Madras High Court
The Registrar, University Of Madras, ... vs The Union Of India, Represented By Its ... on 19 December, 1994
Equivalent citations: (1995)IIMLJ367
Author: M. Srinivasan
Bench: M. Srinivasan
ORDER Srinivasan, J.
1. Broadly stated, two contentions are mainly urged in this batch of writ petitions, one relating to the validity of some of the provisions of the Consumer Protection Act, 1986 (Act No. 68 of 1986), (hereinafter called 'the Act'), and the other relating to the applicability of the Act to imparting of education and matters connected therewith. It is only in W.P. No. 6447 of 1993, a prayer is made for declaration that Sections 10(1)(b) and (c), 13(3), (4) and (5), 14(1)(c), 16(1)(b), 20(1)(b) and 27 and other provisions of the Act as unconstitutional, ultra vires and unenforceable. In all the other Writ Petitions the prayer is for either issue of Writ of Prohibition prohibiting the Consumer Forum from dealing with the specified complaint or for issue of a Writ of Certiorari to call for the records and quash the orders passed by the Consumer Forum on specified complaints.
2. The petitions can be classified into three groups :-
A. Writ Petitions filed by Educational Institutions;
B. Writ Petitions filed by Universities, and C. Writ Petitions filed by the Director of Government Examinations.
Writ Petitions falling in Group 'A' :
W.P. Nos. 6446, 6447, 7577, 9585, 15743, 19409, 19410, 19411, 19412, 19461, 19462, 20608, 20609, 20894, 20895, and 21083 of 1993.
Writ Petitions falling in group 'B' :
W.P. No. 1700 of 1992 and W.P. No. 5262 of 1993.
Writ Petitions falling in Group 'C' :
W.P. Nos. 9425 and 20165 of 1993 A. WRIT PETITIONS FILED BY EDUCATIONAL INSTITUTIONS
3. In Group 'A'. W.P. 15743 of 1993 is filed by the Loyola Institute of Business Administration while all the other petitions are filed by Dr. Alexander Educational Foundation.
4. The case of Alexander Educational Foundation as set out in the affidavit is shortly as follows :- The Foundation is a Charitable Organisation, registered under the Societies Registration Act for the purpose of running Educational Institutions, particularly in medical and para medical fields. The Management is carried on by a Board consisting of eminent persons in the field of medicine and medical education and the trustee is himself a Doctor and his entire family consists of medical practitioners, running a highly successful and reputed General Hospital at Thambaram under the name of Philips Hospital. It has completed 25 years of service to the patients in the area. The Foundation was started with the express intention of setting up medical/para medical educational institutions in the Union territory of Pondicherry, where it was found that no adequate or proper educational institutions were available, apart from the nationally renowned institution - Jawaharlal Nehru Institute of Post Graduate Medical Education and Research (JIPMER). The petitioners sought to establish two institutions, one a Polytechnic for grant of Diplomas and another for a full fledged institute for the grant of Degree in the field of Pharmacy, Medical Lab Technology and Nutrition. Consequently, the Pondicherry Community Polytechnic was started in 1985 with the affiliation of the Board of Technical Education, New Delhi and recognition of the All India Council of Technical Education, New Delhi. The Polytechnic has also been recognised as a Community Polytechnic by the Government of India, Ministry of Human Resources Development, entitled to receive grant-in-aid from the Central Government, though the grant has not been received yet on account of non-cooperation and refusal by the Government of Pondicherry to give a 'No Objection' letter for receipt of the grant. The Pant Institute of Technology was started in the year 1987 for giving education leading to grant of Degrees in the three subjects mentioned earlier. The petitioner required affiliation with the Pondicherry University and sought the same for the course of the Bachelor of Pharmacy. After inspections by a Committee appointed by the University, affiliation was granted to the same by the University subject to certain conditions. The Government of Pondicherry passed an order on 20-6-1988 calling upon the petitioner to show cause why the recognition granted in 1985 should not be withdrawn. The University also passed an order seeking to withdraw the affiliation granted in 1987 for the three courses, viz., B.Sc., Pharma, B.Sc., M.L.T. and B.Sc., Nutrition, citing the Government's derecognition alone as the cause. Aggrieved by the same, the Petitioner filed W.P. Nos. 7797 and 7798 of 1988 for issue of certiorarified mandamus to quash the show cause notice and to forbear the Government from interfering with the administration of the Polytechnic, A Mandamus was also prayed for directing the University to continue the affiliation already granted. The writ petitions were admitted and interim stay of the notice issued by the Government was granted. However, the Court dismissed the petition for direction permitting the petitioner to admit students to the three courses pending the Writ Petition. The petitioner filed W.A. 1110 of 1988. A Division Bench called for a report from the Inspection Committee whether the conditions imposed for affiliation were complied with. It was found in the report that almost all the conditions were satisfied and consequently, the Bench passed an order directing the University to grant provisional affiliation for six years from the academic year 1988-89 subject in certain terms regarding creation of an endowment to the tune of Rs. 15 lakhs in instalments. Pursuant thereto, the University granted affiliation on 21-11-1988 for B. Pharm Course. With reference to B.Sc., M.L.T. and B.Sc., Nutrition, the petitioner approached the University independently and applied for affiliation. After the Inspection Committee submitted its report, recommending the grant of affiliation for the academic year 1989-90, the Academic Council and the Executive Council of the University concurred with the recommendation. Accordingly, the affiliation was granted by letter dated 16-2-1989 for B.Sc., M.L.T. and B.Sc., Nutrition courses for the academic year 1989-90 onwards. Thereafter, both the Institutes were conducting courses for Diploma and Degree respectively. The Institutes were subjected to ten inspections between 1987 and 1990 and all the reports were substantially in favour of the petitioner and they recognised unequivocally that the Institutes were well-equipped and had the necessary infrastructure to impart education on Degree/Diploma level in the field of para medical sciences. The petitioner was called upon by the University to make available all the records and the premises for one more inspection on 25-3-1991. Despite the petitioner's request for postponing the same, it was said to have taken place in the absence of the petitioner and based on a report by the Inspection Committee, a show cause notice was issued to the petitioner on 9-4-1991 as to why the affiliation granted for the three Degree Courses be not discontinued on the ground of insufficiency of infrastructural facilities. The petitioner filed W.P. Nos. 7725 and 7726 of 1991 challenging the same. The Writ Petitions were admitted and interim orders staying the implementation of any final order which may be passed in such proceedings was granted. The University passed final orders disaffiliating the petitioner Institution in respect of B.Sc., M.L.T. and B.Sc., Nutrition. Later an order was passed disaffiliating the petitioner in respect of B. Pharm. Course also. Thereafter, the prayers in the writ petitions were suitably amended challenging the orders of disaffiliation. The petitions were dismissed by a Division Bench on 9-10-1991. The petitioner preferred a Special Leave Petition in the Supreme Court of India in S.L.P. No. 850 to 853 of 1992. At that juncture, the affiliation granted in respect of Diploma Courses was also discontinued by the Board of Technical Education and that is challenged by the petitioner in W.P. No. 13755 of 1991. The same is pending.
5. In that situation, the Student Body started agitating and the petitioner was subjected to lot of litigation at the instance of students. The Government and the University started diverting the existing students of the institute to other colleges to complete their courses. As the petitioner has already invested crores of rupees in setting up the institution in Pondicherry and with a view to find a permanent solution to the problem, the petitioner approached the Government and the University of Pondicherry to bring about an amicable and permanent solution. They requested the petitioner to withdraw the appeal before the Supreme Court as a precondition to have any settlement talks. Accordingly, on 14-7-1992 the petitioner withdraw the S.L.Ps. with the permission of the Supreme Court. On 3-8-1992 the Secretary of the petitioner had a meeting with the Hon'ble the Chief Minister of Pondicherry and the Vice-Chancellor of the Pondicherry University. It was decided in that meeting to constitute a Committee comprising of the Registrar of Pondicherry University, the Dean of the College Development Council and the Director of Education, Government of Pondicherry along with the Secretary of the petitioner Foundation. The Committee was to go into the various issues involved and submit a report for the purpose of enabling the University to decide on the reaffiliation of the institution. In spite of lapse of seven months and odd, the Committee had not met; nor had it submitted any report to the University to reconsider the affiliation. In spite of the above circumstances, the petitioner continued to conduct the classes for the existing students who had joined the course when the petitioner had a valid affiliation. However, there was a tremendous student unrest resulting in a major law and order problem in the Institute. If the Government and the University co-operate, the Institute could be run properly and impart excellent education to the student body.
6. At this juncture, several students instituted complaints before the Consumer Disputes Redressal Forums under the Act claiming refund of their fees, alleged capitation fees and damages on the allegation that the petitioner has provided a deficient service and that they are consumers' within the meaning of the Act. The Consumer Forum has taken on file such complaints and issued notices to the petitioner. In some matters, orders have been passed by the Forum against the petitioner. The petitioner is, therefore, obliged to approach this Court under Article 226 of the Constitution of India with a prayer for issue of a Writ of Prohibition prohibiting the Consumer Disputes Redressal Forum from entertaining, hearing or disposing of complaints filed by the students and for a Writ of Certiorari to quash the orders passed by the Forum.
7. In W.P. Nos. 6446, 7577, 9585, 20608, 20609, 20894, 20895 and 21083 of 1993, the prayer is for issue of Writ of Prohibition. In W.P. Nos. 19409, 19410, 19412, 19461 and 19462 of 1993, the prayer is for issue of Writ of Certiorari to call for the records in C. Nos. 71, 73, 69, 70 and 72 of 1993 and quash the orders passed on 23-8-1993 by the Forum. Similarly, W.P. No. 19411 of 1993 is for issue of a Writ of Certiorari to call for the records in C. No. 66 of 1993 and quash the order passed on 13-9-1993.
8. In W.P. 15743 of 1993, the petitioner is Loyola Institute of Business Administration, whose case is shortly as follows :- It is an educational institution approved by All India Council for Technical Education, conducting Post Graduate Diploma Course in Business Administration. It is managed by a governing body and the syllabus is fixed by the Board of Studies constituted by the governing body and chaired by the Dean of Studies. It is a course of three years with six semesters of five subjects each and examinations are conducted by the Board of Studies, which will be responsible for awarding marks. The second respondent in the Writ Petition discontinued his studies in 1986 leaving arrears in the first, second and third semesters. He rejoined the Institute for fourth semester on 16-1-1991. He had to complete nine subjects in the first, second and third semesters together with other subjects in the subsequent semesters (4th, 5th and 6th). After completion of his studies, cumulative grade certificates were issued and he attended the convocation on 28-3-1993. He laid a complaint before the State Consumer Disputes Redressal Commission alleging that he did not get full marks for class participation, corrected versions of cumulative grade sheets were not issued to him and that he was not invited for the convocation held on 28-3-1993. He claimed compensation on the above grounds. The petitioner filed objections to the complaint stating inter alia that the Commission had no jurisdiction to entertain the complaint. Even on merits, the petitioner contended that the second respondent was not entitled to any relief and that he got the marks due to him as per the norms and Rules of Board of studies as all other arrear students appearing along with the second respondent had been dealt with. The petitioner contended that the second respondent was not a 'consumer' and the petitioner was not rendering any service as contemplated by the Act and that imparting education and holding examinations are outside the scope of the Act. The Commission has no jurisdiction to proceed with the matter. The petitioner having no alternative remedy, has approached this Court with a prayer for issue of Writ of Certiorari calling for the records relating to the complaint O.P. No. 165 of 1993 on the file of the first respondent in the Writ Petition.
