Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Motilal Nagar-1 vs State Of Maharashtra on 16 September, 2011
Bench: A.M. Khanwilkar, Mridula Bhatkar
                                            1                            191909




                                                                        
         IN THE HIGH COURT OF JUDICTURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICITON




                                                
                 WRIT PETITION NO.1919 OF 2009

        Vibgyor High School,
        through its Principal, situate at




                                               
        Motilal Nagar-1, Srirang Sabde
        Marg, Goregaon (W),                       ... Petitioner
        Mumbai 400 104




                                    
                    V/s.



        through
                      
     1. State of Maharashtra,
                      the      Secretary,
        Department of Education and
                     
        Employment,          Mantralaya
        Annexe, Mumbai 400 032
     2. V.K. Wankhede
        Deputy Director of Education,
      


        Mumbai Division, Greater
        Mumbai, Jawahar Bhavan,
   



        Churni Road, Mumbai 400 007
     3. Avisha Gopalkrishnan,
        residing at Shree, 158,
        Jain Jainalaya Road, Bangur





        Nagar, Goregaon (W),
        Mumbai 400 090
     4. Prashant Basrur,
        residing at C-58, Tarapore





        Garden, New Link Road,
        Andheri (W), Mumbai 400 053
     5. Sanjita Prasad,
        residing at 703, Samarkhand,
        Prathamesh Complex,
        Andheri (W), Mumbai 400 053




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                                         2                              191909


     6. Vishal Ruia,




                                                                      
        1302, Orchid, Vasant Valley,
        Malad (West), Mumbai 400 097




                                              
     7. Balchandran Unni,
        801, Serenity Complex,
        Off Link Road, Oshiwara,
        Mumbai 400 053                      .... Respondents




                                             
                                  WITH




                                  
                   WRIT PETITION NO.1925 OF 2009
                       
        Rustom Kerawalla Foundation
        a Public Charitable Trust
        registered under the Bombay
                      
        Public Trust Act, 1950 having
        its address at Kerawalla
        Chambers, Apollo Bunder,
        Opposite Radio Club, Colaba,
      

        Mumbai 400 001                            ... Petitioner
   



                Versus


     1. State of Maharashtra,





        through    the     Secretary,
        Department of Education and
        Employment,       Mantralaya
        Annexe, Mumbai 400 032
     2. Vithoba K. Wankhede





        Deputy Director of Education,
        Mumbai Division, Greater
        Mumbai, Jawahar Bhavan,
        Churni Road, Mumbai 400 007




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                                          3                              191909


     3. Avisha Gopalkrishnan,




                                                                       
          of Mumbai Indian Inhabitant,
          residing at Shree, 158,




                                               
          Jain Jainalaya Road, Bangur
          Nagar, Goregaon (W),
          Mumbai 400 090
     4.   Prashant Basrur,




                                              
          of Mumbai Indian Inhabitant,
          residing at C-58, Tarapore
          Garden, New Link Road,
          Andheri(W), Mumbai 400 053




                                   
     5.   Sanjita Prasad,
          of Mumbai Indian Inhabitant,
                      
          residing at 703, Samarkhand,
          Prathamesh Complex,
          Andheri(W), Mumbai 400 053
                     
     6.   Vishal Ruia,
          of Mumbai Indian Inhabitant,
          1302, Orchid, Vasant Valley,
          Malad(West), Mumbai 400
      

          097
     7.   Balchandran Unni,
   



          of Mumbai Indian Inhabitant,
          801, Serenity Complex,
          Off Link Road, Oshiwara,
          Mumbai 400 053





                                              ...Respondents

     Mr. Aspi Chinoy, Senior Advocate, with Mr.Janak Dwarkadas,
     Sr.Advocate, Mr. Sanjay Jain, Mr. Ishwar Nankani and Mr. Huzefa
     Khokhawala i/by M/s. Nankani & Associates for the Petitioner in Writ





     Petition No. 1919 of 2009

     Mr. Navroz Seervai, Senior Advocate, with Mr. Prateek Seksaria i/by
     M/s. L.J. Law for the Petitioner in Writ Petition No. 1925 of 2009

     Ms. I.K. Calcuttawala, A.G.P., for Respondents No. 1 and 2

     Captain B.K. Subbarao for Respondent No. 3 in Writ Petition No. 1919
     of 2009




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                                          4                               191909




                                                                        
     Respondent No. 3 Writ Petition No. 1925 of 2009, present




                                                
     Mr. Darius B. Shroff, Senior Advocate, with Mr. Sagar Talekar for
     Respondents No. 4 to 7 in Writ Petition No. 1919 of 2009


                            CORAM : A.M. KHANWILKAR AND




                                               
                                    MRS. MRIDULA BHATKAR, JJ.

