Rajasthan

StateCommission

A/10/2021

Praveen Kumar Meena - Complainant(s)

Versus

Dr. Ashutosh Dwivedi Pratap University - Opp.Party(s)

N.K. Meena

25 Nov 2021

ORDER

BEFORE THE RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAIPUR

 

FIRST APPEAL NO: 10 /2021

 

Praveen Kumar Meena s/o Sh.Adisal Meena r/o C 48, 4 C, colony New Loha Mandi Road, Chalera, Sikar Road no. 14 Jaipur.

Vs.

Administrative Registrar Dr. Ashutosh Dwedi office- Pratap University, Sunderpura, Chandwaji,Delhi Jaipur Highway Distt. Jaipur & ors.

 

Date of Order 25.11.2021

 

Before:

Hon'ble Mr. Justice Banwari Lal Sharma-President

Hon'ble Mrs. Shobha Singh -Member

 

Mr. N.K.Meena learned counsel for the appellant

Mr.Dinesh Kumar Sharma learned counsel for the respondents

 

BY THE STATE COMMISSION ( PER HON'BLE MR. JUSTICE BANWARI LAL SHARMA, PRESIDENT ):

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Present appeal is preferred by the appellant complainant assailing the impugned judgment dated 1.12.2020 passed by the learned DCC Jaipur 3^rd Jaipur in Complaint Case No. 354/2016 (Praveen Kumar Meena Vs. Administrative Registrar Dr.Ashutosh Dwedi Pratap University & ors.) whereby the learned DCC dismissed the complaint considering that respondents opposite parties are not service provider and there is lack of relation between the parties of consumer and service provider.

 

Brief facts relevant for this appeal are that appellant complainant filed a complaint before the learned DCC u/s 12 of the Consumer Protection Act,1986 stating therein that complainant sought admission in B.Com (Hons.) 1^st semester in the year 2015-2016 on 27.7.2015 and deposited Rs. 55,000/- through chalan for admission fee and Rs. 26,600/- through another chalan for registration fees and tution fees. Accordingly total Rs. 81,600/- was deposited against the receipt before respondents. Thereafter in the month of August 2015 he attended classes for 10-15 days but it was noticed that there were neither educational activities in the University nor appropriate hostel facility was available. Therefore, he decided

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to leave the university and hostel. It was also pleaded in the complaint that apart from above an amount of Rs.10,000/- was also paid for installation of airconditioner in the hostel room and after leaving the university he sought admission in Poornima University and asked for refund the deposited amount which was not refunded by the respondents therefore, they committed deficiency in service. Lastly it was prayed that amount of Rs.91,000/- with interest Rs. 21,000/- and Rs. 1 lakh for mental agony and Rs. 10,000/- for litigation expenses, total Rs. 2,22,000/- may be ordered to be refunded to complainant.

 

Notice of complaint was issued to opposite parties and counsel was appeared on behalf of opposite parties who repeatedly sought time for reply but even after giving repeated adjournments opposite party failed to file reply, therefore, vide order dated 25.10.2017 right to reply of opposite parties was closed. Thereafter no one appeared on behalf of opposite parties.

 

Complainant in support of complaint filed affidavit of himself with other documents including legal notice dated 28.1.2016. Thereafter after hearing complainant learned DCC

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dismissed the complaint for want of jurisdiction. Against which appellant complainant preferred this appeal.

 

We have considered the submissions made by the learned counsels and perused the impugned judgment as well as available record.

 

Mr.N.K.Meena learned counsel for the appellant submits that since respondents received the considerable amount for admission, tution fees and other charges in total Rs.91,000/- and thereafter since there was no educational atmosphere in the university even appropriate faculty was also not there therefore, soon after taking admission appellant complainant asked for refund the fee amount which did not refunded by the respondents therefore, legal notice was also issued but no reply of notice was given by the respondents. Learned DCC wrongly dismissed the complaint therefore, this appeal may be allowed and respondents may be directed to refund the fee amount of Rs.91,000/- with interest alongwith mental agony and litigation expenses.

 

Mr.Dinesh Kumar Sharma learned counsel appearing on

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behalf of respondents supported the impugned judgment and submitted that educational institution is not a service provider therefore, learned DCC rightly dismissed the complaint. He submits that if appellant complainant is having any grievance against the respondents the appropriate Forum is UGC where he can put his grievance and seek appropriate remedy.

