MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the OP against order dated 3.5.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1406 of 2009.

2.            Briefly stated the facts of the case are that the complainant wanted to take admission in BCA Professional Course but the OP told the complainant that the seats in the BCA Course have been filled and that he could get admission in B.A Part 1 (Computers). The OP further told to the complainant to get admission in B.A Part 1 (Computers) and later on when the seat is available or fall vacant in the BCA, the complainant would be shifted from B.A Part 1 (Computers) to BCA Professional Course. Believing the version of the OP, the complainant got admission in B.A Part 1 (Computers) and deposited a sum of Rs.19,200/- vide receipt No.62888 dated 18.7.2009 and the OP issued the College Enrollment No.6047 and Roll No.3007 to the complainant. The complainant enquired about the availability of the seat in BCA from the OP but the OP always postponed the matter on one pretext or other. The OP had failed to give admission to the complainant in BCA and to save his professional one year, the complainant got admission in DAV College, Sector 10, Chandigarh on 27.8.2009 in BCA Course. The complainant requested the OP through written application dated 27.8.2009 to refund the fee deposited by him and till date the OP have failed to refund the fee to the complainant. The complainant served a legal notice through registered AD dated 16.9.2009 upon the OP but all in vain. The above said acts of OP amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OP and admitted the factual matrix of the case. It was submitted that the complainant himself applied for the B.A Part 1 (Computers) course as per the rules, regulations and guidelines laid down in the prospectus for the academic session 2009-2010 and it was also admitted that the complainant had deposited the fees of Rs.19,200/- vide Admission-cum-Fee Slip receipt No.6288 dated 18.7.2009 against his admission to B.A Part 1 (Computers) and he was issued the college Enrollment No.6047 as well as Roll No.3007. It was submitted that the complainant never applied for any admission to the BCA course and accordingly, he was not considered for the same. It was also admitted that on 27.8.2009 the complainant requested for the refund of the fees, which was contrary to the rules and regulations laid down in the admission prospectus. Therefore, the application for the refund of the fees was not allowed and the OP had never given any false assurance, whatsoever, to the complainant. It was further submitted that the complainant had voluntarily vacated his seat, midway, in the academic session i.e. in on 28.8.2009, and took admission at the DAV College, and due to the voluntary act of the complainant one precious seat of the OP – institution in the B.A Part 1 (Computers) has been wasted and would remain vacant throughout the current academic session. Therefore, the conduct of the complainant was unfair and unjustified qua the OP. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was no deficiency in service or unfair trade practice on the part of OP and prayed for dismissal of the complaint.

4.         The parties led their evidence in support of their contentions.

5.         The learned District Forum allowed the complaint and directed the OP to refund to the complainant the balance amount of Rs.18,200/- after deducting Rs.1,000/- as service/processing/administrative charges and to pay him compensation of Rs.10,000/- for the harassment, mental pain and agony suffered by him du to its deficient and unfair act along with litigation costs of Rs.5,000/- within 30 days from the date of receipt of certified copy of this order, failing which the OP would be liable to pay sum of Rs.28,200/- along with penal interest @ 15% p.a. from the date of filing of the present complaint i.e. 14.10.2009 till its payment to the complainant besides paying the litigation costs of Rs.5,000/-.  

6.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the appellant/OP.  Sh.Rohit Dheer, Advocate has appeared on behalf of appellant and Sh.Anil Garg, Advocate has appeared on behalf of respondent.