B. WRIT PETITIONS FILED BY THE UNIVERSITIES.
9. In this Group, W.P. No. 1700 of 1992 is filed by the Registrar, University of Madras and the Director of Institute of Correspondence Education, Madras University while the other Writ Petition W.P. No. 5262 of 1993 is filed by the Registrar, Madurai Kamaraja University. The case of the petitioners in W.P. No. 1700 of 1992 is as follows :- The fourth respondent was a student of M.A. Degree Course conducted by the Institute of Correspondence Education (I.C.E.), University of Madras. He appeared for the second Year Examination held in May 1990. He failed in two papers. He had not paid the tuition fees in one lumpsum within the prescribed date. He was accordingly informed of the same. Later it was verified and found that necessary fees had been received by the Examination Section on 22-10-1991 and immediately the results were announced. Alleging that the delay in publishing the results has caused great loss to him, the fourth respondent filed a complaint before the Consumer Disputes Redressal Forum, Coimbatore claiming a compensation of Rs. 1,00,000/- and prayed for a direction to publish the results of the Second Year Final M.A. Economics Course. An ex Parte order was passed directing payment of Rs. 28,000/- as compensation and also publication of the results and issuance of mark sheets. But, even by that time, the results had been published. The Forum had no jurisdiction to entertain the complaint as the fourth respondent is not a 'consumer' within the meaning of the Act and the University is outside the scope of the Act, as the functions of the University do not fall within the definition of "service" in the Act. Hence, the Writ Petition is filed for a declaration that the provisions of the Act do not have any application to the petitioners and the functions of the University.
10. In the other Writ Petition filed by the Registrar, Madurai Kamaraja University, the prayer is for issue of a Writ of Certiorari calling for the records of the District Consumer Disputes Redressal Forum, Sivaganga in O.P. No. 1 of 1992 on its file and to quash the orders dated 16-10-1992 passed by the Forum. The second respondent in the Writ Petition passed B.Sc. examination in July 1991. He was a student of the third respondent. According to him, though results were published, the Mark Sheets were not issued to him and on account of the delay in issue of the same, the admission give to him by the Loyola College in the M.Sc. Course was cancelled resulting in heavy loss and mental agony to him. He prayed for a compensation of Rs. 13,000/-. The petitioner filed a statement of objection contending that the Mark Sheets could not be issued since the internal marks in two subjects were not sent to it in time by the third respondent college and that there was no delay on its part. The Forum, however, held that the petitioner was alone to be blamed for the delay and granted a compensation of Rs. 3,500/- to be paid within one month and in default to pay a penalty of Rs. 8,000/- in addition. Contending that the mater is not governed by the Act and the Forum had no jurisdiction to deal with the complaint of the second respondent, the Writ Petition has been filed with the prayer already set out.
C. WRIT PETITIONS FILED BY THE DIRECTOR OF GOVERNMENT EXAMINATIONS.
11. In W.P. 9425 of 1993, the first respondent was a candidate, who appeared in the Higher Secondary Examination held in March 1991. The results were published in the third week of May 1991. The results of some of the candidates were withheld as they could not be released for want of vital particulars from the Examination Center or due to certain discrepancies at the time of processing results by the computer. The certificate of the first respondent was dispatched on 1-7-1991 and she received the same on 4-7-1991. However, she filed a complaint before the Kanyakumari District Consumer Grievances Redressal Forum claiming a compensation of Rs. 15,000/- alleging that the delay in sending the Certificate to her prevented her from applying for higher studies and getting admission in any college. The Forum passed an order granting a compensation of Rs. 15,000/- overruling the objection of the petitioner that the Act will not apply to the petitioner. Challenging the validity of the said order, the petitioner has filed the Writ Petition for issue of a Writ of Certiorari calling for the records in Consumer Grievances Application No. 112 of 1992 on the file of the second respondent and quashing the order dated 13-4-1993 on the ground that the Forum had no jurisdiction to deal with the matter.
12. In the other Writ Petition W.P. No. 20165 of 1993, the first respondent appeared in the Higher Secondary Examination held in March-April, 1992. After the receipt of Mark Sheets, he applied for retotalling on payment of necessary fees. It was found on such retotalling that there was an error in the marks awarded earlier and the mistake was rectified. The Examiner had correctly valued the answer papers and awarded 123 marks for the particular test, but while entering the same in the Mark Sheet, it was entered as 42 marks by mistake. When the mistake was found out, action was taken immediately and it was rectified. But, the first respondent instituted a proceeding before the District Consumer Redressal Forum, Tirunelveli claiming a compensation of Rs. 93,060/- alleging that on account of the error in the mark sheets supplied to her earlier, she could not sit for the Entrance Examination held for M.B.B.S., Course on 21-6-1992. According to her, she has also not able to join the Group desired by her in the B.Sc., Course. The Forum overruled the objection of the petitioner as to its jurisdiction and passed an order awarding compensation in a sum of Rs. 10,000/- and costs of Rs. 500/-. It is the validity of the said order which is challenged in that Writ Petition.
VALIDITY OF SOME OF THE PROVISIONS OF THE ACT.
13. As stated earlier, it is only in W.P. No. 6447 of 1993 a prayer is made for issue of a Writ of Declaration declaring that the provisions of Section 10(1)(b) and (c), 13(3), (4) and (5), 14(1)(c), 16(1)(b), 20(1)(b) and 27 and other provisions of the Act are unconstitutional, ultra vires and unenforceable. The Writ Petition was filed on 30-3-1993 and admitted on 7-4-1993. But, in June 1993, Presidential Ordinance 24 of 1993 was passed amending several Sections of the Act including Sections 10, 13, 14, 16, 20 and 27. The petitioner has not filed any petition for amendment of the prayer in the Writ Petition or any supplemental affidavit setting out grounds attacking the Sections as amended. That has given rise to an argument by the respondents' counsel that the Writ Petition has become infructuous in view of the amendment. Learned counsel for the petitioner has, however, argued that some of the objections to the validity of the provisions continue to hold good and the Court has to decide the same.
14. The main objection of the petition is that the provisions of the Act are vindictive of Articles 14, 19(1)(g) and 21 of the Constitution of India inasmuch as it seeks to deprive an individual of a fair trial before a Civil Court of competent jurisdiction. The argument is developed as follows :- The composition of the Forum at the various levels under the Act takes away the guarantee of a fair trial before the Forum as the majority of the Members are legally untrained. Section 10 does not lay down definite guidelines as to the persons who will satisfy the description contained in the Section. In the normal course, the disputes would have been taken to Civil Courts and the parties concerned will have a fair trial in accordance with the prescribed procedure which ensures the observance of the principles of natural justice. But, the provisions of the Act and in particular Section 13(3) expressly provides that the proceedings of the Forum cannot be called in question on the ground that the principles of natural justice have not been complied with. The procedure prescribed in Section 13 is hardly sufficient to ensure a fair trial. The Act has also vested the powers of a Civil Court on the Forum and also empowers the Forum to adopt summary procedure. Even so, the Forum has been empowered to punish the party even with imprisonment besides fine. Thus, according to learned counsel for the petitioner, the Sections referred to above are unconstitutional and unenforceable.
15. Referring to Sections 10(1)(b), 16(1)(b) and 20(1)(b), learned counsel submits that the Forum in the three levels. District, State and Nation, have to adjudicate on contentious claims and decided not only questions of fact but also important questions of law. The majority of the Forum comprised of persons who are not judicially trained. The trial would certainly not be fair and it would be unfair and unjust. Learned counsel for the petitioner relies upon an unreported judgment of a learned single Judge of this Court in W.P. No. 7562 of 1987 (Canara Bank v. State of Tamil Nadu and Tamil Nadu Sugar Corporation Ltd., (Judgment dated 12-1-1988). The Bank was granting loans to Madura Sugars Ltd., a company registered under the Companies Act. The company had to face certain problems and the Government of Tamil Nadu intervened by passing an Act called Madura Sugar Limited (Acquisition and Transfer of Undertaking) Act, 1984 (Tamil Nadu Act 18 of 1984). Under Section 15 of the Act, a Commissioner was appointed for payment of amounts payable under Section 9. The Bank made a claim before the Commissioner for the amount due from the Company. The Commissioner, by order dated 29-7-1986, determined the amount payable to the Bank at Rs. 3,03,87,487.07 and by order dated 8-10-1986 directed payment of a sum of Rs. 35,00,000/-. By a further order dated 28-10-1986 another sum of Rs. 144 lakhs was paid making a total of Rs. 179 lakhs. As per the report of the Commissioner, the net value of the assets of the company was determined to be Rs. 3,11,03,833.68. The Commissioner held that a sum of Rs. 1,24,87,487.07 remained unpaid in so far as the bank was concerned. Though the Bank had claimed interest, the Commissioner had disallowed the same. In spite of repeated requests made to the Government by the Bank, no payment was made and the writ petition was filed. One of the points framed by the learned Judge was relating to the manner of appointment of the Commissioner of Payments. While dealing with that point, the learned Judge observed that the Commissioner of Payments had no judicial experience at all to deal with a huge claim running to crores. The learned Judges said :-
"Law is a deep science. It is by a process of great experience, judicial experience is evolved. It is not acquired overnight. If that were not so, any one without qualification could occupy that exalted position. In this connection, it is worthwhile to quote the remarks of Lord Coke who, addressing James I, stated as follows :
"The King in his own person cannot adjudge any case, either criminal or treason, felony, etc., of betwixt party and party, concerning his inheritance, chattels or goods, etc., but this ought to be determined and adjudged in some court of justice according to the law and custom of England. God had endowned His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason, but by artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognizance of it. The law is the golden met-wand and measure to try the causes of the subjects, and which protected His Majesty in safety and peace."
"It will also be useful to quote the definition of a judge by Baker :
"A man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the learning of the law. A man who bears himself in his community with friends but without familiarities almost lonely, devoting himself exclusively to the most exacting mistress that man ever had, the law as a profession in its highest reaches where he not only interprets the law, but applies fearing neither friend nor foe, learning only one thing in the world, that in a moment of abstraction, or due to human weakness he may in fact commit some error and fail to do justices. That is the Judge."