                            DATE : 16th September, 2011.




                                    
                      
     JUDGMENT (Per A.M. Khanwilkar, J.):-
                     
     1.          This common judgment will dispose of both the petitions

     together, as common questions arise for consideration therein. The
      


     former petition is filed by Vibgyor High School. The second petition is
   



     filed by Rustom Kerawalla Foundation for the same reliefs.





     2.          By the former petition, viz., Writ Petition No.1919 of

     2009, under Article 226 of the Constitution of India, the petitioner-





     school, which claims to be a minority private unaided school engaged

     in running a primary and secondary school under affiliation from

     Council for Indian Certificate of Secondary Examination (ICSE),

     International General Certificate of Secondary Education, University of

     Cambridge, U.K. (IGCSE) and offering National Institute of Open




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                                          5                                191909


     Schooling (NIOS) Curriculum, has taken exception to the orders passed




                                                                         
     by the Deputy Director of Education, respondent No. 2, dated 3rd July,




                                                 
     2009 and 4th September, 2009. Further, the petitioner-school prays for

     consequential relief of restraining respondents No. 1 and 2 by




                                                
     themselves and/or through their servants, officers, agents or

     subordinates from interfering with or preventing the implementation of




                                    
     the petitioner's circulars, which stipulate the school fees payable by
                      
     students of the ICSE Primary and Secondary Divisions of the

     petitioner-school in respect of academic year 2009-10.
                     
     3.          By the impugned decision, respondent No. 2 disallowed
      


     the expenses incurred by the petitioner-school towards school building
   



     rent in the sum of Rs.2.50 crores per annum. The amount towards

     other expenses claimed by the petitioner-school, however, was





     accepted by respondent No. 2 as usual expenditure to entitle the

     petitioner-school to claim as part of the fee amount from its students.





     On that finding, respondent No. 2 approved the fees prescribed by the

     petitioner-school to the extent of Rs. 54,598/- for Primary Section and

     Rs.61,149/- for Secondary Section from the year 2008-09.




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                                             6                                191909


     4.                  By the second petition, viz., Writ Petition No.1925




                                                                            
     of 2009, under Article 226 of the Constitution of India, the petitioner -




                                                    
     a public charitable trust - prays for similar reliefs as in the former

     petition.




                                                   
     5.           The broad relevant facts leading to the filing of the




                                       
     present petitions, including the events unfolded during the pendency of
                        
     these petitions, for examining the challenge to the impugned decision

     of respondent No. 2 referred to above are as follows:-
                       
     6.           Respondents No. 3 to 7, along with other parents of
      


     petitioner-school, vide letter dated 19th July, 2007 complained to the
   



     Education Minister of the State about the unlawful Parents Teachers

     Association elections and other issues regarding the maladministration





     in the school. The said communication reads thus:-

                                        "From: Aggrieved parents of Vibgyor High
                                         Motilal Nagar, Goregaon (W), Mumbai





                  19/7/2007

                  To:    Shri Vasant Purkeji,
                         Education Minister,
                         Maharashtra State

                  Respected Shri Purke Saheb,

                         Sub: Unlawful PTA elections and other issues




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                                  7                                 191909




                                                                  
      Vibgyor High (Trustee, R. Kerawalla) used to be Billabong
      High until Aug 2006 - which was under a franchisee
      agreement with Lina Asher - of KKEL (Kangaroo Kids




                                          
      Education Ltd., who owns and operates the brand-Billabong
      High) went thru a very messy public fallout and the two
      separated.

