Ms. Rama Sinha and Others Vs. Ms. Jyotika Gupta - Court Judgment

K.K. Srivastava, President:

1. This is an appeal filed against order dated 11.2.2003 passed by the District Consumer Disputes Redressal Forum-II (for short hereinafter referred to as the District Forum) in Complaint Case No. 103 of 2001 filed by the respondent Ms. Jyotika Gupta. The District Forum allowed the complaint and directed the appellants/O.Ps. to refund a sum of Rs. 52,245/- to the respondent/complainant with interest @ 6% per annum from 23.8.2000. A sum of Rs. 1,000/- was also awarded as costs of litigation.

2. The respondent/complainant sought admission to the BE (Electrical) Degree in the academic session 2000-01. She deposited a sum of Rs. 52,245/- with the IITT College of Engineering at Kala Amb of which the appellant No. 1 Ms. Rama Sinha is the Chairperson. It was alleged that the complainant was assured that the aforesaid college had received approval from All India Council of Technical Education, New Delhi (for short hereinafter referred to as AICTE) and had also been approved by Himachal Pradesh University for the aforesaid academic session 2000-01. These facts, it was alleged, were also printed in the prospectus of the college. The respondent/complainant during her visit to the aforesaid college alongwith her father was disappointed to see that there was a small building lacking facilities of laboratory for an Engineering College. Atmosphere of the college was also not conducive to the academics. They alleged that they were told by some person that the college was not even recognized by the Himachal Pradesh University and the staff recruited was just an eyewash and it did not have any academic stature. This led the complainant to move an application seeking refund of amount deposited by her and no action was taken on her application. Thereafter, she served a legal notice on 16.9.2000. The complainant received a letter from the appellants which was dated 9.12.2000 stating that the fees deposited by her was not refundable.

3. Resultantly, the complaint was filed. The complainant claimed the refund of the fees deposited with interest @ 18% per annum, damages for mental anguish and agony to the tune of Rs. 4 lacs.

4. The appellants/O.Ps. contested the complaint case and took preliminary objections of the complainant not being a consumer within the definition of the term under the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) and the appellants/O.Ps. were not provider of service hired and availed of by the complainant. The territorial jurisdiction of the District Forum was also challenged. It was alleged that the complainant had voluntarily left the Engineering College. It was claimed that the aforesaid college was duly approved by the AICTE, New Delhi and about 600 students were studying in B. Tech Course in the college which was also duly affiliated to the Himachal Pradesh University. The allegations regarding the Engineering College lacking a suitable building, laboratory and teaching staff were also controverted.

5. The complainant as well as the O.Ps. led evidence in the shape of affidavits and the complainant filed admission note, receipt vide which the amount was deposited as annual fees and annual charges, copy of application seeking refund of the fees consequent upon surrendering of her seat, copy of legal notice, copy of letter received from the respondent. Annexures A1 to A5 were clippings from newspapers making adverse type of allegations against IITT College, Kala Amb. The appellants filed extracts from the prospectus (Annexure R-1) showing that the deposit once made by the candidate would not be refundable.

6. On behalf of the O.Ps., Shri P.D. Gupta filed his affidavit and placed on record copy of Notification No. 1-162/97-HPU (Acad) dated 7.8.1997 of Himachal Pradesh University granting provisional affiliation to the college for the year 1997-98, copy of letter of AICTE, New Delhi directing the Sectional Officer (North Western Office) of AICTE, North West Zone, Chandigarh to monitor the O.P.-Engineering College, copy of letter No. 765-63-202(E)/ET/97 dated 14.7.2000 from AICTE, New Delhi extending approval with the reduced intake for the academic year 2000-01 to the said college and copy of letter of the Honble High Court of New Delhi dated 26.7.2000 in C.W.P. No. 6671 of 1999.

7. The District Forum held that the appellants/O.Ps. failed to place on record copy of a notification from the Himachal Pradesh University affiliating the said college for the academic year 2000-01 and a presumption was drawn against the O.Ps. The District Forum held that the complainant was justified in withdrawing her candidature from the college and in demanding her fee. Resultantly, the complaint was allowed as mentioned above.

8. Mr. V. Chatrath, Advocate appeared for the appellant alongwith Mr. Deepak Aggarwal, Advocate and Mr. Raman Mahajan, Advocate appeared for the respondent/complainant and made their submissions. The record of the complaint case was summoned. We have heard the learned Counsel for the appellants and the learned Counsel for the respondent and perused the impugned order and the record of the case.