Tennyson so poignantly remarked :
"An infant crying in the night;
"An infant crying for the light;
And with no language but a cry."
It is a matter of regret that the Government did not bear these vital considerations in mind. After all, if the High Court was unable to spare a Judicial Officer in service, there are number of retired Judicial Officers, who could have well adjudicated upon the claims. That should have been the proper thing too, having regard to the enormity of the claim. The reason why I am so much emphasising this, will be apparent when I come to the merits of the award. There, I leave this at this."
The learned Judge proceeded to hold that there was no investigation and no application of mind before the Commissioner of Payments put his seal of approval on the report of the Chartered Accountants. The learned Judge said that there ought to have been an investigation of the claims and the lack of it showed the abysmal ignorance of the functions under judicial process and constituted nothing but an abdication of judicial power. Referring to the absence of any discussion with regard to Exs. A-1 to A-83 marked in that case, the learned Judge observed that it would be a pointer as to why persons who are not trained on the judicial line of thinking should not be entrusted with the task of adjudication and if it was persisted with, dreadful results would follow because of the incompetence of the executive taking the role of the Judges. The learned Judge said :-
"It is high time that this practice is discontinued. This will apply not only with regard to the present Act but even with regard to other enactments. Wherever rival claims require to be decided and the rights of parties require to be determined, no person who does not have the proper training and who does not possess the judicial frame of mind should ever be appointed."
Ultimately, the claim of the Bank was negatived and the Writ Petition was dismissed.
16. According to learned counsel, the principles laid down by the learned Judge in the above case would apply here with greater force. We are unable to agree. Whatever might have been the position before Ordinance 24 of 1993 was passed, the provision as found in the Sections for constitution of the Forum after the amendment, is sufficient to ensure a fair trial. Under Section 10(1), each District Forum shall consist of a person who is, or who has been, or is qualified to be, a District Judge, who shall be its President. Under clause (b) of Section 10(1), the other two Members shall be persons of ability, integrity and standing, and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. Having regard to the wide scope of the subject which may have to be dealt with by the Forum, the Legislature has taken care to introduce such a provision. While the President of the Forum is a person who has sufficient knowledge of the judicial procedure, it is not necessary that he is versatile or well-versed in other subjects, such as economics, commerce, accountancy etc. The combination of judicial knowledge and expertise in other subjects will certainly prove to be very valuable and useful in deciding the disputes in a fair and competent manner. Similar provision is found in Section 16(1)(a) and (b) relating to the State Commission. Under clause (a), the President of the Commission has to be a person who is or has been a Judge of a High Court. The proviso to Section 16(1)(a) requires the State Government to consult the Chief Justice of the High Court before appointing the President of the Commission. Under Section 20, which provides for the composition of the National Commission, the President has to be a person, who is or has been a Judge of the Supreme Court. The proviso to clause (a) of Section 20(1) enjoins the Central Government to consult the Chief justice of India before making any appointment of the President of the Commission. The other four Members of the National Commission have to possess similar ability, integrity and standing and adequate knowledge or experience in the subjects referred to therein.
17. Further, under Section 10(1A), the appointment of the President and the Members of the District Forum shall be made by the State Government on the recommendation of a Selection Committee consisting of :
(i) The President of the State Commission - Chairman,
(ii) Secretary, Law Department of the State - Member,
(iii) Secretary in charge of the Department dealing with consumer affairs in the State - Member.
Thus, the appropriate guidelines are found in the Section itself for constituting the District Forum. The Section as it stands now, after the amendment of 1993, does not give rise to any ambiguity or room for mischief. We do not accept the argument that the Judicial Member or rather the President of the Forum being in the minority and the other Members forming the majority, will always be prevailed over by the other Members and it will lead to transgression of principles of fair play and natural justice. There is no basis for any such apprehension. In any event, the validity of the Section is not affected as it does not by itself violates any provision of the Constitution. That will be so with regard to section 16(1)(b) and 20(1)(b) also and we hold that Section 10(1)(b), 16(1)(b) and 20(1)(b) are valid and enforceable.
18. An argument was faintly advanced that members who belong to political parties are being appointed as non-judicial members of the Forum and the provisions of the Section are easily susceptible to misuse and abuse, and they should, therefore, be struck down. There is no merit in this contention. If a person satisfies the requirements of the Section, he cannot be disqualified merely because he is a member of a political party. It cannot be contended that honesty and sincerity to duty will be alien to a member of a political party. If in a particular case an appointment is made mala fide with ulterior motives, that can certainly be questioned by appropriate proceedings. But, the remote possibility of such an appointment cannot be a ground to invalidate the Sections.
19. One other argument advanced is that under Section 2(jj), a 'member' includes the 'President and a member of the National Commission or a State Commission or a District Forum, as the case may be' and that under Section 29A, no act or proceeding of the Forum at any level shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof. Learned counsel argues that even if the post of President of the District Forum or State Commission or the National Commission is vacant, the proceedings can go on without the presence of a Judicial Member and such proceedings cannot be invalidated by reason of the said vacancy. There is no merit in this contention. Section 14(2) ensures that no proceeding is conducted in the District Forum without its President. Section 18 makes the provision applicable to the State Commission with such modification as may be necessary. Further, under Section 18A, when the office of the President of the District Forum or of the State Commission, as the case may be, is vacant or when any such President is, by reason of absence or otherwise, unable to perform the duties of his offices, the duties of the office shall be performed by such person, who is qualified to be appointed President of the District Forum or, as the case may be, or the State Commission, as the State Government may appoint for the purpose. Thus, the State Government is empowered to fill up the vacancy by appointing a person who is qualified to be appointed President of the District Forum of State Commission. No doubt, there is no similar provision for filling up the vacancy in the National Commission, but that does not mean that the vacancy need not be or will not be filled up as soon as it arises. Section 29A is only a precautionary measure to see that the acts or proceedings before the Forum or Commission are not challenged on a mere technical ground. It cannot be contended that the absence of the Judicial Member will by itself cause the adoption of unfair procedure or the violation of the principles of natural justice.
20. Learned counsel for the petitioner invites our attention to the judgment in V. Balachandran v. Union of India (1992-1-L.W. 396). A Division Bench of this Court found that the provisions in the Company Law Board Members (Qualifications and Experience) Rules (1989), were weighted more in favour of Administrative Members and instead it should be weighted in favour of Judicial Members. The Bench held that the Chairman should be none but one who is qualified to be a Judge of a High Court or had been a Judge of a High Court. The Bench issued certain directions to reframe the Rules within a time schedule. The ruling has no relevance here as the Legislature has taken care to provide that the President of the Forum or Commission at all levels is a Judicial Member. The respondents have rightly drawn our attention to Section 23 of the Act under which any person aggrieved by the order made by the National Commission may prefer an appeal against the same to the Supreme Court. Thus, judicial review by the highest Court in the country is provided for by the Act.
21. Much of the attack was directed against Section 13(3). That sub-section reads thus :-
"No proceedings complying with the procedure laid down in sub-section (1) and (2) shall be called in question in any Court on the ground that the principles of natural justice have not been complied with."
On a superficial reading, the sub-section appears to encourage disposals in an arbitrary manner, by the District Forum. But, a second reading will show that the sub-section is carefully worded. The sub-section refers to sub-section (1) and (2). A perusal of sub-sections (1) and (2) shows that the procedure prescribed therein enshrines the principles of natural justice and if that procedure is adopted, the principles of natural justice are automatically satisfied. Sub-section (3) was introduced by the Legislatures only to exclude such principles of natural justice which may fall outside sub-sections (1) and (2). The expression "natural justice" is capable of covering a wider field than what is necessary for a fair trial. It is only to eschew the larger connotations and confine the expression to its essential ingredients, the Legislature has thought fit to introduce sub-section (3). There is no merit in the contention that sub-section (3) has thrown overboard all the principles of natural justice and enabled the District Forum to function arbitrarily while disposing of the complaints. We do not find anything unreasonable in Section 13(3) of the Act.
22. Reference is made to Section 13(5) and a contention is advanced that the District Forum will misuse the said provision while adopting the summary procedure. There is no warrant for such a contention. Sub-sections (4) and (5) of Section 13 should be read together, as sub-section (4) vests the District Forum with the powers of the Civil Court in respect of the specified matters. Sub-section (5) has to necessarily empower the Forum to act under Sections 193 and 228 of the Indian Penal Code for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. Sub-section (5) is more or less consequential to sub-section (4).
23. It is contended that the provision in Section 14(1)(d) enabling the District Forum to pass an order to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party is invalid as there are no guidelines for fixing the compensation. There is no merit is this contention. Each case has to be decided on the facts thereof and the Forum should necessarily have the discretion to award such amount as may be found just and proper. If the District Forum commits any error in fixing the amount, the aggrieved party can always file an appeal to the State Commission and a further appeal is provided to the National Commission. The matter can also be taken to the Supreme Court ultimately, if the party is not satisfied with any of the orders of the Forum of Commission.
24. There is also no merit in the contention that the provisions in Section 27 enabling the District Forum or the Commission to award imprisonment besides fine are unreasonable. Obviously, the provision is made with a view to enable to Forum or the Commission to enforce its orders as quickly as possible. The very purpose of the Act to protect the interests of the consumers will be defeated if the consumers find it difficult or impossible to execute the orders of the Forum or the Commission for a long time just as in Civil Courts. The provision is only similar to Section 51(c) of the Code of Civil Procedure and the dicta of the Supreme Court in Jolly George Varghese v. Bank of Cochin relating to arrest and execution proceedings in cases arising under the Code of Civil Procedure will certainly be borne in mind by the District Forum or the Commission when its powers under Section 27 are exercised. The Section by itself is not unconstitutional.
25. Learned counsel for the respondent referred to several rulings in support of their arguments that the provisions of the Act are valid and enforceable. In the view we have taken, there is no necessity for us to refer to them all. It is enough if we make a reference to the decision in Ram Krishna Dalmia v. Justice Tendolkar , in which the case law was elaborately discussed and certain principle were culled out. The following are relevant in this case :-
".......... .......... ..........
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the Legislature is free to recognise degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation."
The second respondent in W.P. No. 15743 of 1993 who argued his case in person, referred to the judgment of the Supreme Court in Asagarali Nazarali v. State of Bombay . In that case, the same principle was laid down. It is unnecessary for us to refer to it in detail here. The presumption of constitutionality has not been rebutted in this case.
26. Though the prayer in the Writ Petition uses the expression "other provisions of the Consumer Protection Act", no argument has been advanced before us with reference to any other Section in the Act. We do not find any infirmity whatever in any of the Sections so as to invalidate the same. In the result, we hold that the Sections in the Act impugned by the petitioner are not unconstitutional, ultra vires or unenforceable. On the other hand, they are valid and enforceable.
