Dr. Alexander Educational ... vs Union Of India & Others
2009 Latest Caselaw 2868 Del

R-7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 2455/1993

      DR. ALEXANDER EDUCATIONAL FOUNDATION      ..... Petitioner
                      Through   Mr. Raman Kapoor, Adv.

                   versus
      UOI & ORS               ..... Respondent
                         Through       Mr. Wills Matthews.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
           ORDER

% 28.07.2009

1. The Petitioner is a society registered under the Societies Registration Act,

1860 and has set up medical/ para-medical institutions in the Union Territory of

Pondicherry. Respondent Nos. 3-5 herein, were enrolled and admitted for a

degree course in Bachelor of Dental Sciences in the year 1991. They had paid

fees and had also studied in the said course for a year. Subsequently, they filed

complaints under the Consumer Protection Act, 1986 (hereinafter referred to as

the Act) alleging deficiency in service on the ground that the said institute is not

recognised and therefore not entitled to issue degrees in the said course.

2. We are not concerned with the merits of the complaints filed by

Respondent Nos. 3-5 before the Consumer Forum. The short question raised in

the present Writ Petition is whether the Act is applicable to Educational

Institutions and whether Sections 10(1) (b) and (c), Section 13 (3), (4) and (5), Section 14 (1) (c), Section 15 (1) (b), Section 20 (1) (b) and Section 20 of the

Act are unconstitutional, ultra vires and unenforceable.

3. Learned Counsel for the Petitioner could not make out any ground to

challenge and question the provisions of the Act. The Act is a beneficial

legislation enacted for the protection of consumers of goods and services for

consideration. The provisions of the Act provide for a just and fair procedure in

consonance with the principles of natural justice for adjudication of complaints.

Referring to the objects and purpose behind the said enactment, the Supreme

Court, in the case of Lucknow Development Authority v. M.K. Gupta,

(1994) 1 SCC, has observed as under:

"2. But before doing so and examining the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint under the Act, it appears appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, „to provide for the protection of the interest of consumers‟. Use of the word „protection‟ furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, „a network of rackets‟ or a society in which, „producers have secured power‟ to „rob the rest‟ and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot."

4. In the aforementioned case, the Supreme Court examined the definitions of

„consumer‟ and „service‟. With respect to the definition of the word „consumer‟,

the Supreme Court observed as follows:

"3. The Act opts for no less wider definition. It reads as under:

" 'consumer' means any person who,--

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;

[Explanation.-- For the purposes of sub-clause

(i), „commercial purpose‟ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;]"

It is in two parts. The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. The legislature has taken precaution not only to define „complaint‟, „complainant‟, „consumer‟ but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to define „defect‟ and „deficiency‟ by clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. The common characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. But the defect in one and deficiency in other may have to be removed and compensated differently."

5. The Supreme Court also examined the meaning of the term „service‟, in

the above case. It was noticed that the term „service‟ has variety of meanings

and it may mean any benefit or any act resulting in promoting interest or

happiness. It may be contractual, professional, public, domestic, legal, statutory

etc. Referring to the purpose and objects of the Act and highlighting the

definition of the term „service‟, the Supreme Court observed as follows;

"How it should be understood and what it means depends on the context in which it has been used in an enactment. Clause (o) of the definition section defines it as under:

" „service‟ means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words „any‟ and „potential‟ are significant. Both are of wide amplitude.

The word „any‟ dictionarily means „one or some or all‟. In Black‟s Law Dictionary it is explained thus, "word „any‟ has a diversity of meaning and may be employed to indicate „all‟ or „every‟ as well as „some‟ or „one‟ and its meaning in a given statute depends upon the context and the subject-matter of the statute". The use of the word „any‟ in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word „potential‟ is again very wide. In Oxford Dictionary it is defined as „capable of coming into being, possibility‟. In Black‟s Law Dictionary it is defined as "existing 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 installments 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. But the legislature did not stop there. It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc. Each of these are wide-ranging activities in day to day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied there is no reason to hold that authorities created by the statute are beyond purview of the Act. When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A State Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in private and public transport or insurance companies. Even the supply of electricity or gas which throughout the country is being made, mainly, by statutory authorities is included in it. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility."

6. Recently Supreme Court in the case of Buddhist Mission Dental College

and Hospital v. Bhupesh Khurana & Ors., 2009 (2) SCALE 685, referred to

the definition of the term „deficiency‟ as provided in the Act, which is as under:

"„Deficiency‟ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

7. In Lucknow Development Authority (supra), the Supreme Court examined

the definition of „Consumer‟, „Service‟ and „Unfair Trade Practice‟ and observed

that the definition clauses have used the said expressions indicating their wide

sweep with the intention to widen the ambit of their meaning beyond their

natural import. Reference was made to the word „consumer‟ as defined in various

dictionaries as, "one who consumes". A consumer is the one who purchases,

uses, maintains and disposes of products and services; a member of a broad

class of people who get affected by pricing policies, financing practices,

quality of goods and services, credit reporting, debt collection, and other trade practices for which state and federal consumer protection laws are

enacted.

8. Similar views have been taken by the Supreme Court in Indian Medical

Association v. V.P. Shantha and others, AIR 1996 SC 550, while defining the

concept of „consumer‟ and „service‟, in connection with hospital and doctors.

Reference can also be made to the subsequent decision of Savita Garg v.

Director, National Heart Institute, AIR 2004 SC 5088.

9. In the case of Buddhist Mission Dental College and Hospital (supra), the

Supreme Court examined the contention that whether the Act is applicable to a

dental college, charging fees from students. It was observed by the Supreme

Court that when educational institutes impart education but indulges in

deficiency of service in the form of misrepresentation, it falls within the purview

of deficiency of service. The Supreme Court approved the observations made by

the National Commission in the case under appeal and observed as follows:-

"33. The Commission rightly came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act.

34. Therefore, the Commission rightly held that there was deficiency in service on the part of the institute and the claimants respondents are entitled to claim the relief as prayed in the plaint. The appeal filed by the appellant is devoid of any merit and deserves to be dismissed."

10. In view of the aforesaid, the writ petition is dismissed. The parties will

appear before the State Consumer Disputes Redressal Forum on 26th August,

2009. The State Forum will hear the matter or transfer it to the District forum, if

it does not have the pecuniary jurisdiction to adjudicate the complaints. It is

clarified that this Court has not expressed any opinion on the merits of the

complaint or the defence on merits. Observations in this order are for the

decision of the writ petition and the Consumer Forum will independently apply

their mind to the allegations and defence. No costs.

SANJIV KHANNA, J.

JULY 28, 2009 NA/P