NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO. 545 OF 1994
Chairman, Board of Examinations, Madras …….. Petitioner
Vs
Mohideen Abdul Kader …….. Respondent
JUDGMENT
Mr. Justice S.S. Chadha, Member
This Revision Petition has arisen out of the order dated 30.9.93 of the State Commission, Tamil Nadu at Madras disposing of two appeals against the order dated 16.12.92 of the District Forum, Tirunelveli and confirming the award of compensation of Rs. 2,000/- and costs of Rs. 200/-against the Chairman, Board of Examinations, Department of Technical Education, petitioner herein.
2. The complainant alleged that he studied during 1986-89 for getting Diploma in Electrical Engineering, that he appeared but did not pass III semester examination, that he applied to write the examination in October, 1991 and that he was issued the hall ticket bearing 23244, According to the complainant, he went to the examination hall with his hall ticket on 22.10.91 and took his seat, that the examination supervisor told the complainant that the subject Code No. of the subject was wrong, that the complainant approached the Chief Supervisor, that the hall supervisor was asked by Chief Supervisor, to proceed with the list, that the hall supervisor after perusing the list told the complainant that against the name of the complainant only Code No. 2 was cited but the Code No. of the subject Production Technology which the complainant wished to write is Code No. 1 and that all the persons in charge of conducting examination refused to permit the complainant to write the examination on 22.10.91. The complainant alleged that he was wrongly restrained and prevented from writing the examination on production Technology because of the attitude and negligence of the opposite parties and thus there is a clear case of deficiency in service of the persons engaged by the Petitioner herein. The other parties were sought to be made vicariously liable for the negligence. The complainant claimed a compensation of Rs. 25,000/-.
3. According to the opposite parties when the complainant came to the examination hall on 22.10.91 he informed the invigilator that he wanted to write paper No. 1, Code No. 1, on that day without mentioning the name of the Subject or the correct Code No., that on the said date the examination was held for the subject Production Technology with Code No. 2, that the examination with Code No. 1 was scheduled for 23.10.91 and that the complainant tampered with the entries in the Hall Ticket.
4. Before the District Forum the complainant led oral and documentary evidence and the opposite parties filed affidavits along with documents. On the appreciation of the evidence, it was held that the hall ticket, Exhibit Al, shows that the complainant was appearing for III Semester Examination paper bearing Code Nos. 2 and 3, that on 22.10.91 there was examination in III Semester Production Technology-1 bearing Code No. 2, that the complainant was prevented from writing the examination due to confusion and gross negligence of the invigilator and that it amounts to gross deficiency in service. The District Forum granted a compensation of Rs. 2,000/- and costs of Rs. 200/- against all the opposite parties.
5. The opposite parties filed two separate appeals before the State Commission. The State Commission evaluated afresh the evidence on the record and affirmed the finding of the District Forum. It was held that there was gross deficiency of service on the part of the Invigilator for which the employer, the first opposite party, is vicariously liable. The State Commission then adverted to the contention of the appellants before it that the examinations conducted by the appellants are not services rendered for consideration within the meaning of Section 2(l)(o) of the Consumer Protection Act, 1986 and the complainant is not, therefore, a consumer within the meaning of Section 2(l)(d)(ii) of the Act. The attention of the State Commission was invited to the order of this Commission dated 18th March, 1993, In “Director of Technical Education v. A. Siraj Basha, R.P. No. 372 of 1992; decided on 18.3.93 (NC), wherein it was held that there was no arrangement of service for consideration as between the complainant who was a candidate for an examination and the Director of Technical Education whose department conducted the examination and therefore, the complainant cannot be regarded as a consumer. The State Commission after referring to some decided cases observed :
”While rendering the decision in Director of Technical Education, Madras & Another v. A Siraj Basha (supra) the attention of the National Commission does not seem to have been need to the decisions discussed above, particularly to the decision of the National Commission itself in Manisha Samal v. Sambalpur University & Ors., 1 (1992) CPJ 231 NC, and the decision of the Supreme Court in The Bangalore Water Supply and Sewerage Board Etc. v. A. Rajappa and Others, 1978 SC 481 which lays down the law of the land. Hence the judgment of the National Commission in the Director of Technical Education, Madras & Anr. v. A Siraj Basha (supra) in per-incuriam and does not have the sway of binding precedent, as pointed out by the Supreme Court in Mamleshwar Prasad and Another v. Kanahiya Lal, 1975 (SC) 653.