APPLICABILITY OF THE ACT
27. The petitioners contend that they are engaged in imparting education which is not a commercial or business activity. Hence the service rendered by them is not 'service' defined by the Act and the students are not consumers within the meaning of the Act. In support of their contention reliance is placed on the debates held in the Parliament when the Bill was considered before passing the Act and the Statement of Objects and Reasons. They have also drawn our attention to the recent decisions of the Supreme Court on education. Besides referring to the rulings of the National Commission in some cases, they have placed reliance on the decision of the Calcutta High Court holding that educational institutions are outside the scope of the Act. On the other hand, the respondents contend that the definition of 'service' in the Act is very wide and education falls well within its ambit. Reliance is placed on the judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa that educational institution is 'industry.' It is argued that the provisions of the Act should be liberally construed with a purpose having regard to the mushroom growth of educational institutions and the conduct of the same as a business activity. Reference is made to the decisions of the Forums in different States in which it has been held that educational institutions fall within the purview of the Act. In W.P. No. 20165 of 1993, it is argued that a distinction must be made between academic institutions and the Department of Education which is carrying on administrative functions only. According to counsel for the respondent therein, the Director of Government Examinations cannot escape the provisions of the Act as the Directorate is not imparting education but only rendering other service for charges falling within the scope of the Act.
28. In this country, education has never been a commercial commodity. Saint Thiruvalluvar in his immortal work 'Thirukkural' said that "Numbers" and "Letters" are the two eyes of mankind and that the learned alone can be said to possess eyes while the unlettered have but two sores in their head. In another stanza he said that the learning that a man acquireth in this birth will exalt him even unto his seventh rebirth. In his Niti Satakam, the Sanskrit poet Bhartrhari said that the hidden treasure, namely learning does not fall within the reach of the thief; always confers indefinable joy; increases phenomenally when endowed on those seek for it and does not perish even at times of deluge. (Sloka 13 in Chapter II, Vidwat Paddathi). The term "educate" has been defined in Webster's Third New International Dictionary, Volume I at page 723 to mean : "to develop (as a person) by fostering to varying degree the growth or expansion of knowledge, wisdom, desirable qualities of mind or character, or physical health, or general competence especially by a course of formal study or instruction." It takes its origin in the Latin term 'educare' meaning to rear, bring up and educate. The function of a teacher is not merely to deliver lectures in a class room, but to bring out the talent of the student, build up his character and develop him into a full person. That is why it said that a person blossoms into a full man only by the blessings of a teacher. Guroranugrahanaive puman poornah prajayate). Educational institutions should be interested in developing the personality of the students. The relationship of 'alma mater' and the 'alumni' can never be equated or even compared to that of a trader and a consumer. The expression' alma mater' means foster mother while 'alumnus' means foster child. It may be that unscrupulous men might have attempted to make a business out of education and convert the institutions into teaching shops. But the Indian Legislature has never attempted to do so; nor has the judiciary ever allowed it. Courts in this country have always been vigilant in weeding out the "masked Phantoms" established as business ventures from the field of education.
29. In University of Delhi v. Ram Nath , Gajendragadkar, J. rejected the contention that a teacher is a 'workman' and the University is an 'industry' within the meaning of the Industrial Disputes Act. The learned Judge pointed out that the distinctive purpose and object of education would make it very difficult to assimilate it to the position of any trade, business or calling or service within the meaning of Section 2(j) of the said Act. The learned Judge said :-
"Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. To speak of this educational process in terms of industry sounds so completely incongruous that one is not surprised that the Act has deliberately so defined workmen under S. 2(s) as to exclude teachers from its scope. Under the sense of values recognised both by the traditional and conservative as well as the modern and progressive social outlook, teaching and teachers are, no doubt, assigned a high place of honour and it is obviously necessary and desirable that teaching and teachers should receive the respect that is due to them. A proper sense of values would naturally hold teaching and teachers in high esteem, though power or wealth may not be associated with them."
30. Though in Bangalore Water Supply and Sewerage Board v. A. Rajappa , a seven Judge Bench overruled the aforesaid judgment and held that the definition of 'industry' in the Industrial Disputes Act would take within its fold Universities and educational institutions, the question whether a teacher was a 'workman' vis-a-vis his employer was not decided. Referring to the judgment in University of Delhi case , it was observed :-
"The first ground relied on by the Court is based upon the preliminary conclusion that teachers are not 'workmen' by definition. Perhaps, they are not, because teachers do not do manual work or technical work. We are not too sure whether it is proper to disregard, with contempt, manual work and separate it from education, nor are we too sure whether in our technological universe, education has to be excluded. However, that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present. The Court, in the University of Delhi, proceeded on that assumption viz. that teachers are not workmen, which we will adopt to test the validity of the argument."
31. This aspect of the matter was highlighted by the Supreme Court in A. Sundarambal v. Government of Goa, Daman & Diu , in which it was held categorically that though a school in 'industry', the teacher employed in a school is not a 'workman'. The Court observed :-
"We are of the view that the teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, graduate or postgraduate education cannot be called as "workmen" within the meaning of Section 2(1) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching."
32. In Mohini Jain v. State of Karnataka , delivering the judgment of the Bench, Kuldip Singh, J. held that without making "right to education" under Article 41 of the Constitution a reality, the fundamental rights under Part III shall remain beyond the reach of large majority which is illiterate and thus, the "right to education" is concomitant to the fundamental rights. The learned Judge referred to the importance of education in Indian civilisation and pointed out that education has never been a commodity for sale. The learned Judge said :-
"Indian civilisation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale."
33. A Constitution Bench of the Supreme Court reiterated the position in Unnikrishnan, J.P. v. State of A.P. . The following passage in the judgment of Jeevan Reddy, J. can be quoted with advantage :-
"142. In Bandhua Mukti Morcha this court held that the right to life guaranteed by Article 21 does take in "educational facilities." (The relevant portion has been quoted hereinbefore). Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has been recognised not only in this country since thousands of years, but all over the world. In Mohini Jain , the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that, without education being provided to the citizens of this country, the objective set forth in the preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasized than in the above words. The importance of education was emphasized in the 'Neethishatakam' by Bhartruhari (First Century B.C.) in the following words :
"Translation :
Education is the special manifestation of man;
Education is the treasure which can be preserved without the fear of loss;
Education secures material pleasure, happiness and fame;
Education is the teacher of the teacher :
Education is God incarnate;
Education secures honour at the hands of the State, not money;
A man without education is equal to animal."
The fact that right to education occurs in as many as three Articles in Part-IV viz., Articles 41, 45 and 46 shows the importance attached to it by the founding fathers. Even some of the Articles in in Part-III viz. Articles 29 and 30 speak of education.
143. In Brown v. Board of Education (1953) 98 Law Ed. 873, Earl Warren, C.J. speaking for the U.S. Supreme Court emphasised the right to education in the following words :
"Today, education is perhaps the most important function of State and local governments........ It is required in the performance of our most basic responsibilities, even service in the armed forces, it is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."
In Wisconsin v. Yoder (1972) 32L law Ed. 2d 15, the Court recognised that :
"Providing public schools ranks at the very apex of the function of a State."
"The said fact has also been affirmed by eminent educationists of modern India like Dr. Radhakrishnan, J.P. Naik, Dr. Kothari and others."
34. The question in this case is whether the exalted position given to education and educational institutions from the ancient times has been changed in any manner by the provisions of the Act or are the educational institutions and the students reduced to the status of trader and consumer. The answers to the questions have to be found in the provisions of the Act. Before considering the relevant Sections themselves, it is worthwhile referring to the history of the legislation and the object thereof. The Consumer Protection, Bill 1986 was moved in the Lok Sabha along with seven other bills viz. (1) Standards of Weights and Measures (Amendment) Bill, 1986, (3)(2) Standards of Weights and Measures (Enforcement) Amendment Bill, 1986. Essential Commodities (Second Amendment) Bill, 1986, (4) Drug and Cosmetics (Amendment) Bill, 1986, (5) Prevention of Food Adulteration (Amendment) Bill, 1986, (6) Monopolies and Restrictive Trade Practices (Amendment) Bill, 1986 and (7) Agricultural Produce (Grading and Marking) Amendment Bill, 1986. All the eight bills were taken up for consideration together. The Minister of Parliamentary Affairs and the Minister of Food and Civil Supplies, while introducing the Bills said :-
"In the present economic and social scenario, the subject of consumer protection is of vital concern and importance for all of us because we are all consumers in one form or the other. Although various scientific and technological developments have brought about perceptible socio economic changes. The consumer's control over the market mechanism has gradually diminished. His scrutiny in choice of goods and services has been greatly eroded by various forms of unfair, monopolistic and restrictive trade practices.
Although there are a number of consumer protection laws such as the Essential Commodities Act, Prevention of Food Adulteration Act. Standards of Weights and Measures Act, MRTP Act, etc. the existing arrangements have not led to the growth of an effective consumer protection movement. These laws are either preventive or punitive in approach and they do not provide for speedy relief and compensation to the aggrieved consumers. The procedures are long-drawn and cumbersome. Besides at present, there is no statutory machinery which could function as a common platform for officials and non-officials to discuss the consumer protection and advise the Government on policies and measures needed to promote and protect the rights and interests of consumers.
Protection of legitimate rights and interests of consumers depends not only on the legal framework that could be provided for the purpose by the Government but more so on a strong voluntary consumer movement effectively functioning at the grass-root level and also an adequate response and co-operation from the trade and industry.
... ... ...
After careful consideration of various ideas, this Consumer Protection Bill 1986, - now the designation given to the Bill is slightly different for redressal of grievances etc. - has been introduced for kind consideration of the House. This Bill is a landmark in the field of socio-economic legislation of the country. This comprehensive Bill is in addition to and not in replacement of any other law on the subject of consumer protection. The Bill enshrines the rights of the consumers to be promoted and protected by the Consumer Protection Councils in the Centre and the States and the redressal machinery at the National, State and District levels. The legislation intends to provide prompt and meaningful remedy for consumer grievances. But its success will depend on effective implementation of its provisions by the Central and State Governments. More than that, I have no hesitation in saying that the success of the legislation would depend on the development of a strong broad-based voluntary consumer movement at the grass-root level.
I also take this opportunity to request my brethren in the trade and industry to rise to the occasion and set up consumer redressal cells within their organisations which would minimise consumer complaints and improve their image. Trade and industry should not only evolve a Code of Ethics for fair business practices but also implement them in letter and spirit."