9. The District Forum, as pointed out by the learned Counsel for the appellants, drew a presumption from non-filing of notification regarding affiliation of the college for the year 2000-01 and in this context referred to the case of Navdeep Singh v. I.I.T.T. College of Engineering, 2003 (3) SCT 224, of a Division Bench of Honble High Court of Punjab and Haryana at Chandigarh holding that it is settled law that provisions contained in the prospectus issued by the University are binding on the parties and the Court cannot issue direction which may result in violation thereof. In para 6, it was held that the petitioner has neither controverted the assertion contained in the written statement of respondent No. 1 that as per the prospectus issued by the University tuition fee and charges deposited at the time of admission are not refundable. Therefore, in the face of the prohibition contained in the prospectus against the refund of fee deposited at the time of admission, the Court cannot issue a mandamus to the respondents for refund of fee to the petitioner.

10. The other authority relied on by the learned Counsel for the appellants is reported in case of Homoeopathic Medical College and Hospital, Chandigarh v. Miss Gunita Virk, I (1996) CPJ 37 (NC), wherein it was held by the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission) that Fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. It is for the Civil Court to determine this point.

11. It is not disputed that the respondent/complainant sought admission in the appellants college i.e. IITT College of Engineering, Kala Amb and she is expected to have gone through the prospectus of the college and satisfy herself before depositing the fees for seeking admission. Once the complainant after satisfying herself deposited the fees of the college, she cannot turn round and ask for the refund of the fees in contravention with the specific provision contained in the prospectus that the fees once deposited shall not be refundable. The District Forum also could not order for the refund of the fees by raising a presumption about the appellants/college not being affiliated with the University of Himachal Pradesh or not approved by AICTE. Such a finding could not be recorded in summary jurisdiction and particularly when there was material placed on record to show that the affiliation had been granted by the University of Himachal Pradesh for the year 1997-98 and the AICTE also granted a provisional approval. There was no proper and adequate denial of the fact that college was running courses in engineering and students had taken admission and 600 students were studying there.

12. The learned Counsel for the appellant drew our attention to Para 5 of the impugned order wherein, it was observed, inter alia as under :

“.... No doubt the O.P. has tried to suggest that it had also obtained the affiliation of the said University for the academic year 2000-01, but the taste of pudding lies in eating. To change the metaphor, the proof of the affiliation for the year 2000-01 lies in producing a copy of the relevant notification of the said University. But, unfortunately, the O.P. has not cared to place on record a copy of such a notification. No reason is explained for this lapse. Therefore, presumption must be drawn against them and it must be unhesitatingly concluded that the O.P. has failed to prove that they had been granted the affiliation of the Himachal Pradesh University for the year 2000-01. Therefore, the complainant was justified in withdrawing her candidature from this unaffiliated college and demanding refund of the fee and other charges paid by her. By refusing to refund these charges to her, the O.P. committed unfair trade practice and deficiency in service. For that matter inviting the complainant to seek admission to their unaffiliated college was by itself unfair trade practice. It is for the University and the AICTE to monitor the academic standard, building, laboratory, library and hostel facilities, etc. of any Engineering College. Therefore, we desist from making any comment on this aspect of the case.”

13. The finding, it was urged, by the learned Counsel for the appellant is based on conjectures and surmises and presumptions being raised and such a finding based on conjectures, surmises and presumptions could not be recorded in a summary jurisdiction given to the District Forum. The District Forum did not take into consideration the fact that the prospectus of the college under which the respondent/complainant had deposited the fees clearly prohibited her from claiming the refund of the fees.

14. In the case of Navdeep Singh (supra), the Division Bench of Honble High Court of Punjab and Haryana has settled the law regarding the binding force of the provisions contained in the prospectus in which the candidate deposits fees for seeking admission. The Honble National Commission has also in the case of Homoeopathic Medical College and Hospital, Chandigarh (supra) settled the law that the Fora constituted under the C.P. Act cannot go into the aspect of considering the legality or declare any rule in the prospectus of any institution as unconscionable and it is for a Civil Court to consider the same. The finding regarding the applications being invited seeking admission to IITT College of Engineering itself amounted to unfair trade practice cannot be supported in view of the law laid down by the Honble High Court of Punjab and Haryana in the case of Navdeep Singh (supra). Similarly, the finding regarding the refund of the fees also cannot be upheld in view of the law laid down by the Honble National Commission in the case of Homoeopathic Medical College and Hospital, Chandigarh (supra).