6. The State Commission then held in the impugned order that Education imparted by the Government, Universities and private institutions and the examination conducted by the Government or Universities are services rendered for consideration and the student who avails of these services is a consumer within the meaning of Section 2(l)(d)(ii) of the Act.
7. It is necessary first to recall the Doctrine of Stare Decises. The binding character of judicial decisions may flow either from a constitutional provision or from a statutory provision or from the conventions which the Courts observe in the administration of justice. Constitutional sanction is given to the binding nature of the judgments of the Supreme Court by Article 141 of the Constitution. A declaration of law by the Supreme Court has a binding effect on all Courts in India. The law initiated by the Supreme Court is binding and absolute. Its correctness cannot be doubted. Rules framed by several High Courts in the country require that Judges must follow the decisions of that Court and when a Judge or Division Bench does not agree with another Bench, he or it should have a reference made to the Full Bench or place the papers before the Chief Justice for constituting a larger Bench to resolve the conflict. Subordinate Courts must follow the decision of the High Courts to which they are judicially subordinate, whatever their own views may be. This is a principle based on judicial comity and requires Judges to follow precedents of Courts of Co-ordinate jurisdiction and of superior jurisdiction. In legal matters some degree of certainty is as valuable as part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which make it important for Judges to abide by them. Innovations can not be unsettling and lead to a loss of confidence. (Dias Jurisprudence). The Supreme Court has spoken on Stare Decises in several cases. In Krishan Kumar v. Union of India, (1990) 4 SCC 207, it was ruled :
“Stare decises at non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of Courts is to stand by precedent and not to disturb settled point. When Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decisions of long standing and rights have been acquired under it, unless consideration of public policy demand it.”
8. The same principles apply to quasi-judicial Tribunals where there is a hierarchy of Tribunals. Each Tribunal must follow its own earlier decisions and the decisions of the Superior Tribunals to which they are subordinate. A decision of a Tribunal is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.
This Commission has taken the view that the Consumer Disputes Redressal Forums are quasi judicial authorities and are thus governed by the well-established principles of the binding nature of its own earlier decisions. The State Commissions and the District Forums are subordinate to this Commission and are bound to follow the decisions of the superior forums. It is sufficient for invoking rule of Stare Decises that a certain decision was arrived at on a question irrespective of the grounds or reasons of its decision. The doctrine of precedent depends on uniformity in the decision on a question of law. That doctrine is not concerned with concrete issues of facts between the parties. Its effect is to declare law not the facts and to declare it so as to be binding upon all consumers or opposite parties as well as all Fora of inferior jurisdiction and in case of same jurisdiction. Were it to be otherwise, the situation in the well ordered field of a legal system governed by precedent would be rendered chaotic.
9. The State Commissions in several cases have noticed and applied the rule of precedent. The State Commission, Haryana in “S.D.O.A.E.E. City Division, Hisar v. M/s. Hotel Palki, Hisar”, I (1992) CPJ 127 and again in M/s. Wheel World of Ambala Cantt. v. S.P. Verma, 1992 (2) CPR 653. held that the State Commission is bound by its own earlier decisions on pure questions of law. In “Pawan Katial & Ors. v. Ansal Housing and Construction Ltd. 1993 (2) CPR 242=II (1992) CPJ 838. the State Commission, Haryana held that it is well settled on the larger theory of precedent that a judgment of a Court holds the field and is binding on the Court’s below till it is expressly reversed or over-ruled by larger Bench or a superior Court and the mere filing of an appeal or the admission of a Special Leave Petition by their Lordship of the Supreme Court does not ipso facto obliterate its reasoning, at the ratio thereof. In “Vijay Kumar Joshi & Ors. v. Chief Executive Officer-cum-Chief Engineer, Shimla Development Authority, 1994 (1) CPR 188=III (1993) CPJ 1662. the State Commission, Shimla came to the conclusion that the State Commission considers themselves bound by their own decision on pure questions of law.
