Uttarakhand

StateCommission

A/8/2019

College of Engineering Roorkee - Complainant(s)

Versus

Aksth Saklani - Opp.Party(s)

Mr. Pradeep Verma

07 Jan 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

FIRST APPEAL NO. 08 / 2019

 

College of Engineering Roorkee (COER)

through its Administrative Officer

Post Box No. 27, Vardhmanpuram

Roorkee-Haridwar Road, Roorkee

…… Appellant / Opposite Party

 

Versus

 

Sh. Akshat Saklani S/o Sh. M.M. Saklani

R/o Vasundhara Vihar Colony, Rochipura

Rajiv Juyal Marg, Post Majra

Dehradun

…… Respondent / Complainant

 

Sh. Priyadeep Singh, Advocate, holding brief of Sh. Amit Agarwal, Learned Counsel for the Appellant

None for Respondent

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 07/01/2023

ORDER

(Per: Justice D.S. Tripathi, President):

 

This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 10.12.2018 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short “The District Commission”) in consumer complaint No. 177 of 2015; Sh. Akshat Saklani Vs. College of Engineering Roorkee (COER), by which the consumer complaint was allowed and the appellant – opposite party was directed to refund of Rs. 1,67,500/- to the respondent – complainant, besides to pay    Rs. 5,000/- towards litigation expenses.

 

2.       Facts giving rise to this appeal, in brief, are that according to the consumer complaint, in the year 2012, the respondent – complainant took admission in appellant – College in B. Tech. (Electrical and Electronics), upon deposition of prescribed fee.  When the complainant started study in the College, he came to know that the standard of education being imparted by the College is not upto the mark and the teaching and office staff of the College do not behave properly with the students, regarding which the complainant raised objections, upon which the College staff adopted malice behaviour against him.  Imposing charge of less attendance, the complainant was not allowed to appear in final examination of 2^nd semester.  Later on, the College asked the complainant to appear in back paper of 2^nd semester, in which the complainant appeared in September, 2013, but he was wrongly declared unsuccessful.  In the month of June, 2013, the College charged fee of 3^rd and 4^th semester, whereas the back paper examination of 2^nd semester was held in September, 2013.  The complainant again appeared in back paper examination of 2^nd semester in May, 2014, wherein also, he was shown unsuccessful.  Thereafter, the complainant left the College and took admission in Graphic Era University, Dehradun and sought refund of fee of 3^rd and 4^th semester, but the same was not refunded.  Therefore, alleging deficiency in service on the part of College, consumer complaint was filed by the complainant before the District Commission.

 

3.       The appellant filed written statement before the District Commission, pleading therein that the teaching and other staff of the College is well qualified.  No malice attitude was adopted against the complainant.  The right to declare result of the students vests with Uttarakhand Technical University, Dehradun.  The complainant is not entitled to the refund of fee.  The complainant is not their consumer and no deficiency in service has been committed by the College.

 

4.       After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 10.12.2018, thereby allowing the consumer complaint in the above terms.  Feeling aggrieved, the appellant – College has preferred the instant appeal.

 

5.       We have heard arguments advanced by learned counsel for the appellant and perused the record.  None appeared on behalf of respondent – complainant, although Sh. S.K. Gupta and Sh. B.K. Tyagi, Advocates have already put in appearance on his behalf.

 

6.       From the perusal of record, it is evident that the matter relates to refund of fee.  Thus, it is to be decided whether the respondent – complainant falls under the definition of “consumer”, as defined under the Act and whether the appellant – College can be termed to be “service provider”.  It is noteworthy that Hon’ble Apex Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC), has laid down that Bihar School Examination Board does not offer “service” to any candidate, nor does any student hires or avails of any “service” from the Board for a consideration.  Paragraph No. 10 of the said decision is reproduced below:

 

“10.   The Board is a statutory authority established under the Bihar School Examination Board Act, 1952.  The function of the Board is to conduct school examinations.  This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates.  The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function.  It is not possible to divide this function as partly statutory and partly administrative.  When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate.  Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration.  On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having competence vis-vis other examinees.  The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course.  The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.”

 

7.       Hon’ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary’s Academy and another, has discussed the law laid down by Hon’ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159, in which it has been laid down by Hon’ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar School Examination Board (supra).  Relevant portion of the said decision is reproduced below:

 

“The respondent as a student is neither a consumer nor is the appellant rendering any service.  The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules.  The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong conclusion.  The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with.  Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same.”

 

8.       Hon’ble Apex Court in Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others, decided on 30.10.2017, has held that in view of the judgment of this Court in Maharshi Dayanand University (supra), wherein this Court placing reliance on all earlier judgments, has categorically held that educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there can not be a question of deficiency in service and such matter can not be entertained by the Consumer Forum under the Consumer Protection Act, 1986.

 

9.       Hon’ble National Commission in its latest judgment rendered in the case of Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC), has specifically held that the Educational Institute does not fall within purview of Consumer Protection Act, 1986, as it is not rendering any services.  While coming to the above conclusion, Hon’ble National Commission has relied upon a decision of Larger Bench of three Members of Hon’ble National Commission in the case of Manu Solanki and others Vs. Vinayak Mission University and other connected cases reported in I (2020) CPJ 210 (NC), wherein the Larger Bench has held that educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable.

 

10.     Considering the aforesaid facts and circumstances of this case as well as the law laid down in the case of Bihar School Examination Board (supra); Maharshi Dayanand University (supra); Anupama College of Engineering (supra) and Director of Xavier Institute of Management & Entrepreneurship Kinfra     Hi-Tech Park and others (supra), it is crystal clear that the appellant – College is neither “service provider”, nor the respondent – complainant being a student is a “consumer”.  Accordingly, we are of the view that the matter in question can not be brought before the Consumer Fora.

 

11.     For the foregoing reasons, we are of the considered opinion that impugned judgment and order passed by learned District Commission suffers from material illegality and the same is erroneous.  The appeal deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.      

 

 

12.     Consequently, the appeal is allowed.  Impugned judgment and order dated 10.12.2018 passed by the District Commission is set aside and consumer complaint No. 177 of 2015 is dismissed.  No order as to costs.  The amount deposited by the appellant with this Commission, be released in its favour.

 

13.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.                      

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

K