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The Societies Registration Act, 1860
The Indian Penal Code, 1860
Section 4 in The Indian Penal Code, 1860
The Companies Act, 1956
Article 19(1)(g) in The Constitution Of India 1949

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Bombay High Court
Association Of International ... vs State Of Maharashtra on 10 December, 2009
Bench: A.M. Khanwilkar

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1445 OF 2009

1. Association of International Schools & Principals Foundation, an Association of Private Unaided Schools and having its address at Universal High, Brahmand Scheme Phase VI, Off Ghodbunder Road, Thane.

2. Universal Education Foundation, a Company incorporated under the provisions of Section 25 of the Companies Act, 1956 and address at Universal High, Brahmand

Scheme Phase VI, Off Ghodbunder Road, Thane. .. Petitioners

v/s.

1. State of Maharashtra,

Summon/Notice/s to be served on Learned Government Pleader appearing for the State of Maharashtra under Order XXVIII, Rule 4 of the Code of Civil Procedure, 1908.

2. The Department of Education, .. Respondents State of Maharashtra, through the Secretary, Mantralaya, Mumbai-400 032.

ALONGWITH

2

WRIT PETITION NO.1165 OF 2009

1. Association of Heads of Anglo Indian Schools in Maharashtra, through its Honorary Secretary Mrs. M. Isaacs, having its address at 6, Purshottamdas Thakurdas Marg, Mumbai-400 001.

2. Anglo-Scottish Education Society, which runs the Cathedral and John Cannon School and is a company

incorporated under the provisions of Section 25 of the Companies Act, and a Public Trust under the provisions of the Bombay Public Trust Act, 1950 having its address at Cathedral and John Connon School, 6, Purshottamdas

Thakurdas Marg, Mumbai-400 001.

3. Christ Church School, having its address at Clare Road, Byculla,

Mumbai-400 008.

4. Gehna Malkani, of Mumbai

Indian Inhabitant, Bursar of

Cathedral and John Cannon School, having its address at

6, Purshottamdas

Thakurdas Marg, Mumbai-400 001. .. Petitioners

v/s.

1. The State of Maharashtra,

service through Government Pleader, High Court, Bombay And through the School Education and Sports Department, Mantralaya, Mumbai- 400 032.

2. The Deputy Director, Education, 3

an officer exercising powers under the provisions of Maharashtra

Educational Institution,

(the Prohibition of Capitation Fee) Act, 1987, having his office at

Jawahar Bal Bhavan, Netaji Subhash Road, Charni Road, Mumbai-400 004. .. Respondents

ALONGWITH

WRIT PETITION NO.1166 OF 2009

1. Unaided Schools Forum, a Society registered under the Societies

Registration Act, 1860, which has its registered office at Hiranandani Foundation, 17, Saraswati Road,

Santacruz (West), Mumbai-400 054

and having an office for correspondence at Gujarat Research Society,

Dr. Madhuri Shah Campus, R.K.Mission Road, Khar (West), Mumbai-400 052.

2. The Management

Jamnabai Narsee School

Narsee Monjee Bhavan

N.S.Road No.7,

JVP Scheme, Juhu, Mumbai-400049.

3. The Management,

Arya Vidya Mandir,

St. Cyril Road,

Bandra (West),

Mumbai-400 050.

Through its Managing Trustee.

4. The Management

4

Hiranandani Foundation School,

Hiranandani Gardens,

Powai, Mumbai-400 076.

5. Jagdish Chandulal Nanavati of Mumbai, Indian Inhabitant,

residing at Arunodaya,

Lajpatrai Road, Vile Parle (West), Mumbai-400 056. .. Petitioners

v/s.

1. State of Maharashtra,

through the Department of Education, which has its office at Mantralaya, Annexe Bhavan, Mumbai-400 032.

2. Secretary, Department of Education, Government of Maharashtra, who has his office at Mantralaya Extension, Mumbai- 400 032 .. Respondents

ALONGWITH

WRIT PETITION NO.2552 OF 2000

1. Unaided Schools Forum, a Society registered under the Societies

Registration Act, 1860, which has its registered office at Hiranandani Foundation, 17, Saraswati Road,

Santacruz (West), Mumbai-400 054

and having an office for correspondence at Gujarat Research Society,

Dr. Madhuri Shah Campus, R.K.Mission Road, Khar (West), Mumbai-400 052. 5

2. Shree Chandulal Nanavati Womens Institute and Girls High School, a Society registered unde the

Societies Registration Act, 1860, which has its registered office at Vallabh Bhai Road, Vile Parle (West),

Mumbai- 400 056.

