(Order)

Gurcharan Singh Saran, Presiding Judicial Member:

1. The appellants/opposite parties (hereinafter called œthe opposite parties?) have filed the present appeal against the order dated 31.1.2013 passed by the District Consumer Disputes Redressal Forum, Kapurthala(hereinafter called œthe District Forum?) in consumer complaint No.72 dated 5.9.2012 vide which the complaint was accepted with the direction to the Ops to refund the fee of Rs. 39,355/- after deducting a sum of Rs. 1,000/- alongwith interest @ 9% from 10.9.2010 till date alongwith compensation of Rs. 10,000/- and litigation expenses of Rs. 3,000/-.

2. The complaint was filed by the respondent/complainant (hereinafter called œthe complainant?) that he had got admission with OP No. 1 through Punjab Technical University (in short PTU) run by respondent No. 2-the Chairman. At that time he had deposited Rs. 39,355/- vide receipt No. 2384 and 1847 dated 20.7.2010 and 4.6.2010, however, he did not join the teaching classes as he had got admission in other college i.e. Anand College of Engineering and Management, Sultanpur Road, Kapurthala through PTU. The complainant applied to the respondents for refund of the advance fee but the respondents had been putting of the matter with one excuse or the other. Even the original certificates retained by the opposite parties are not returned. Immediately, when he approached the PTU, his original certificates were returned but fee was not refunded. The opposite parties got 42 students in that session against the sanctioned strength of 60 seats. Non-refund of fee is unfair trade practice and deficiency in the services, hence, the complaint with the direction to the opposite parties to refund the fee alongwith interest @ 12%, Rs. 30,000/- as compensation and Rs. 15,000/- as litigation expenses.

3. The complaint was contested by the opposite parties, who filed written statement taking preliminary objections that the complainant is not entitled to get any refund as per the policy of the University as well as guidelines of All India Council of Technical Education (in short AICTE), the complainant joined and attended the classes for the Ist semester, which started from 3.8.2010 whereas he applied for refund of fee on 9.9.2010 and the seat vacated by the complainant remained vacant during the whole session; the complainant has not approached the District Forum with clean hands; the complaint has been filed just to harass the opposite parties; no cause of action has arisen to the complainant to file the complaint and he is estopped by his own act and conduct to file the complaint. On merits also it has been stated that after taking of the admission on deposit of the fee, he had attended the classes and lateron he applied for the refund, which is not admissible to him as his seat remained vacant with their College as per the guidelines by the PTU as well as AICTE, therefore, the complaint is without merit and the same be dismissed.

4. The parties were allowed by the learned District Forum to lead their evidence.

5. In support of his allegations, the complainant had tendered into evidence his affidavits Ex. C-1and2, affidavit of Tejveer Singh Ex. C-3, letter of PTU Ex. C-4 and other documents Ex. C-5 to

22. On the other hand, the opposite parties had tendered into evidence affidavit of Rakesh Chand Bajaj, Chairman OP No. 2 and documents Ex. R-1 to Ex. R-15 and, Ex. RB Ms. Ranjana Arora, Lecture, Ex.RC of Ashish Thakur, Lecturer and affidavit Ex. RD of Miss. Anupam Gumbar, Lecturer

6. After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought in the record, the learned District Forum observed that the date of admission was extended upto 30.10.2010 by the PTU. It was not admitted that the session started from 3.8.2010. It was further observed that the fee of the complainant was wrongly withheld by the Ops, accordingly, the complaint was allowed as stated above.

7. Aggrieved with the order passed by the learned District Forum, the appellant/opposite parties have filed the present appeal.

8. In the grounds of appeal, it has been stated that the learned District Forum does not have the jurisdiction to entertain the fee matters specifically in view of the judgment of the Honble Supreme Court in œMaharshi Dayanand University v. Surjeet Kaur? wherein it was held that matter of admission, fees etc. cannot be a question of deficiency in service. He has also relied upon Honble Supreme Court in œBihar School Examination Board versus Suresh Prasad Sinha? as well as œP.T. Koshy and Anr. v. Ellen Charitable Trust and Ors.?.

9. The respondent had taken the admission in their College, and the classes started on 3.8.2010 whereas the respondent applied for the refund on 10.9.2010 and wanted to leave the College whereas the seat of the appellants college remained vacant. In case they would have filled up the seat then he was entitled to refund after deduction of Rs. 1,000/-. The finding so recorded by the learned District Forum are without pleadings and none appreciation of the claim of the appellants, therefore, the same were liable to be setaside.

10. We have heard the learned counsel for the appellants Sh. Sandeep Chopra, Advocate and learned counsel for the respondent Sh. Sudesh Kumar, Advocate for Sh. Vikram Anand, Advocate and have gone through the written arguments filed by the counsel for the respondent.

11. Whereas the counsel for the respondent in his written arguments has stated that these judgments are not applicable but he has not been able to convince before this Commission how these judgments are not applicable. This is a case of refund of fee and it has been specifically mentioned by the Honble Supreme Court in œMaharshi Dayanand University v. Surjeet Kaur?, 2010(2) CPC 696 S.C., relying upon all earlier judgments held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. Further Honble Supreme Court in œBihar School Examination Board versus Suresh Prasad Sinha?, 2010 (1) CLT 255 (SC) observed that œthe Education Boards and Universities are not Service Provider and the complaints against them are not maintainable. The Honble Apex Court in its latest judgment œP.T. Koshy and Anr. v. Ellen Charitable Trust and Ors.?, 2012(3) C.P.C. 615 (S.C.) has followed the above views.

12. We do not agree with the proposition raised by the counsel for the respondent that the judgments referred by the counsel for the appellants are not applicable to the facts and circumstances of the case, therefore, once the Consumer Fora does not have the jurisdiction to adjudicate upon the fee matter then no order can be passed with regard to the refund of the fee. Accordingly, the order passed by the learned District Forum is set-aside and the complaint of the complainant is hereby dismissed.

13. In view of the above discussion, the appeal filed by the appellants is accepted. No order as to costs. However, the respondent/complainant will have the right to adjudicate this matter before the appropriate Forum.

14. The arguments in this appeal were heard on 20.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.

15. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.

16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.