JUDGMENT 1. - The petitioner is a society running a school. The non-petitioner No. 2 Hitesh Kumar son of Shri Surendra Kumar (here-in-after called the student) was a Spastic child. His case is said to have been recommended for admission by the Director of 'DISHA', a social service organisation for admission in the petitioner school for the reason that the student was a mentally retarded child. It is stated that keeping in view of the policy of the school and to help the handicapped, child admission was granted in the subjects wanted by the child. However, it is alleged that on 10.7.1997, the father of the child wrote to the school for change of the subjects. It was not possible to allow the change of the subjects and, therefore, the request was rejected. It is alleged that because of the reason that the school did not allow the change of the subjects in the mid stream of the session, the respondent Nos. 2 and 3 decided to change the school and they got the name of the child withdrawn from the school, but later on filed an application before the District Consumer Forum for compensation vide Annexure-1. The District Consumer Forum vide judgment dated 18.9.1998 had directed the petitioner to return the membership-fee along with interest @ 12% p.a. from 4.3.1998. The petitioner has also been directed to pay a cost of Rs. 500/- and further directed to refund the caution money of Rs. 250/- vide Annexure-3. Being aggrieved against the order/judgment dated 18.9.1998, the petitioner filed an appeal but during the pendency of the appeal, has also filed the present writ petition. It is stated that the non-petitioner Nos. 2 and 3 had deposited the amount to become the members of the society. It is submitted that even though the appeal is pending but for the reason that there is no jurisdiction with the consumer forum on the alleged facts and, therefore, the petitioner is challenging the order of the consumer forum to avoid multiple litigations. 2. Reply has been filed by the respondent Nos. 2 and 3. It is submitted that the respondent No. 2 was admitted in the class XI in the petitioner school and had deposited certain amount i.e. membership fee, school fee and auto fee (transfer fee for one month) examination fee and books fee etc. 2. Reply has been filed by the respondent Nos. 2 and 3. It is submitted that the respondent No. 2 was admitted in the class XI in the petitioner school and had deposited certain amount i.e. membership fee, school fee and auto fee (transfer fee for one month) examination fee and books fee etc. However, a counter story has been given in the written statement to the effect that the student was not in position to attend classes in any of the floor other than the ground floor. It is alleged in the written statement that it was assured by the school management that the lasses will be held in the ground floor. However, it is stated that after a few days the school had shifted the lasses to the first floor. An objection was taken by the respondents for shifting the classes to the first floor and, therefore, the respondent Nos.2 and 3 were asked to take the child out of the school if it is not possible for the child to attend the classes in the class-room where the classes are held. It is submitted that the student was charged an amount of fee as was being charged from all other students. 3. However, another plea has also been taken by the respondent that the student had asked for change of the subject vide application Annexure R-3 which was not accepted. Main ground of attack by the respondent Nos.2 and 3 remains the same that the child was not able to attend the lasses on the first floor and on suggestion made by the petitioner, the child was forced to withdraw from the school and he got admission in other school. 4. Application Annexure R-3 has been attached by the respondent Nos. 2 and 3 wherein the father of respondent No. 2 had written to the management of the school on 10.7.1997 to the effect that the student wants to a change in the subject i.e. Mathematics instead of Computer, which application was rejected on the same day with the remarks that the student does not qualify for the Mathematics subject, however, the student was advised to opt for some other subject, if he so desired. 5. On the above said facts, a complaint was filed before the Consumer Forum. 5. On the above said facts, a complaint was filed before the Consumer Forum. The Consumer Forum has also observed that on 21.7.1997 Shri Surendra Kumar father of the student had filed an affidavit to the effect that for the reason that it was not possible for the school to hold the lasses on the ground floor, therefore, the child was taken away from the school and was admitted in other school. It was observed by the Consumer Forum that there was a provision of lift as well for going to upstairs and every help was available for taking the student on the lift, however, the Consumer Forum came to the finding that the complainant had not been able to prove his version. In regard to issue No. 2, of refund of fee, it was also held against the complainant for the reason that the fee once deposited was not refundable and this was so agreed by the complainant at the time of getting the admission of the child. However, about the return of the membership fee an order was made to refund the amount of Rs. 2,350/- along with Rs. 500/- as costs and caution money. 6. From the above facts, the Consumer Forum had come to a conclusion of fact that the facts in the complaint have not been established and for the reason that the child was taken away by the complainant himself to another school and also for the reasons that the fee was not refundable as per the school conditions, only caution money and the membership fee was ordered to be refunded. 