      Most parents chose to stay with the current school - even




                                         
      though KKEL was a better brand name, since the
      infrastructure belonged to this school and on meeting with
      the trustee - most were convinced that this school could go
      onto become one of the best schools in Mumbai. Parents
      helped the school ride thru court cases and even filed




                            
      interventions on behalf of the school to ensure stability.
           
      Until end of 2005 - due to the internal bickering between
      the two partners, and their staffs - the school also did not
      have a head, no principal lasted more than 3-4 months.
      Many of these exits were attributed to Ms. Kavita Sahay -
          
      who has now been appointed ED of the school. Ms. Sahay,
      like our current principal, was apparently sacked from two
      previous schools - is the extra constitutional authority that
      runs this school. Mr. Shim Mathews, the current principal,
      was also sacked from his old school Ryan International....
      


      In spite of all this, the school's biggest strength, that of
   



      being one of the most child friendly and of allowing 'open
      door' to parents - was followed, all of last year. The PTA
      elections for the year 2006-07 were extremely well
      organised and completely transparent. On hindsight, that
      was due to the school's need to have a strong and well





      networked body of parents to stymie the fears and
      apprehensions of doubting parents on the issue of
      curriculum (till that point in time, curriculum was being
      provided by KKEL and was considered to be one of the
      biggest selling points for the school).





      However, to the dismay of the trustee, and the rest of the
      school management, the PTA consistently took up issues of
      quality, safety and security, teacher qualification and
      training, age appropriateness of curriculum and quality of
      curriculum provided (as they were not following any text
      books in the junior classes, it was most critical that the
      people responsible for developing the curriculum were
      qualified and able to deliver the same).




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                                  8                                  191909




                                                                   
      It was pointed out to the school management repeatedly that

      1. Curriculum was faulty, sub-standard and at times even




                                           
      absurd.

      2. People responsible for this sub-standard curriculum were
      not qualified and just did not comprehend either the needs of
      the students or the eventual objective of tying in with the




                                          
      boards requirement.

      3. Teacher selection and Training were still murky as good
      quality teachers kept leaving school and were being replaced
      by whatever available.




                            
      4. Discipline was very loosely enforced and children of
           
      celebrity or favoured parents got away with everything. In
      fact, there have been instances of the teachers being pulled
      up for trying to discipline such students.
          
      5. Safety issues not addressed at all. The common area for
      emergencies like fire etc., has been grilled and locked.
      There is no fire escape, and the staircase is not broad enough
      for 2000 students in an emergency situation. A hoarding site
      has been erected on the basketball court and the iron girders
      


      are right behind the hoop (basket) can lead to a very severe
      injury.
   



      A student came under the wheels of his own school bus and
      was badly injured. The parent was not allowed to meet the
      principal or the trustee till the PTA insisted and organised a
      meeting.





      6. The savings from not having to pay franchisee fees should
      have revered back to the parents (about 12-15%). The
      original fee structure was inclusive of a premium paid for
      the KKEL and Billabong brand. The school has coolly
      pocketed the savings.





      7. Even after these savings, the school has been trying to
      further increase the fees, which the earlier PTA had
      successfully ensured that the school did not push through.

      Due to this constant monitoring of the PTA, the school was
      made accountable for lapses of omission and commission.
      Apparently, this was not acceptable.




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                                   9                                 191909


      Out of the blue the PTA elections for the year 2007-08, were




                                                                   
      announced this week without any consultation with the
      earlier PTA.




                                           
      Monday evening (9th July'07) - circular comes out -
      Tuesday and Wednesday - (both working days) given for
      filing nominations, and elections scheduled for Friday
      evening (13th July'07)-




                                          
      There was No announcement of names of candidates and no
      interaction permitted between parents to know the new
      candidates. The biggest mockery of this whole process was
      that the "so called ballot papers" were sent home with
      children on Thursday evening - with strict instructions given




                             
      to children that all of them were to bring back forms duly
      completed the next morning...
           
      Only problem is that these were blank sheets of paper with a
      small table with just names of nominees, no name of parent
      required - no sealed envelopes, just a small 'tick' mark
          
      needed in front of one of the names ... (find copy attached)

      Further more - Friday when parents showed up for the
      elections - these 'votes' that were collected by the school in
      the morning were not reflected in the lists that the 'elections
      


      officers' were holding in the evening! On questioning the
      officers claimed that they knew exactly which parent had
   



      sent their votes in the morning and there was no chance of
      duplication, needless to say many parents happily voted
      twice for their candidates...