10. A word about decision per incuriam. A decision is given per incuriam, when the Tribunal has acted in ignorance of a previous decision of its own or of any Tribunal of co-ordinate jurisdiction which covers the case before it or when it acted in ignorance of a decision of the superior Court and if it is a decision given per incuriam ignoring by inadvertence a decision of Supreme Court on the point it is obvious that the decision cannot be a binding precedent as the view taken by the Supreme Court on a question of law binds all Courts and Tribunals under Article 141 of the Constitution. But it must be remembered that it does not belong to the State Commissions or District Forums to disregard a decision of the National Commission by applying to it a label of per incuriam.
11. Section 2(d) of the Act defines “consumer” as meaning any person who (i) buys any goods for consideration etc.; and (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. Hiring any services for consideration is thus one of the essential preconditions before a person can be considered to be a consumer within the meaning of the Act. The word ?hire’ means to acquire the temporary use of a thing or the services of a person in exchange for payment, to engage the temporary use for a fixed sum, to procure the use of services of, at a price, to grant temporary use of for compensation. This is the ordinary, plain, grammatical meaning of the expression and has been so expressed by this Commission in several cases. The Consumer must be one who has hired services for consideration and to be a consumer the nexus of hiring of services for consideration must be established. The definition of Service, is contained in Section 2(l)(o) of the Act:
“Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction) entertainment, amusement or the purveying news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”.
12. The question whether a candidate of examination in the University of Rajasthan is a consumer intended to be covered under the provisions of the Act came up for consideration before the Rajasthan State Commission in “Kumari Seema Bhatia v. Registrar, Rajasthan University, II (1992) CPJ 899, Mr. Justice S.K.M. Lodha, President of the State Commission with the concurrence of other members referred to in detail to the establishment of the University of Rajasthan under the University of Rajasthan Act, 1946 and to the various provisions of statutes and ordinances for conducting the examinations and the detailed procedure for evaluation and re-evaluation of the answer books. It came to the conclusion that examination, evaluation of answer books, declaration of results and re-evaluation of answer books do not Constitute service within the meaning of Section 2(l)(o) of the Act. Payment of the re-evaluation of answer books does not mean that the candidate has hired the service of the opposite party. Reliance was placed by the State Commission on the decision of this Commission in ”Society for Civic Rights v. Union of India & Ors. I (1991) CPJ 199 (N.C) that consumer must be one who has hired the services for consideration and to be a consumer the nexus of hiring of service must be established. So payment of the examination fee by the candidate for re-evaluation of the answer books to the University does not mean that the candidate has hired the services of the opposite party. Hire means payment by contract for the use of thing or for personal service, the engagement on these terms. The complaint in that case was dismissed on this limited ground. This is the earliest decision on the question to which we have come across. An appeal was filed before this Commission against the said order dated 28.10.91 passed by the State Commission Rajasthan, being F.A. No. 133 of 1992 and disposed of by the Order dated 12.4.93 reading as follows :
“The appellant is not present either in person or through authorised representative. We have gone through the records and heard the Counsel for the respondent. We are in complete agreement with the view expressed by the State Commission that in conducting the re-valuation of the answer papers of a candidate who has appeared for an examination held by the respondent. University, the respondent was not rendering any service as defined in the Act for consideration nor there was any arrangement of hiring of service for consideration as contemplated by the Act. Hence the approach made by the complainant to the State Commission seeking relief under the Consumer Protection Act was totally misconceived. The dismissal of the complaint petition by the State Commission on the said ground was absolutely correct. We confirm the order of the State Commission and dismiss this appeal. No costs.”
In a recent decision of the Supreme Court in “S.P. Goel v. Collector of Stamps, Delhi, Civil Appeal No. 11603 of 1995 (SC)=I (1996) CPJ 11 (SC). the question arose whether there is any hiring of service for consideration by a person who pays registration charges and presents a document for registration under the Registration Act, 1908 by payment of stamp duty on documents under the provisions of Indian Stamp Act, 1989. After analyzing the provisions of the Registration Act as well as the Stamp Duty Act the Supreme Court ruled that the person who presents document for registration and pays the stamp duty on it or the registration fee, does not become consumer nor do the officers appointed to implement the provisions of the two acts render any service within the meaning of Consumer Protection Act.
