Order No.7 date: 18-06-2015
Sri Debasis Bhattacharya
Today is fixed for passing order in respect of the maintainability petition moved by the OPs.
By such petition, it is stated by the OPs that it is alleged in paragraph no. 2 of the petition of complaint that the OP No. 1 is a fake organization. The Consumer Protection Act, 1986, does not postulate any scope to adjudicate whether any Institution is fake or not. Furthermore, dispute between a student and an educational institution can never be adjudicated under the Consumer Protection Act, 1986. Therefore, the instant case is not maintainable.
The Complainant submitted objection to such maintainability petition stating inter alia that at the time of admission, it had been claimed by the OP No. 2 that the OP No. 1 is affiliated to C.M.J. University, Shillong, but, subsequently, the OPs could not show any document to prove the affiliation of the OP No. 1 with any University. Later on, the Complainant came to know that no off campus centre can be opened by CMJ University, Shillong outside the territorial jurisdiction of the state. It is clear, therefore, that the OP No. 1 is doing unfair trade practice and as such, the instant case is maintainable in its present form.
Ld. Advocate for the OPs has submitted that, admittedly, the Complainants are the students of the OP No. 1 and paid the amount towards various kinds of fees. The Hon’ble Supreme Court in the matter of Maharshi Dayanand University vs. Surjeet Kaur [reported in 2010 (11) SCC 159] held that a student is neither a consumer nor any educational institution render any service to its student and thus Consumer Forum has no jurisdiction to entertain such complaint. Therefore, the instant case be dismissed. In his defence, the Ld. Advocate has referred to decision of the Hon’ble Supreme Court in SLP to Appeal (Civil) No. 22532/2012 and a decision of the Hon’ble National Commission in R.P. Nos. 638/2014, 645-646/2014, and 653-660/2014, .
Ld. Advocate for the Complainant, on the other hand, has submitted that the OPs could not show any document to prove the affiliation of the OP No. 1 with any University. From the copy of the letter of the Secretary, University Grants Commission to the Chancellor, CMJ University, Meghalaya in November 2010, it would be evident that there is no provision to have regional centres/off campus beyond the territorial jurisdiction of the state as per UGC (Establishment of and Maintenance of Standards in Private University) Regulation, 2003. Thus, the OP No. 1 has ceased to have affiliation, if any, after November 2010. As a result, the assurance given by the OPs relating to imparting education in lieu of money to the Complainants is nothing but an act of unfair trade practice. The Complainants were assured by the OPs in 2012 that the OP No. 1 is approved by CMJ University, Meghalaya and the OP No. 1 had authority to provide genuine educational degrees and/or diplomas in exchange of fees which is tantamount to unfair trade practice under the Consumer Protection Act, 1986. In the case law referred to by the OPs, the issue at stake was not whether the University/College/Educational Institution was affiliated or not. So, the said referred case has got no bearing in the present case. The instant case is very much maintainable before this Commission and as such, the instant maintainability petition be rejected with cost. In support of his contention, the Ld. Advocate has referred to two decisions of the Hon’ble Supreme Court reported in CDJ 2005 SC 227 and CDJ 2009 SC 237, two decisions of the Hon’ble National Commission reported in RP Nos. 648 – 672/2007, O.P. No. 255/2001 and a decision of this Commission in FA/701/2013 (reported in CDJ 2014 WBSCDRC 088).
Sec. 2(1)(c) and Sec. 2(1)(d) of the Consumer Protection Act, 1986 defines ‘complaint’ and ‘consumer’, respectively, as under:-
"complaint" means any allegation in writing made by a complainant that –
(i)an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
(ii)the goods bought by him or agreed to be bought by him; suffer from one or more defects;
(iii)the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv)a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price -
(a) fixed by or under any law for the time being in force;
(b)displayed on the goods or any package containing such goods;
(c)displayed on the price list exhibited by him by or under any law for the time being in force;
(d)agreed between the parties;
(v)goods which will be hazardous to life and safety when used or being offered for sale to the public;-
(A)in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(B)if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi)services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;
(d)"consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
A bare reading of Sec. 2(1)(c) makes it abundantly clear that under the Act, a dispute is treated as ‘complaint’ provided, amongst others, any unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider. On the other hand, in terms of Sec. 2(1)(d) of the 1986 Act, one can be treated as a ‘consumer’ provided one buys any goods for a consideration or avails of/hires services.
The pivot of the instant complaint case is that the OP No. 1 allegedly adopted unfair trade practice by concealing the fact that they did not have requisite legal affiliation of CMJ University, Meghalaya. However, even for the sake of argument, if it is accepted that the OPs indeed adopted unfair trade practice, undisputedly they are not a trader and going by the decision of the Hon’ble Apex Court, so referred to by the OPs, the latter cannot be treated as a service provider. Thus, going by the yardstick set out in Sec. 2(1)(c) of the Consumer Protection Act, without any dispute, the instant case cannot be treated as a bona fide ‘complaint’.
From the prayer portion of the petition of complaint, it transpires that the Complainants have sought for refund of Rs. 14,36,500/-, which they deposited with the OP No. 1 as semester fees, registration fees, admission fees. There can be no manner of doubt that the Complainants went there with the ostensible purpose of pursuing Engineering course and nothing else. So, there can hardly be any dispute as to the fact that it is basically an education related dispute, and whereas the Hon’ble Apex Court has put an embargo upon Consumer Fora to adjudicate fees related dispute of educational institutions, there hardly exists any scope to entertain the instant complaint case.
Against this backdrop, we are inclined to hold that the instant dispute is not maintainable before this Commission and as such, the maintainability petition of the OPs is allowed. Consequent thereof, the instant complaint case stands dismissed being not maintainable.