      To further this travesty of 'electing' 'the post of CR i.e.





      class representatives was dropped - so a PTA that should
      have comprised of about 80 parents or so - was shaved
      down to 12 in one clean shot. Obviously no parent can hope
      to look after the interest of 200-250 parents (depending upon
      number of divisions per grade) so the post that does now
      exist i.e. GR or grade representative is pretty much





      toothless.

      Finally all the candidates that won, except for the grade V
      candidate, were those who had been asked to file
      nominations by the school with a clear commitment that if
      they stood they would win. These are parents whom the
      school is sure will meekly listen to them do exactly as the
      school would want them to do. In fact two of the nominated
      grade reps have taken signatures from their classes and are
      challenging their loss - since their parents have given them




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                                             10                                  191909


                  in writing that most of them voted in their favour - it would




                                                                               
                  be interesting to see the outcome of this challenge...

                  The obvious reason for this kind of blatant manipulation is




                                                       
                  that the school needs to have a dummy PTA in place so that
                  - The school can function just as they want without any
                      interference or monitoring from the parents.
                  - The school can get away with all dubious activities and
                      not allow anybody to question them upfront.




                                                      
                  - Invariably, the school would now take this opportunity
                      to successfully push the 'fee hike' which they have been
                      trying since the last 2 years now.
                  - The fee hike they know that the current body of parents
                      would have never approved.... for the simple reason that




                                        
                      the quality delivered today is way below the standard
                      even for the current level of fees that they are charging.
                       
                  Sir, herewith we would like to request to look into the
                  matter and set up a proper enquiry regarding all the issues
                  mentioned above for the sake of future of our children. We
                      
                  are sure, Education ministry will not allow any Education
                  institution to run as a business, profit center.

                  Thanking you,
      


                  Yours truly,
   



                      Sd/-

                  On behalf of Aggrieved parents

                  Contact persons:       Prashant 9820073692 Bala: 9819137575





                                         Avisha 9821524455 "
                                                           (Emphasis supplied)





     7.             The said representation was pending on the file of the

     appropriate Authority.       Notwithstanding that, the petitioner-school

     proceeded to issue circular on 19th March, 2008, increasing school fees

     as prescribed therein.




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                                       11                                  191909


     The said circular issued by the school reads thus:-




                                                                         
                                                "VH/CIR/FEES/0708/240
                                                       March 19, 2008.




                                                 
     Dear Parents,

     This is to inform you that the Fees for the 1st Quarter of the new




                                                
     academic year 2008-09 have to be paid between 1st April (Monday)
     2008 to 15th April (Tuesday) 2008 for confirmation of
     seat/continuity. Fee receipt book will be sent with students on or
     before 31st March 2008.




                                   
     1. Fee Amount : Please refer to the enclosed Fee Structure
        details.
                  
     2. Mode of Payment : By cheque or DD only (Please note
        that payment by cash will not be accepted.
                 
     3. Please draw a cross Cheque/DD in favour of :
     VIBGYOR High - Pre Primary (for Nursery, Jr.KG, Sr.K.G.)
     VIBGYOR High - Primary (for Grade I to IV, all courses)
     VIBGYOR High - Secondary (for Grade I to XI, all courses)
      

     4. Please write the Name, Grade, Enrolment Number and the
     Course (ICSE, IGCSE, NIOS) on the reverse of the Cheque.
   



     5. Please ensure that all details in your child's Fee Receipt book are
     precise and complete.

     Important :





        * Parents who intend to transfer or apply for a Leaving
        Certificate are requested to meet the Front Office Manager
        and submit a Leaving Certification Application Form on or
        before Friday, 28th March 2008.

     We wish to inform you that the school management has increased





     the school fees from academic year 2008-09 due to increase in
     various administrative and others cost that are beyond our control.
     Please be assured that the increase in fees has been undertaken after
     giving a careful consideration to all relevant factors.

     Thank you for your understanding and support,

     sd/-
     Shim Mathew
     Principal.




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                                             12                                      191909




                                                                                   
       Encl : Fee Structure Details.

