65,000/-| |2|Double the amount collected over and<br>above the fee (`14,32,000 x 2)|`28,64,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`40,29,000/-| |4|Amount already paid|`23,30,000/-| |5|Balance amount payable|`16,99,000/-| WP(C) Nos.1362 & 3588/2020 -:16:- Exhibit P10 order in WP(C) No. 1362/2020 therefore shall stand modified accordingly. 17. In the result:- (i) WP(C) No. 1362/2020 is partly allowed as under:- (a) The college shall refund an amount of `16,99,000/(Rupees Sixteen lakhs ninety nine thousand only) to the 1[st] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 2[nd] respondent in accordance with law. (ii) WP(C) No. 3588/2020 is disposed of in the light of the directions in WP(C) No. 1362/2020. **Sd/-** Rp **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** WP(C) Nos.1362 & 3588/2020 -:17:- ## **APPENDIX OF WP(C) NO.1362/2020** **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 M.A NO.2354/2018 IN SLP (C) NO.23225/2018 DATED 04.10.2018.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CONTEMPT PETITION NO.908/2019 IN SLP (C) NO.23225/2018 DATED 27.09.2019.** - **EXHIBIT P5 TRUE COPY OF THE COMPLAINT 1.06.2018. 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 19.01.2018.** - **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) 50/18/HO/TVPM/MBBS/KMC DATED 21.08.2019.** WP(C) Nos.1362 & 3588/2020 -:18:- ## **APPENDIX OF WP(C) 3588/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AN ORDER DATED 21/8/2019 ISSUED BY THE CHAIRMAN,ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 4/10/2018 IN M.A.NO.2354/2018 IN S.L.P.(C)NO. (S)23225/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16/1/2019 IN R.P.(C)NO.4012/2018 IN M.A.2354/2018 IN S.L.P.(C)NO.(S)NO.23225/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 14/05/2018 SUBMITTED BY THE PETITIONER BEFORE THE COLLEGE.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED NIL.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 31/08/2018 SENT THROUGH E-MAIL.** - **EXHIBIT P7 TRUE COPY OF THE A PROMISSORY NOTE DATED 24/09/2019.** - **EXHIBIT P8 TRUE COPY OF THE BANK ACCOUNT OF S. SREEKUMAR WITH THE AXIS BANK.** - **EXHIBIT P9 TRUE COPY OF THE CHITTY PRICE MONEY PAYMENT VOUCHER.** **EXHIBIT P10 TRUE COPY OF THE RELEVANT PORTION OF THE DETAILS PERTAINING TO THE TRANSFER OF THE AMOUNT IN THE KERALA GRAMIN BANK.** True Copy **PS to Judge** Rp