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Deficiency in services by varsities: A consumer’s perspective

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BACKGROUND

The second wave of Covid-19 has caused great devastation worldwide. Many students have even lost their parent(s) due to the Coronavirus but the management of the educational institutes seem unconcerned at the plight of the students. It’s already been a year since the schools and colleges are conducting online classes, but the fee charged for this distant education is the same as normal education.

During this lockdown, the parents and the students throughout the world are in a dilemma: is online education what they paid for? As per a survey, 69 percent of students are not satisfied with online lectures. Last year many students of various universities sought a reduction in their overall fees. Although most of the government colleges and Universities are only charging the tuition fee, the same does not hold true for private institutions. Definitely, such colleges/ Universities have leverage over the students.

Some students and parents with their grievance of the fee being charged even approached the High Courts and the Supreme Court. Out of these petitions, some were outrightly rejected by the court while others were given some sort of temporary relief. The contradictory verdicts of courts in similar sorts of matters have created a huge conundrum for the students. This has led to a debate about the quality of education being imparted virtually and physically.

Keeping in mind the warnings regarding the third wave of Covid-19, the educational institutes do not appear to open soon. It seems that online education is the way forward. In this scenario, the article analyzes, if the educational Institutes are justified in demanding the same fees for online classes? Or is online education a deficiency in service on the part of the educational institutions under the Consumer Protection Act, 2019?

THE CONSUMER PROTECTION ACT, 2019

The objective of the Consumer Protection Act is to safeguard the interests of the Consumers. It tries to protect the consumers from unfair trade practices and gives consumers a voice to speak against any flaws in the goods or deficiency in the services rendered. The Supreme Court of India, in its various judgments, has observed that the students come under the definition of a ‘consumer’ and education is a service under the Consumer Protection Act.

Section 2(7)(ii) of the Consumer Protection Act, provides for the definition of a consumer. In simple words, this definition under the consumer protection act includes any person who has hired or availed of any service for a paid or partly paid consideration.

Further, Section 2 (42) of the Consumer Protection Act, 2019 provides for the definition of ‘service’.

The definition of service under the Consumer Protection Act includes service of any description which is made available to potential users. A service provided free of charge or under a contract of personal service is not included in this definition.

Students become the beneficiaries of the services provided by the educational Institutes only after paying the required fees. If the service rendered is not what was promised but is of low standards then it can amount to deficiency in services. Therefore, the students have a right to receive high-quality education as is usually promised during admissions.

THE PLIGHT OF STUDENTS

A student takes admission into an institution for grooming his/ her personality and for the overall development as a human being. Colleges and Universities lure the students into taking admission by way of their huge and beautiful campuses. These campuses not only include classrooms but playgrounds, gyms, laboratories, libraries, auditoriums, etc. But with the onset of the Covid-19 pandemic, the students are offered nothing other than online classes. The Educational Institutions cannot be blamed for the lack of services provided during these times but the least they can do is not to charge for the services they aren’t providing.

EDUCATION UNAER PROTECTION ACT, 2019

Today, there are a plethora of judgments of the Supreme Court in which education was taken to be as per the definition of services under the Consumer Protection Act, 2019.

The Supreme Court of India, in the Bangalore Water Supply Case, observed that educational Institutions fall within the definition of the industry as per section 2(j) of the Industrial Dispute Act, 1947. As the disputes between industry and customers can be redressed under the consumer laws, therefore the disputes between educational Institutions and students also fall under the purview of the Consumer Protection Act, 2019.

The National Consumer Disputes Redressal Commission, in the case of Bhupesh Khurana and others vs. Vishwa Budha Parishad and others observed that imparting education by an educational institution falls within the purview of service under the Consumer Protection Act, 1986. It further observed that fees are paid to Educational Institutions for the service of imparting education and if an institution does not fulfill the requirements as were promised in the advertisement then it would amount to misrepresentation and unfair trade practice.