3. Shardarshan Vidyamandir Trust, a Public Charitable Trust,

registered under the Bombay Public Trust Pvt.1950 having its registered office at Dr. Bhavanishankar Dadarkar Marg, Dadar, Mumbai- 400 028.

4. Jagdish Chandulal Nanavati of Mumbai, Indian Inhabitant,

residing at Arunodaya, Lajpatrai Road, Vile Parle (West), Mumbai-400 056. .. Petitioners

v/s.

1. State of Maharashtra,

through the Department of Education, which has its office at Mantralaya, Annexe Bhavan, Mumbai-400 032.

2. J.M. Abhyankar, Deputy Secretary, Department of Education,

Government of Maharashtra, who has his office at Mantralaya Extension, Mumbai- 400 032. .. Respondents

ALONGWITH

APPELLATE SIDE

WRIT PETITION NO.4503 OF 2009

1. Students Welfare Assocaition (Kharghar) 6

(Proposed), Kharghar, Taluka-Panvel, District-Raigad, C/o. Score Plus Academy, 13, Vakratund Tower, Sector -4,

Kharghar 410210.

2. Prof. M.S. Deshmukh

Adult, Occ. Professor,

Residing at -Nikunj, CHS Flat No.C/3 Plot No.14, Sector 4, Kharghar,

Navi Mumbai. .. Petitioners v/s.

1. State of Maharashtra,

(Summons to be served on the

Learned Government Pleader

appearing for State of Maharashtra under Order XXVII, Rule 4 of the

Code of Civil Procedure, 1908).

2. The Secretary,

School Education Department,

Government of Maharashtra,

Mantralaya,

Mumbai- 400 032. .. Respondents (Summons to be served on the

Learned Government Pleader

appearing for State of Maharashtra under Order XXVII, Rule 4 of the

Code of Civil Procedure, 1908).

3. Balbharti Public School

Plot No.5, Sector 4,

Kharghar, Nave Mumbai,

Mumbai -410210. .. Respondents

ALONGWITH

APPELLATE SIDE

WRIT PETITION NO.4413 OF 2009

7

1. Shri Sandeep R. Nair,

Age 41 years, Occupation Service, Residing at Park Street, Row House C1, Chest Hospital Road, Wakad,

Pune-411 057.

2. Shri Manoj G.

Age 41 years, Occupation-service, Residing At A3/A5, Royal Orchard, Wireless Colony, Aundh,

Pune -411 007.

3. Shri Sanjay R. Jambhale,

Age 39 Years, Occupation-Service, Residing at Park Street, Row

House J-13, Chest Hospital Road,

Wakad, Pune-411 057. .. Petitioners

v/s.

1. The State of Maharashtra,

2. The Director of Education,

Maharashtra State Central Building, Pune-411 001.

3. Central Board of Secondary Education, New No.3 (Old No.1630-A), J-Block, 16, Main Road, Anna Nagar (West), Chennai-600040.

(Notice to be served upon Regional Officer).

4. Pradnya Niketan Education Society, S.No.80/1/2/1, Baner-Mhalunge Road, Baner, Pune -411 045.

(Notice to be served upon Shri

B.K. Shinde-Trustee).

8

5. Mrs. Lakshmi Kumar,

Director the Orchid School,

Survey No.80/1/2/1, Baner

Mhalunge Road, Baner,

Pune-411045. .. Respondents

ALONGWITH

CRIMINAL APPLICATION NOS.779 OF 2008, 2934 OF 2007, 2935 OF 2007 AND 2936 OF 2007

Mr. A.V . Anturkar with Mr. S.B. Deshmukh for the Petitioners in A.S.W.P . No.4503 of 2009.

Mr. A.Y. Bookwala, Senior Advocate with Mr. Munaf Virjee and Mr. Mayuresh Borkar i/by M/s. DSK Legal for the respondent No.3. Mr. V.S. Masurkar, Government Pleader for the State. Mr. A.M. Joshi for the petitioner in A.S. Writ Petition No.4413 of 2009.

Mr. Hitesh Jain with Ms. Prachiti Darad i/by M/s.ALMT Legal for the respondent Nos.4 and 5.

