REGISTRAR, GUJARAT STATE PHARMACY COUNCIL vs MOIZ N. DABHOIWALA

THIS appeal arises from order dated 29th April, 2002 rendered by the learned Surat District Consumer Disputes Redressal Forum in Case No. 38/2001 directing the opponent-Registrar, Gujarat State Pharmacy Council to make registration of the complainant as pharmacist in the register maintained by the Council and issue certificate of registration within one month from the date of the order and to pay to the complainant compensation in the sum of Rs. 10,000/- on the head of mental agony and hardship with interest at the rate of 12 per cent per annum from the date of order and also to pay cost quantified at Rs. 500/-.

IT was the complainant''s case that he had a degree of Bachelor of Pharmacy from Nagpur University, that he gave application for registration to the opponent on 10.8.1984 and that there was correspondence between the parties thereafter. The opponent Council informed the complainant that Central Council of Pharmacy, New Delhi was intimated by letter dated 22nd April, 1988 with regard to the action of registration to be taken by the said Council or by the opponent Council. Years passed and yet the complainant''s name was not registered, resulting into filing of the complaint before the learned Forum claiming compensation in the sum of Rs. 4,00,000/- from the opponent Council. Opponent Council resisted the complaint inter alia on the ground that the complainant could not be said to be a ''consumer'', that there was no consumer dispute between the parties, that the Council is a statutory authority and has not been providing any service for consideration, that the institution from which education was obtained by the complainant should have been approved by the Pharmacy Council of India for the purpose of registration as Pharmacist, that the Department of Pharmaceutical Science of Nagpur University was not approved for registration by the Pharmacy Council of India, that it was for the first time, in the year 1972 such approval was accorded, that the complainant had stated to have passed Bachelor Degree in Pharmacy in the year 1960 from Nagpur University and that under such circumstances he was not accorded registration.

After hearing the parties and considering the facts and circumstances of the case learned Forum came to the conclusion that it had jurisdiction to hear the complaint, that the complainant was consumer of the opponent Council, that there was deficiency in service on the part of the opponent Council in not registering the complainant''s name as Pharmacist and issuing certificate of registration and that the complainant was entitled for the same along with compensation and cost as per the impugned order.

WE have heard the learned Advocates for the parties. WE have gone through the impugned order. WE have gone through the memorandum of appeal. Learned Forum has made reference to the decision of National Commission in the case of Sreedharan Nair N. v. Registrar, University of Kerala, I (2004) CPJ 27 (NC)=2001 (3) C.P.R. 27. We have gone through the said decision which has also been referred to on behalf of the complainant before us.

REFERENCE has also been made before us to the decision of the National Commission in the case of Vice-Chancellor, Punjabi University, Patiala v. Ashu Tosh, I (2003) CPJ 17 (NC)=(2003) NCJ 173. In reply, reference has been made to a decision of Karnataka High Court in Writ Appeal Nos. 7712 and 7713/2000 as well as on the provisions of the Pharmacy Act, 1948. Short question before us is whether the complainant could be said to be a ''consumer'' of the opponent Council and whether the dispute, which was raised by him amounts to ''consumer dispute''. It is settled law that whenever a statutory authority is required to function as per the provisions of the statute it cannot be said to be a service provided and performance of such statutory functions and duties would be outside the purview of the Consumer Protection Act, 1986. However, in order to find out whether the complainant could be said to be a ''consumer'' of the opponent council and whether any service is required to be rendered for consideration by the Council to the complainant and whether such dispute can be said to be a ''consumer dispute'' reference needs be made to some of the provisions of the Pharmacy Act, 1948. It is not in dispute that for the purpose of practising as a Pharmacist it will be necessary to have registration under the provisions of the Pharmacy Act, 1948. For the purpose of exercising such statutory functions Central Council as well as State Council are required to be constituted as per the provisions contained in Chapter-II and Chapter-III respectively of the Pharmacy Act, 1948.

