HIMAYOON JALAL vs JEHLUM VALLEY COLLEGE

SHORTLY put and shorn of details case of the complainant is that O.P. was running the Professional College and imparting professional training of MBBS Five Years Course since 1989. O.P. established a College under the name and style as Jehlum Valley Medical College as a private institution based on trust. O.P. gave the impression to the public at large that the College is recognized by the Medical Council of India and is also regularized by the Government of Jammu and Kashmir. In the month of October, 1995 O.P. advertised for the admission for MBBS Five Years Course. Complainant believed that O.P.-College is recognized by the lawful authorities and applied for the admission. O.P. after admitting 80 candidates against the rules, threw a bid for other 20 candidates among whom petitioner also was given a seat on demand of Capitation Fee of Rs. 5.50 lacs in October, 1995. Complainant came to know that the College is not recognized and some writ petitions also had started to be filed before the High Court questioning the authority of O.P. for giving admission in the College. But complainant was assured by O.P. that the processing of recognition is going on. The College will soon be recognized. Complainant deposited the Capitation Fee of Rs. 5.50 lacs along with the registration fee on 15.2.1996 with a forwarding letter addressed to the O.P. along with the bank drafts. Complainant in the forwarding letter dated 14.2.1996 made it clear that the complainant has applied to Government of India under SAARC agreement for seat in Bangladesh in case the same is provided capitation fee be returned to him. According to complainant capitation fee was accepted by the O.P. along with the forwarding letter dated 14.2.1996. Soon after complainant who attended the class for 20 days got a seat in Bangladesh and he went there. In the mean time the College was closed for 2 years and the writ petitions were going on in the High Court questioning the admission of candidates in view of Unni Krishnan judgment of Apex Court. The case of the complainant is that he attended the class only for 20 days. He wrote to the O.P. to return the Capitation Fee. The O.P. referred the matter to the Board of Advisers who resolved to return the part money on humanitarian grounds at the start of next session. Complainant thereafter gave several reminders for the return of the Capitation Fee which was not given. In the mean time Board of Directors were changed by another set of members and lastly the Government admittedly has taken over the College and attached it with Sher-i-Kashmir Institute of Medical Sciences which is now being governed by the Board of Governors and the College is run by Director of Institute who is working as Principal of the College. It is in these circumstances that the complainant had to amend the complaint and he presented the amended complaint which included members of Governing Board and O.P. No. 9 Dr. Mehraj-ud-Din, Director of Institute of Medical Sciences who is running the College as Principal.

OPPOSITE parties 4,6,7 i.e., G.M. Shunthe, Altaf Ahmed and Mohd. Yousuf have filed written version, none-else has filed the written version. O.P. No. 9 Dr. Mehraj-ud-Din was again summoned. He then participated in the proceedings. OPPOSITE Parties have resisted the complaint on various grounds inter alia that complaint is not maintainable on the ground that no consumer dispute arise and no mal-practices were done by the O.Ps. and secondly that the Board of Governors of Sher-i-Kashmir Institute of Medical Sciences is not responsible for the omissions and commissions of the earlier Board of Directors who were managing the affairs of the College. Thirdly O.Ps. are not bound to return the Capitation Fee when the complainant has suo motu left the College of its own and went to Bangladesh. Evidence in the case recorded in the affidavit of Jalal-ud-Din Shah, father of complainant M.A. Bhat witness of the complainant both the witnesses have not been cross-examined and the right of cross-examination has been waived of. O.P. has examined only Dr. Mehraj-ud-Din, Director of Sher-i-Kashmir Institute of Medical Sciences, Soura.

Heard learned Counsel for the parties. Learned Counsel for the O.Ps. has vehemently contended that imparting education in educational institutions does not come under the purview of Consumer Protection Act. Secondly, he argued that complainant was already in know of the fact that the college is not recognized. He voluntarily opted for the seat. There was no mal-practice involved and the complainant voluntarily left the College when he got a seat in Bangladesh. According to O.P. in such circumstances O.Ps. could not be made liable to return the Capitation Fee especially when the complainant left the College in the middle session.

