JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 16.12.2010,rendered by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs (now appellants) to refund the total amount of Rs.15,510/- to the complainant (now respondent). It was also directed that no deduction was to be made as there was no clause to this effect in the prospectus. It was also directed that the OPs shall pay to the complainant Rs.5000/- as compensation for mental and physical harassment alongwith litigation costs of Rs.5000/-. It was also directed that the OPs shall comply with the order within thirty days from the receipt of a copy of the order, failing which they were directed to pay interest @ 12% p.a. from the date of order till actual payment. 2. On 8.7.2008, the complainant took admission in B.Com Ist year of the OP college and deposited Rs.15,510/- as fee. Subsequently, he was also selected in LLB. on 14.7.2008. The father of the complainant approached the OPs on the same day for refund of fees already deposited by him. The OPs assured that the fee would be refunded. However, no refund was received from the OPs, in spite of request by the father of the complainant. Ultimately, a legal notice dated 3.3.2009 was sent to the OPs, by the complainant, followed by a reminder dated 19.1.2010, for refund of fees, but to no avail. It was stated that such action of the OPs amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no other alternative, he filed a complaint under Section-12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only). 3. In reply, the OPs admitted that the complainant got admission in B.Com.Ist year in their College. It was also admitted that he deposited fee, referred to above. It was stated that he left the course of his own and for the first time, on 3.3.2009, after about eight months of his admission, he applied for the refund of fee. It was further stated that, as per Prospectus Annexure R-1, fee once paid was not to be refunded, in case, the student chose to withdraw from the Course. It was further stated that the seat vacated by the complainant, remained vacant, throughout the year, and ,as such, loss was caused to the OPs for three years as B.Com Course was for the said duration. It was further stated that there was no deficiency, in service, or indulgence into unfair trade practice on the part of OPs. The remaining averments were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the complainant, Counsel for the OPs, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of this judgment. 6. Feeling aggrieved, the instant appeal, was filed by the Appellants/OPs. 7. We have heard the Counsel for the appellants, as well as the respondent , and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellants, submitted that, no doubt, the complainant took admission in B.Com.I of the OP College and deposited fee, referred to above. He further submitted that the complainant chose to leave the course of his own accord. He further submitted that it was for the first time, that on 3.3.2009, he applied for the refund of fee and thereafter, gave legal notice on 19.1.2010. He further submitted that there were 313 seats in B.Com Ist year, but forms for appearing in the examination , were sent only in respect of 307 candidates, and, as such, the seat vacated by the complainant remained vacant throughout the year. He further submitted that, as such, the OPs suffered financial loss. He further submitted that the OPs were, thus, not liable to refund the fee, but on the other hand, were entitled to retain the same, as per the UGC guidelines. He placed reliance on Sonika Sharma Vs Dashmesh Girls College and Anr.2010(1)CPC559 (NC), Gitika Kapoor s Gujranawala Guru Nanak Institute of Management and Technology 2009(1)CPC 31 (NC), Munish Chaudhary vs Orbit Educational & Research Foundation & Anr 2007(1)CPC 323 (NC), Ramdeobaba Engineering College Vs Sushant Yuvraj Rode & Anr. III(1994)CPJ 160(NC), Bhojia Dental college & Hospital & Ors. Vs Amandeep Singh II(2009)CPJ 336 (SCDRC), Islamic Academic of Education Vs State of Karnataka, 2003AIR(SC)3724, Gujranwala Guru Nanak Institute of Management and Technology & Anr.Vs Gitika Kapoor III(2008) CPJ 238, in support of his contentions. He further submitted that the order of the District Forum directing the refund of fee, being illegal, is liable to be set aside. 9. On the other hand, the respondent submitted that, immediately after he took admission in the LLB, his father met the Principal of the OP College and asked for the refund of fee, but the same was not refunded. He further submitted that thereafter legal notice dated 3.3.09 and reminder dated 19.1.2010 were sent to the OPs. He further submitted that no seat of the OPs remained vacant, after he left their College. He further submitted that the District Forum was right, in coming to the conclusion, that the complainant was entitled to the refund of fee with other reliefs. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the appellants, as well as the respondent, we are of the considered opinion that the appeal is liable to be accepted, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum that the complainant got admission in B.Com Ist year of the College of the OPs. The application form in this respect is R-2. It is evident from R3, a letter written by the Registrar, Panjab University, Chandigarh to the Principals of all the Colleges affiliated to P.U. that 10 extra seats per unit for B.Com/BCA/BBA Ist year only upto a maximum of 25 had been increased in the affiliated Colleges running these Courses. Annexure R-6 is Classwise (Streamwise) number of sanctioned/filled/vacant seats of G.G.D.S.D. College, Chandigarh for the Session 2008-2009. It is evident from this document that in B.Com Ist year there were 313 sanctioned seats, and all the seats were filled initially. It is further evident from Annexure R-7, that the examination forms only of 307 candidates for B.Com Ist year were sent to the University. Six seats, against which admission had been taken, at the initial stage, by the students , were vacated later on. One of those seats was vacated by the complainant, and it was never filled during the session, as no candidate was available for admission. Annexure R-8 also shows the position of admission of candidates as 313 in B.Com. Ist, and sending of examination forms of 307 candidates. It was for the first time, that on 3.3.09, the complainant asked for refund of the amount of fee and, thereafter, on 19.1.10, he sent the legal notice. It means that for the first time, after about eight months of his admission, the complainant asked for the refund of amount, when almost the course of first year of B.Com-I had already been near completion . No doubt, a letter at page 10 of the complaint, which is undated, was filed by the complainant, wherein it was stated that on 15.8.2008, a letter was written to the OPs for refund of fee. This letter is signed bySh.Ashok Kumar Garg, father of the complainant. It is not established as to by which mode it was sent to the OPs. It appears that this letter was, later on, fabricated by the complainant, just with a view, to show that his father immediately approached the OPs, after his admission in B.Com Ist year for the refund of fee. No reliance, therefore, could be placed, on the said letter. Annexure R.10 dated 4.6.2007, is a letter from Dr.Tilak R.Kem, Secretary University Grants Commission which was written to the Vice Chancellor, Vesveswaraiah Technological University Belgaum. Alongwith the letter, a copy of the public notice of University Grants Commission, New Delhi was also attached. Para-3 of this letter reads as under ; “The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of a student/candidate withdrawing before the start of the course, the waitlisted candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1000/- (one thousand only) shall be refunded and returned by the institution/university to the student/candidate withdrawing from the programme. Should a student leave after joining the Course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.” 11. It is clear from para-3 of the Public Notice, referred to above, that the entire fee collected from the student after a deduction of the process fee of not more than Rs.1000/- shall be refunded and returned by the institution/University, to the student/candidate, withdrawing before the start of the course. Should a student leave after joining the course and if the seat consequently falling vacant had been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deduction of monthly fee, and proportionate hostel rent, wherever applicable. In the instant case, however, the situation is quite different. In the instant case, the admission was taken by the complainant on 8.7.2008, in B.Com Ist year , in the OPs College. As stated above, it was, about after 8 months of admission, that he applied for the refund of fee, for the first time. The seat vacated by the complainant, remained vacant, throughout, and was never filled. Under these circumstances, para-3 of the Public Notice of the University Grants Commission is not applicable to the instant case. 12. Para-7 of the judgment, rendered in Islamic Academic of Education’s case (supra) by the Hon’ble Supreme Court, reads as under “7. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would not leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fee must be kept invested in fixed deposits in a nationalized bank. As and when fees falls due for a semester/year only the fees failing due to that semester/year can be withdrawn by the institution. The rest amount must continue to remain deposited till such time the same falls due. At the end of the course, the interest earned on these deposits must be paid to the student from whom the fees was collected in advance. ” 13. It is evident from the plain reading of the observations, made in para-7, referred to above, that an institution can only charge tuition fee for one semester/year and if the institution gets deposited fee, in advance for the entire duration of the Course, that amount should be deposited in Fixed Deposit and whenever the fee falls due, for any year, the same could be deducted therefrom and ultimately interest @ 6% p.a could be refunded to the candidate. In Sonika Sharma’s case (supra), the petitioner deposited fee for 3rd and 4th semester of MCA course, but later on, she got admission in some other college and claimed refund of deposited fee. The District Forum allowed the complaint, but in appeal, the State Commission set aside the order of the District Forum. Revision Petition filed was also dismissed. In Gitika Kapoor’s case (supra), the complainant after being admitted in MBA, surrendered the seat in mid-course, and her seat remained vacant for the whole year. Refund of deposited amount was not allowed, on the ground, that there was no deficiency, in service, on the part of the College. In Munish Chaudhary’s case (supra), the Complainant got admission in medical institution for 14 lacs (though not paid) and at the time of admission, only a sum of Rs.78,000/- was paid. After one year, studies were discontinued by the complainant voluntarily. The complaint filed by the complainant was dismissed. The appeal filed against the same was also dismissed. Revision- petition filed before the National Commission also stood dismissed. In Ramdeobaba Engineering College’s case (supra), decided by a three member bench of the National Commission, the complainant obtained provisional admission in a College and paid fees. In the meanwhile, he secured admission in another College. He requested the first college to refund fee. It was held that he was not entitled to the refund of fee, as there was no deficiency, in service on the part of the College. In Bhojia Dental College & Hospital & Ors ‘s case (supra), as also in Gujranwala Guru Nanak Insitute of Management and Technology & Anr’s case (supra), similar ratio of law was laid down. The District Forum, was, thus, not right in holding that the complainant was entitled to the refund of fee. The findings of the District Forum, in this regard, being perverse, are reversed. 14. The respondent, however, placed reliance on Nitin Gandhi Vs Punjab University, Chandigarh and another 2008(1)SLR104, a Writ Petition decided by the Division Bench of Punjab & Haryana High Court, and Nipun Nagar Vs Symbiosis Institute of International Business 2009(2)CLT 37, to contend that once the seat was left by the complainant, there was no reason, on the part of the OPs, to retain fee deposited by him. In Nitin Gandhi’s case (supra), the petitioner was admitted in BDS course and deposited the fee, and joined classes. Later on, he surrendered the seat, because he got admission elsewhere. The seat surrendered by him, was filled up, by giving admission to some other student. In these circumstances, it was held that unless it could be shown that any prejudice was caused to the University, fee paid by the candidate had to be returned. The facts of this case, are clearly distinguishable, from the facts of the instant case. In the instant case, the seat vacated by the complainant could not be filled, and, as such, great prejudice was caused to the OPs, as they suffered financial loss for the remaining two years of the course. In Nipun Garg’s case (supra), admission was taken by the complainant. He withdrew from the Course. It was proved in Nipun Nagar’s case that the Institute had not suffered any loss, as no seat under the general category, was kept vacant, for the relevant year. In these circumstances, it was held by the National Commission that retaining the tuition fee of Rs.1 lakh, amounted to unfair trade practice, on the part of the OP. The facts of this case, are also completely distinguishable, from the facts of the instant case. No help, therefore, can be drawn by the respondent, from these authorities. The submission of the respondent, therefore, being devoid of merit, must fail and same is rejected. 15. The District Forum did not properly appreciate the facts and circumstances of the case, and evidence, on record, as also law, on the point , while coming to the conclusion, that the complainant was entitled to the refund of fee, despite the factum, that the seat vacated by him, remained vacant throughout the year, and he only applied for refund of fee, after about 8 months of admission. The order of the District Forum, being illegal and perverse, is liable to be set aside. 16. For the reasons recorded above, the appeal is accepted with no order as costs. The order dated 16.12.2010 of the District Forum is set aside. The complaint shall stand dismissed. 17. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