                                FEE STRUCTURE (2008-09)




                                                        
      Type of          st
                     1 Quarter          2nd Quarter       3rd Quarter     4th Quarter
       Fees        payable in April   payable in July   payable in Oct    payable in
                         08                  08                08            Jan 09
     Nursery




                                                       
     Tuition Fee        20,500            7,100             7,100            7,100
     Term Fees              1,250            -              1,250               -
     Jr.KG & Sr.KG
     Tuition Fee        20,500            7,100             7,100            7,100




                                         
     Term Fees              2,250            -              2,250               -
     Grade I to IV (ICSE)
                      
     Tuition Fee        22,150            14,400            14,400           14,400
     Term Fees              4,000            -              4,000               -
                     
     Grade V to X (ICSE)
     Tuition Fee        27,500            14,500            14,500           14,500
     Term Fees              5,575            -              5,575               -
     Grade I to IV (IGCSE)
      

        Fees            32,250            20,600            20,600           20,600
     Grade V to VII (IGCSE)
   



        Fees            38,750            23,750            23,750           23,750
     Grade VIII (IGCSE)
        Fees            40,000            30,000            30,000           30,000





     Grade IX & X (IGCSE)
        Fees            32,500            32,500            32,500           32,500
     Grade VI & VII (NIOS)
       Tuition          30,000            23,300            23,300           23,300
        Fees





     Term Fees              5,000                           5,000
     Grade VIII to X (NIOS)
       Tuition          36,000            27,960            27,960           27,960
        Fees
     Term Fees              5,000                           5,000




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                                            13                                 191909


          TYPE OF       1ST    2nd Quarter   3rd     4th    5th    6th




                                                                             
           FEES       Quarter payable in Quarter Quarter Quarter Quarter
                      payable    July 08 payable payable payable payable
                      in April             in Oct. in Jan in Apr in July




                                                     
                         08                  08      09     09    2009
          A Levels (18 month programme)
            Fees         70,000   42,000   42,000    42,000    42,000     42,000




                                                    
     8.     This has been done on the basis of purported approval granted




                                          
     by the Accounts Officer (Education), in terms of his letter dated 21st
                          
     February, 2008. The same reads thus:-
                         
                                                "Letter No: 34 - AO/Ed/W

                                                Accounts Officer (Education)
      

                                                Jogeshwari Mumbai - 60
   



                                                Dated - 21/02/08
                   To,

                   The Education Inspector
                   West Zone, Jogeshwari (E)





                   Mumbai - 60

                   Sub: Audit Inspection Report of Vibgyor High School,
                         Goregaon

                   Ref: Your letter No. 459-61 dated 04/02/2005





                   Dear Sir,

                   In reference to your above mentioned letter we have
                   conducted an Audit between 6/02/08 and 08/02/08 of the
                   Vibgyor High School, Goregaon which is fully Non-Aided
                   school. The report is as per mentioned below:




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                                      14                                  191909




                                                                        
            Vibgyor High School is affiliated to ICSE, New Delhi for
            the Academic year 2007-08, 2008-09 and 2009-10. The




                                                
            school is Private and fully Un-Aided.


            As per the complaint submitted by the PTA, our office has
            conducted an audit of receipts and payments for the period




                                               
            April 07 to Dec 07. It has been observed that during this
            period the total expenditure incurred is Rs. 6,96,64,787/-
            whereas the total receipt is Rs.6,31,86,300/-.




                                  
            Though it is impossible to implement the revised fee during
            this year, we are furnishing herewith the Recommended
                 
            Expenditure for the year 2008-09 as per the GR dated
            22/07/1999, 27/05/2005 and also as per the secondary
            School Code.
                
     A) Recommended Expenditure for 2008-09                        10,75,22,351/-

        Non-Accepted Exp 1) Professional Fee     60,91,264/-
                         2) Building Repairs      6,03,132/-
      


                         3) Staff Welfare         5,00,009/-        (-)71,94,405/-
                                                                   ------------------
   



        Sanctioned Expenditure by Education                       10,03,27,946/-
        Inspector

     B) Other Income (2007-08) support                            (-) 25,31,046/-
                                                                 ------------------





                                                                   9,77,96,900/-

     C) 5% increase as per GR dated 27/05/2005                     (+) 48,89,845/-
                                                                   ------------------
        Approved Salary Exp. + Other Expenses                      10,26,86,745/-





             Out of the total expenditure during 2007-08, 54.24% is
     utilized for primary section and 45.76% for Secondary Section. This
     year the Recommended Expenditure is to be divided in the
     proportion of 54% for primary and 46% for secondary section. The
     revised fee structure has been recommended as shown below .