WE are not convinced with the argument of learned Counsel for O.P. that imparting education in Public Schools is not a consumer problem. This Commission is not dealing with such case for the first time but before this, also this Commission has expressed its view in Miss Sonika Tandon v. Rauf Muslim Jamia Bahera, III (1997) CPJ 619. In this case the complainant was given a seat in B.D.S. Course but the first year examination was not conducted. Complaint was filed for deficiency in service. The Commission held that the service were hired by the complainant by paying Capitation Fee for getting a seat but the O.P. failed in service. It is not this Commission only which has taken the view that imparting education by a private Institution is hired service against consideration for imparting required education. If there is found any deficiency in such service Consumer Fora or the Commission can come into play to redress the grievances of the complainants. The same view is fortified by almost all Consumer Protection Commissions in the country. Kerala State Commission in Director of Admissions v. Dr. Radha Narayanan, I (1995) CPJ 247, has held the same view. In this case Capitation Fee was paid for the admission on the promise that seat will be reserved for the complainant but the seat was not reserved, refund was made out by deducting 1 per cent. Commission held the deduction illegal. In P.R. Abilash v. Dr. P.J. Alexander, III (1993) CPJ 1297, Tamil Nadu State Consumer Disputes Redressal Commission, Madras held the complainant entitled to be refunded the whole Capitation Fee and the Tuition Fee because private College was not affiliated to Pondicherry University. [See D.A.V. Institute of Physiotherapy v. Miss Navleen Kaur, I (1998) CPJ 430, Punjab State Consumer Disputes Redressal Commission, Chandigarh]. In this case physiotherapy, Punjab State Consumer Disputes Redressal Commission, Chandigarh held that students cannot be compelled to continue studies from unrecognized and unapproved institutions. Whole Capitation Fee was refunded. [See Integerated Education Development Organization v. Computer Point Ltd., I (1998) CPJ 230, Delhi State Consumer Disputes Redressal Commission, New Delhi; K.S. Satheesan v. A. Shanmuga Sundaram, I (1998) CPJ 595, Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram]. In this case also assurance was given to the students that the Medical College will be affiliated to the University. Students joined the college. Students could appear in the University examination and had to waste 2 years. Kerala State Commission held that this was unfair trade practice. In view of case law cited above we are of the firm view that if there is deficiency in service while imparting education by public institution it gives rise to the consumer dispute and the Consumer Acts comes into play.

NOW the question is as to whether in the case in hand there is any deficiency in service on the part of the O.P. in view of the peculiar circumstances of this case. It is an admitted fact as admitted in the written version by the O.P. that the College was not established with the prior permission of Medical Council of India in 1989. However, they were at it to obtain proper permission under Section 10 of Medical Council of India Act, 1956 amended in August, 1993. It is also an admitted fact that the College was not recognized nor affiliated to the University at that time. It is also a fact that in view of J.P. Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178, judgment of Apex Court had provided a Scheme and had directed both the Government and public Institutions to make admissions to the Training Institutions in accordance with that Scheme and the writ petitions were pending in the High Court of J&K challenging the admissions in the private Institutions which were not given in accordance with the directions of the Apex Court in J.P. Unni Krishnan''s case (supra). It is also a fact that the complainant was knowing that the College is not recognized which reveals from para 5 of the amended complaint in which complainant has admitted that in January, 1996 he came to know that O.P. had applied for registration with lawful authority and O.P. assured complainant that it will not take much time for getting it registered. In the same para complainant has admitted that he was knowing that litigation was going on in the High Court regarding the admission against the directions of Apex Court supra and some news-items were also published in the Daily newspaper. Even then he deposited the Capitation Fee in February, 1996 for getting the seat. In view of this prior knowledge of the complainant that the College was not recognized. Learned Counsel for the O.P. has vehemently argued that the complainant has voluntarily joined the College and has voluntarily left it so he is not entitled to any refund of the Capitation Fee nor any mal-practice is involved in the case. Learned Counsel for the complainant has rightly argued that the O.P. should not have advertised the seats when the College was not recognized, when it was not affiliated and especially when there were directions of the Apex Court for making admission in a particular manner. In violation of these directions O.P. should not have at all advertised the seats nor should have taken Capitation Fee and admitted the students to the College. It is in these circumstances the complainant has paid Rs. 5.50 lacs and reserved the seat for him but knowing well the fate and the future of the Institution is not safe, he continued his efforts to get a seat in a recognized College which he got in Bangladesh through SAARC but at the same time complainant made it clear to O.P. while sending the bank drafts to him that he has applied for a seat under SAARC if he get the seat, Capitation Fee be returned to him. This condition is obviously put in letter dated 14.2.1996 which was a forwarding letter sent to O.P. along with bank drafts and the O.P. accepted the bank drafts to the tune of Rs. 5.50 lacs along with this condition of returning the Capitation Fee. Learned Counsel for the complainant has convinced us that this condition has been accepted by the O.P. They should not have accepted the Capitation Fee because of this condition if they were not agreeing to this condition. O.P. accepted bank drafts to the tune of Rs. 5.50 lacs kept mum about the condition which means that they accepted this condition of the complainant that in case the complainant succeeds in getting a seat under SAARC, Capitation Fee be returned. This part of the argument consists of two aspects, No. 1 whether there is deficiency in service, No. 2 whether complainant is entitled to the return of Capitation Fee. So far as the first part is concerned we have elaborately mentioned that O.P. admitted the students to a College which was not recognized, to a College which was not affiliated to the University and regarding which the writ petition was going on in the High Court wherein admission were challenged because those admissions were in violation of the directions of the Apex Court laid down in J.P. Unni Krishnan''s case (supra).