The State Commission, Haryana in “Tilak Raj of Chandigarh v. Haryana School Education Board, Bhiwani, I (1992) CPJ 76 (Haryana), had taken a different view by holding that imparting of Education by the State is not one of its sovereign^ regal functions and is a service. The State Commission held that imparting of education by the State clearly comes within the concept of service under Clause (o) Sub-section (1) Section 2 of the Act and inevitably the conduct of the Matriculation and Primary examinations by the School Board for a prescribed fee is a ?service.? The State Commission upheld on 14.8.92 a similar view in “A.PJ. School v. K.L. Galhotra, II (1992) CPJ 807, Both these rulings were given by the Haryana State Commission prior to the decision of this Commission in F.A, No. 133 of 1992.
The question again came up for consideration before this Commission in “Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar, I (1994) CPJ 187. When it was reiterated that in conducting the Secondary School Board Examinations, evaluating answer papers announcing the results thereof and thereafter conducting a re-checking of the marks of any candidate on application made by the concerned candidate, the Board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as is contemplated by Section 2(l)(o) of the Act. The complainant in that case was not therefore a consumer and no relief should have been granted in his favour as against the Board of Secondary Education on the ground put forward by the candidate that there was delay in conducting the re-checking of the marks. The same view was reiterated in “Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay, I (1994) CPJ 146. This view was followed by the Maharashtra State Commission in “Maharashtra State Board of Secondary Education v. Chairman, Grahak Jagruti Sangh, II (1994) CPJ 1, by Andhra Pradesh State Commission in the “Secretary, Board of Intermediate Education v. M. Suresh & Anr., II (1995) CPJ 167 (AP)” Kerala State Commission in “P.M. Noushand & Anr. v. University of Kerala & Ors., II (1995) CPJ 334 (Ker.) and by Delhi State Commission “Ruchika Bhartia v. C.B.S.E. & Anr., II (1995) CPJ 436 and in other cases.
The decision of this Commission in “Manisha Samal v. Sambalpur University, II (1992) CPJ 231 (NC), noticed in the impugned order cannot be regarded as an affirmance of the view taken by the Orissa State Commission in the order under appeal that the appellant there had hired the services of the University on payment of fees for appearing at the examination, but no relief was granted. When that appeal came up for hearing before this Commission, it was found on facts that the apprehension of the complainant that the marks she secured in her examination paper had been awarded to other two students who had been assigned the identical roll number in the examination and vice-versa is not true, as the other two students with the same Roll Numbers did not appear in the examination. The complaint was dismissed and there is a specific note that “it is unnecessary for us to go into other points raised,’. A decision is only an authority for what it actually decides on a question of law, not for what it implies or assumes or narrates. This Commission felt it unnecessary to go into other questions and this could not be construed as a tacit affirmance of the correctness of the view taken by the Orissa State Commission. Education does not find mention in express terms like other activities which have been specifically enumerated, but being inclusive definition the net is very wide. But the Supreme Court has not ruled that whenever Education is imparted for consideration there exists a quid pro quo for the provision of Education and monetary recompense, therefore, and included in the definition of service.
13. We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or not within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when it directly arises before it. What this Commission has decided in earlier casts is that a University or the Board in conducting public examination, evaluating answer papers, announcing the results thereof and thereafter conducting re-checking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by Section 2(l)(o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration.
14. The impugned orders suffer from serious illegalities in the exercise of jurisdiction and are entitled to be set aside. The Revision Petition is accepted and the impugned orders dated 30.9.93 of the State Commission, Tamil Nadu and the orders dated 16.12.92 of the District Forum are hereby set aside and the complaint dismissed leaving the parties to bear their own costs throughout.
(Minority View)
Dr. (Mrs.) R. Thamarajakshi, Member.
15. Revision Petition No. 545 of 1994 has been filed by the Chairman, Board of Examinations, Department of Technical Education, Madras against the order dated 13th December, 1993 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in Appeal No. 23/93 wherein the Revision Petitioner herein had appealed against the order dated 10th December, 1992 of the Tirunelveli Kattabomman District Consumer Disputes Redressal Forum. Tamil Nadu. The respondent complainant before the State Commission is the respondent before us, while Chairman, Board of Examination, Department of Technical Education, Madras, Principal, S.A. Raja’s Polytechnic, Vadakkankulam and Correspondent, S.A. Raja’s Polytechnic, Vadakkankulam were respectively opposite party No. 1, opposite party No. 2 and opposite party No. 3 before the District Forum.