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                                             15                                  191909




                                                                               
            Primary Section                  Secondary Section
            54% Expenditure                  46% Expenditure




                                                       
            5,54,40,842.50                   4,72,35,903.00
            No. of students - 746            No. of students - 575
            Annual Fee - 73,347/-            Annual Fee - 82,149/-




                                                      
            Monthly Fee - 6112.25            Monthly Fee - 6845.75
            Approved Monthly Fee -           Approved Monthly Fee -
            6112.00                          6845.00

           Yours truly,




                                         
           sd/-
           Accounts Officer
                       
           (Education - West Zone)
           Mumbai."
                      
     9.           Soon after the circular, the parents made representation to

     the Chief Minister, complaining about the abnormally high rise of
      


     school fees, approximately Rs.55,000/- to Rs. 82,500/- by the school,
   



     that, too, calling upon the parents to deposit the same within 5 working

     days. The parents thereafter filed writ petition in this Court, being Writ





     Petition No. 722 of 2008. Respondents No. 3 to 7 were the petitioners

     therein, who had filed the said petition in representative capacity,

     praying for the following substantive reliefs:-





           "a. That this Hon'ble Court be pleased to issue a writ of certiorari
           or a writ in the nature of certiorari or any other appropriate writ,
           order or direction quashing and setting aside the Circular dated 19th
           March 2008 (Exhibit B hereto) ;

           b. That this Hon'ble Court be pleased to issue a writ of mandamus
           or a writ in the nature of mandamus or any other appropriate writ,
           order or direction directing the Respondent Nos. 1 and 2 obtain an




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                                              16                                   191909


           approval from Respondent Nos. 3 and 4 and consult the PTA before




                                                                                 
           proposing a fee hike ;

           c. That this Hon'ble Court be pleased to issue a writ of mandamus




                                                         
           or a writ in the nature of mandamus or any other appropriate writ,
           order or direction directing the Respondent Nos. 3 and 4 to inspect
           the financial records of the Respondent Nos. 1 and 2 to determine
           the actual costs and profits in running the Respondent school;




                                                        
           ...... "


     10.              It is not necessary to refer to interim orders passed in the




                                          
     said writ petition, including to the order of the Supreme Court at
                          
     interlocutory stage. The said writ petition was disposed of by Division

     Bench of this Court on 20th April, 2009 along with companion matters.
                         
     That order reads thus:-

           "1.     Both the petitions on motion made by the learned counsel
      

           appearing for the petitioners permitted to be withdraw. Interim
           orders, if any, operating stand vacated. The learned counsel
   



           appearing for the Dy. Director states that the Dy. Director will pass
           a reasoned order on the complaint dated 19.7.2007 made by the
           petitioners, which is marked as Exh. G at page 138 to the reply filed
           by the respondent No. 1. Statement accepted. In view of this
           statement, following order is made.





                                          ORDER

1. The petitioners shall be at liberty to submit any additional
submissions/ material they want to rely on, in support of their
complaint with a copy to the respondent No.1 within a period of two

weeks from today. The respondent No.1 shall be at liberty to make
further submissions including response of the respondent No.1 to
the additional submissions of the petitioners within a period of two
weeks from the date of receipt of the additional submissions from
the petitioners. The Dy. Director thereafter shall take the entire
material produced before him for consideration and make reasoned
order and communicate the same to the parties within a period of six
weeks from the receipt of the submissions from both the sides. By
consent of the parties, it is directed that, it is not necessary for the
Dy. Director to grant oral hearing to the parties. The parties to the

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17 191909

petitions shall be at liberty to adopt appropriate remedy against the

order of the Dy. Director that will be made. It is made clear that,
according to the petitioners, the complaint referred to above is the
only complaint made and it is to be decided by the Dy. Director and

till it is decided by the Dy. Director, the petitioners would not
approach to any authority. We make it clear that we have vacated
the interim order which was operating and therefore, fees shall be
paid as per the revised fee structure. However, recovery of the fees
shall be subject to the order of the Dy. Director.