 

Learned counsel for the respondents relied on Unni Krishnan J.P. & ors. Vs. State of Andhra Pradesh & ors. (1993) 1 SCC 645, Bihar School Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483, State of Tamil Nadu & ors. Vs. K.Shyam Sunder & ors. (2011) 8 SCC 737, Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 SCC 159 , P.T.Koshy & anrs. Vs. Ellen Charitable Trust & ors. LAWs (SC)-2012-8-105 decided by Hon'ble Supreme Court on August 09,2012 as Special Leave to Appeal (Civil) 22532 of 2012 and Anupama College of Engineering Vs. Gulshan Kumar & ors. Civil Appeal No. 17802 of 2017 decided by Hon'ble Supreme Court on 30.10.2017.

 

In the matter of Unni Krishnan J.P. & ors. Vs. State of

 

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Andhra Pradesh & ors. (supra) Hon'ble Supreme Court held that-

“Imparting education canot be treated as a trade or business. Trade or business normally connotes an activity carried on with a profit motive. Education has never been nor can it be allowed to become a commerce in this country. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause (6) of Article 19. Education has been treated as a religious duty, a charitable activity. Making it a commerce is opposed to the ethos, tradition and sensibilities of this nation.”

 

The matter of State of Tamil Nadu & ors. Vs. K.Shyam Sunder & ors.(supra) is altogether different from the controversy raised in the present appeal therefore, it does not help the respondents.

 

In the matter of Bihar School Examination Board Vs. Suresh Prasad Sinha (supra) Hon'ble Supreme Court held that-

 

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“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 successfully completed the said course of education; and if so, determine his position or rank or competence vis-`-vis other examinees. The process is not therefore availment of a service by a student, but participation in a general

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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. The Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and

 

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consequently, complaint under the Act will not be maintainable against the Board.”

 

In the matter of Maharshi Dayanand University Vs. Surjeet Kaur (supra) Hon'ble Supreme Court again held that-

 

“A perusal of the General Rules of Examination leave no room for doubt that a candidate who is pursuing a regular course for an examination in full subjects of the University cannot be simultaneously permitted to appear in another regular course of the same University or of another University or Board. This prohibition, therefore, did not allow the respondent to even apply for admission in the B.Ed. correspondence course. The appellant was, therefore, absolutely right in withholding this privilege from the respondent. The contention of Ld. counsel for the appellant has, therefore, to be accepted that the Rule being prohibitory in nature, the District Forum or the National Commission could not have issued a direction which violates the

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aforesaid statutory provision.

 

It is settled legal proposition that neither the Court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision. The Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions.

 

In State of Punjab & Ors. Vs. Renuka Singla & Ors., dealing with a similar situation, this Court observed as under:- (SCC p.178, para 8)

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations......."

In the matter of Auupama College of Engineering Vs. Gulshan Kumar & ors. (supra) Hon'ble Supreme Court relying on Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 SCC 159) held that the aforesaid decision was followed by this

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court in SLP © No. 22532/2012 titled as P.T.Koshy & anr. Vs. Ellen Charitable Trust & ors. The order reads as follows:

“In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur [(2010) 11 SCC 159] wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the  Consumer Forum under the Consumer Protection Act, 1986.

In view of the above, we are not inclined to entertain the special leave petition. Thus, the special leave petition is dismissed.” 

 

In the matter of P.T.Koshy & ors. Vs. Ellen Charitable Trust & anr. (supra) Hon'ble Supreme Court held that Educational institutions are not providing any kind of

 

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service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service.

Considering the aforesaid judgments and applying in the present matter since the appellant complainant alleged that there is deficiency of service of respondents therefore, fee which was deposited by him should be refunded. As observed by Hon'ble Supreme Court in aforesaid judgments educational institutions are not service provider and there is no relation of consumer and service provider between the appellant complainant and respondents opposite parties. Apart from it the complaint is filed against the Administrative Registrar and Director while according to appellant complainant fee was deposited to Pratap University and Pratap University is not impleaded as party respondent. Considering all these facts learned DCC dismissed the complaint holding that respondents are not service provider which does not require any interference and this appeal liable to be dismissed.

Accordingly, the appeal devoid merits which is hereby dismissed.

(Shobha Singh) (Banwari Lal Sharma)

Member President

 

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