16. The facts of the case, as available from the records, are briefly as follows : When the complainant, a student of the Diploma course in Electrical Engineering in S.A. Raja’s Polytechnic went to the examination hall on 22nd October, 1991 to write his III Semester Examination in Production Technology-I, the Hall Supervisor told that the Code Number of that examination paper was 1 while the complainant’s shall ticket gave the number as 2 and that he was not eligible to write the examination. He could not, therefor, write the examination. On subsequent verification, however it was found that the Code Number for that paper was only 2 and it had been correctly entered in the hall ticket. It was the complainant’s case that the Invigilator had committed the mistake and the opposite parties were vicariously liable for the negligence; he claimed Rs. 25,000/- as compensation for the same. The contention of the opposite party was as follows:
The complainant was in a confused state of mind in regard to the subject code. Due to this confusion, he had tampered with the hall ticket and he was asked to get the initials of the Chief Superintendent who after warning him made necessary corrections and put his initials. However, when the complainant went to the examination hall, he told the Invigilator that he was going to write paper with Code No. 1 instead of paper with Code No. 2 and the Invigilator told him that there was no examination for paper with Code No. 2 on that day. The case of the opposite parties was that the mistake was due to the confusion on the part of the complainant and that, therefore, there was no deficiency of service and negligence on the part of the Invigilator. On the basis of oral and documentary evidence produced by the complainant and affidavits filed by the opposite parties, the District Forum found that there was deficiency of service and negligence on the part of the Invigilator in refusing to allow the complainant to write the examination on 22nd October, 1991 and granted compensation of Rs. 2,000/- and costs of Rs. 200/- against the opposite parties.
17. Separate appeals against this order of the District Forum were filed before the State Commission by opposite party No. 1 (AP 23/93) and opposite party Nos. 2 & 3 (XP. 52/93). On an examination of the case, the State Commission observed that as far as the corrections / tampering in the hall ticket were concerned, the Chief Superintendent had made the necessary corrections and initialled the same and hence nothing turned upon the corrections made thereon. The State Commission further held that whereas the complainant had examined himself as PW1 and another student who took the examination on that day as PW 2 to show that it was the Invigilator who told the complainant that the examination was paper with Code No. 1 and did not allow the complainant to write his examination because his hall ticket mentioned Code No. 2, the opposite party No. 1 had not chosen to examine the particular Invigilator to substantiate the contention that it was the complainant who was in a state of confusion regarding the code number nor had filed any affidavit from the Invigilator. The State Commission thus concluded that the testimony of PW1 and PW2 that it was the Invigilator who informed the complainant that the examination on that day was for paper bearing Code No. 1 and sent put the complainant stands unrebutted. The State Commission, therefore, confirmed the findings of the District Forum but held that the opposite parties 2 & 3 had absolutely nothing to do with the conducting of examination except placing the college premises at the disposal of the opposite party No. 1 for the conduct of examination and hence were not liable for the negligence on the part of Invigilator who was appointed by the opposite party No. 1. In the result, the State Commission held that there was gross deficiency on the part of opposite party No. 1 and confirmed the award of compensation of Rs. 2,000/- and costs of Rs. 200/- against the opposite party No. 1. While doing so, the State Commission considered in depth the larger issue of whether education is a service maintainable under the Consumer Protection Act, and answered the same in the affirmative.
18. In the Revision Petition before us also, the main contention are: (i) whether a candidate appearing at an examination could be said to hire the services of the examining body for holding an examination; (ii) whether holding an examination in discharge of statutory functions could be said to be rendering service for consideration; and (iii) whether matters relating to the holding of an examination are within the purview of the Consumer Redressal Forum.
19. In my view, these are specific issues and are integral components of the basic issue of whether imparting of education per se is within the purview of Consumer Protection Act; the specific issues and the basic issue are inseparable and, therefore, cannot be delinked. To be able to satisfactorily handle the aforesaid specific contentions in the Revision Petition, the basic issue whether imparting of education is covered under the Act, as a service has to be first dealt with. It is, therefore, proposed to consider the issues in an integrated way.
