FIRST APPEAL NO. 809 OF 2007

FIRST APPEAL NO. 810 OF 2007

FIRST APPEAL NO. 811 OF 2007

FIRST APPEAL NO. 812 OF 2007

FIRST APPEAL NO. 813 OF 2007

FIRST APPEAL NO. 814 OF 2007

FIRST APPEAL NO. 815 OF 2007

FIRST APPEAL NO. 816 OF 2007

FIRST APPEAL NO. 817 OF 2007

FIRST APPEAL NO. 818 OF 2007

FIRST APPEAL NO. 819 OF 2007

FIRST APPEAL NO. 820 OF 2007

         Heard learned counsel for the appellants. None appears for the respondents.

2.      Both the appeals arise out of complaint cases filed by the respondents in CD Case Nos. 108 of 2004, 109 of 2004, 110 of 2004, 111 of 2004, 112 of 2004, 120 of 2004, 121 of 2004, 122 of 2004, 383 of 2004, 384 of 2004, 107 of 2004 and 106 of 2004 respectively. Therefore,  all the appeals were heard together. This common order shall govern the result of  all the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

4.   The unfolded story of the complainants is that they had taken admission in the institute of OP No.1 on 6.8.2003 in four years B.Pharma course having made deposit of certain amount as per complaint petitions filed by the respective complainants vide Annexure – 1 of the concerned complaint cases. It is alleged inter alia tht they continued the course but not allowed to appear in the examination. Complainants enquired into the matter and came to know that their names are not registered in the University of OP No.3 as they have taken admission in  management quota. Since the complainant could not appear the examination, they claimed refund of the fees deposited by them in the OPs institution. OP No.1 did not pay heed to the request of the complainants as such the complaints are filed.

5.      OP No.3 was set ex parte. OP Nos. 1 and 2 filed written version stating that on the recommendation of OP No.3 to fill up certain seats in B.Pharma course, they made entrance examination and after the complainants being successful took admission. While the classes are going on regularly OP No.3 did not register the names of the complainants to allow them to attend the examination. So the Orissa Pharmacy College Association filed writ petitions before the Hon’ble High Court vide WP (C) Nos. 11960/2003 and 12112/2003 challenging the arbitrary action of OP Nos. 1 and 2 and the Hon’ble High Court of Orissa observed that the admission of the complainants  were illegal being not with permission of OP No.3. However, Hon’ble High Court of Orissa allowed the complainants and similarly situated  students to continue the study and appear the examination as the complainants have already been admitted in College. Then the complainants were issued letters by the OPs to attend the classes. But apprehending disqualification further, the complainants left the college and demanded refund of the admission fees. Thus, the OPs have any deficiency in service or unfair trade practice on their part.

6.      After hearing both parties, learned District Forum allowed the complaint on contest against the OPs 1 & 2 and ex parte against the OP 3. The OPs 1 & 2 were directed to refund the deposited amount  to the complainants along with interest at the rate of 12% per annum from the date of deposit till the date of payment. The litigation cost is assessed at Rs.5000/-. The entire amount be paid within one month from the date of communication of this order, failing which the complainants are  at liberty to recover the same from the OPs 1 & 2 in accordance with law.

7.      Learned counsel for the appellants submitted that the learned District Forum has committed error in law by not going through the written version with proper perspectives. According to him when the OP No.3 -  Biju Pattnaik University & Technology allowed their admission, they have given admission to the complainants and when OP No.3 did not allow them for examination, they directed them not to appear the examination. Apart from this, the Hon’ble High Court of Orissa in their order in the writ application have clearly held that the admission without concurrence of OP No.3 is illegal. However, since the complainants have already continued their study, they are directed to continue the study and the services would be continued to the complainants. He submitted that after  the order of the Hon’ble High Court, some  students including complainants left the college for the reasons best known to them. Since they continued the course for some time, the OPs are not duty bound to refund the money for the simple reason that there are already vacant seats available and there is no person to fill up seats. Apart from this, the course fee and admission fee have been given for continuance of study but the students like the complainants voluntarily left the college for which the appellants are not responsible to return the money. Hence, he submitted to set aside the impugned order by allowing the appeal.

8.      Learned counsel for the respondent submitted that  had the Biju Pattnaik University & Technology - OP No.3 not allowed the present complainants to appear the examination, there is deficiency in service on the part of the OPs. He further submitted that the complainants have strong feeling in their mind that the future is dark due to non-affiliation of OP Nos.1 and 2 College. Therefore, he supports the impugned order and submits to dismiss the appeal.

9.      Considered the submission of learned counsel for the   respective parties and perused the DFR including the impugned order.

10.    It is admitted fact that the complainants were given admission by OP Nos. 1 and 2. It is also admitted fact that the complainants have paid good amount of money to OP Nos. 1  and 2 while taking admission in B.Pharma course.  But the matter only became serious when they were not allowed to appear the examination. The reply of OP Nos. 1 and 2 is that due to refusal of OP No.3 to allow the students to appear the examination, such situation arose. However, the order of Hon’ble High Court of Orissa which is available on record is that admission given by OP Nos. 1 and 2 to complaints is illegal because it violates the provisions of BPUT Act. But Hon’ble Court also allowed present complainants to continue as they have taken admission and rendered protection to them. However, complainants voluntarily left the college. When there is protection given by the Hon’ble High Court of Orissa in their writ application and the students have already left the college, it is difficult to find out the deficiency in service on the part of OP Nos. 1 and 2 to refund the amount. This aspect has not been considered by the learned District Forum.

11.    After going through the above decision of the Hon’ble High  Court  of Orissa and the materials on record, we are of the view that the complainants have failed to establish their case, as such the demand of  refund of deposited amount cannot be allowed legally but  on humanitarian point of view  OP Nos. 1 and 2 may return the money if so desires. In such circumstances, the impugned order is set aside and the appeal stands allowed. But the observation made above be kept in the mind by the appellants.

         DFRs be sent back forthwith.

         Statutory amount deposited be refunded to the appellants with interest accrued thereon, if any on proper identification.

          Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.