2020(5) ALL MR (JOURNAL) 71
Delhi High Court

JUSTICE Mr. R. K. AGRAWAL JUSTICE Dr. S. M. KANTIKAR

University of Petroleum & Energy Studies (UPES) Vs. Anuj Kanwal

Revision Petition No.1474 of 2013.

13th July 2020

Petitioner Counsel: Mr. KAPIL KHER and Mr. KUNAL
Respondent Counsel:
Act Name: Consumer Protection Act, 1986

HeadNote : Consumer Protection Act (1986), S.12 – Complaint – Against university, claiming refund of amount on withdrawal of admission – Maintainability – University does not fall within purview of Consumer Act – Complaint against university, not maintainable – Complaint liable to be dismissed. 1 (2020) CPJ 2010 Foll. (Para 11)

Section :
Section 12 Consumer Protection Act, 1986

JUDGEMENT

JUDGMENT :- University of Petroleum & Energy Studies (UPES), New Delhi has filed the present Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (In short “the Act”), against the Order dated 20.03.2013, passed by the Delhi State Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as “the State Commission”), whereby the First Appeal No. 917 of 2012 preferred by the Petitioner herein has been dismissed and the Order dated 10.07.2012, passed by the District Consumer Disputes Redressal Forum-VI (Distt. New Delhi) (hereinafter referred to as “the District Forum”) allowing the Complaint has been affirmed.

2. Briefly stated that the facts giving rise to the present Petition are as follows:

3. According to the Complainant Shri Anuj Kanwal, he took admission in B. Tech in the Petitioner Institute and deposited the required fee, but on account of some personal issue he could not join the same and requested the Petitioner/ Opposite Party for the withdrawal of the admission and also fees. Out of the total fee paid by the Complainant/ Respondent, an amount of Rs.7,500/- for PDP has not been refunded, Rs.5,900/- for the computing fee was also not refunded and similarly Rs.90,750/- as directed by UGC is not refunded. The Complainant claimed the refund of Rs.1,04,150/-.

4. During the course of proceedings before the District Forum, the Petitioner/Opposite Party appeared on 09.03.2012 and made a statement that the matter has been mutually agreed to refund the money. It may be mentioned here that on that date, the Petitioner/ Opposite Party has not filed the Written Statement nor at any stage of proceedings, later on, before the District Forum.

5. The District Forum, on the basis of mutual Agreement between the Parties, decided the case on 10.07.2012 and issued the following directions:
“We direct OP to refund Rs.1,04,150/- after deducting Rs.1,000/- as per u.G.C. guidelines and we also award Rs.5,000/- as litigation and harassment charges”

6. Feeling aggrieved by the Order dated 10.07.2012 passed by the District Forum the Petitioner herein preferred Appeal before the State Commission. As already mentioned hereinbefore the State Commission vide Order dated 20.03.2013 has dismissed the Appeal and affirmed the Order passed by the District Forum.

7. Feeling aggrieved, by the Order dated 20.03.2013 passed by the State Commission, University of Petroleum & Energy Studies (UPES), New Delhi, Petitioner has preferred this Revision Petition.

8. We have heard Mr. Kapil Kher, learned Counsel for the Petitioner.

9. From a perusal of the averments made in the Complaint and the Orders passed by the District Forum and the State Commission we find that a Preliminary Issue arises in the present Revision Petition as to whether Educational Institutions like the Petitioner University, which is imparting Education to the students will fall under the provisions of the Consumer Protections Act, 1986 or not.