SECTION 19 of the Pharmacy Act provides for constitution and composition of State Councils. SECTION 20 makes provisions with regard to Inter-State agreements between two or more State Governments in respect of constitution of Joint State Council. SECTION 21 deals with composition of Joint State Councils. SECTION 22 deals with incorporation of State Councils. SECTION 23 deals with election of President and Vice-President of State Council. SECTION 24 deals with mode of election. SECTION 25 deals with term of office and casual vacancies in the Council. SECTION 26 deals with staff. SECTION 26-A deals with inspection. SECTION 27 makes provision for constitution of executive committee of the Council. SECTION 28 deals with information to be furnished. As per SECTION 29 of the Pharmacy Act register of pharmacists for the State is required to be prepared and maintained in accordance with the provisions of the Act. SECTION 30 deals with preparation of first register. SECTION 31 provides for qualifications for entry on first register. SECTION 32 provides for qualifications for subsequent registration. SECTION 32-A deals with special provision for registration of certain persons. SECTION 32-B deals with special provisions for registration of displaced persons, repatriates other persons. SECTION 33 deals with scrutiny of applications for registration. SECTION 36 deals with removal of entry from the register. SECTION 38 deals with bar of other jurisdiction whereby no order refusing to enter a name on the register or removing a name from the register could be called in question in any Court. It will clearly appear from all these provisions of the Pharmacy Act, 1948 that what the Council is required to do is to maintain register for making entries of the Pharmacists as per prescribed and recognized qualifications. Thus the Council is required to perform statutory functions. There is no provision for paying any consideration to the Council for performance of such statutory functions. Registration fee cannot be equated with such consideration. What the Council is required to see is whether the University or Institution from which the degree is obtained is recognised by the Central Council or under the Act in any other manner for the purpose of registration of a person as Pharmacist in the register maintained by the State Council. In our considered opinion the allegations with regard to non-performance or improper performance of such statutory function cannot be said to be a ''consumer dispute''. A person seeking registration in the register maintained under the aforesaid Act by the Council cannot be said to be a ''consumer'' in the eye of law and the Council''s statutory function of entering names in the register cannot be said to be a service provided. The decision of the National Commission in the case of Sreedharan Nair N. (supra) will not, therefore, be applicable to the present case. That was a case where the complainant was not informed at the threshold i.e., at the time of admission to the LL.B. Course or at the time of writing the first annual examination that the B.G.L. degree of the Mysore University was not a qualified degree for undergoing LL.B. course in the Kerala University. The required fees for undergoing LL.B. course and appearing for examinations had been taken from the complainant from time-to-time and the said complainant had taken education and course for the LL.B. degree. It is in the background of such facts that the National Commission held that imparting of education by an educational institution for such a degree would be within the ambit of service as it related to administrative aspect of such education.

IN the case of Ashu Tosh (supra) the question was one with regard to delay in dealing with application for registration to M. Phil degree. This case also related to administrative aspect of imparting education and can hardly have any application with the present case. Reference has been made by the learned Advocate for the appellant to the decision of Apex Court in the case of S.P. Goel v. Collector of Stamps, (1996) 1 SCC 573, where it has been held that a person presenting document for registration is not a ''consumer'' since officers doing the work of registration are performing statutory duty. In Shanti Devi v. GDA, III (2003) CPJ 72 (NC)=(2003) 5 CLD 1121 (NCDRC), it has been held by the National Commission that non-sanction of building plan would not tantamount to consumer dispute. In the present case also the Council is performing statutory functions. It cannot be said to be a service provided. The complainant cannot be said to be ''consumer'' in the eye of law and the dispute which has been raised by the complainant cannot be said to be a ''consumer dispute''.

Even on merits the complainant would not succeed. He had not been able to show that the college or the university from which he obtained degree of Pharmacy was recognized under the Pharmacy Act, 1948 at the relevant point of time. A reference in this connection has been made to the aforesaid decision of the Karnataka High Court in the case of Pharmacy Council of India v. Smt. Archna Patwari, wherein it has been observed that those students who pass the course conducted by various colleges which are affiliated to the universities but those courses are not approved by the Central Council are ineligible to have their names entered in the register. In our considered opinion this decision will apply to the facts of the present case.

IN the result, following order is required to be passed: Impugned order dated 29th April, 2002 rendered by the learned Surat District Consumer Disputes Redressal Forum in Complaint No. 38/2001 is hereby set aside. Complaint bearing Case No. 38/2001 is dismissed. This appeal is accordingly allowed with no order as to cost. Appeal allowed.