Nishana. M vs State Of Kerala
2022 Latest Caselaw 9842 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                       WP(C) NO. 27567 OF 2022
PETITIONER:

          NISHANA. M
          AGED 24 YEARS
          D/O. SHIHABUDEEN M., AGED 24 YEARS,
          MANGALASSERY (H),
          UDARAMPOYIL, PULLANKODE (P.O.),
          NILAMBUR, MALAPPURAM DISTRICT
          PIN - 676525
          BY ADVS.
          K.P.SUDHEER
          ANJALI MENON


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF HEALTH AND FAMILY WELFARE,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695001
    2     COMMISSIONER FOR ENTRANCE EXAMINATION
          5TH FLOOR, HOUSING BOARD BUILDING
          SANTHI NAGAR,THIRUVANANTHAPURAM, PIN - 695001
    3     THE DISTRICT COLLECTOR
          MALAPPURAM, COLLECTORATE, UP HILL,
          MALAPPURAM, PIN - 676505
    4     THE TAHASILDAR
          NILAMBUR TALUK,
          TALUK OFFICE, NILAMBUR,
          MALAPPURAM DISTRICT
          PIN - 679329
    5     CHOKKAD GRAMA PANCHAYAT
          REP. BY ITS SECRETARY,
          CHOKKAD (PO),
          MALAPPURAM DISTRICT
          PIN - 679332
    6*    ADDL.R6 THE ADMISSION FEE REGULATORY & SUPERVISORY
          COMMITTEE UNDER ACT 15/2017,
          OFFICE OF THE ADMISSION FEE REGULATORY & SUPERVISORY
          COMMITTEE, FXX5+JQR, DPI, VAZHUTHACAUD,
          THIRUVANANTHAPURAM, KERALA - 695014
          *[ADDL.R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED
 WP(C) NO. 27567 OF 2022         2

          26/08/2022 IN WP(C) 27567/2022]
          BY ADV SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY
          COMMITTEE FOR PROF. COLLEGES


OTHER PRESENT:

          SMT.P.G.PRAMOD-GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27567 OF 2022              3

                             JUDGMENT

The petitioner is pursuing Medical education, leading to the

M.B.B.S. Degree and asserts that her family belong to "Below Poverty

Line" category (BPL). She says that, however, even though every other

criterion has been found by the competent Authorities to be in her

favour, they have rejected her inclusion in the said category solely

because her family earlier had a house which was more than 1000 sq.

ft. in area. She submits that, in fact, the house was not one having area

over 1000 sq. ft., though it had a first floor, but which was in a

dilapidated condition and the area of which, if added to the ground

floor, would have taken it beyond the said limit.

2. The petitioner explains that since the 1st floor was in a bad

condition and not a permanent structure, it was demolished, not for

the purpose of availing any benefit, but because, otherwise, the

structure itself would have become unstable. She says that in spite of

this, the jurisdictional Tahsildar has reported that she and her family

had demolished the house solely for the purpose of obtaining benefits

under the "BPL" category; and thus prays that the impugned orders,

namely Exts.P11 and P13, be set aside.

3. I have heard Smt.Anjali Menon - learned counsel for the

petitioner; Smt.Mary Benjamin - learned Standing Counsel for the

Admission Fee Regulatory & Supervisory Committee for Medical

Education, Kerala (ASC) and Sri.P.G.Pramod - learned Government

Pleader appearing for the official respondents.

4. Upfront, I must record that if any person is found to have

indulged in a deliberate action of modifying the residential structure

solely for the purpose of being brought under the "BPL" category,

certainly, this Court cannot grant approval to it. However, the relevant

question in this case is whether the residential house of the petitioner

and her family was indeed one having more than 1000 sq. ft. in area or

if its first floor was dilapidated and incapable of being used, thus

leading to its demolition.