7.         In appeal, it is contended by the appellant that the learned District Forum has wrongly recorded the facts of the case in its impugned order. The whole of the concocted story made out by the complainant in its mala fide complaint has been strongly denied through the written statement filed by the OP, which allegations were never supported by any evidence and could never be proved by the complainant in support of his contention. The impugned order passed by the learned District Forum is ultravires, beyond jurisdiction, arbitrary, illegal and hence not sustainable. The order passed by the learned District Forum, by holding the rule of the college prospectus/college handbook as unconsignable is not tenable. The learned District Forum has no power to make any direction or pass any such order, which is beyond the scope of Section 14 of the CPA, 1986. The learned District Forum has failed to appreciate the fact that the complainant has not come to the court with clean hands and the complainant has totally failed to lead any evidence in the support of the concocted story purported by him in form of his complaint. It is submitted that the matter of the fact is that the college authorities have never given any assurance to the complainant to give admission in BCA Professional Course as he has not applied for the same. The complainant has got admission in B.A Part 1 (Computers) according to his merit and as per his application for admission. The learned District Forum has grossly erred in holding that there is a deficiency in service or unfair trade practice on the part of complainant. The perusal of the application dated 27.8.2009 submitted by the complainant to the Principal of the appellant college shows that there is voluntary withdrawal from the course by the complainant without any grouse/allegation of deficiency of service of any unfair trade practice against the appellant college. The application dated 27.8.2009 written by the complainant to the Principal, appellant college shows that there is no deficiency in service or unfair trade practice on the part of appellant college. The learned District Forum has failed to appreciate this fact and has over looked the facts and circumstances of the case in an arbitrary and illegal manner and thus condemned the GGDSD College, which was on the fair side of the law, without any logic and in an illegal manner. The learned District Forum erred by wrongly relying on the case authority titled as Nipun Sagar Vs. Symboisys Institute of International Business I (2009) CPJ 3(NC) as the said authority has been wrongly and arbitrarily miscoated as it does not support the case of the complainant at all. The Hon’ble National Commission has relied upon the UGC Guidelines while passing the order in the Nipun Sagar’s case. The complainant has nowhere sought the protection under the relevant UGC Guidelines in his complaint and moreover, the case of the complainant does not fall under the relevant UGC Guidelines. It is further submitted by the appellant that the complainant has not been able to produce any evidence to suggest that the seat vacated by the complainant has been filled up. The B.A-I (Computers) seat was vacated by the complainant on 27.8.2010 after the last date of normal admission which is 21.7.2009 and after the commencement of the course. Moreover, no student to the said B.A-1 computer course has been admitted with any late fees after the last date of normal admission 21.7.2009 and no such mention of the case authorities/citations produced by the appellant has been made or considered, which is against the principle of natural justice, arbitrary, illegal. It is submitted that the complainant is bound by the terms and conditions of the college handbook and the declaration/undertaking given by the complainant and his father show that the respondents are not liable to refund of the fees to the complainant as the complainant has left the college voluntarily in midstream on her own sweet will and not due to any fault, deficiency in service or unfair trade practice on the part of the college authorities. The learned District Forum has proceeded in an arbitrary manner and granted compensation of Rs.10,000/- to the complainant besides Rs.5,000/- as the costs of litigation fees, on an actual fee refund of Rs.19,200/-, without any reasonable basis or explanation or evidence of being so much liberal in the grant of compensation to the complainant and the complainant throughout failed to show any such deficiency of service on the part of respondent college.The learned District Forum has passed an impugned and illegal order on the basis of bald assertions which is baseless without any merits in it. The impugned order is ultravires, as per the law enshrined in the CPA, 1986 as last amended. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.         We have heard the learned counsel for the parties and also gone through the written arguments filed by the learned counsel for the respondent/complainant.

9.         The learned counsel for the appellant/OP contended that as per Annexure A-2 the complainant applied for admission in B.A Part I (Computers) and the OP had given admission to the complainant in B.A. Part I (Computers) and allotted a roll number 3007 for which the complainant had deposited an amount of Rs.19,200/- . It was vehemently denied that the OP has never given any assurance to the complainant when the seat would be vacated in the BCA the complainant would be shifted from B.A computer course to BCA professional course. It is pertinent to mention here that the complainant never applied for admission to the BCA Course in S.D.College, so question does not arise to give admission to the complainant in this course. It was contended that in the meantime when the complainant was attending his classes in the OP college for B.A Part 1 (Computers), the complainant got admission in BCA Part I in D.A.V. College then the complainant on his own left this college. Thereafter the complainant moved an application dated 27.8.2009 for the refund of the amount of Rs.19,400/- already deposited for the course B.A. Part I (computer) in which it was specifically mentioned that as the complainant has got admission in DAV College for BCA, that is why the complainant has left this seat for the B.A.Part I (Computers), therefore the complainant had requested the OP for the refund of the fee.  On receiving this application, the OP for the sake of refunding the amount went through the record and it was found that the complainant had left the course voluntarily and the seat left by the complainant remained vacant for the full year as there was no candidate available for getting admission in B.A. Part I (Computers). Thus as per the guidelines issued by the UGC, the complainant is not entitled for any refund of the fee because the complainant left the institution of the OP after the final admission of the course and also due to the non-availability of the candidate for this course, the seat vacated by the complainant remained vacant. Thus the complainant had no claim on the fees as demanded by the complainant in his complaint.