35. A perusal of the entire debate which followed shows that no Member of the Parliament including the Minister had any idea of bringing educational institutions and Universities within the sweep of the Bill or the Act. One of the Hon'ble Members said in the course of his speech :-
"Similarly, my suggestion is that when we have formed the Consumer Disputes Redressal Forums at the District level, the composition of these show that it includes the interests of commerce and trade. My suggestion will be that in these Forums also, the representative of consumers should be included alongwith commerce and trade because they are going to decide the disputes between traders and consumers. Therefore, when we include the representatives of the commerce and trade and education, then we should have representatives of the consumers themselves on these Consumer Disputes Redressal Forums on all these levels. My submission is that a person of eminence in the field of education need not be there at all. Instead of that, a representative of the consumer should be there so that it will be protecting more and more interests of consumers."
In the Rajya Sabha, one of the Members raised a doubt whether services like transport, railways, telephones, communication etc. would come within the definition in sub-clause 2(1)(c)(iii) of the Bill and demanded that those also should come within the purview of the definition. We do not think that it is necessary to refer to all the passages in the debates read out by learned counsel for the petitioners, which he did in order to emphasise that educational institution was not in the contemplation of the legislators while passing the Bill. The contention that the fact that the Bill was grouped along with seven other Bills related to trade and commerce is a pointer to the scope of the Act is well founded.
36. The Supreme Court had occasion to refer to the object of and need for the legislation in the following words in Common Cause (A registered Society) v. Union of India (1993) 1 CTJ 578 (SC) (CP) = 1993 (1) C.P.R. (S.C.) :
"The object of the legislation, as the Preamble of the Act proclaims is 'for better protection of the interests of consumers'. During the last few years preceding the enactment there was in this country a marked awareness among the consumers of goods that they were not getting their money's worth and that they were being exploited by both traders and manufactures of consumer goods. The need for consumer redressal fora was, therefore increasingly felt. Understandably, therefore, legislation was introduced and enacted with considerable enthusiasm and fanfare as a path-breaking benevolent legislation intended to protect the consumer from exploitation by unscrupulous manufacturers and traders of consumer goods. A three-tier fora comprising the National Commission came to be envisaged under the Act for redressal of grievances of consumers."
37. The relevant part of the Statement of Objects and Reasons is thus :-
"The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for that purpose, to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.
2. In seeks, inter alia, to promote and protect the rights of consumers such as -
(a) the right to be protected against marketing of goods which are hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(c) the right to be assured, wherever possible, access to a variety of goods at competitive prices :
(d) The right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums :
(e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
(f) right to consumer education.
3. These object are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level.
4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the District, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided."
38. The Act was amended by Ordinance No. 24 of 1993 dated 18th June, 1993, which became Act No. 50 of 1993 dated 27th August, 1993. The Statement of Object and Reasons is thus :-
"The Consumer Protection Act, 1986 was enacted to protect the interests of the consumers. But the administration of the Act has brought some major deficiencies in the Act. For example, it is not applicable to the services rendered by Government Hospitals to the poor patients who are generally treated free of cost. But many of such hapless patients have to suffer the apathy, neglect and carelessness of the hospital staff while availing of the services there. Similarly postal and telecommunication services are out of its ambit. This Act also does not cover the sale of hazardous substances which are harmful particularly for the children. All these shortcomings in the Act need to be rectified.
Of course the consumer awareness is picking momentum in our country which is a good sign for the consumer movement but when we are educating our consumers it is also our duty to discourage frivolous and false complaints which are lodged either to harass the traders or to blackmail them. Hence a provision for deterrent penalty in the form of fine is necessary to be provided in the Act.
This Bill provides to remove some of the shortcomings in the Consumer Protection Act, 1986."
It will not be out of place to mention that the said amendment was motivated by a decision of the National Forum in Consumer Unity and Trust Society, Jaipur v. State of Rajasthan and others (1991)(1) C.P.R. 241 = (1993) 1 CTJ 89 (CP). It was held in that case that a claim against doctors working in a Government Hospital and the authorities of the Government Hospital under the provisions of the Act, was not sustainable, as the patients could not be held to be 'consumers' and the facility offered in Government Hospitals cannot be regarded as service "hired" for "consideration". The Commission suggested that it was for the Parliament to review the matter and amend the Act suitably so that there is no ambiguity between the intent of the law and its interpretation. In that context, the Amendment was brought about changing certain definitions, including those of "consumer" and "complaint".
39. A Division Bench of this Court has held that the said amendment has not changed the position regarding Hospitals and the services rendered by them-vide Dr. C.S. Subramanian v. Kumarasamy and another (1994) 2 CTJ (Madras High Court) (CP) = (1994 I.L.W. 347). The Division Bench held in that case that the services rendered by a Medical Practitioner and treatment would not come within the meaning of service as defined in the Act and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, cannot be considered to be a 'consumer' as defined by the Act. However, the Division Bench held that the Act would apply to para-medical practitioners or hospitals to the extent to which they would fall within the definition and a person availing such service would be a 'consumer' under the Act. The main plank of the arguments of the petitioners in these cases is the said judgment of the Division Bench. We will refer to the same in detail a little later.
40. After the amendment of 1993 the Supreme Court had to decide a case relating to a statutory house-building construction Authority in Lucknow Development Authority v. M.K. Gupta (1993) 1 CTJ 929 (Supreme Court) (CP) = (1994-1-L.W. 10(S.C.). While holding that statutory authorities are not exempted from the provisions of the Act, the Court considered the objects and scope of the Act. Reliance is placed on the judgment by both sides. It is, therefore necessary to extract the relevant passages in extenso.
41. Referring to the purpose of the Act and the object it seeks to achieve the Bench said at pp. 13 to 15 (pp. 933 to 936 of (1993) 1 CTJ) :-
"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 interests 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 the otherwise plain meaning of a provision. In fact the law meets the 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 legislation 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 store house 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 for 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. A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one explanatory and the other expandatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep when its ambit is widened to such things which otherwise would have been beyond its natural import. Manner of construing an inclusive clause and its widening effect has been explained in Dilworth v. Commissioner of Stamps 1899 A.C. 99 as under :-
"Include" is very generally used interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also things which the definition clause declares that they shall include."
It has been approved by this Court in Regional Director, Employees' State Insurance Corporation v. Highland Coffee Works of P.F.X. Saladanha and Sons and Anr. C.I.T. Andhra Pradesh v. M/s. Taj Mahal Hotel Secundarabad and The State of Bombay and others v. The Hospital Mazdoor Sabha and others . The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of the enactment as it is a social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do voilence to the language of the provisions and is not contrary to attempted objective of the enactment.
3. Although the legislation is a milestone in history of socio-economic legislation and is directed towards achieving public benefit we shall first examine if, on a plain reading of the provisions unaided by any external aid of interpretation, it applies to building or construction activity carried on by the statutory authority or private builder or contractor and extends even to such bodies whose ancillary function is to allot a plot or construct a flat. In other words, could the authorities constituted under the Act entertain a complaint by a consumer for any defect or deficiency in relation to construction activity against a private builder or statutory authority ? That shall depend on ascertaining the jurisdiction of the Commission. How extensive it is ? A National or a State Commission under Section 21 and 16 and a Consumer Forum under Section 11 of the Act is entitled to entertain a complaint depending on valuation of goods or services and compensation claimed. The nature of complaint which can be filed, according to clause (c) of Section 2 of the Act is for unfair trade practice or restrictive trade practice adopted by any trader or for the defects suffered for the goods bought or agreed to be bought and for deficiency in the service hired or availed of or agreed to be hired or availed of, by a complainant who under clause (b) of the definition clause means a consumer or any voluntary consumer association registered under the Companies Act, 1956 or under any law for the time being in force or the Central Government or any State Government or where there are one or more consumers having the same interest, then a complaint by such consumers. The right thus to approach the Commission or the Forum rests in consumer for unfair trade practice or defect in supply of goods or deficiency in service. The word 'consumer' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as a 'purchaser a of goods or services'. In Black's Law Dictionary it is explained to mean, one who consumes. Individuals who purchase, use, maintain, and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practice, for which State and Federal consumer protection laws are enacted. 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 service 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 service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of within 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 earning of his livelihood, by means of "self-employment.") It is in two parts. The first deals with goods and 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 these 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 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 service are that they are supplied at a price to cover the costs and generate profits 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. The former is, normally, capable of being replaced and repaired whereas the other may be required to be compensated by award of the just equivalent of the value or damages for loss. 'Goods' have been defined by Clause (1) and have been assigned the same meaning as in Sale of Goods Act, 1930 which reads as under :
"goods" means every kind of movable property other than actionable claims and money, and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale."
It was, therefore urged that the applicability of the Act having been confined to movable goods only a complaint filed for any defect in relation to immovable goods such as a house or building or allotment of site could not have been entertained by the Commission. The submission does not appear to be well founded. The respondents were aggrieved either by delay in delivery of possession of house or use of sub-standard material etc. and therefore, they claimed deficiency in service rendered by the appellants. Whether they were justified in their complaint and if such act or omission could be held to be denial of service in the Act shall be examined presently but the jurisdiction of the Commission could not be ousted because even though it was service it related to immovable property.
4. What is the meaning of the word 'service' ? Does it extend to deficiency in the building of a house or flat ? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property. The answer to all this shall depend on understanding of the word 'service'. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what is meant depends in 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 provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loadging or both, (housing construction), entertainment, amusement or the surveying 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 same or also. 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 depends upon the context and 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 '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, future product or 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 uses 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 loans or accept deposit or provide facility of locker they undoubtedly render as much service as private bank. No distinction can be drawn in a 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 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."
42. We have taken the liberty of quoting the entirety of the above passage as it provides a proper perspective of all the relevant provisions of the Act and also sets out the rules of construction. The last sentence in the above passage is relied on by both sides. While on the one hand the petitioners contend that the nature of the duty and function of educational institutions and University cannot bring them within the definition of 'service' or 'facility' in the sense in which it should be understood for the purpose of the Act, the contention of the respondent is that the definition of 'service' is so wide as to rope into its dragnet any kind of service including that of educational institutions. The Supreme Court did not have occasion to consider in that case this aspect of the matter. The detailed discussion referred to above was made in the context of the question whether statutory authorities which developed land and constructed houses in discharge of their statutory function, could be brought within the ambit of the Act. That question was answered in the affirmative by the Court. The question which is now before us did not arise in that case. But, of course, we have to bear in mind the principles laid down therein in the matter of construction of the definitions contained in the Act in the light of the purpose and objects thereof.
43. Learned counsel for the petitioners lays emphasis on the following sentence in the judgment of the Supreme Court found in the above passage :-
"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 large sense of user of services."
