ORDER (Arun Kumar Goel, J. (Retd.) President) - We have taken up these appeals together since identical questions of law and fact are involved therein. 2. Facts are by and large admitted and are being briefly noted which are relevant for the disposal of these appeals. Admittedly, appellant No. 2 in all the three cases applied for the MBBS course under NRI quota during the year 2004-05 in response to the prospectus issued by the Himachal Pradesh University, Shimla. Appellant No. 1 in all these appeals are the parent of respective appellant No. 2 in each appeal. 3. It is further admitted case of the parties that NRI seats are filled in on payment in foreign currency or its equivalent amount in Indian currency. All the three appellants were admitted after they had paid the amount in question. 4. It appears that these appeals got admission against free seats elsewhere, as such they left the college mid-way and requested the Authorities that they want to discontinue their studies to MBBS course against the NRI seats against which seats they were admitted on payment of the amount as aforesaid. Since appellants were leaving the college, they also applied for the amount which was deposited by them. 5. Now the dispute starts. Reason being that the appellants were insisting for refund of amount deposited by them, whereas the respondent taking shelter under the prospectus of the relevant year i.e. 2004-05, as well as the clauses of the admission form including declaration therein, were insisting that no refund is admissible. 6. It is also admitted case of respondents that against the three seats vacated by the appellants in these appeals, they admitted three fresh candidates and have charged money from them as was payable for the seats meant against NRI quota in full, i.e. the same amount as was paid by the appellants. 7. We have heard learned Counsel for the parties and with their assistance have examined the record of these appeals. In the light of the above facts the only question needs determination by us is, whether the respondents can be permitted to claim that they are entitled to undue enrichment under the shelter of the terms of prospectus as well as the terms and declaration contained the admission form. In the light of the above facts the only question needs determination by us is, whether the respondents can be permitted to claim that they are entitled to undue enrichment under the shelter of the terms of prospectus as well as the terms and declaration contained the admission form. District Forum below after placing reliance on clause 3 of the prospectus which is to the following effect dismissed the all 3 complaints, hence these appeals :- Note. - Should the last day fall on Sunday or a holiday the fees shall be payable on the next working day. Fees once paid shall not be refunded but in the case of students who are prevented by illness or for other reasons beyond their control from attending the College in the year for which they paid usual fees, the Principal may direct that the whole or part of the amount of fees shall not be again paid for the year in which such students joined the College. The student seeking admission first time to the hostel shall pay the room rent from the month of admission at the rate of Rs. 15/- per mensum alongwith the caution money of Rs. 150/- for admission to the hostel. 8. Similarly, while contesting these appeals Mr. Vasudeva laid great emphasis on the declaration given by both the appellants in these 3 cases. For ready reference declaration is also extracted hereinbelow :- 12. declaration by the applicant and the guardian : (a) I declare that the entries made by me in the form are correct to the best of my knowledge. I am conscious that if any of the entries are found to be incorrect, my admission is liable to be cancelled. (b) I have read carefully the Prospectus supplied by the University and I undertake to abide by the rules of the College/University. (c) I hold myself responsible for payment of fees and other dues on the dates according to the schedule given in the Prospectus. (d) My ward was never disqualified in any examination. 9. It was pointed out by Mr. Vasudeva that appellants cannot be allowed to wriggle out of the above extracted portion of the prospectus as well as the admission form. Further per Mr. Vasudeva, rights of the parties were fructified under the terms of the prospectus of which the admission form is an integral part. 9. It was pointed out by Mr. Vasudeva that appellants cannot be allowed to wriggle out of the above extracted portion of the prospectus as well as the admission form. Further per Mr. Vasudeva, rights of the parties were fructified under the terms of the prospectus of which the admission form is an integral part. So far plea that the prospectus have the force of law is concerned, we are bound by a Division Bench decision of Hon’ble High Court of HP in the case of Km. Manju and another v. State, AIR 1972 H.P. 37. Even otherwise there can hardly be any dispute on this legal proposition. 10. However, core question in all these appeals before us is that after the concerned appellant having left the college and against the seat vacated by him, respondents having admitted other students that too after charging full fees from the new entrants, are they legally entitled to refuse refund to the appellants or not. 11. In our considered view answer would be in the negative. And if the argument of Mr. Vasudeva is taken to its logical end, it would lead to a very piquant situation which will only lead to one thing i.e. the undue enrichment of the State. On this basis the submission based on the above extracted terms of prospectus and condition from the admission form is also without any merit and is thus rejected. Respondents should not forget that it is not a private litigant. Providing education is one of the basic functions of the welfare state even under the scheme of Constitution of India, may be not the fundamental right, but it certainly is a part of the directive principles of the state policy, enshrined under the Constitution of India. 