10. It may be mentioned here that this Issue has been considered and decided by a Larger Bench of three Members of this Commission in the case of Manu Solanki and Others Vs. Vinayak Mission University and other connected cases, 1(2020) CPJ, 2010, wherein the larger Bench had held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and therefore the Complaint is not maintainable. Relevant portion of the Order is reproduced below for ready reference :-
“37. The following legal issues arise from the submissions made by the rival parties and the aforenoted decisions of the Hon’ble Supreme Court:
 Would any defects/ deficiency/ unfair trade practice indulged by the Educational Institutions post admission, which does not fall within the ‘course of imparting knowledge’ till the degree is conferred, falls within the ambit of the definition of Education?
 If we apply the definition of Education, imparting knowledge for full potential, will that criterion apply to the admission stage, when the foundation for admission itself is deficient?
 Would preferential activities for extracurricular activities, which do not have a direct nexus with admission fees, syllabus etc. be defined as Core Education? For Example if students go for a picnic and a mishap happens, does it fall within the definition of deficiency of service and is it part of Core Education? Do educational tours fall within the ambit of the definition of ‘Education’.
 Another example, if a school has a swimming pool and students of that institution drown on account of some deficiency or negligence of the authorities, would swimming in the school campus fall within the ambit of Core Education? Does maintaining a swimming pool and teaching swimming be considered as a part of Core Education?
 Does defect/ deficiency in service of any boarding/ hostel facilities rendered fall within the umbrella of ‘Education’?
 Do coaching centers/ institutions fall within the ambit of the Definitionof ‘Educational Institutions’.
 Do institutions involved in vocational training like, nursing, designing etc. strictly fall within the definition of ‘Educational Institutions’.
38. Learned Counsel appearing for the Petitioners in Revision Petition Nos. 2955 to 2963 of 2018 submitted that once the University is declared as ‘Deemed University’ all functions and activities governed by the University Grants Commission Act (UGC Act), fall within the definition of ‘Authority’ within the meaning of Article 12 of the Constitution and would be amenable only to the jurisdiction of the High Court. It is contended that even if the Education Institutions do not have a proper affiliation, Consumer Fora do not have jurisdiction to entertain the same. In our view even if an Institution imparting education does not have a proper affiliation in imparting education, it is not rendering any service and, therefore, will be out of the purview of the Consumer Protection Act, 1986.
39. Learned Counsel appearing for the Petitioner in Revision Petition No. 222 of 2015 vehemently contended that the Complainant had taken admission in B. Ed. course of the Opposite Party on the assurance that the said college was recognized by National Council of Technical Education (NCTE) and affiliated with the Opposite Party No. 2, Uttrakhand Technical University, who subsequently came to know that the Institute was not recognized by NCTE and therefore sought for refund of the fees. Whether such an unfair trade practice post admission would fall within the ambit of the Act needs to be seen. As the Institution is imparting education though it has been not recognized by the National Council of Technical Education, it would not make any difference because it will be covered under the education. Thus, the said Institute would not be rendering any service as defined in the provisions of the Consumer Protection Act, 1986.
40. There may be instances where there may be defect/deficiency of service in pre-admission stages by an educational Institution but as the educational Institutions are not rendering any service by imparting education, these instances will also not give any right for a person to approach the Consumer Fora under the provisions of the Consumer Protection Act, 1986.
41. Learned Counsel for the Educational Institution in Revision Petition No. 1731 to 1733 of 2017 argued that imparting education in a school is not limited to teaching in a class room and involves within its ambit other co-curricular activities including taking out the students for educational trips etc., for their overall growth and development and improvement of their faculties. In that matter, the children were taken by the Respondents for an “educational excursion trip” to a place of historical importance, and it was contended that, any shortcoming or negligence during the course of such an act falls within the definition of imparting education and therefore shall not fall within the domain of the Consumer Protection Act. 1986. Another issue which was raised is with respect to any defect or deficiency which may arise on account of a student drowning in a swimming pool maintained by the Educational Institution. We are of the considered opinion that such incidental activities of an Educational Institution while imparting education would also not amount to rendering any service under the provisions of the Consumer Protection Act, 1986.
42. Another relevant issue which was raised during the course of arguments was with respect to any defect or deficiency in the transportation which is provided by the schools/colleges. School buses are vehicles hired by the Institutions and in most schools is made compulsory with, the prescribed fees including the cost of transportation. Children come in their own vehicles also and we are of the view that any defect or deficiency in transporting the children to the school does fall within the definition of ‘imparting knowledge’ and, therefore, the Consumer Fora has no jurisdiction to entertain such Complaints arising out of these issues.