7. Both the parties have filed the counter appeals which are pending before the State Consumer Forum. The present petition has been filed by the Management of the school on the facts given above that the Consumer Forum had no jurisdiction to try such a complaint for the reason that there was no jurisdiction with it to entertain such a complaint as in the circumstances the student was not a consumer. It is further stated that even though the appeal has already been filed, but in view of the judgment of the Hon'ble Supreme Court in the case of Sales Tax Officer Vs. Timber and Fuel Corporation reported in 1973(2) SCC 292 and Municipal Council, Khurai and another Vs. It is further stated that even though the appeal has already been filed, but in view of the judgment of the Hon'ble Supreme Court in the case of Sales Tax Officer Vs. Timber and Fuel Corporation reported in 1973(2) SCC 292 and Municipal Council, Khurai and another Vs. Kamal Kumar & another AIR 1965 SC 1321 , if the question of jurisdiction is involved, it is open to the High Court to invoke the jurisdiction under Article 226 of the Constitution of India. In the case of Sales Tax Officer (supra), the Forest Department of Madhya Pradesh was considered as dealer liable to pay tax under the M.P. Sales Tax Act and during the period from October 8, 1959 to February 22, 1962. On June 1, 1963, the M.P. Government had exempted the Forest Department from paying the sales tax for the period mentioned above. On the basis of that notification, the Sales Tax Officer had assessed retrospectively. Aggrieved by this the assessee went in appeal and when the appeal was pending, the assessee moved to the High Court to quash the order on the ground that there was no reason to initiate any sales tax proceedings against it. It was held by the Hon'ble Supreme Court that though it was open to the assessee to proceed under the provisions of the Sales Tax Act as against the impugned order, but it was within the discretion of the High Court to interfere with impugned order at that stage itself and quashed the proceedings. 8. In view of the above-said law laid-down by the Supreme Court, even if an appeal is pending, but if a question of jurisdiction is taken up which goes to the root of the case, the High Court in its discretion can invoke the powers under Article 226 of the Constitution of India for quashing the proceedings if the proceedings are held to be without jurisdiction. 9. From the above facts, it is dear that the student was admitted in the chool. The claim of the claimant to the effect that he was given an assurance at the classes will be held on the ground floor and not on the first floor is fact which has not been proved by the complainant, even otherwise, there s provision of a lift in the school as has been found by the Consumer Forum. The claim of the claimant to the effect that he was given an assurance at the classes will be held on the ground floor and not on the first floor is fact which has not been proved by the complainant, even otherwise, there s provision of a lift in the school as has been found by the Consumer Forum. However, whether in accordance with the complaint of the complainant if the classes are not held on the ground floor and are held at the first floor, can such student be called a consumer for the purpose of invoking the jurisdiction of the Consumer Forum. 10. Even if the counter story put by the petitioner school is taken into effect that as per the request of the student through his father it was not possible to change the subject from Computer to Mathematics for the reason that the student was not qualified to take the subject of Mathematics and the father of the student had taken away the child from the school for admission to other school, can it be considered that the student falls under the defination of consumer to invoke the jurisdiction of the Consumer Forum for the purpose of the present complaint. 11. The 'Consumer' has been defined as under: 'Consumer' means any person who, (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly 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.' 12. The word 'Service' has been defined as under: 'Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.' 13. Admittedly, on both counts as mentioned above, even though the finding has been returned against the complainant, the complaint does not file (sic lie ?) under any of the definition of the 'consumer' or 'service'. 14. The respondents rely on the judgment in the case of Lucknow Development Authority Vs. M.K. Gupta (1994)1 SCC 243 which was a case of a construction work undertaken by the statutory authorities. 15. Counsel for the respondents also rely on the decision in the case of Ravinder Singh Vs. Maharish Dayanand University 1997(111) CPJ 36 wherein it was held that the education shall fall within the definition of service, however, the reference was being answered in regard to holding of examination and declaration of the result which was held to be a service. Even in the educational institutions of the Universities whether after payment of the fee etc. if such institution defaults in its statutory duties as of holding of the examinations and declaration of results or imparting of trainings for which the fee had been accepted, in those cases, it can be said that such students may be called as 'consumer', but not in each and every dispute between the student and the institutions, it can be held that such students can fall under the definition of consumer and the institution under service. 16. In my opinion in the given facts, on the complaint either by the complainant or by the respondent in the complaint, the Consumer Forum had no jurisdiction to try the complaint and thus the complaint and all the proceedings thereafter are quashed. 17. On the proposition that there is no jurisdiction of the consumer forum to order the return of caution money or the membership fee etc. 17. On the proposition that there is no jurisdiction of the consumer forum to order the return of caution money or the membership fee etc. as has been ordered by Forum, the counsel for the petitioner relies on a judgment of Orissa State Consumer Disputes Redressal Commission in the case of the Director (Admission) Orissa Engineering College v. Ajaya Kumar Rath and another, II (1977) CPJ 293 wherein it was held that the tuition fee by no stretch of imagination can be said to be a consideration for any other service, other than tuition. Refund of caution money was also evidently subject to deduction of any amount payable by a student for which caution money was kept from him. The Forum was concerned whether the complainant becomes consumer to make a grievance against the alleged wrong adjustment of the caution money or even for non-payment of caution money to a student. It was held that tuition money had no nexus whatsoever as to how the caution money shall be dealt with in educational institutions. It was observed that it may be that the action of the authorities of the educational institutions was unauthorised or it may be, that they were justified in with holding the caution money or to allow deduction therefrom and this question can only be answered by some authority