2. Both the petitions stand dismissed as withdrawn.

3. In view of the above order, notice of motions are disposed
off.”

This order is of some significance for examining the matters in

issue. We shall deal with that a little later.

11. Pursuant to the abovesaid order, the matter proceeded before

respondent No. 2 to pass a reasoned order. After the disposal of the

writ petition, however, the school had filed Review Petitions, being

Review Petitions No. 19 and 20 of 2009, respectively, on 8th of May,

2009. With reference to the grievance made by the petitioner-school,

statement of advocate for the respondent-parents was made and was

taken on record. The said order dated 8th May, 2009 reads as follows:-

“1. Shri. Mihir Desai, the learned Counsel appearing for original
petitioners states that all objectionable statements and the statements
inconsistent with the order passed by this Court, made in the
additional written submission filed before the Deputy Director of
Education and all objectionable documents filed before the Deputy
Director of Education shall be withdrawn and copy of that

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18 191909

communication will be given to the respondents during the course of

the day. Statement accepted. Put up after vacation.”

12. The Review Petitions came to be finally disposed of on 8th

June, 2009 on the following basis:-

“1. The learned counsel appearing for original petitioners states
that the Deputy Director of Education, Mumbai 400 007 can
examine whether any part of the submissions made by the petitioners
before the Deputy Director are contrary to the orders passed by this
Court. He also states that the petitioners undertake not to seek any

additional reliefs from the Deputy Director and that the enquiry by
the Deputy Director will be restricted to the original complaint dated

19th July 2007. The statements are accepted. In view of these
statements and the statements recorded in the order dated 8th May
2009, in our opinion, it is not necessary to keep this review petition
pending. Review Petition is disposed off.”

13. As aforesaid, in the earlier order dated 20th April, 2009, as also

while disposing of the Review Petitions on 8th June, 2009, the Division

Bench of this Court made it amply clear that respondent No. 2 shall

restrict the enquiry to the original complaint dated 19th July, 2007.

Obviously, on that understanding, the matter was to proceed before

respondent No. 2. It appears that a task force was assigned the work of

scrutiny of the accounts and audit report of the petitioner-school. It

was noticed that documents necessary to take decision were not

submitted by the petitioner-school. Accordingly, on 15th June, 2009,

respondent No. 2 called upon the principal of the petitioner-school to

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furnish the necessary information. The said letter — original in Marathi

with translation provided by the petitioner-school – reads thus:-

“No.DY.DIR/SE-1/Under Trial/08-09/15634-35
Office of the Deputy Director
Jawahar Bal Bhavan, Netaji Subhash Marg,
Churni Road (W), Mumbai-400 004.

Date : 15 June 2009.

To,
The Principal
Vibgyor High School

Goregaon (W)

SUB : Hon.High Court, OOCJ

Writ Petition No. 722/08
Avisha Gopalkrisnan & Others
vs

Vibgyor High School & Others

Ref : 1. order of the Hon.High Court dtd. 20th April 2009.

With reference to the above mentioned subject and as per the

order passed by the Hon.High Court dated 20th April 2009, he
Deputy Director -Education has to take a decision before 29 Jun

2009. After looking into the points related to the complaint dated 19
Jul, 2007 and to take a decision in the current situation after going
through the documents the following details have to be provided to
the office on an urgent basis.

1. Income & Expenditure Statement and the Audit Statements
of the Financial year 2008-09.

2. Building Rent Certificate provided through a competent
authority and the copy of Property Tax paid.

3. List of Teaching & Non-Teaching Staff, & their Salary scale.
Has the PTA permitted in case of salary paid is higher than

the regular salary structure ?

4. Copy of establishment of the Parent Teacher Association.

Kindly hand deliver the above required documents on an
urgent basis before 19th June 2009 considering the urgency of the
matter and to avoid contempt of Court.

Sd/-

For Deputy Director
Mumbai Division, Mumbai.

