- (1.) the petitioner is a society registered under the societies Registration Act, having its office under the name of 'cad point' situate at silver jubilee building, k.r. circle, Bangalore. It is an educational institution imparting computer education in various fields of software engineering. As on today a good number of students are undergoing training in computer science. The institution consists of very competent teaching staff. One Sri m.k. yuaraj was the working principal-cum-co-ordinator. On some false complaint he was arrested and detained in prison. In his absence, an order came to be passed on the complaint lodged before the district consumer forum. An order came to be passed as per Annexure-D , dated 25-9-1993 whereby the petitioner was directed to refund to the complainants within one month from the date of the Order, amounts paid by them, as shown at internal page 4 (para 8 of the order), with a further direction that petitioner should pay each complainant a sum of Rs. 500/- as compensation. Aggrieved by this order the petitioner has preferred this writ petition contending: (a) that the order passed by the district consumer forum, Bangalore, against a person who was in jail is quite arbitrary and against the principles of natural justice; (b) the order impugned is without jurisdiction as the petitioner-institution cannot be brought within the purview of consumer protection Act, 1986 (act No. 58 of 1986) since it is imparting education and not rendering any other service which could be brought within the definition of consumer' and 'buyer'; (c) the impugned order is passed without understanding the scope of the relevant provision of the act; (d) regarding maintainability of the writ petition it is contended that when the impugned order is without jurisdiction, this court can exercise its powers under article 226 of the Constitution of india. Learned counsel placed reliance on the decision in the case of Smt. N. Taneja and another v Calcutta District Forum and others.
(2.) elaborating her submission, learned counsel submitted that in the above decision the court while considering the scope of education held that education does not come within the scope of consumer protection act. Regarding the alternative remedy, the court observed as follows in taneja's case, supra: "23. It has been argued on behalf of the respondents that an application under article 226 of the Constitution does not lie but at best article 227 can be invoked. It is further submitted that any person aggrieved by any order of the district forum may prefer an appeal to the state commission under Section 15 of the act within the prescribed period. But it must be stated in all fairness that if the order of the forum goes wrong and is made palpably without jurisdiction then certainly a citizen has the right to come under the protection of article 226 of the constitution. The argument of respondent 2 is not tenable. In the case of Ram and Shyam Company v State of Haryana and others, the Supreme Court specifically made it clear as under: "where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the high court under article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer of the state government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits". This point is decided in favour of the petitioners". secondly reliance is placed on the decision in the case of the Calcutta Metropolitan Development Authority v Union of India and others, wherein it is held that under article 226 of the constitution, the high court can issue writ of certiorari when it is held that there is initial lack of jurisdiction and can go into the question as to whether the concerned authority at all had jurisdiction to entertain the matter.
(3.) Sri murlidher, learned government pleader who was heard for the respondent submitted that as against the order passed by the 1st respondent, an appeal lies under Section 15 of the Act, to the state commission. Without exhausting the effective and alternative remedy the petitioner has approached this court. The question of lack of jurisdiction or illegality committed by the district forum while passing the impugned order can very well be agitated before the state commission. According to him the authorities relied on by the petitioner are not binding on this court. Thus arguing he submitted that it is not a fit case to issue rule.;