43. Now we address ourselves to the submissions made by the Learned Counsels in Revision Petition No. 462 of 2013 with respect to Coaching Institutions. The question which arises here is whether the Coaching Institutions fall within the definition of “Educational Institution”. Learned Counsel appearing for the Coaching Centres vehemently contended that though the Coaching Centres are not conventional Educational Institutions, since they are providing Coaching and training to students of an Educational nature same principles that apply to the Educational Institutions would also apply to these Institutions and that this view had been taken by this Commission in Fitjee Limited Vs. Minathi Rath I (2012) CPJ 194 NC. In this case it has been held that Complainants were consumers who sought to avail services for consideration and that Fitjee is the provider of the services and that they are Consumer Disputes. The issue that has been raised is that if the Coaching Centres were treated at par, as observed in this order, to be providing Coaching and training, to students of an Educational nature, then they too fall within the definition of ‘Education’ and, therefore, the services rendered by Coaching Centres cannot be construed to be ‘Service’ as defined under Section 2(1)(o) of the Act.
44. Learned Counsel appearing for the Complainants submitted that there is no Regulatory Mechanism applicable to the Coaching Institutes. He contended that Coaching Centres are promoting rote learning and not imparting actual knowledge. He vehemently contended that they are running for a commercial purpose with a single aim of making profit and are expanding using the franchise route.
45. We are of the considered view that conduction of Coaching Classes does not fall within the ambit of definition of ‘Education’ as defined by the Hon’ble Seven Judge Bench of the Supreme Court in P.A. Inamdar (Supra). Coaching Centres cannot be equated to regular schools or colleges which are regulated by a Regulatory Authority and also confer a Degree/Diploma on the student who has passed in the examinations conducted as per the Rules and norms specified in the statute and also by the concerned Universities. Therefore, strictly speaking Coaching Centres cannot fall within the definition of ‘Educational Institutions’. We refrain from making any comments on the submissions of the learned Counsel for the Complainants with respect of Coaching Institutions indulging only in ‘rote learning’.
46. For all the afore-noted reasons, we are of the opinion that any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does fall within the jurisdiction of the Consumer Fora.
47. Learned Counsel appearing for the Petitioner in Revision Petition Nos. 3383 and 3384 of 2018 submitted that student, who took admission in Multimedia Diploma and Certificate Courses in 3D Animation, Visual Effects, Video, Editing, Graphic Designing and Web Designing, though fall within the definition of Vocational training, the programs are recognized by Karnataka State Open University and withdrawal of any such program cannot fall within the jurisdiction of the Consumer Fora.
48. At the outset, a broad definition of all that comprises ‘Vocational Courses’ needs to be seen. Generally speaking, there is a three tier system in HR Vocational Training program in India, which involve Certification level for 10+2 students, Diploma level Graduation program and Post-Graduation programs. For example vocational program include courses in areas of agriculture, automobiles, information technology, air conditioning, lab technician, live stock management, films and television, tourism etc. The Hon’ble Supreme Court in State of Punjab & Ors. Vs. Senior Vocational Staff Masters Association & Ors., 2017 (9) SCC 379, in para 22 observed that Vocational Courses are those Courses in which teaching is not on regular basis, though they play an important role in the grooming of students in the different fields. Vocational education can also be termed as job oriented education and trains young people for various jobs and helps them acquire specialize skills.
49. The Union Cabinet has approved a merger of the existing Regulatory Institutions in the skills space-National Council for Vocational Training (NCVT) and the National Skill Development Agency (NSDA) into the National Council for Vocational Education and Training (NCVET).
50. The main purpose and objective of NCVET is to recognize and regulate and assess the skill related service regulators. It is clarified that even if there is any defect/deficiency/unfair trade practice in the services offered by private bodies in offering these courses and are not regulated and do not confer any Degree or Diploma recognized by any Approved Authority do fall within the ambit of definition of ‘Educational Institutions’ and hence the Consumer Fora have no jurisdiction to entertain the same.
51. In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986.”

11. From the averments made in the Complaint filed by the Complainant Shri Anuj Kanwal as also the Order dated 10.07.2012 passed by the District Forum and the Order dated 20.03.2013 passed by the State Commission, we find that the University of Petroleum & Energy Studies (UPES), Petitioner is imparting Education to the students and the Complainant Shri Anuj Kanwal took admission in B. Tech Course in the Petitioner University. The Petitioner is not running any Coaching Institute. The Principles laid down by the Larger Bench by this Commission in the case of Manu Solanki (Supra) is squarely applicable to the facts of the present case with which we are bound to follow and therefore it is held that the Petitioner / University does not fall within the purview of the Consumer Protection Act, 1986.

12. In view of the foregoing discussions, the Revision Petition succeeds and is allowed and the Complaint filed by the Complainant stands dismissed as not maintainable. Consequently, the Order dated 10.07.2012 passed by the District Forum and Order dated 20.03.2013 passed by the State Commission cannot be sustained and are hereby set aside. However, the parties shall bear their own costs.

13. However, it will be open to the Complainant to seek such remedies which are available to her in accordance with law.

Decision : Revision allowed.