20. Education is imparted through schools, colleges, institutions and universities, and the educational institution may be private, Government or autonomous bodies. Imparting of education is a composite activity consisting of several components, namely admission to these institutions, teaching and instruction, conducting of examination, evaluation of performance of students in the courses they have under gone, issuance of certificates and diplomas of achievement and mark-sheets etc. Which require payment of prescribed fees (consideration) by the students /candidates to the educational authorities unless specified as “free/,
21. To examine whether imparting of education is a service under the Act, the definitions of “Consumer”, “Service” and “Deficiency” therein are relevant.
Section 2(1)(d) of the Act defines Consumer as meaning :
“(i) any person who buys any goods for a consideration etc; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;”
Section 2(l)(o) of the Act, defines “Service” as meaning :
“Service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
Section 2(l)(g) of the Act, defines ‘deficiency’ as meaning:
“any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
The above definitions of “consumer”, “Service,, and “Deficiency” are seen to be intended to have wide scope of interpretation. The words “any services for a consideration” in the definition of “Consumer” points to the generally non-restrictive nature of the definition in relation to service. The scope of definition of service in the Act has been discussed in extensor by the Supreme Court in Lucknow Development Authority v. M.K. Gupta, 1986-95 Consumer 278 (NS)=III (1993) CPJ 7 (SC). and more recently in Indian Medical Association v. V.P. Shantha & Ors., 1986-95 (Supp. I) Consumer 1569 (NS)=III (1995) CPJ 1 (SC). After pointing out that the definition of ?service? in the Consumer Protection Act, is in three parts, the Supreme Court has observed in the former case :
“The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words ?any? and potential, are significant. Both are of wide amplitude. The word ?any’ dictionarily means “one or some or all”. In Black’s Law Dictionary it is explained this, word ?any’ has a diversity of meaning and may be employed to indicate all, or ?every? as well as ‘some’ or ?one’ and its meaning in a given statute depends upon the context and the subject matter of the statute. “The use of the word ‘any, in the context it has been used in Clause (o) indicates that it has been used in wider sense extending from one to all”.
Referring to the inclusive part of the definition, the Supreme Court in the above said case observed:
“The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a contract of personal service is included in it”.
The Supreme Court also made observations in the same case on the larger issue whether the public authorities under different enactments are amenable to jurisdiction under the Act. Referring to the arguments placed before them in that case that the local authorities or Government bodies develop land and construct houses in the discharge of their statutory functions and that therefore, they could not be subjected to the provisions of Act, the Court observed :
“In fact the act, requires the provider of service to be more objective and care taking. It is still more in public services.
They further observed :
“Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act, and the spirit behind it.,.
The words “avails of, in Section 2(l)(d)(ii) as alternative to “hires” in the same section as also the words “has been undertaken to be performed in pursuance of a contract or otherwise in relation to any service” in Section 2(l)(g) have the effect of bringing under the purview of the consumer forum, services rendered by bodies like Universities which are established for rendering specified services and which services are availed of for a consideration, even in the absence of any arrangement or contract to hire such services.
22. I would also like to discuss the question of the Doctrine of Stare Decises vis-a-vis the instant case. The Doctrine of Stare Decises is defined in Black’s Law Dictionary as follows :
“To abide by, or adhere to decided cases. Policy of Courts to stand by precedent and riot to disturb settled point. Neff v. George, 364 III 306,4 N.E.: 2d 388,390,391. Doctrine that, when Court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. Home V Moody, Tax. Civ. App. 146 S.W. 2d 505,509 and 510. Under doctrine a deliberate or solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy. State v. Mallenberger, 163 or 233, 95 P2d, 709, 719, 720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed though later found to be not legally sound, but whether previous holding of Court shall be adhered to, modified or over-ruled is within Court’s discretion under circumstances of one before it. Ottar ail Power Co. v. Von Bank, 72N. D 497, 8N.W.2d 599, 607. Under doctrine when point of law has been settled by decision, it forms precedent which is not afterwards departed from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injuries. The doctrine is not ordinarily departed from where decision is of longstanding and rights have been acquired under it, unless considerations of public policy demand it. Colonial Trust Co. v. Flanagan 344 Pa. 556,25A, 2d, 728,729. The doctrine is limited to actual determination in respect of litigated and necessarily decided questions and is not applicable to dicta or Obiter dicta”, (Black’s Law Dictionary, Sixth Edition, Centennial Edition 1891-1991 Page 1406).