10.       The learned counsel for the complainant argued that as there is deficiency in service on the part of OP by not refunding the fee deposited by the complainant. The learned District Forum has rightly allowed the complaint in favour of the complainant. Hence, it is prayed that the appeal filed by the OP may kindly be dismissed as devoid of any merit. In support of its contention, the complainant has also placed on file the photocopies of the orders passed by the Hon’ble National Commission.

11.       From the perusal of the file, it is clear that the complainant took admission in B.A Part 1 (Computers) in the college of OP and deposited a sum of Rs.19,200/- to the OP vide admission-cum-fee slip No.62888 on dated 18.7.2009. In the meantime the complainant got admission in BCA Course in DAV College, Sector 10, Chandigarh on 27.8.2009 and the complainant left the college of the OP.  Thereafter the complainant moved an application dated 27.8.2009 and requested the OP for the refund of the amount of Rs.19,200/- already deposited by the complainant at the time of admission in BA Part 1 (Computers). But the OP refused to refund the fee amount as per the rules and regulations laid down in admission prospectus/handbook 2009-2010 and as well as, as per the guidelines issued by the UGC. It is pertinent to mention here that at the time of admission of this appeal on 15.7.2010, the bench has directed the Principal of the College to file an affidavit regarding this fact that the seat vacated by the complainant remained vacant throughout the year. On  8.9.2010 the affidavit by the Principal of the OP College was filed and it was deposed that the seat vacated by the complainant on 27.8.2009 has remained vacant throughout the year and the seat vacated by the complainant i.e. Sh.Ashish Garg has not been filled as no student to the said B.A (Computers) 1^st year course has been admitted with any late fee after the said seat has been vacated on 27.8.2009. Moreover from the perusal of the answers given by the OP to the questionnaires filed by the complainant at the time of cross examination before the learned District Forum, it is clear that as per the University Guidelines and the DPI Colleges, the maximum sanctioned strength in each section, herein, B.A-1 (Computers) was 80 students per section. As per the admission detail enrolment 2009-2010 (Annexure R-4), only 18 seats were filled and the remaining 62 seats were lying vacant for the course in B.A Part 1 (Computers). Whereas the seat was vacated by the complainant on 27.8.2009 and the last date of normal admission was 27.7.2009, it means that the complainant has vacated the said seat one month after the last date of admission and after the commencement of the course for the academic session 2009-2010. Moreover the complainant is bound by the terms and conditions of the college handbook and declaration/undertaking given by the complainant and his father, the complainant is not entitled for the refund of the fees.

12.       All these facts of the case lead us to come to the conclusion that the seat left by the complainant remained vacant throughout the year. Thus as per UGC Guidelines, the complainant is not entitled for the refund of the fee. The OP has rightly refused to refund the fee to the complainant and as such there is no deficiency in service as well as unfair trade practice qua the complainant. The judgments placed on record by the complainant in support of his contention are not relevant as the facts of the present case are different. We are of the opinion that the learned District Forum has wrongly observed that there is a deficiency in service as well as unfair trade practice on the part of the OP and erred in directing the OP for the refund of fee along with compensation and litigation expenses. Therefore, the order passed by the learned District Forum is liable to be set aside. 

13.       In view of the foregoing discussion, the appeal filed by the OP is allowed and the order passed by the learned District Forum is set aside and the complaint filed by the complainant is dismissed without any order as to costs.

14.       Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                           

16^th December, 2010.