Availability of alternate remedy through appeal and the opportunity to raise objections before the State Commission

1. Heard on admission.

2. The petitioners have challenged the order dated 5.2.2015 passed by District Consumer Dispute Redressal Forum, Guna in case No. 163/2014, whereby some relief was granted to the respondent No. 1 relating to her admission, fees and compensation.

3. Facts of the case, in short, are that, the respondent No. 1 has moved a complaint before District Consumer Forum, Guna under Section 12 of Consumer Protection Act (hereinafter it will be referred to as "C.P. Act") that the petitioners have assured that if a person enters in course of BMCT diploma then, he would get admission in second year of engineering degree course and whoever shall obtain above 75% of marks then, such student would get an employment positively. The complainant/respondent received 87% marks in BMCT diploma but, neither she was admitted in second year of engineering degree course nor, employment was provided to her. After giving opportunities to the parties to adduce the evidence, District Consumer Forum vide order dated 5.2.2015 granted various reliefs to the respondent as mentioned above.

4. Learned counsel for the petitioners submits that petitioners have raised so many objections including the objection that the District Consumer Forum has no jurisdiction to try such a complaint. Secondly, it is settled view of various High Courts that education is not a commercial activity and therefore, District Forum has no jurisdiction over the educational institutions. In support of his contention, learned counsel for the petitioners has placed his reliance upon the order passed by single Bench of Calcutta High Court in case of "Smt. N. Taneja and another v. Calcutta Distt. Forum and others", [AIR 1992 Cal 95]. It was also submitted that this Court has jurisdiction to entertain the present petition though an alternate remedy of appeal is available. In support of this contention, learned counsel for the petitioners has placed his reliance upon the judgments passed by the Apex Court in case of "L.K. Verma v. H.M.T. Ltd. & Anr.", [AIR 2006 SC 975] and the judgment passed in case of "State of Karnataka v. Vishwasbharthi House Building Coop. Society and others", [(2003) 2 SC 412].

6. After considering the submissions made by the learned counsel for the petitioners, it appears that an opportunity of contest was given to the petitioners by District Consumer Forum. Consumer Protection Act, 1986 prescribes provision of appeal to approach State Commission under Section 15 of the C.P. Act and if the litigant has grievance against the order passed by the State Commission then, he could approach to the National Commission under Section 21 of the C.P. Act. The petitioners have a grievance that they raise the question of jurisdiction, which was not decided by the District Forum. It is true that District Forum did not make any question for determination of this point and therefore, nothing was discussed on that point. However, the petitioners have an opportunity to raise such objections before the State Commission and on the basis of evidence adduced by the parties, the State Commission may decide the point or remand the case to the District Forum to decide such an objection. When all the documents are filed by both the parties before District Consumer Forum and a decision is given then, it is for the petitioners to file an appeal as prescribed under C.P. Act.

7. In judgment passed by the Apex Court in case of Vishwasbharthi Housing Coop. Society (supra), Hon'ble the Apex Court has considered a civil appeal against the order passed by the High Court of Karnataka and no specific question was to be decided by the Apex Court in that case that if alternate remedy is available then, a writ petition shall be entertained. In that matter, vires of the C.P. Act was challenged and Hon'ble the Apex Court found that provisions of the Act are not ultra vires. However, the petitioners did not get any advantage in the present matter of that Vishwasbharthi's case (supra). Sim