Kerala High Court
The Principal vs Abdul Nazer K on 29 June, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942
WP(C).No.28802 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 ABDUL NAZER K
S/O SAIDALIKUTTY HAJI,KADALAYI HOUSE,
VALAVANNUR.P.O,KADAKATHKUNDU,
MALAPPURAM-676551.
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.PIRAPPANCODE V.S.SUDHIR
R1 BY ADV. SMT.A.MEGHA
R1 BY ADV. SMT.KARTHIKA M.R.
R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY
COMMITTEE FOR PROF. COLLEGES
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-
2020, THE COURT ON 29-06-2020 DELIVERED THE FOLLOWING:
W.P (C) No.28802/2019 -2-
JUDGMENT
Dated this the 29th 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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.28802/2019 -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 04-09- 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 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 Valeed K. W.P (C) No.28802/2019 -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.28802/2019 -5-
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 Sri. Pirappancode V.S. Sudheer 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 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 W.P (C) No.28802/2019 -6- 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 & ors - (2016) IX SCC 263.
7. The ASC has, on 14-06-2019 determined the amount payable to student to be a sum of Rs.39,39,000/- 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.
W.P (C) No.28802/2019 -7-
Document
number referred
Sl. No. Particulars
to in the order of
the ASC
1 Proof affidavit filed by Smt. Duniya Kadalaya, Produced as
sister of the student . Ext.P10 in this
writ petition
Statement of SB Account of Sri. Abdul Nazar,
2 father of the student with Canara bank, A1
Kalpakancherry
Statement of accounts of Sri. Mohammed Ali
3 A2
(brother of Sri. Abdul Nazar)
Statement of account of Sri. Abdul Raheem,
4 A3
(brother of Sri. Abdul Nazar).
9. As already noticed, the ASC passed Ext.P11 order directing the college to refund an amount of Rs.39,39,000/- to the student. This figure was arrived at by accepting the case of the student that he had paid a total amount 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.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.28802/2019 -8-
Sl. No. Particulars Amount
1 Fee including hostel fee Rs.11,65,000/-
2 Twice the amount collected over and above Rs.51,04,000/-
the fee (Rs.25,52,000 x 2)
3 Amount already refunded Rs.23,30,000/-
4 Balance payable (1 + 2) - 3 Rs.39,39,000/-
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.37.17 lakhs, the proof affidavit referred to above had been filed by the sister of the student inter alia stating the source of funds for raising the total amount of Rs.37.17 lakhs. The Committee accepted the version with reference to Exts. A1 to A3.
11. We have perused the documents referred to as Exts.A1 to A3 and the proof affidavit filed by the sister of the student, in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.37.17 lakhs 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. We extract below the paragraphs 7, 8 and 9 of the order dated 14-06-2019.
"7. CW1 had averred in the proof affidavit that an amount of Rs.37.17 lakh was paid to the respondent college for the admission of her brother Sri. Valeed K. to MBBS course. It W.P (C) No.28802/2019 -9- was stated in the affidavit that an amount of Rs.29 lakhs was paid to the college on 05-09-2016, and 17.17 lakh paid on 08-05-2016 and the money was paid in cash to Dr. Hashim and the college had not issued any receipt for the above amount. It was further averred that her father Sri. Abdul Nazar had transferred Rs.32.80 lakhs to his brother Sri. Moahammed Ali on 14-10-2016 and he returned the amount in cash and her father obtained a loan of Rs.32.50 lakh from his another brother Abdul Rahim and from the above amount Rs.37.17 lakh was paid to the college and Dr. Hashim received the amount.
8. Ext.A1 the statement of accounts of Sri. Abdul Nazar issued by the Canara Bank Kalpakancherry would show that an amount of Rs.32.80 lakh was transferred to the accounts of Muhammed Ali on 14-03-2016. The above statement would show that during the moth of August, September and October, 2016, Sri. Abdul Nazar was having more than Rs.50 lakh in his account. It would further show that the fund transfer of Rs.35 lakh to Sri. Raheem K. on 31-10-2016. Exts.A2, statement of accounts of Sri. Muhammed Ali, the brother of Sri. Abdul Nazar issued by Canara Bank would reveal that during June 2016, there was balance of Rs.65 lakh in his account, and as on 30-04-2019, it was more than 1.17 crores.
9. Ext.A3 statement of accounts of Abdul Raheem issued by the Canara Bank Kalpakancherry would disclose fund transfer between Sri. Abdul Rehim and Nasar K. of amounts exceeding one lakh and that the outstanding balance was W.P (C) No.28802/2019 -10- more than Rs.75 lakh. The above evidence to circumstances would convince anyone, that Mr. Abdul Nazar had liquid cash of 37.17 lakh with him as alleged and he paid the above amount to the respondent college. Though CW1 was cross examined by the learned counsel for the respondent college, nothing could be brought out to discredit her and her evidence is accepted and relieved (sic) on"
As can be seen from the findings recorded by the Committee, apart from reaching a conclusion regarding availability of substantial funds with Sri. Abdul Nazar (father of the student) and his brothers namely Sri. Mohammed Ali and Sri. Abdul Raheem, with reference to Exts.A1 to A3, no withdrawal or transaction was specifically pointed out during the relevant period which will show that there were substantial cash withdrawals from any of the accounts in question to establish sufficient source for having paid the amounts allegedly paid on the dates specified in the complaint. The evidence tendered before the Committee woefully fell short of any acceptable evidence to establish payment of the amount alleged to have been paid to the college. It is however not disputed before us that an amount of Rs.11,65,000/- had indeed been received from the student. It is also not disputed that an amount of Rs.23,30,000/- being double the amount of Rs.11,65,000/- has been paid back by the college. In the absence of any acceptable evidence regarding the source for payment of any amount over and above the fees and hostel fees (total of Rs.11.65 W.P (C) No.28802/2019 -11- lakhs) we cannot sustain the order of the Committee. Thus this writ petition will stand allowed by quashing Ext. P11 order.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE AMG W.P (C) No.28802/2019 -12- APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.08.2019.
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)N0.23225/2018 DATED 4.10.2018 EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN DATED 27.9.2019 RENT CONTROL PETN;896/19 AND SLP(C)NO.23225/2018 EXHIBIT P5 TRUE COPY OF THE COMPLAINT 19.7.2018 EXHIBIT P6 TRUE COPY OF THE STATEMENT FILE BEFORE THE 1ST 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 ALONG WITH DEPOSITION.
EXHIBIT P10 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DOCUMENTS EXHIBIT P11 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC(P)91/18/HO/TVPM/MBBS/KMC DATED 14.6.2019 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE STATEMENT CONTAINING AS LIST OF THE PAYMENT, MADE TO THE COLLEGE, THE DATE OF PAYMENT, REFUNDABLE AMOUNT ASSESSED BY THE COMMITTEE, AMOUNT REFUNDED BY THE COLLEGE ETC.