Mr. Aspi Chinoy, Senior Advocate with Mr. Prateek Sakseria i/by M/s. L.J. Law for the applicant in C.A. No.1526 of 2009. Mr. Prateek Sakseria i/by M/s. L.J. Law for the applicant in C.A. No.1527 of 2009.

Mr. Janak Dwarkadas, Senior Advocate with Mr. Prateek Sakseria i/by M/s. Nankani & Associates for the petitioners in W.P .(L) No. 1185 of 2009.

Mr. D.A. Nalawade, Government Pleader for the State. Mr. Aspi Chinoy, Senior Advocate with Mr. Prateek Sakseria i/by M/s. L.J.Law for the applicant in N.M. No.342 of 2009. Mr. Janak Dwarkadas, Senior Advocate with Mr. Prateek Sakseria i/by M/s. L.J. Law for the applicant in N.M. No.342 of 2009. Mr. F.E. D'Vitre, Senior Advocate with Mr. Gaurav Joshi i/by M/s. Federal & Rashmikant for the petitioners in W.P . No.1166 of 2009. Mr. Prakash Naik for the applicants in Cri. applications. Ms Sunita Sharma i/by Mr. S.V . Marwadi for the respondent No.1.

CORAM : SWATANTER KUMAR , C.J. &

A.M. KHANWILKAR

, J.

9

DATE OF RESERVING THE JUDGMENT : 30TH NOVEMBER, 2009

DATE OF PRONOUNCING THE JUDGMENT : 10TH DECEMBER, 2009

JUDGMENT (PER SWATANTER KUMAR, C.J.)

Petitioners, an Association of private unaided

schools/Managements including private unaided minority schools, have

challenged the legality and validity of the Government Resolution dated

8th May, 2009. According to the Government, it had received various

representations stating that private Primary, Secondary and Higher

Secondary schools run on permanent unaided basis were increasing the

fees and other charges to a large extent and it would result in economic

exploitation of the parents. Requests were made by the

students/parents to regulate the fee charged by these schools, at the

Government level. The Government, thus, passed the resolution to the

following effect:

"In the State the Primary, Secondary & Higher Secondary Schools run on the principle of private unaided/permanent unaided, also schools affilidated to ICSE/CBSE/IGCE/IB Board and the No Objection Certificate issued by Government to these schools shall not increase the fees of any kind without the permission of the Fee Control Committee established through Government. For fixing the tuition fees and other fees Fee Control Committee will be established by Government and without the approval by said Committee the concerned Institutions cannot increase the tuition fees & other fees. Prior to the notification of 10

this Resolution, the institutions which have increased the fees for the academic year 2009-2010, shall also be binding on them to obtain the approval of the aforesaid Committee and the fees decided by the Fee Control Committee, should only be charged by the schools. If any school increases Education fees for the academic year 2009-2010 in violation of this Government Resolution, the permission granted to the concerned school will be revoked and No Objection Certificate granted to those school shall be cancelled and the same will be informed to concerned Board.

Said Resolution is availoable on Government of Maharashtra website www.maharashtra.gov.in and the code no. is 20090508190215001."

2. According to the petitioners, Wards of Balbharti Public School

had earlier filed writ petition being Writ Petition No.4503 of 2009

praying for issuance of mandamus to the State directing it to regulate

the fees charged by the said school. During the course of hearing of the

said writ petition on 6.5.2009, the Additional Government Pleader, after

seeking instructions, made a statement that Government of

Maharashtra would issue instructions to the institutions, that is the

schools, not to implement their decision to increase the fees till the

Committee is constituted and the matter is examined by the said

Committee. With reference to the statement made before the Court, the

Court passed the following order:-

"The learned A.G.P after seeking instructions .

from Mr. Sanjaykumar, Secretary, Education Department, Government of Maharashtra who is present in the Court states that the Education Department would issue instructions to the respondents-institution not to implement their 11

decision to increase the fees till the committee is constituted and the matter is examined by the committee and further states that the procedure involved in constituting the committee requires consultation from various departments like Finance, Law & Judiciary and that has to be approved by the Cabinet and, therefore, minimum 8 weeks time will be required for constituting the committee.

2. In our view, as the Secretary, Education Department has made statement that instructions will be issued to all Educational Institutions in the State of Maharashtra not to give effect to the increase in fees till the statutory committee considers the case of increase in fees on case to case basis the interest of students and their guardians/parents is well protect5ed. We therefore, direct the Education Department of State of Maharashtra to take appropriate steps to protect the interest of students and their guardians/parents seeking admission at all levels of education i.e. from Nursery to Junior College by prohibiting them from increasing fees as no committee is constituted by the State and presently the matter is left to mediation between Parents & Teachers Association and Institutions which are running the schools and colleges at various level.