A similar view was put forth by the Supreme Court in Modern Dental College v. State of Madhya Pradesh in which the appellants sought fixation of fees. The Supreme Court, in this case, relied on its famous judgment of the T.M.A. Pai Foundation Case and observed that there could be a reasonable revenue surplus for the development of education but the object of setting up an educational institution is not to make a profit. Fees charged beyond the cost of running an institution would amount to profiteering.

Looking at the above precedents of the Hon’ble Supreme Court and that of the National Consumer Disputes Redressal Commission, it becomes clear that an educational institution cannot charge such a fee as is not required to fulfill the object of education.

PRESENT VIEW OF INDIAN COURTS

With the onset of the Covid-19 pandemic, the students and parents approached various courts seeking justice. In one such case of Sunil Samdaria Son Of Late Sh. B. L. . v. The State Government Of Rajasthan, the Rajasthan High Court at Jaipur ordered that schools collect only 60% of the tuition fees as ‘Capacity Building Fees’ from the students. It was also observed that during the current circumstances, the School Management does not have to incur expenditure on the upkeep of the school building, electricity charges, and other facilities.

Further, the Supreme Court of India in Indian School Jodhpur & Anr. v. The State of Rajasthan & Ors. directed the School Management of Private Schools to provide a deduction of 15 percent on the fees for the unutilised facilities by the students during the academic year 2020­-21. The School Management was also told to be sensitive towards the problems faced by students and their parents.

To reduce the financial burden on the parents, the Madras High Court had also directed the State Government to formulate a scheme for payment of school fees in installments and directed the schools to collect 75% fees for the current academic year. Even the Calcutta High Court ordered that the students need to pay only 80% of the fees. The Supreme Court of India and various High Courts have devised some ways for the Private School managements to take an empathetic approach. However, the courts seem to be silent on providing relief to the University students.

ANALYSING THE COST

Today, there are a lot of colleges and universities offering the same course. However, students do not go for a particular institute just on the basis of its pedagogy but they demand something beyond that. Each college differentiates itself by way of the facilities it offers.

While some colleges allege that their expenses have increased for online classes, most students believe that colleges are profiteering. Logically, moving from physical education using all the facilities a campus provides, to online education would lead to colleges cutting costs. But the benefit of this is rarely given to the students.

Students not only pay for academic classes but for other skills which can only be developed with the infrastructural facilities at the campus. At the time when the Universities are shut and the classes are being conducted virtually, the Universities are saving a lot on small things like electricity, exam fees, hostel charges, stationery, etc. So, if only a part of what was offered earlier is provided now, then the fee should also be paid for that part only.

STEPS TAKEN BY UNIVERSITIES IN OTHER COUNTRIES

The outbreak of coronavirus has left no country unimpacted. Several online petitions have been signed by university students demanding a reduction in the fees. According to an investigation by the UK Parliament, the students were found to be protected under consumer law who can demand a refund of fees in case when the University is not able to provide the education the students paid for. While many universities are not ready to reduce the fee amid the pandemic, the Southern New Hampshire University has taken an amazing step by reducing the college fee by up to 50%. In response to the global pandemic, the university reinvented the campus-based experience to a more affordable and flexible model. This is not just the case with the Southern New Hampshire University but various universities throughout the globe have changed their fee in response to the global pandemic.

CONCLUSION

Covid-19 has caused a great impact on the education system. The students are not able to avail the facilities provided by the educational institutions but are demanded full fees. With increasing job scarcity, education has become a big business and it is becoming very difficult to stop such institutions from profiteering. Although educational institutions have put down the demands of the students seeking a reduction in fees, still many universities have reduced the fee substantially. Providing only limited facilities and demanding complete fees is an unfair trade practice. Therefore, the Consumer Protection Act seems to be a saviour for the students during this pandemic. 

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Legally Speaking

MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

FACTS OF THE CASE:

The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.

COURT ANALYSIS:

The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.

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The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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