12. Again we specifically asked Mr. Vasudeva as to what loss his clients have been put to, his answer was that no financial loss has been caused to the respondents because such students who were admitted after the withdrawal of the appellants, have also been charged full fees. In case respondents had charged any less amount from the new entrants against the appellant’s seats, probably we light have thought of examining that case but admittedly that is not the situation in the present case. 13. Catching the last straw Mr. In case respondents had charged any less amount from the new entrants against the appellant’s seats, probably we light have thought of examining that case but admittedly that is not the situation in the present case. 13. Catching the last straw Mr. Vasudeva pointed out that it is purely a commercial transaction between the appellants and his clients, therefore, it is outside the purview of the Consumer Protection Act, 1986. Since his clients are neither service provider nor are the appellants the consumers. In the peculiar facts of these appeals this argument is being noted simply to be rejected. 14. Even otherwise plea of Mr. Vasudeva has no foundation in law which is based only on prospectus and the admission form submitted by the appellants while seeking admission to the course in question. Reason being that the respondents are high contracting parties and the appellants have no power either to bargain or to question the terms subject to which they were admitted. Only option for the concerned parent while admitting his/her child the course in question was either to sign in the dotted line or to get out of the institution. Moreover, this question is no more res integra in view of the decision of the Hon’ble Supreme Court in the case of Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another, 1986(3) SCC 156. (Para 14) Besides this one of the respondent in these appeals is State of Himachal Pradesh itself, whereas other respondents is Medical College being run by the State of Himachal Pradesh. It is wholly owned and controlled as well as financed by he welfare State. Moreover in the instant case it is neither trading nor carrying on any business activity so as to bind the appellants with the terms of the prospectus. 15. The terms of prospectus even if strictly applied to the facts of the present case as was urged by Mr. Vasudeva make those against public policy within the meaning of Section 23 of the Contract Act as those are unconscionable, unfair and unreasonable, therefore being opposed to public policy are void under the law of Contract. Concept of unconscionableness, unfairness, unreasonableness were dealt with elaborately in the judgment of the Hon’ble Supreme Court mentioned in the proceeding para. Vasudeva make those against public policy within the meaning of Section 23 of the Contract Act as those are unconscionable, unfair and unreasonable, therefore being opposed to public policy are void under the law of Contract. Concept of unconscionableness, unfairness, unreasonableness were dealt with elaborately in the judgment of the Hon’ble Supreme Court mentioned in the proceeding para. We are further of the view that the conditions regarding non-refund of the fees based on the terms of prospectus, as well as the admission form were detrimental to the appellants. But as already observed they were in no win situation because only option open to them was to take it or leave it. 16. Again in the facts of this case after admission of the three new students on payment of full fees as had been charged by the respondents from the appellants, denial of refund is nothing but is violative of Article 14 of the Constitution of India as the refusal is arbitrary. 17. In this view of the matter the admission form in the facts and circumstances of this case is nothing but unconscionable contract between the State and its Medical College on one side and the appellants on the other. It hardly needs to be reiterated that the State in the peculiar circumstances of this case was in a superior bargaining position. As for MBBS course during the relevant year i.e. 2004-05, it was running two Colleges imparting MBBS education. Thus on this ground also the terms of prospectus, as well as the conditions and declaration contained in the admission form is covered by Article 14 and have fair and just. 18. Last but not the least, all acts of the State have to be tested on the touchstone of Article 14 of the Constitution of India, which we are sorry to observe that they fail. 19. No other point is urged. In view of the aforesaid discussions, all these appeals are allowed and as a result of it complainants filed by the appellants being - (a) Complaint No. 38/2005; (b) Complaint No. 39/2005; and (c) Complaint No. 41/2005, as filed before the District Forum below are allowed. 19. No other point is urged. In view of the aforesaid discussions, all these appeals are allowed and as a result of it complainants filed by the appellants being - (a) Complaint No. 38/2005; (b) Complaint No. 39/2005; and (c) Complaint No. 41/2005, as filed before the District Forum below are allowed. Consequently the respondents are directed to refund the amount charged from the appellants by or before 30.4.2008 alongwith 6% interest from the date(s) when the fresh candidates were admitted after the seats were vacated by the concerned appellant in each appeal. It is, however, clarified that in case needful is not done on or before this date interest payable shall be 10% per annum from the date of payment/deposit whichever is earlier. Appellants are also held entitled for costs which are quantified at Rs. 1000/- each appeal to them. All interim orders passed from time to time in Appeal No. 239/2007 and 240/2007 shall stand vacated forthwith. Appeal allowed. M.R.B. ———————