COMPLAINANT had established by his evidence including his own affidavit that the admitted candidates were on Doll Drums because College was not recognized and admissions were given in violation of the direction of the Apex Court and moreover High Court in the writ petitions directed that the admission only upto 1993 were valid, beyond 1993 admissions to the College were not in accordance with the directions of the Apex Court. This fact is not rebutted by the O.P. O.P. has not produced any evidence to rebut this fact. O.P. has produced only Principal of the College who is silent on these issues. Under these circumstances we can draw a safe conclusion that the admissions made by the O.P. in 1996 were not safe and certain so there was deficiency in service.

WE are convinced that complainant was not imparted education in the College because he got seat in Bangladesh soon after the admission. Secondly, he left the College because he could not take risk in getting education from unrecognized College which was not recognized by Medical Council of India, and the admissions were not made in accordance with the Scheme drafted by Apex Court in J.P. Unni Krishnan''s case (supra). Learned Counsel for the complainant has rightly argued as to why the complainant should have stayed in the O.P.-College and why he should not have preferred to go to a recognized College even though it was situated in a foreign country like Bangladesh. Learned Counsel for the complainant has spelled out that every normal man having an average prudence could have done the same thing as was done by the complainant in preferring to go to a recognized College rather than to waste the time in the O.P.-Institution. It has been stated by the complainant that soon after he was admitted in the O.P.-Institution, strikes started, students were not allowed to take examination for 2 years till the matter was settled and the College very recently got recognized. Thirdly, complainant had deposited the Capitation Fee of Rs. 5.50 lacs with a condition that the amount be refunded to him in case he gets seat elsewhere. This condition was accepted by the O.P. along with the bank drafts.

Matter does not end here. O.P. was accepted the condition of the complainant when the complainant represented to him that he has got the seat in Bangladesh, his Capitation Fee be returned to him. O.P. placed the matter before the Advisory Board. Board resolved to return part of money on humanitarian grounds but at the beginning of the next session. This is revealed by Annexure-C5 letter written by Secretary, Advisory Board to the complainant.

IN such circumstances we are convinced that Capitation Fee is due to be returned to the complainant. The same views were expressed by Akhil Bharatiya Grahak Panchayat v. Principal, JNF''s AGPM Medical College, I (1994) CPJ 370, Maharashtra State Consumer Disputes Redressal Commission, Bombay. The facts are same in the above case. Complainant obtained admission in Medical College JNF''s AGPM. Thereafter he appeared in a competitive examination before Service Selection Board for INdian Navy and was successful in getting admission in INdian Navy Academy Goa. Father of the complainant requested the Principal, Medical College, for refunding all the fee. Complaint was filed before the Forum for refunding the money. The Commission held that there was deficiency in service because education was not imparted to the student. Directions were made to refund the fee. For these reasons, therefore, we are convinced that the complainant is entitled to be refunded. Learned Counsel for O.P. has argued that the College has been taken over by the Government. Government is not liable for the omissions and commissions of Board of Trustees who were manning the College at the time of the admission. Learned Counsel for the complainant has rightly argued that all the assets have been taken over and has been attached to Soura Medical Institute which is administered by the Board of Governors and the College is run by Dr. Mehraj-ud-Din, Principal who is Director of the Institution as well. Dr. Mehraj-ud-Din also in his cross-examination has categorically admitted that the Government has taken the Management of the College and he is controlling the College in the capacity of the Principal of the College. Assets of the College have been taken over by the Government. As Principal he is the financial authority, releasing the payment for works done and approved by the Government.

FOR these reasons, therefore, we allow the complaint only to the extent of principal amount of Capitation Fee which is Rs. 5.35 lacs and the complainant is held not to be entitled to admission fee of Rs. 15,000.00 and the interest on the principal amount of Rs. 5.35 lacs till date for the contributory negligence of the complainant for seeking admission in unrecognized college. Complaint partly allowed.