Judgment:
1. This order disposes of a preliminary issue raised by the respondent as to the competence of the present enquiry. The precise issue framed by the Commission reads as follows : "Whether the jurisdiction of the Commission is barred in respect of the subject-matter of the enquiry ?" The issue arises out of certain preliminary objections raised by the respondent in its reply submitted against the notice of enquiry issued against it under Section 10(a)(iv) and Section 37 of the Monopolies and Restrictive Trade Practices Act.
2. Delhi Public School, Vasant Vihar, is a branch of the Delhi Public School, Sector XII, R.K. Puram, New Delhi. It is undisputedly engaged in imparting education. For the purpose of admission to the school management which runs it collects Rs. 75 as registration charges for each child whose admission is sought. A complaint was received by the Commission with regard to the validity and fairness of these charges.
On the direction of the Commission the complaint was investigated by the Director-General (Investigation and Registration) who submitted his preliminary investigation report. On perusal of the preliminary investigation report, the Commission issued a notice of enquiry against the Delhi Public School, Sector XII, R.K. Puram, and the Delhi Public School, Vasant Vihar, New Delhi, under the aforesaid provisions. The notice states that the Commission has received information that the respondent school had increased the registration charges for the year 1990-91, despite the surplus income it had earned from such collection in the preceding year, i.e. 1989-90. Thus, against a sum of Rs. 6 lakhs collected as registration charges in the year 1990-91, it is reported to have spent only Rs. 2 lakhs. A similar picture emerges with regard to the amounts collected and spent in the preceding year. The notice concludes that prima facie this was clearly a case of manipulation of prices charged by the institution for rendering service to the student community and/or their parents with a view to imposing unjustified costs on them within the meaning of Section 2(o)(ii) of the said Act.
3. The preliminary objection raised by the respondents in their reply was that all administrative matters including admission of students, levy of fees and other charges are governed and regulated exclusively by the provisions of the Delhi School Education Act, 1973, and rules framed thereunder. Section 25 of Act bars the jurisdiction of the civil courts in respect of any matter in relation to which the administrator or the director is empowered by or under the Act to exercise powers under the Act and the rules. Alternatively, it is pleaded that all collections made on account of the registration charges by the respondents have been spent totally for the purpose of admission and that there is no manipulation whatever in the price of the service rendered, all the relevant and material facts having been disclosed by the school in advance. There was nothing devious, underhand or mala fide about the levy of registration charges.
4. On these pleas, the above preliminary issue was framed by the Commission. Shri S.S. Kumar, learned counsel for the respondent, assailed the maintainability of the notice of enquiry on two grounds : (i) The school having disclosed beforehand the quantum of the registration charges leviable on the students seeking admission in it and on the recitals made in the notice of enquiry itself the school had spent at least part of the amounts collected by way of registration charges, there was no question of any manipulation of prices within the meaning of Section 2(o)(ii) of the Monopolies and Restrictive Trade Practices Act; and (ii) The activity involved in conducting tests/interview for the admission of the students and realisation of registration fees for that purpose could not be characterised as rendering any service within the meaning of Section 2(r) of the Monopolies and Restrictive Trade Practices Act and, consequently, the provisions of the Monopolies and Restrictive Trade Practices Act were not attracted to the present case.
5. We begin with the first issue. Elaborating his preliminary objection, Shri S.S. Kumar urged that there was nothing devious or underhand in collecting registration charges and, consequently, there was no question of any manipulation of prices relating to the services rendered by the school. All the relevant facts with regard to the levy of registration charges were disclosed to those seeking admission in the school.
6. Manipulation of prices, in our opinion, is not a pure question of law. It is at best a mixed question of law and fact. Whether a combination of facts tantamounts to manipulation of prices or conditions of delivery within the meaning of Section 2(o)(ii) of the Act shall in the final analysis depend on the entire range of facts to be reviewed cumulatively in each case. The mere fact, therefore, that registration charges had been declared beforehand by the school cannot, in our opinion, take the controversy out of the purview of Section 2(o)(ii) of the Act. The entire conspectus of facts shall have to be examined before a concluded opinion could be given on this issue of fact. We would hence not like to dilate on it any further. We think that in the entire facts and circumstances, this aspect of the issue under consideration should be left to be determined only after the parties have led their evidence and placed the entire facts before us.