It is submitted that the definition of 'consumer' even after the amendment of clause (ii) in Section 2(d) will not apply to a non-commercial service or activity. The introduction of the words "or avails of" after the word "hires" in the sub-clause has not brought about a change in the scope or the Section on this aspect of the matter. It is in this connection reliance is placed upon the following reasoning of the Division Bench in Dr. C.S. Subramanian v. Kumarasamy and another (1994) 2 CTJ 294 (Supreme Court) (CP) = (1994-1-L.W. 347) :-
"46. The weighty reasons and strong sentiments echoed by the eminent and erudite learned Judge (V. Balakrishna Eradi, J.,) would in our view, continue to apply with equal force even after the amendment introduced to the word 'consumer' in Section 2(1)(d) of the Act. The mere absence of the words 'avails of' in Section 2(1)(d) of the Act alone if is to be considered as an impediment for permitting a citizen from availing of the remedies under the Act against Government Hospitals and services rendered therein or by and large, generally no consideration is paid for the services rendered to a patient in such places, we fail to see what real or substantial change has been brought about by the mere addition of the words 'avails of' in Section 2(1)(d) of the Act when the definition of 'service' in Section 2(1)(o) remained unaltered and still continues to exclude the rendering of any service free of charge. If the avowed object is to provide cheap, speedy and efficacious remedies to a class of persons who also were victims or sufferers of any defect or deficiency in the medical services hired or availed of by such persons, we fail to see any relevance or rationale or justification in denying the same treatment or opportunity to those who had such treatment without paying or actually paying for it, either in an hospital maintained or administered by a Government or Local Authority or a charitable organisation, brushing aside the so called Social Welfare character of the legislation. On principle and in the context of ordinary law, there could be no difference whatsoever in the matter of duties and responsibilities owed to a patient whose medical care and treatment has been undertaken, depending upon the fact that such services were for payment of consideration or gratuitous or by the Government Hospitals or doctors or private medical practitioners or Hospitals. If the position has to be otherwise, it would be vulnerable for the vice of hostile discrimination to exclude from the purview of the Act, de hors its avowed and proclaimed object, a category or class alone on the mere pretext of a patient being treated not for consideration paid by him but gratuitously, or in a Government Hospital whether for payment or otherwise as has been contended by some of the learned counsel for the petitioner. Such consideration shall have no relevance or nexus to the so called proclaimed object of the legislation to provide cheap and speedy remedies."
44. Our attention is also drawn to the following passages in the same judgment :-
"50. That apart, the Preamble to the Act, which proclaims the object and aim of the law and the Statement of Objects and Reasons as also the debates in both the Houses of Parliament, during consideration of the provisions of the Act, when it was at the anvil, would give a positive impression in most unmistakable terms leading to an inevitable and inescapable conclusion that the medical profession or the Hospitals were never in the contemplation of the framers of the Act as being comprehended within the scope of the Act. As noticed earlier, context of the legislative provisions is a vital key to an appropriate interpretation of the words in a statute. The Apex Court observed in this regard in the decision (Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., and others) as hereunder :-
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each glass, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statue can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the sitting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we fined no reason to depart from the court's construction."
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52. Thus viewed, pragmatics apart, the entire gamut of controversies in these cases with particular reference to the practicalities of the situation, we have no hesitation to hold that the word "services" has to be construed in the context of the definition of the words 'consumer', 'restrictive trade practices' and 'unfair trade practices' as also the nature of constitution, the powers and the summary adjudicatory procedure prescribed under the Act and the need to read the provisions in such a way which would promote its constitutionality than expose the provisions to be susceptible to the attack of unconstitutionality. It is by now a well settled rule of construction that if a statutory provision is susceptible of or admits of even two reasonably possible views than the one which would promote its constitutionality should be preferred on the ground that the Legislature is presumed not to have intended an excess of its own jurisdiction, by adopting such course, as also undertaking a prime facie consideration of the challenges made to some of the provisions to indicate the need for a reading down of certain provisions, we should not, however, be considered to have pronounced our views on the constitutionality of the Statute or some of the provisions of the Act in question. Consequently, on an overall consideration of the matter, we are of the view that the words "consumer" and "service" defined under Section 2(1)(d) and (o) respectively should be construed to comprehend consumer of services of commercial and trade oriented nature only in the context of an unfair trade or restrictive trade practices and not otherwise."
45. Apart from the reasons found in the above passage, the Divisions Bench had also referred to the complexities of the problems in exposing the Medical Practitioners to the Disputes Redressal Forums constituted under the Act and rendering them answerable to claims by complainants in a summary procedure of trial, which may lead to counter-productive results on the very quality and standard of service by such professionals. Though that part of the reasoning of the Bench will not apply the present case, we accept and adopt the dictum that the words 'consumer' and 'service' defined in Section 2(1)(d) and (o) respectively should be construed to comprehend consumer of services of commercial and trade oriented nature only in the context of unfair or restrictive trade practices and not otherwise.
46. While dealing with the definition of the word 'service' in Section 2(o) of the Act and the word 'includes' occurring therein, learned counsel for the petitioners referred to the following passages in the "the Principles of Statutory Interpretation" by Justice G.P. Singh. 5th edition :-
"At page 122 :-
"But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words of expressions used. It may be equivalent to 'mean and include' and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably be attached to those words or expressions."
At pp. 123 & 124 :-
"But as seen earlier, the word "include" may in exceptional cases be construed as equivalent to 'mean and include, Entry 22 added by the Gujarat Government to Part I of the Schedule to the Minimum Wages Act, 1948 furnished and illustration of such use. The entry refers to 'Employment in Potteries Industries' and is followed by an explanation which reads; 'For the purpose of this entry potteries includes the manufacture of the following articles of pottery namely - (a) Crockery, (b) Sanitary appliances, (c) Refractories, (d) Hospital wares, (e) Electrical accessories, (f) Jars, (g) Textile accessories, (h) Toys, (i) Glazed tiles'. Construing the explanation the Supreme Court held that the items included in it were plainly comprised in the expression 'potteries industry' which showed that the word 'includes' was not used to extend the normal meaning of this expression. For the same reason, it was clear that the explanation was not added to indicate by way or abundant caution that the items included in it were comprised in 'potteries industry'. The conclusion was reached that the word 'includes' was used in the explanation in the sense of 'means' and the definition provided by the explanation was exhaustive. It was, therefore, held that Mangalore pattern roofing tiles manufactories were not covered by Entry 22 as they were not included in the explanation. Similarly in construing the definition of 'Prize Chit' as contained in Section 2(e) of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 the Supreme, Court held that the inclusive definition was not intended to expand the meaning of 'Prize Chit' to cover all transactions or arrangements of the nature of prize chits by whatever name called and that a recurring deposit scheme without any claimant of prize was not a prize chit as defined in the Act. And in construing Section 2(3) of the Rating Act, 1971 which defines 'Livestock' to include any mammal or bird kept for the production of food or wool of for the purpose of its use in the farming of land, the word livestock was not given the wide meaning (in contradiction to dead stock) to include any animal whatsoever and was held not to extend to thorough bred horses not kept for use in the farming of land. In holding so Lord Keith observed :
"There can be no doubt that in some cases the language of an inclusive definition considered with the general context, can have the effect that the ordinary general meaning of a word or expression is to some extent cut down."
47. Our attention is also drawn to the judgment of House of Lords in Hemens (Valuation Officer) v. Whitsbury Farm and Stud Ltd. ((1988) 1 All England Reports 72) wherein Lord Keith of Kinkel said :-
"It is true that what may be termed an inclusive definition is normally intended to widen the ordinary natural meaning of the word defined or at least to remove doubts as to the extent of that meaning. However, in Dilworth v. Commissioner of Stamps (1899) AC 99 at 106, Lord Watson said :-
"But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include" and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
It is fair to say that it is hard to find any instance of such an exhaustive meaning being attributed to a definition which starts with the word "includes". Nevertheless, I think there can be no doubt that in some cases the language of an 'inclusive' definition, considered with the general context, can have the effect that the ordinary natural meaning of a word or expression is to some extent cut down. The context here is agricultural, and the kinds of mammals and birds mentioned in Section 1(3) of the 1971 Act are those which one would expect to find on an ordinary farm. The Act was passed, as is well known, to overcome the effect of the decision in W & J.B. Eastwood Ltd. v. Herrod (Valuation Officer) ((1970) 1 All ER 774, (1971) AC 160), where chicken broiler houses were held not to be agricultural buildings. Its provisions would also apply to buildings in which pig or cattle beasts are permanently kept and fattened. An intention to cover animals not normally regarded as ordinary farm creatures is not readily to be inferred. On the other hand, the words 'any mammal or bird' may well have been intended to cover the case where some unconventional type of mammal or bird came to be kept for food production, for example a deer. If 'livestock' were to retain its full ordinary meaning, it would seem apt to include animals kept or bred as pets, for example dogs, cats and mice, so that, provided the building where that was done was surrounded by or was contiguous to at least two hectares of agricultural land (see Section 2(4)), that building would qualify for agricultural derating. That is unlikely to have been intended."
48. The respondents have, on the other hand, referred to the judgment in Commissioner of Income-tax, Central Calcutta v. National Taj Traders in which the Court held that for purpose of construction, all the parts of a statute or Section must be construed together and every clause of a Section should be construed with reference to the context so as to make the provision consistent with the whole statute. The general principle stated above does not help the respondents in the present case.
49. Reliance is placed on the following passage in the judgment of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath :-
"23. As pointed out in Craies on Statute Law, Seventh Edition, page 213, where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prime facie restrictive; and whenever an interpretation clause defines a term to include something, the definition is extensive. While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, So that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where, as is usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined to include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense. Article 12 uses the word "includes". It thus extends the meaning of the expression "the State" so as to include within it also what otherwise may not have been comprehended by that expression when used in its ordinary legal sense.
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28. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smit, said, "When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are however, not best fitted for the role of adapting the law to the necessities of the time, for the legislative process in too slow and the Legislatures often divided by politics, slowed done by periodic elections and overburdended with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution, is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society."
Our attention is also drawn to the ruling in Municipal Corporation of Greater Bombay v. Indian Oil Corporation , wherein the Court said, after referring to some earlier judgments, that the interpretation of every statutory provision must keep pace with changing concepts and the values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which is undergoing rapid social and economic transformation.
51. Reference is also made to the assertion in The Regional Director, ESIC v. High Land Coffee Works of P.F.X. Saldanha & Sons , wherein it is said that the word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of word or phrases occurring in the body of the statute.
52. In Administrator Municipal Corporation, Bilaspur v. Duttatraya Dahankar , the Court held that the modern positive approach is to have a purposeful construction that is to effectuate the object and purpose of a statute.