3. The matter be listed on 30th June, 2009."

3. In furtherance to these directions, the Government issued a

circular dated 8.5.2009. The above resolution has been challenged by

the petitioners on the ground that the respondents have no jurisdiction

to regulate and control the fees structure of the petitioner's schools by

relying upon the judgment of the Supreme Court in the case of T.M.A.

Pai (2002)8 SCC 481. It is argued that the action of the respondents

tantamounts to interference in the management and practically

running the unaided private schools over which the authorities cannot 12

exercise any such control. In any case, fee fixation falls under the

domain of the management of these schools which have so fixed the

fees for the purposes of maintaining excellence in education. The

matter was being examined by one authority of the State. Thus, the

present Government Resolution is illegal, unjustified and is arbitrary

exercise of power. In terms of the order of this court and section 4 of

the Maharashtra Educational Institutions (Prevention of Capitation

Fees) Act,1987 and rules framed thereunder, a statutory committee was

to be constituted and the Government has failed to discharge its

obligations on the one hand while on the other hand without any

rationale basis and data have issued the circular to prohibit increase in

fees. The obligation of the schools, with an intent to maintain

excellence, they have to pay higher salary to the teachers and also now

in terms of the recommendations of the Sixth Pay Commission. These

are some of the pleas raised by the petitioners. In addition to the above

pleas, interalia, it is also contended that the provisions of this Act

particularly, section 4 is violative of Article 19(1)(g). Once the schools

are not indulging in profiteering or imposing capitation fee, there is

nothing to prohibit them from charging fees as there are no guidelines,

no methodology provided for regulating the fees even if it is assumed

that they have such a right. Furthermore, there is no absolute right to

regulate the fees. On the other hand, according to the respondents, the

Act in question was legislated in the year 1987 and various approvals 13

have been given or refused under the provisions of the Act. It is not a

redundant law as alleged. In terms of the judgment of the court and

even otherwise, the State has a right to control and regulate the fees.

Therefore, these petitions are premature and, in fact, according to the

respondents not even maintainable.

4. In view of the approach that we propose to adopt while

dealing with the present case and the fact that the parties are ad

idem as regards issuance of some directions, it is not necessary for

this Court to deal with the respective rival contentions raised

before us on merits of the case.

5. In Writ Petition No.4503 of 2009, a Division Bench of this

Court, while hearing the Writ Petition, had passed the order dated

6th May, 2009, as reproduced hereinabove.

6. In furtherance to the order of this Court and the policy

decision of the Government, the Government had appointed a

Committee to examine various aspects of fee structure of the

Petitioner's Schools, Junior Colleges as well as the extent of

control, etc. that the Government is expected to exercise in terms 14

of the judgment of the Supreme Court in T.M.A. Pai's case (supra)

and in the case of P.A. Inamdar and Others v. State of Maharashtra

& Ors., (2005)6 SCC 537. The said Committee under the

Chairmanship of Dr. Smt. Kumud Bansal, Retired IAS has on 16th

October, 2009 submitted its Report to the Competent Authority

which, in turn, has to place the said report for acceptance or

otherwise before the State Government. In the event, the State

Government accepts the Report of Bansal Committee, nothing

really would survive in these Writ Petitions and it would be purely

academic for the Court to decide the said Writ Petitions on merits.

One of the main contentions raised by the Petitioners is with

regard to the control exercisable by the Government with regard

to the Fee Structure and other management matters of private un-

aided schools. The Bansal Committee in its Report in Paragraphs

14, 19, 22, 36 and 37 has noticed as under:-

"14. In respect of fees the TMA Pai judgment unequivocally states that the private school managements of unaided institutions have the right to decide their fes. It has ruled that maximum autonomy has to be with the management of the unaided schools with regard to administration, admission of students and the fees to be 15

charged. It states :

a. The right to establish and administer broadly comprises the

following rights:

(a) to admit students;

(b) to set up a reasonable fee structure;...

b. One cannot lose sight of the fact that providing good amenities to

the students in the form

competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institutin, if it chooses not to seek any aid from the Government, to

determine the scale of fee that it can charge from the students.

The Committee, therefore, recommends that private unaided schools should have the autonomy to fix the school fees.