having jurisdiction but not by the Consumer Forum cinder the Consumer Protection Act, since the complainant is not a consumer in relation to the grievance made by him and the District Forum went wrong in entertaining the case as a consumer dispute. It was observed as under : "The tuition fees by no stretch of imagination can be said to be a consideration for any other service, other than tuition. The grievance of the complainant in this case is that the present appellant did not refund the caution money deposited by the complainant No. 1 after the session was over. Refund of caution money is evidently subject to deduction of any amount payable by a student for which caution money was kept from him. We are not considering in the present case as to whether or not the unpaid tuition money would be adjusted against the caution money deposited. We are only concerned to find out whether the complainant becomes a consumer to make a grievance against the alleged wrong adjustment of the caution money to a student. We are not considering in the present case as to whether or not the unpaid tuition money would be adjusted against the caution money deposited. We are only concerned to find out whether the complainant becomes a consumer to make a grievance against the alleged wrong adjustment of the caution money to a student. In our considered opinion, tuition fee has no nexus whatsoever as to how the caution money will be dealt with in the educational institution. It may be that the action of the authorities of the educational institution was unathorised that they were justified in withholding the caution money or to allow deduction therefrom. The aforesaid question may be answered by some authority having jurisdiction and not by a Consumer Forum created under the Consumer Protection Act. Since the complainant is not a consumer in relation to the grievance made by him, the District Forum went wrong in entertaining the case as a consumer dispute. The irresistible conclusion would be that the case was not maintainable and the order passed by the District Forum was wholly without jurisdiction. It is however, open to the respondent to take recourse to any other Court Tribunal/Forum, if so advised and if law so authorises." 18. Yet in another case decided by National Consumer Disputes Redressal Commission, New Delhi in the case of Homoeopathic Medical College and Hospital, Chandigarh Vs. Miss Gunita Virk, 1(1996) CPJ 37 (NC) , it was held that the Forum constituted under the Protection Act had no jurisdiction to declare any rule in the prospectus of any institution as unconscionable or illegal. The case related to non-refund of fee. The student had been given admission in Homoeopathic Medical College on having been deposited tuition fee. The student had changed her mind to continue with the studies. She asked for refund of fee. No refund was made, resulting a complaint filed by her before the Consumer Forum at Chandigarh. 19. The case related to non-refund of fee. The student had been given admission in Homoeopathic Medical College on having been deposited tuition fee. The student had changed her mind to continue with the studies. She asked for refund of fee. No refund was made, resulting a complaint filed by her before the Consumer Forum at Chandigarh. 19. Counsel for the petitioner states that certain unnecessary litigation is being filed, dragging the students and the educational institutions before the District Consumer Forum for which the consumer forum had no jurisdiction to entertain the applications and, therefore, it is necessary to settle the matter giving directions specially in regard to the recovery of tuition fee, caution money or any other fee which tent amounted to a dispute of simplicitor recovery without involving the relations of 'consumer' or a 'student' and, therefore, it is necessary to give directions in case in hand so that the litigation between the 'student' and 'institution' are minimised and, therefore, I am inclined to exercise the jurisdiction under Article 226 of the Constitution of India. 20. From the above discussion it is very dear that no complaint could be entertained by the District Consumer Forum or Forums specially under the following headings: (i) Refund of any tuition fee simplicitor; (ii) Refund of any caution money; (iii) Refund of any amount deposited for becoming a Member of any Society. (iv) To guide educational institution in regard to change of subject from one subject to another or where the school management wants to hold the lasses of the students. 21. The Consumer Forum is not to be converted into a Court of recovery of amount simplicitor. It is necessary that the complainant must fall under the definition of 'consumer' and there should be allegations of deficiencies in 'service' as defined. 22. For the reasons that if the student is not allowed to change the subject or is not prepared to attend the lasses at the first floor, on both of the issues having been decided against the complainant, the student respondent was not a 'consumer' as defined and thus, there was no jurisdiction with the District Consumer Forum to have taken cognizance of the case and thus, the complaint ought to have been dismissed for being without jurisdiction. 23. 23. For the above said reasons for passing of an order of refund of either membership fee or caution money or any other fee and while exercising powers under Article 226/ 227 of the Constitution, I hold that on the above said grounds the Consumer Forum had no jurisdiction. 24. Thus, the order of refund of membership fee amounting to Rs. 2,350/- and caution money Rs. 250/- or any other cost is without jurisdiction and is set-aside with the result that any appeal or counter appeal filed by the parties also becomes non-maintainable. 25. However, at the time of arguments, the counsel for the petitioner states that as a matter of good gesture and grace and in view of the fact that the student was a spastic child, the petitioner Management Samiti is prepared to pay to the student a total amount of Rs. 4,000/- instead of Rs. 2,600/- as awarded by the District Consumer Forum. I appreciate the offer. This voluntary offer is much more than the amount awarded by the District Forum which should be paid within a period of one month. However, this offer shall not be treated as a precedent for any other case.With the above-said observations, the writ petition is disposed of. The complaint and all the proceedings are quashed.Petition Disposed Of. *******