7. This brings us to the second limb of the preliminary objection. At the outset, it may be mentioned that Shri Kumar very fairly conceded that in view of the series of decisions of this Commission including the latest pronouncement in St. Michael's School, In re [1993] 78 Comp Cas 175 (MRTPC), it cannot be disputed that education falls within the ambit of Clause (r) of Section 2 of the Act which defines "service".
What he submitted, however, was that in the present context, service begins only with the admission of the students and after the commencement of the imparting of education by the institution. Any activity prior thereto, such as holding of tests for admission and realisation of registration charges for that purpose, he submitted, could not validly constitute "service which is made available to potential users" within the meaning of Section 2(r).
8. We have given these contentions our careful and anxious consideration but regret our inability to accept the same. Section 2(r) of the Act, in so far as relevant for our purpose, provides : "service" means service which is made available to potential users and includes. . . . ." 9. That imparting education is service stands conceded by the respondent. The only question is whether the prospective students from whom registration charges are realised for holding tests for admission to the school can be regarded as potential users of this service, i.e., education. The term "potential users" has been the subject of a close scrutiny by the Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta [19931 CTJ 929, 936 ; [1994] 80 Comp Cas 714 (SC). Interpreting this term, their Lordships made the following significant observations which are highly pertinent to the controversy at hand (at page 723) : "The other word 'potential' is again very wide. In the Oxford Dictionary, it is defined as 'capable of coming into being, possibility'. In Black's Law Dictionary, it is defined as 'extending in possibility but not in act; naturally and probably expected to come into existence at some future time, though not now existing ; for example, the future product of grain or trees already planted, or the successive future instalments or payments on a contract or engagement, already made. In other words, service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users." 10. These observations of the Supreme Court furnish a complete answer to the respondent's contention that till their admission and commencement of education, the prospective students could not be legitimately characterised as "potential users" of the service.
Following the dictum of the Supreme Court, therefore, it must be held that the Commission has jurisdiction to entertain the complaint and proceed with the enquiry. As ruled by the Supreme Court the term "potential users" is of wide amplitude sufficient to comprehend within its scope even the prospective students. It should, therefore, be construed broadly and not in a narrow, restricted manner. Even the possibility of a prospective student being admitted on the rolls of the school would clothe him with the character of potential user and consequently a complaint as to the trade practice indulged in by the school with regard to the levy of charges demanded from such students would squarely fall within the purview of the Act. There is thus no merit even in the second limb of the preliminary objection raised in the respondent's reply.
11. There, however, remains to be considered the last submission advanced by Shri Kumar on the interpretation of Section 2(r). The contention was that the Supreme Court was dealing with the definition of "service" as occurring in the Consumer Protection Act. Under that Act, "service" has been defined as meaning service of any description which is made available to potential users. In the Monopolies and Restrictive Trade Practices Act also, till its amendment by Act No. 30 of 1984, Section 2(r) was defined to mean service of any description.
By this amendment, the words "of any description" have been deleted. It was because of this peculiar feature that the Supreme Court interpreted the term "service" as all comprehensive. What was stressed was that the words "any description" are words of the wide amplitude. The said decision was hence distinguished.
12. We are unable to agree. The Supreme Court considered and construed the import of both the terms "any" as well as "potential users". The implications of each were examined by the Supreme Court separately and in depth. Each of these words, the Supreme Court ruled, were words of wide amplitude and that consequently potential users must comprehend within its scope even prospective users and not merely those who may be actually utilising the service. The decision of the Supreme Court in the above case hence cannot be brushed aside on the distinction which learned counsel sought to make between the language of the two statutes.
13. It may be mentioned that though in the reply the respondents have raised a plea to the effect that the present enquiry is barred by the Delhi School Education Act and the rules framed thereunder, Shri S.S.Kumar did not press the same in the course of his arguments and, in our opinion, quite rightly, in view of the decision of this Commission negativing such a plea in St. Michael's case [1993] 78 Comp Cas 175 (MRTPC) being the latest precedent in point.
14. In the premises the preliminary issue is answered in the negative.
The controversy whether the impugned registration charges are hit by Section 2(o)(ii) is, however, left to be determined after the parties have led their evidence. The case shall again be listed for dealing with the other issues arising in the case.