Xxx xxx

xxx

19. With regard to revenue, the Committee recommends the unaided private schools continue to have the autonomy to determine the fees to be charged taking in to consideration the need to generate funds to run the institution and to provide facilities necessary for the students. However, schools are prescribed from charging capitation fee and should not be allowed to profiteer. 16

22. There cannot be uniform and rigid norms for deciding admissible expenditure as institutions are affiliated to different Boards and the norms prescribed by every Board are different. Also each institution may have a different vision of what constitutes quality education for its students. Cost of infrastructure and facilities vary from place to palce (urban and rural). The expenses incurred also vary according to the stage of schooling (Primary, Secondary & Higher Secondary ), staff required for implementation of curriculum and salary of such staff.

Xxx xxx

xxx

36. The Committee recommends that the Government should address this issue by clearing the backlog at the earliest and by making adequate budgetary provisions to ensure timely release of grant in future, so that the bulk of the students studying in the aided school receive quality education.

37. This Committee also recommends that Government may take a conscious policy decision and allow private aided schools to raise additional resources as per norms through the combined efforts of PTA and Schools management."

7. From a bare reading of the recommendations of the

Committee, it is clear that both, the Fee Structure as well as the

extent of control to be exercised by the Government over these 17

Schools, Junior Colleges, have been dealt with and commented

upon in a great detail. That is the substantive ground on which

the Petitioners have challenged the validity and legality of the

Government Resolution dated 8th May, 2009.

8. This Court had also passed certain order dated 8th July,

2009 which we are informed has not been challenged by any of

the parties to these Writ Petitions. Thus, it will cause no

prejudice to any of the parties if the said order is continued

further subject to directions contained in this order.

9. In light of the above discussion, we hereby dispose of above

Writ Petitions with the following directions:-

(a) Government Resolution dated 8th May,

2009 shall be kept in abeyance and will

not be enforced by the Respondents

subject to the adherence of the

directions contained hereinafter;

(b) Report of Bansal Committee shall be 18

placed by the Competent Authority

before the State Government within a

period of two weeks from the date of

pronouncement of this judgment;

(c) The State Government shall take a final

decision upon the report of Bansal

Committee within a period of four weeks

thereafter and take a decision after

granting post decisional hearing to the

Petitioners and other interested parties

in a representative capacity;

(d) Parties i.e. The Petitioners or any other

interested parties would be entitled to

file their objections or submissions in

respect of the recommendations of

Bansal Committee within a period of two

weeks with effect from today;

(e) Any decision on the Bansal Committee 19

Report taken by the State Government

shall not be implemented and would

remain stayed for a period of two weeks

therefrom;

(f) Interim order passed by this Court on 8th

July, 2009 vide which we had directed

the State and the State had stated before

us that it would not give effect to the

part of the said Government Resolution

which prohibits enhancement of Fee and

charging of increased fee by schools to

whom Government Resolution applies or

even otherwise, till further decision in

these matters. We had also clarified

that the increased fees are to be paid by

the students and if the contentions of the

Petitioners are ultimately not accepted,

then in that event the students would be

entitled to adjustment and/or refund of

the fee in excess of the fees determined 20

by the Competent Authority. Thus, the

order dated 8th July, 2009 shall continue

for a period of eight weeks from today

and subject to such orders, as may be

passed by the Competent Court or

appropriate forum in accordance with

law;

(g) Upon such acceptance of the said report

or with such modifications as is directed

by the State Government, the Fee

Structure Committee shall determine the

Fee chargeable by the Schools, if it has

jurisdiction to that effect, within a period

of four weeks thereafter. After eight

weeks as aforesaid, no interim order will

be in operation. However, subject to

such orders as may be passed again by

the (Competent Court, appropriate

forum or court;)

21

(h) We have fixed the above time schedule

primarily with the object that these

questions keep arising every year and

large number of Writ Petitions are being

filed in that behalf. Thus, it would be

appropriate that the Government and

the Competent Authority/Committee

take decision well in advance so that

prior to commencement of academic

session, all schools concerned as well as

the students, their parents and Parents

Teachers' Association know what fees

they have to pay if the students take

admissions in a given school. We expect

that the Government and all concerned

Authorities shall adhere to the time

schedule specified in this order. In fact,

we have already noticed that these

directions and time schedule were

acceptable to all learned counsel

appearing for the respective parties. 22

10. Writ Petitions are accordingly disposed of with no order as

to costs.

CHIEF JUSTICE

A.M. KHANWILKAR, J.