53. In Nelson Motis v. Union of India , the Court held that it is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences. In the same case, however, it is pointed out that the established principle of interpretation is in favour of reading down of a statutory provision in order to avoid it being struck down as illegal or unconstitutional. None of the above cases referred to by the respondents helps them in any manner in this case. We have already given our reasons as to why the definition of "consumer" and "service" should be understood in such a way as to exclude educational institutions and education from their ambit. Our reasoning is also fortified by the circumstance that there was no necessity for the Legislature to specify banking, financing, insurance etc., which would normally fall within the words "service of any description", if the Legislature intended to cover "all kinds of service", whether commercial or non-commercial. If the contention of the respondents in accepted, the first part of the definition in Section 2(o) would include even 'religious service' and such a construction would lead to absurdity. The more clinching aspect of the matter is that even when the Act was amended by Act 50 of 1993, the Legislature did not choose to include 'education' in the definition of 'service', while introducing "housing construction" only. Further, the composition of the District Forum has been changed by amending Section 10(1)(b). In that sub-section as it originally stood, provision was made for including in the Forum as person of eminence in the field of education, trade or commerce. That has been substituted by the present provisions, according to which, persons of ability, integrity and standing and having adequate knowledge or experience of or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. In our opinion, this amendment has a significance inasmuch as it substitutes a person eminent in the field of education with a person well-versed in subjects connected with commercial activities. We would like to recall in this connection the speech of one of the Members during the course of debates in the Parliament suggesting the inclusion of representatives of consumers instead of persons eminent in the field of education, to which we have already made reference. The intention of Parliament is thus made clear and the interpretation adopted by us is in consonance with that intention.
54. Yet another aspect has been brought to our notice by learned counsel appearing for the petitioner. When the Act was passed in 1986, Section 2(r) defined 'unfair trade practice' to have the same meaning as in Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969, but not to include an unfair trade practice adopted by the owner of an undertaking to which Part A of Chapter III of that Act applies or by any person acting on behalf of, or for the benefit of, such owner. When the Bill was debated, the Minister clarified that the point of distinction between the line of functioning of this Act and the M.R.T.P. Act is that the M.R.T.P. Act will deal with monopoly houses for unfair trade practices, while this Act will deal with the others. By Act 50 of 1993, Section 2(r) was substituted. The entire definition of the expression as found in Section 36A of the M.R.T.P. Act has been reproduced in Section 2(r), thereby avoiding the necessity of referring to the provision contained in the M.R.T.P. Act. Our attention is also drawn to Section 5 of the M.R.T.P. Act providing for establishment and constitution of the Commission thereunder. The language in Section 5(2) of the said Act has been adopted in Section 10(1)(b), 16(1)(b) and 20(1)(b) of the present Act.
55. According to learned counsel for the petitioners, the provision indicates that the Act is complementary or supplementary to the other statutes relating to trade and commerce. In fact, the Act does not claim to be a complete Code and Section 3 expressly declares that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. On a consideration of all the aforesaid matters and application of the principles referred to above, we have no doubt in holding that the Act is not applicable to institutions which impart education and Universities.
56. Learned counsel appearing for the University of Madras in W.P. No. 1700 of 1992 has taken us through the provisions of the Madras University Act and also the Statement of Objects and Reasons in detail. The following passage in the Statement of Objects and Reasons are read out :-
"Recent educational development has emphasised, as has been pointed out by the Calcutta University Commission, the desirability of organising teaching and residential Universities wherever possible. The Bill seeks to establish a teaching and residential University in Madras and to organize and develop the teaching resources that exist in the city, to promote co-operation and reciprocity among the colleges in Madras and to develop inter-collegiate activities and amenities. The colleges in the city will become the constituent parts of the new University and will undertake teaching as at present but will be induced to specialize in certain departments of learning so as to prevent a repetition and reduplication of effort on the part of the several colleges in the same direction. The University will conduct the teaching in a manner that it will express itself generally in and through the constituent colleges. A new synthesis is established between the University and its colleges wherein the University will not be something outside and apart from the colleges, as it now is, but the colleges will in the fullest sense be members of, and partners, in, the University. The new system will enable the University to be really responsible for the character of the teaching given in its name and to realise that it is the training given to the students which is of primary importance, and the examinations which test, this training are of subsidiary importance. The Bill emphasises a system "wherein, the colleges, while stronger and freer than they now are and able to command more fully than ever the loyalty of their students, will neither be tempted to rival the University or claim independence of its, nor have reason to feel any jealousy or fear of it, or to regard it as a competitor." It is a University of Colleges that will be established. At present the University exercises a certain degree of control over the residential students. But the time has come when the University should exercise a greater degree of control over them through the colleges, so that the academic life of the University may be promoted and the students induced to live and move in an academic atmosphere. Hostel life will thus form a very important part in the organisation of academic life in the city.
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At present, in spite of the best endeavours even in the city of Madras, intellectual loneliness is the characteristic of those scholars and professors who pursue higher research as Oepigraphists, archaeologists, historians, economists or pure scientists. By founding special University chairs in selected subjects and manning them by professors of high qualifications, specially recruited for the purpose, or by professors selected from among members of the staffs of the existing colleges who will give courses of lectures and inter-collegiate system of teaching and instruction, or supervise research work of students, it is proposed to create an academic atmosphere and further facilities for research work which must form an essential of the modern cultural University. In all modern educational development private effort and generosity have been more responsible than State aid for promoting research and scholarship. It is fervently hoped that the new reorganized University will call forth the best sentiments of its alumni and of the generous public enabling them to take greater interest in the activities of the University and the University will ere long have large private endowments which will redound to the credit as much of the donor as of the institution."
After referring to the provisions of the Act, learned counsel has submitted that both the academic and administrative functions of the University are so interconnected with each other that they cannot be severed into two separate compartments. It is argued that the common source of power is the statute and the main function of the University is to impart education and the administrative functions are only ancillary and subsidiary in order to carry out the main function. Thus, according to him, there is no commercial activity on the part of the University, which can be considered independent of the educational or academic activity. Learned counsel has submitted that the affiliation or disaffiliation by the University is also part of its academic activity and it cannot be considered to be a 'service' as defined by the present Act. In our view, the contentions of learned counsel are well-founded and there is no reason whatever to reject the same. There cannot be a well defined line of demarcation or dichotomy between academic functions and administrative functions of an educational institution or University. We do not accept the alternative contention of some of the counsel for the respondents that educational institutions and Universities could be brought within the jurisdiction of the Forum constituted under the Act in so far as the disputes relate to their administrative functions and deficiencies therein.
57. The respondents have placed reliance on some of the judgments of the State Forums and the National Forum in support of their contentions. In Smt. Monisa Samal v. Sambalpur University and others (II(1991) CPJ 373), the Orissa State Consumer Disputes Redressal Commission held that examination as well as publication of result is a 'service' within the meaning of that Act since the same gives benefit to a person who appears for the examination and becomes successful. For rendering the service, the University charges fees, which can be said to be the hiring charges for the said service. In that view, the Commission rejected the contention of the University that the complaint was not maintainable before the Forum. However, the Commission did not award any compensation on the ground that it was hard to assess the value of compensation. On appeal, the National Commission in Manisha Samal v. Sambalpur University & Ors. (I(1992) CPJ 231 (NC)) confirmed the order on the only reasoning that the apprehension of the complainant before the Forum that the marks she secured in her examination papers had been awarded to other two students who had been assigned the identical Roll Number in the examination and vice-versa was not true. The National Commission did not go into the question whether the complaint against the University was maintainable under the Act.
58. In Tilak Raj of Chandigarh v. Haryana School Education Board, Bhiwani (I(1992) CPJ 76), the Haryana State Commission rejected the contention of the Board challenging the jurisdiction of the Forum and held that education is generally and pre-eminently a service and it would fall within expansive and large field of 'service' spelt out in the definition under the Act. The Commission relied more on the judgment of the Supreme Court in Bangalore Water Supply and Sewarge Board case in which it was held that education was 'industry' as defined by the Industrial Disputes Act. The Commission overlooked that though the Supreme Court held education to be 'industry' in that case, it did not decide the question whether a teacher was a 'workman' as defined by that Act. We have already referred to this aspect of the matter earlier. But, the more important aspect of the matter is whether a student could be considered to be a 'consumer' merely because the educational institution is an 'industry' within the meaning of the Industrial Disputes Act. This was completely overlooked by the Commission.
59. In Maharishi Dayanand University, Rohtak v. Shakuntla Chaudhary (II-1993(1) C.P.R. 274), the same Commission held that the Maharishi Dayanand University Act did not provide any immunity to the University from the provisions of the Consumer Protection Act. There was no argument before the Commission in that case that the service rendered by the University would not fall within the scope of the said Act.
60. The Orissa State Commission held in Biren Kumar Jagdev v. Controller of Examination, Utkal University and Another (II(1992) CPJ 903) that education is not outside the scope of the present Act. The Commission has placed reliance on the decision in Monisa Samal's case (II(1991) C.P.J. 373) and another case decided by the Orissa Commission. There is no discussion of the relevant provisions of the Act. It appears that the Commission was carried away by its emotions inasmuch as it has expressly stated, "However, this Commission strongly feels that education is not properly imparted and examinations are not properly held." We are unable to accept the argument that because there is an attempt on the part of several unscrupulous persons to make a business out of education, it should be brought within the scope of the Consumer Protection Act.
61. In A.P.J. School v. K.L. Galhotra (II(1992) CPJ 807), the question was discussed at some length by the Haryana State Commission. After referring to the definition of 'service' in the Act, the Commission said :-
"9. A bare reading of the aforesaid provision would make it manifest that Parliament in its wisdom had cast the net widely to bring the widest varieties of the services within the fold of the consumer jurisdiction. A close analysis of the said definition would disclose two fold range. Firstly, service is defined generically as one of any description, which is made available to potential users. Herein the language is unqualified and obviously includes within its range any and every service which is so made available. The definition, then proceeds to enumerate a few categories of service which are expressly included within the same. However, this inclusion cannot possibly cut into the larger arena of the definition which includes services of any description made available to potential users.
10. To employ the term of art in the interpretative exercise, it has to be highlighted that the afore-quoted definition is not an exhaustive one. By enumerating certain categories, the legislature has only included therein some of the services which may otherwise be a matter of some doubt as to whether these were covered by the definition or not. This enumeration does not in any way constrict the essence and meaning of the word 'service' for the purposes of the Act. Indeed it enlarges the same. Merely because education has been not in terms mentioned in the definition is no reason for holding that it is consequently excluded from its scope. Whenever education is imparted for consideration, it is obvious that there exists a quid pro quo for the providing of the amenity of education on one hand and the monetary recompense, therefore on the other. On larger principle there does not seem any logical reason for excluding education from the ambit of the definition under the Act."
The Commission proceeded to refer to Bangalore Water Supply and Sewerage Board case and held that it was a binding precedent. The Commission differed from the view expressed by the Calcutta High Court in Smt. N. Taneja and another v. Calcutta District Forum and others and placed reliance on its own decisions in Tilak Raj of Chandigarh case (1(1991) CPJ 176) and Maharishi Dayanand University case (I(1992) CPJ 33) = (II-1993(1) C.P.R. 274) and that of the Orissa State Commission in Monisa Samal's case (II(1991) CPJ 373). The Commission said that on principle, precedent and the language of the statute, education would squarely come within the arena of 'service' under the Act. We are unable to agree with the said dictum.