15. On behalf of the respondent/complainant, the learned Counsel Mr. Raman Mahajan, Advocate referred to Paragraphs 3 and 4 of the complaint and then referred to the prospectus (Annexure A-1). So far as parargraphs 3 and 4 of the complaint are concerned, they relate to the factual aspect of the averment made by the complainant regarding the building of the college not having any facility or laboratory and the college being housed in a most shabby tiny building and about the college not having been recognized by the Himachal Pradesh University and about the staff which had been recruited being just an eyewash. Para No. 4 relates to the complainant seeking refund of the amount deposited. Mr. Raman Mahajan, Advocate referred to admission notice of IITT College of Engineering which invited application for admission to 2nd year or 4th year B. Tech Degree Courses of Information Technology and a note appeared at Serial No. 2 under the heading “Basic Eligibility”, Bona fide Himachalies to see prospectus/Admission Brochure for further details. There is on record of the complaint case a letter of AICTE issued on 24.7.2000 which is addressed to the Secretary, HP Technical Education Board, Dari Dharmsala, Distt. Kangra (H.P.) on the subject “Extension of AICTE approval with reduced in intake to IITT College of Engineering, Kala Amb, Distt. Sirmour, Himachal Pradesh for conduct of Degree Course(s) in Engineering and Technology for the academic year(s) 2000-01” according extension of approval with reduced intake to IITT College of Engineering, Kala Amb, District Sirmour only for the courses mentioned in the letter. At Serial No. 1, the course of `Electrical Engineering has been mentioned which is at the level of degree. The previous intake and the new approved intake are the same i.e. 40.

16. It may be pointed out that the complainant had taken admission to the Electrical Engineering course and deposited the fees on 4.8.2000 vide Annexure C-2. So far as the Electrical Engineering course is concerned, the AICTE granted approval for the academic year 2000-01.

17. The learned Counsel for the appellants/O.Ps. placed reliance on the judgment of Honble Supreme Court of India rendered in the case of Jaya Gokul Educational Trust v. Commissioner Secretary to Government, Higher Education Department, V (2000) SLT 440=2000(5) SCC 231, wherein it was held by the Honble Apex Court, in Para 28, held as uder :

“28. ...... The University was also one of the agencies consulted by the Council of AICTE under Regulation 8. Once that was over, and approval was granted by AICTE, if there was any default on the part of the college in compliance with the conditions of approval, the only remedy for the University was to bring those facts to the notice of AICTE so that the latter could take appropriate action.”

18. The learned Counsel for the appellants/O.Ps. further states that the above view of the Honble Supreme Court was based on the provisions contained in Section 11 of All India Council for Technical Education Act, 1987, which were extracted in the grounds of appeal by the appellants. On perusal of the law settled by the Honble Supreme Court in the case of Jaya Gokul Educational Trust (supra) and Section 11 of All India Council for Technical Education Act, 1987, as extracted in the grounds of appeal, it goes to show that once the approval is granted by the AICTE after duly carrying its inspection of all the facilities and the infrastructure in the college, the University is to be treated as having been consulted by the AICTE.

19. After considering the letter dated 24.7.2000 of the AICTE in the name of the Secretary, HP Technical Education Board granting approval and once the approval has been granted by the AICTE which is the final authority, then a presumption would be that it had consulted the University and the University had reported to the AICTE on the basis of which and also on the basis of the Inspection, as defined under Section 11 of All India Council for Technical Education Act, the AICTE according approval. Therefore, so far as the running of the course in the college for the academic session 2000-01 is concerned, there was the approval of the AICTE and this included the consultation with the University of Himachal Pradesh. There is no material placed by the complainant to the contrary that at any stage in the academic year 2000-01, the University of Himachal Pradesh had not granted affiliation or withdrew the same. The District Forum was thus not right in raising a presumption against the appellants about the University of Himachal Pradesh not granting affiliation to the IITT College of Engineering, Kala Amb during the academic session 2000-01.

20. The prospectus has been shown to us by the learned Counsel for the appellants/O.Ps. and a perusal of the prospectus shows that there is a clear averment made on the first page on the top “College of Engineering, Kala Amb, Himachal Pradesh, India (AICTE Approved)”. Then under the Heading “Session : 2000-2001” on the same first page of the prospectus, it is printed “Affiliated to Himachal Pradesh University, Shimla” and in the end “Established by International Institute of Telecom Technology Society and Management by IITT Charitable Trust”. The District Forum has also taken into consideration the fact that the AICTE has granted approval for the academic session 2000-01 vide letter F.No. : 765-63-202(E)/ET/97 dated 24.7.2000 on record of the complaint case. The finding of the District Forum to the effect that there was unfair trade practice on the part of appellants/O.Ps. is not based on the material on record and at last stage finding cannot be returned only on the basis of presumptions. The respondent/complainant was bound by the terms and conditions contained in the prospectus under which she had applied for admission and deposited the fees. There is no deficiency on the part of the appellants nor there was any unfair trade practice on their part. The appeal has considerable force and deserves to be allowed. The impugned order passed by the District Forum deserves to be set aside and the complaint deserves to be dismissed. The costs shall, however, be borne by the parties themselves.

21. Resultantly, the appeal is allowed and the impugned order passed by the District Forum is set aside. The complaint filed by the respondent/complainant is dismissed leaving the parties to bear their own costs.

Copies of this order be sent to the parties free of charge.