5. When I examine Ext.P11, the jurisdictional Tahsildar only

records that the house originally had an area of 1450 sq. ft., but that

substantial portions of the first floor was thereafter demolished. He,

thereupon, entered into a presumption that this was done by the

petitioner and her family solely to bring them under the "BPL"

category, but without verifying the truth of their assertions, that the

first floor was dilapidated - it having developed cracks, and thus

incapable of being allowed to continue. He also ought to have verified

the specific assertion of the petitioner that, had the first floor been

allowed to stand, the entire structure would have collapsed and that

the same was thus removed, not for the purpose of bringing them

under the "BPL" category.

6. I am certain that an enquiry into the afore aspects will require

to be done by the competent Authority again, particularly because, on

every other criterion under the applicable Circulars and Rules, the

petitioner appears to be eligible to be brought under the "BPL"

category.

7. That said, however, I am also cognizant that the "BPL

Scholarship", which was in vogue earlier, is no longer in force, though

the petitioner asserts that she was entitled to the same when was in

force, before it having been set aside by this Court.

In the afore circumstances, I order this writ petition and direct

the competent 4th respondent - Tahsildar, to reconsider the

petitioner's claims for being included in the "BPL" category, after

making a complete assessment of her residential house, as also the

approved plans and building permits, if any, on the strength of which it

was constructed and after affording her and her father an opportunity

of being heard; thus culminating in an appropriate fresh order as

expeditiously as is possible, but not later than one month from the date

of receipt of a copy of this judgment.

Needless to say, if, through the afore exercise, the Tahsildar is to

find that the petitioner is entitled to be brought under the "BPL"

category, then all necessary consequential procedure shall follow, for

which purpose, all liberties are reserved to her.

Sd/-DEVAN RAMACHANDRAN JUDGE MC/31.8

APPENDIX OF WP(C) 27567/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ADMISSION MEMO (PROVISIONAL) GIVEN AT THE TIME OF SPOT ADMISSION TO MBBS & BDS COURSES 2017 ALONG WITH ITS TYPED COPY EHHIBIT P2 TRUE COPY OF CERTIFICATE DATED 21.2.2019 GIVEN BY KARUNA MEDICAL COLLEGE CERTIFYING THAT PETITIONER IS A STUDENT OF THE COLLEGE.

EXHIBIT P3 TRUE COPY OF LETTER DATED 27.9.2021 ISSUED BY GOVERNMENT OF KERALA, CO-OPERATION (B) DEPARTMENT TO THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE LATEST MARK SHEET OF THE PETITIONER.

EXHIBIT P5 TRUE COPY OF MARKS SHEET SHOWING PETITIONER'S ABSENCE IN TWO EXAMS.

EXHIBIT P6 TRUE COPY OF SCHEDULE PRESCRIBING WEIGHTAGE OF MARKS ISSUED BY GOVERNMENT OF KERALA EXHIBIT P7 TRUE COPY OF LETTER DATED 22.7.2019 ISSUED TO THE 4TH RESPONDENT BY THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF LETTER NO. A2/5007/2019/ PRA.P.K DATED 14.11.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P9 :- TRUE COPY OF CERTIFICATE OF THE 5TH RESPONDENT DATED 29.6.2022 CERTIFYING THAT PETITIONER BELONGS TO BPL CATEGORY AND THAT HER HOUSE BL NO 12/502 MEASURE ONLY 92 SQ. MTS.

EXHIBIT P10 TRUE COPY OF LETTER NO. B4-6290/2021 DATED 27.11.2021 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF REPORT OF THE 3RD RESPONDENT DATED 01.03.2022.

EXHIBIT P12 TRUE COPY OF REQUEST DATED 18.5.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.TRUE COPY OF REQUEST DATED 18.5.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P13 TRUE COPY OF ORDER NO. A3/ 251/2022/ CEE DATED 30.5.2022 ISSUED BY THE 2ND RESPONDENT.

RESPONDENTS EXHIBITS ANNEXURE R4(1) TRUE COPY OF THE LETTER DATED 01.4.2022 SENT BY THE ADDITIONAL 4TH RESPONDENT TO THE 2ND RESPONDENT.

ANNEXURE R4(2) TRUE COPY OF THE LETTER DATED 26.3.2022 SENT BY THE 2ND RESPONDENT TO THE ADDITIONAL 4TH RESPONDENT.