62. A similar view was taken by the Himachal Pradesh State Commission in Director, Himachal Institute of Engineering & Technology (1993) 1 CTJ 883 (CP) = (III (1993) C.P.J. 1547). There is no separate discussion on the question; but reliance has been placed on the earlier rulings of the Haryana State Commission in Tilak Raj of Chandigarh case (I(1991) CPJ 176), Kurukshetra University v. Vinay Prakash Verma ((1993) CPC 182) and that of the Delhi State Commission in Appeejay School and another v. M.K. Sangal and Ors. (1993) 1 CTJ 270 (CP) = (1993) CPC 221).
63. Our attention is drawn to the decision of the Madras State Commission in A.P. No. 23/93 (The Chairman Board of Examinations, Madras v. Mohideen Abdul Kadar) rendered on 30-9-1993. The Commission rejected the contention that education provided by the Government and the examinations conducted by the Government are not 'services' rendered for consideration within the meaning of Section 2(1)(o) of the Act and the complainant is not a 'consumer' as defined by Act. Referring to the judgment of the National Commission in The Director of Technical Education, Madras & another v. A. Siraj Basha (R.P. No. 372/92 dated 18-3-1993), the Commission observed that there was no discussion of the question and no reasons were given by the National Commission for the conclusion arrived at. The State Commission proceeded to refer to the definition of 'service' and decisions of some of the State Forums including that of the Haryana State Commission in A.P.J. School v. K.L. Galhotra (II(1992) CPJ 807). The Commission also referred to the judgment of the Supreme Court in The Bangalore Water Supply and Sewerage Board v. A. Rajappa case and ultimately said that education having been held by the Supreme Court to be an 'industry' in clear terms, where service of such an industry is hired or availed of for consideration, it will a fortiorari come within the ambit of the wide definition of 'service' under Section 2(1)(o) of the Act. Unfortunately, the Commission overlooked that the ruling of the Supreme Court had been rendered in the context of the definition of 'industry' as found in the Industrial Disputes Act and the Court refrained from deciding whether a teacher is a 'workman'. It has also not noticed that the provisions of the Industrial Disputes Act have overriding effect against any other law in relation to many of the matters mentioned therein. But, the Consumer Protection Act is expressly made in addition to and not in derogation of the provisions of any other law. Further, after the decision in Bangalore Water Supply and Sewerage Board case , the Parliament has passed the Amendment Act 46 of - excluding education, scientific, research or training institution from the definition of 'industry', making clear the intention of the Legislature. But, the Government has not chosen to notify the said provision, though several other provisions of the Amendment Act have been notified and brought into force.
64. The State Commission in the above referred case proceeded to observe that the decision of the National Commission in Siraj Basha's case (R.P. No. 372/92 (N.C.) dated 18-3-1993) is per incuriam. We are distressed to note that the State Commission has chosen to characterise the decision of an Appellate Authority as per incuriam, overlooking the limits of its jurisdiction. The State Commission has also thrown to winds the principles of judicial propriety. A Full Bench of this Court, to which one of us is a party, has discussed in detail in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies ((1992) II MLJ. 309) the meaning and scope of per incuriam and also pointed out that an authority subordinate to another authority cannot refuse to follow or ignore the decision of a higher authority on the ground that some relevant provision was not considered or some aspects of the matter in question were not discussed by the higher authority and that the decision of the higher authority was per incuriam.
65. The respondents have also drawn our attention to the judgment of the Kerala High Court in Central Board of Secondary Education v. Consumer Disputes Redressal Forum . Though the Court did not decide the question finally and opined that the matter should be decided only by the hierarchy of the Authorities constituted under the Act and not in a Writ Petition under Article 226 of the Constitution of India, the Bench expressed its dissent from the opinion of the Calcutta High Court in Smt. N. Taneja v. Calcutta District Forum . The Bench also observed that while interpreting clause 2(1)(o) of the Act the purpose for which the Act was enacted cannot be forgotten; but hastened to add that the issue is one to be decided by the State Commission, National Commission and the Supreme Court and it leaves it there without expressing any final opinion on it.
66. On the side of the petitioners, our attention is drawn to the judgment of the Calcutta High Court in Smt. N. Taneja v. Calcutta District Forum . A single Judge of the High Court held that the service rendered by a teacher is not a kind of service as described in Section 2(1)(o) of Act and it does not come under the purview of banking, financing, insurance, and other specified services mentioned in the definition. The facts of the case reveal the extent to which the provisions of the Act can be misused or abused, if education is brought within the scope of the Act. To put it very shortly, the complaint before the Calcutta District Forum was that the complainant was deliberately made to fail in the examination and she was not sent up for Madhyamik Examination. It passes one's comprehension as to whether such a complaint could be entertained by the Authority constituted under the Act even if educational institutions fall within the ambit of the Act. After referring to the contentions of the parties and the definitions contained in the Act, the learned Judge observed that the word "includes" at the beginning of the definition of 'service' in Section 2(1)(o) must be construed in its proper perspective and must not be enlarged absurdly. The learned Judge said :-
"10. Education is not only the instructions confined to schools and colleges but education includes moral and intellectual training an well as uplifting of mental and moral faculties. It is not only confined to improvement and cultivation of mind but also of cultivation of one's religion and moral sentiments as well as physical faculties. According to Stroud, Education means training of the young in general learning, not teaching for a business or a profession (Vol. 2, 4th Edition). Halsbury states that any complaint against any school if served upon person he may appeal from it by referring the plaint to an independent school tribunals."
The learned judge proceeded to refer to the Dictionary meaning of the word "consumer" as well as the word "seller". The learned Judge drew inspiration from the judgment of the Supreme Court in Sundarambal's case and declared ultimately that it is crystal clear that 'education' does not come within the scope of the Act and the Calcutta District Forum has no jurisdiction to entertain the complaint and all the orders passed on the complaint were illegal and without jurisdiction. We express our agreement with the view taken by the learned Judge in the case.
67. Our attention is drawn to the judgment of the National Commission in The Director of Technical Education, Madras & Anr. v. A. Siraj Basha (R.P. No. 372 of 1992 dated 18-3-1993). There is no discussion in the order passed by the National Commission. It was held that there was no arrangement for hiring of service for consideration as between the complainant who was a candidate for examination, and the Director of Technical Education, whose Department conducted the examination and that the complainant cannot be regarded as a "consumer".
68. In the Registrar, University of Madras v. V. Murugesan (R.P. No. 26 of 1993, Order dated 16-9-1993), the National Commission reversed the judgment of the Madras State Commission and held that a candidate who, after having passed a degree examination conducted by the University of Madras, had applied to the University for the issue of the degree certificate is not a "consumer" who had hired the services of the University for consideration. It was held that there was no arrangement of hiring of service for consideration at all as between the complainant and the University and, therefore, the dispute between the candidate and the University in respect of delay in grant of the certificate will not fall within the purview of the Act as it does not constitute a consumer dispute.
69. The said judgment of the National Commission is against the order passed by the State Commission in A.P. 382 of 1992 dated 26.10.1992. Without any discussion of the matter, the State Commission upheld the complaint of the candidate and held that there was gross deficiency in service on the part of the University and awarded compensation of Rs. 10,000/-. We are informed by learned counsel for the petitioners that a Special Leave Petition filed by the candidate against the judgment of the National Commission has been dismissed by the Supreme Court.
70. In the case of Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay (1994) 2 CTJ 357 (CP) = (1994(2) CPR 487), the National Commission held that the University while valuing the answer papers or undertaking the re-valuation of answer papers or the re-checking of marks awarded to a candidate at the instance of a candidate who had appeared for the examination is not performing a 'service' which had been hired or availed of for consideration and that no consumer dispute can, therefore, be said to arise when a complaint made by the concerned candidate that the valuation, revaluation or rechecking had not been properly done. We agree with the view expressed by the National Commission in the above three cases.
71. For the reasons stated already, we are unable to uphold the contention of learned counsel for the respondent in W.P. No. 20165 of 1993 that the Director of Government Examination will fall within the ambit of the Act, even if educational institutions and Universities are outside the scope of the Act.
MAINTAINABILITY OF THE WRIT PETITIONS
72. It is contended by some of the respondents that the Writ Petitions are not maintainable in view of the statutory remedies provided under the Act. According to them, the question of jurisdiction of the Forum has also to be canvassed only before the Forum and decided by it. It is argued that the hierarchy of Authorities should only decided the question and it cannot be brought before this Court under Article 226 of the Constitution of India. Reliance is placed on the judgment of the Kerala High Court in The Central Board of Secondary Education v. The Consumer Disputes Redressal Forum, Ernakulam , to which we have already made reference in another connection. Similar view has been expressed by the Andhra Pradesh High Court in Tulasi Enterprises v. A.P. State Consumer Commission, Hyderabad , by Kerala High Court itself in Padmanaban v. Consumer D.R. Forum & another and by Karnataka High Court in Indian Engineering Institution v. The President, The District Consumer's Redressal Forum and others (C.P.). The Kerala High Court took the same view in A.V. Georgekutty v. State of Kerala . In all cases, the Court has refused to exercise the discretionary power under Article 226 of the "Constitution of India in view of the efficacious alternative remedy available to the party. That does not mean that in all cases where a question of jurisdiction is raised, it should be left open by the High Court to be decided by the authority whose jurisdiction is challenged. It will be a travesty of justice, if a person who invokes the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution of India with a plea that he is made to face a proceeding before a Forum which has no jurisdiction whatever to deal with the matter, to drive him to that Forum itself on the ground that the Forum has got power to decide the issue of jurisdiction. A distinction must be made between cases in which there is total lack of jurisdiction on account of the relevant statutory provisions and want of jurisdiction which will depend upon establishment of certain facts. When the question of jurisdiction has to be decided on the basis of certain facts to be established, that is a matter to be left to the concerned Forum which will have to ascertain the relevant facts first and then decide the question of jurisdiction. But, in a case where, without going into the facts, the question of jurisdiction has to be decided on the basis of the statutory provisions, it is not proper on the part of the High Court to refuse exercise of jurisdiction and relegate the parties to proceedings before the Forum which may not have jurisdiction at all. In our opinion, these Writ Petitions are, therefore, maintainable in this Court and cannot be thrown out on the ground of availability of efficacious alternative remedy.
CONCLUSION
73. In the result, we accept all the contentions urged by the petitioners and hold that whatever service is rendered by the petitioners in each of the Writ Petitions, is not one governed by the provisions of Section 2(1)(o) of the Consumer Protection Act and the complainants before the Redressal Forums are not 'consumers' under Section 2(1)(d) of the Act. Consequently, the Writ Petitions are allowed and the rule nisi is made absolute in all these cases. There will be, however, no order as to costs.