23. The doctrine applies in regard to decided cases. In so far as the National Commission has not decided on the basic question of whether education is a service under the purview of the CPA (from which question the specific questions in the Revision Petition arise), the doctrine is not applicable to the case on hand. A careful reading of the above definition of the doctrine shows that flexibility is given to the adjudicating bodies in dealing with different cases. This is clear from the following relevant extracts from the definition; i.e. “whether previous holding of Court shall be adhered to, modified, or overruled is within Court’s discretion under circumstances of case before it,’. “While it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice”.
24. It may be mentioned that in the recent decision of Supreme Court in Civil Appeal No. 11603/95 S.P. Goel v. Collector of Stamps, Delhi, (supra) the Supreme Court has specifically considered the scope, object and purpose of the Registration Act, 1908 and the Indian Stamps Act, 1899 vis-a-vis the Consumer Protection Act and have held that the former two Acts deal with State Revenue and pointed out that:. 1st
“The Registration Act as also the Stamp Act are meant primarily to augment the State revenue by prescribing the stamp duty on various categories of instruments or documents and the procedure for collection of stamp duty through distress or other means including criminal prosecution as non-payment of stamp duty has been constituted as an offence. Payment of registration fee or registration charges including charges for issuing certified copies of the registered documents or fee for the inspection of various registers or documents kept in the Registrars or sub-Registrars office etc. constitute another component of State revenue.
It this situation, therefore, the person who presents a documents for registration and pays the stamp duty on it or the registration fee, does not become a consumer nor do the officers appointed to implement the provisions of the two Acts render any service within the meaning of Consumer Protection Act. They only perform their statutory duties (some of which, as earlier indicated, are judicial or, at least, quasi-judicial in nature) to raise and collect the State revenue which is a part of the sovereign power of the State.”
The Supreme Court has further observed as under:
“We have already indicated above that under the Registration Act, as also under the Stamp Act, the officers, apart from performing administrative duties, also, at times, perform quasi-judicial functions. The Courts are also involved at some stage in the matter of determination of stamp duty. The Court and the officers are thus component of one and the same set up under these Acts. The Presiding Officers of the Courts are protected under the Judicial Officers (Protection) Act, 1850, read with the Judges (Protection) Act, 1985. But, so far as the officers are concerned the position is a little different.”
Since ‘Collector, has been specifically mentioned along with judges, Magistrates and Justices of Peace in the Judicial Officers (Protection) Act, 1850, it is obvious that immunity from legal action contemplated by this Act, will also be available to him.
25. From the aforesaid, it is obvious that since the fee collected in respect of educational institutions is not in the nature of State revenue and the officers of these institutions cannot, therefore, be equated to the Collector/Registrar under the respective Acts, the decision of the Supreme Court in S.P. Goel v. Collector of Stamps, Delhi. (Supra) is not applicable to the matter on hand.
26. The Consumer Protection Act, (1986) is an important social welfare legislation aiming to provide for the better protection of the interests of consumers, consumer legislation in India is in an evolutionary stage and it is only in November, 1995 that the Supreme Court has said the final word on the applicability of the Act to consumers of medical services. A positive approach is needed in interpreting the provisions of the Act, to capture to a maximum extent the spirit underlying the enactment to render natural justice to consumers and also to make those rendering these services accountable.
27. In the light of the aforesaid discussion, the answer to the basic question whether imparting of education is a service under the purview of the Act, is in the affirmative and therefore the answers to the specific issues in the Revision Petition which are operational aspects of the basic question?are also in the affirmative. It has been seen above that this conclusion based on the integrated examination of the basic and specific issues does not upset the doctrine of Stares Decises. I am, therefore, of the opinion that the order of the State Commission, Tamil Nadu does not suffer from any error of jurisdiction or material irregularity and that it does not call for any interference in the hands of this Commission Revision Petition is accordingly dismissed. No costs.
