Kerala High Court
The Principal vs Anwar Hussain P.A on 30 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.
TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942
WP(C).No.2107 OF 2020(K)
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 ANWAR HUSSAIN P.A.,
S/O. MOIDEEN KUNHI, AGED 47,
RESIDING AT ANWAR MANZIL,
T.B. ROAD, KANHANGAD P.O., KASARAGOD-671315.
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.A.ARUNA
R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-
2020, THE COURT ON 30-06-2020 DELIVERED THE FOLLOWING:
W.P (C) No.2107/2020 -2-
JUDGMENT
Dated this the 30th 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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.2107/2020 -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 Nihila N. W.P (C) No.2107/2020 -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.2107/2020 -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 Smt. A. Aruna learned Counsel appearing for the 1 st respondent, the complainant before the 2nd 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 2nd 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.2107/2020 -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 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 08-08-2019 determined the amount payable to student/complainant to be a sum of Rs.49,39,000/- after deducting the amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 08-08-2019 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 documents produced before it in order to determine whether Sri. Anwar Hussain, father of Nihila had the source to make payment of Rs.42.17 lakhs to the college. As already noticed, the ASC passed Ext.P10 order directing the college to refund an amount of Rs.49,39,000/- to the student. This figure was arrived at by W.P (C) No.2107/2020 -7- accepting the case father of the student that he had paid a total sum of Rs.42.17 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.30,52,000/-. 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. No. Particulars Amount
1 Fee including hostel fee Rs.11,65,000/-
2 Twice the amount collected over and above Rs.61,04,000/-
the fee (Rs.30,52,000/- x 2)
3 Amount already refunded Rs.23,30,000/-
4 Balance payable (1 + 2) - 3 Rs.49,39,000/-
9. 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.42.17 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.42.17 lakhs. The Committee accepted the version with reference to Exts. A1 to A5.
10. We have perused the documents referred to as Exts.A1 to A5 and the proof affidavit filed by the father of the student, in order to determine whether there was acceptable proof regarding the source of W.P (C) No.2107/2020 -8- funds to have paid a sum of Rs.42,17,000/- 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 will show that there was a withdrawal of Rs.4.60 lakhs from the account of Sri. Anwar Hussain on 19-09-2016. Exhibit A3 which is the statement of joint account of Sri. Anwar Hussain together with his father and brother. There was a withdrawal of Rs.25 lakhs on 05-09-2016. It is the case of Sri. Anwar Hussain that his father Sri. Moideen Kunhi had gifted a sum of Rs.2.57 lakhs to be used for meeting the expenses relating to admission to MBBS course for Ms.Nihila. Exhits A4 and A5 are the Income Tax Return acknowledgements of Sri. Moideen Kunhi for 2016-2017 and 2017-2018 which would show that he had substantial income and was quite capable of paying Rs.2.57 lakhs to his grand daughter Nihila. However we are unable to accept the contention on the basis of Ext.A2. Exhibit A2 shows that a loan of Rs.10 lakhs had been availed by Sri. Anwar Hussain and the said amount was withdrawn on 19-03-2016. The said document also shows that the rate of interest on that loan was 14%. The learned counsel for the petitioner would state that Sri. Anwar Hussain was engaged in business with his father and brother and this loan would have been availed for business purpose. In fact the very document (Ext.A2) shows that the loan was availed for business purposes. Further we feel W.P (C) No.2107/2020 -9- that it is unlikely or highly improbable that a loan of Rs.10 lakhs at 14% interest would be availed of in March, 2016 for the admission to MBBS course, which was at least 6 months away. Ms. Nihila would not even have possibly written her 12 th standard qualifying examination in March 2016. There is also no explanation forthcoming as to why such a huge amount was withdrawn from a loan account with 14% interest if the payment to be made to the college was at least 6 months away. Therefore we have no option but to discard the case of the 1 st respondent regarding the availability of amounts from the loan availed in terms of Ext.A2. However we have no difficultly in accepting the case of Sri. Anwar Hussain with regard to the other amounts on the basis of Ext.A1, A3, A4 & A5. Thus we hold that Sri. Anwar Hussain had a source for Rs.32.17 lakhs.
Therefore after reducing the amount of fee of Rs.11,65,000/-, the amount additionally collected will be Rs.20,52,000/-. Double that amount has to be refunded together with the amount of fees of Rs.11,65,000/-. The determination by the committee is modified as under:-
Sl. No. Particulars Amount
1 Fees including hostel fee Rs.11,65,000/-
2 Double the amount collected over and above Rs.41,04,000/-
the fee (Rs.20,52,000/- x 2)
3 Total amount payable in terms of the direction Rs.52,69,000/-
of the Supreme Court
4 Amount already paid Rs.23,30,000/-
5 Balance amount payable Rs.29,39,000/-
W.P (C) No.2107/2020 -10-
Thus this writ petition will stand allowed in part. The college shall refund an amount of Rs.29,39,000/- 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 2nd respondent.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE AMG W.P (C) No.2107/2020 -11- APPENDIX 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 MA NO.2354/2018 IN SLP (C) NO. 23225/2013 DATED 04/10/2018.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CONTEMPT PETITION NO.908/2019 DATED 04/10/2018.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT 25/07/2018. EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE. 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 ORDER OF THE 2ND RESPONDENT IN ASC (P)91/18/HO/TVPM/MBBS/KMC DATED 08/08/2019. EXHIBIT P11 TRUE COPY OF THE DOCUMENT PRODUCED TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE HON'BLE SUPREME COURT DATED 4.9.2018.
EXHIBIT R1(B) TRUE COY OF THE ORDER DATED 19.9.2017 IN CRL.M.C.1161/2017 PASSED BYT EH COURT OF SESSIONS, THALASSERY.
EXHIBIT R1(C) TRUE COPY OF THE ACCOUNT STATEMENT OF THE A/C NO.SB/01/011323 OF CORPORATION BANK KANHANGAD.W.P (C) No.2107/2020 -12-
EXHIBIT R1(D) TRUE COPY OF THE ACCOUNT STATEMENT FROM 1.4.2015 TO 31.3.2016 ISSUED BY HOSDURG SERVICE CO- OPERATIVE BANK.
EXHIBIT R1(E) TRUE COPY OF THE ACCOUNT STATEMENT ISSUED BY THE CORPORATION BANK.
EXHIBIT R1(F) TRUE COPY OF THE INDIAN INCOME TAX RETURN ACKNOWLEDGEMENT OF MR. THIDILMOIDEENKUNHI, FATHER OF THIS RESPONDENT FOR THE ASSESSMENT YEAR 2017-2018.