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20 191909

Copy for Information and Proper action :

Education Inspector, West Zone, Jogeshwari (W) – This is to

inform you to give an order to the school authority to submit above
documents in time and follow up for the same..” (emphasis supplied)

14. However, as the information was not forthcoming from

the petitioner-school, respondent No.2 issued communication dated 30th

June, 2009 / 3rd July, 2009 and the minutes of his decision — original in

Marathi with translation provided by the petitioner-school – which read

thus:-

“Exhibit “C”

No. DY.DIR/SE-1/Under trial/08-09/17423-28
Office of the Deputy Director
Jawahar Bal Bhavan,Netaji Subhash Marg,

Churni Road (W),Mumbai- 400 004
Date: 30 June 2009

To,

1. Smt. Avisha Gopalkrishnan,

Shri 157, Jain Jinalay Marg,
Bangur Nagar, Goregaon (W)
Mumbai- 90

2. Smt. Leena Karia
D-51, Pranik Garden
Mahavir Nagar, Kandivali W Mum-69

3. Rustomjee Kerawalla Foundation
Keralawalla Chambers, Apollo Bunder,
Opp.Radio Club, Colaba
Mumbai- 400 001

4. Principal
Vibagyor High
Goregaon W. Mumbai-104

5. Education Inspector
West Zone Mumbai

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21 191909

SUB: Writ Petition No. 722/2008 submitted at the
Hon.High Court
As well as Writ Petition (Lodging) No.

511/2009
As well as Notice of Motion NO. 2809/2008
As well as notice of Motion no. 286/2009 in
Writ Petition(Lodging) No. 511/ 2009

REF: Order of the Hon. High court dated
20/04/2009

With regards to the above mentioned subject

and through the referred order it has been ordered to
inform the concerned about the current issue after

taking proper decision. Enclosed is the joint decision
taken by this office regarding the above matter.

Sd/-

(Counterfoil signed by the (Dongre)
Deputy Director-Education) Mumbai Division, for Mumbai

Copy for information

1. Govt. Lawyer (Main Branch), High Court,
Mumbai-32

SUB: Writ Petition No.722/2008 submitted at the
Hon.High Court
As well as Writ Petition (Lodging) No.
511/2009
As well as Notice of Motion NO. 2809/2008

As well as notice of Motion no. 286/2009 in
Writ Petition(Lodging) No. 511/ 2009

As per the orders given by the Hon. High Court
on 20/04/09, a joint decision from the Education
Deputy Director regarding Vibgyor High,
Goregaon9W) is expected. As per these orders, a
meeting of the Task force was organized at the office
of the Education Deputy Director, Mumbai on

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12/06/09. In the meeting, with reference to the

issues raised in the complaint, documents were
checked and the following information was requested
from the school through this office letter dated

15/06/09.

1. Income and Expenditure Statement and the
Audit Statements of the Financial Year

2008-09(Certified by a Chartered Accountant)

2. Building Rent Certificate provided through a
competent authority and the copy of Property
Tax paid.

3. List of Teaching and Non-Teaching Staff, and

their Salary scale. Has the PTA permitted in
case of salary paid is higher than the regular

salary structure?

4. Copy of establishment of the Parent Teacher
association.

Since the above information was not submitted
by the school, a meeting of the Task force was held on
30/06/09 under the chairmanship of the Eduction
Deputy Director to take a final decision.

In this meeting, as per the documents available

with the office,the Expenses for the year 2008-09 as
certified by the Education Inspector (west Zone), the
Audit Report dated 21/02/08 of the Accounts Officer
(Eduction) West Zone, has been considered. After

considering the same, the following decision has been
taken.

1) Formation of the PTA:

As per the GR No. SSN 1099( 27/99) Sec.Edu.-2

dated 22 May, 2000 issued by the School Education
Department, Mantralaya, Mumbai vibgyor High
School should immediately form a PTA as per the
prescribed procedure set out in the GR.

      2)    With   regard   to   expenses   of   Pre-Primary, 
      Primary and Secondary Sections




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                                         23                                   191909


As per the Certificate dated 15/05/2009 of the

Chartered Accountant submitted by VIBGYOR High
School, the common expenses for Pre-Primary,
Primary and Secondary sections have been segregated

section-wise. Which means the Income and
Expenditure for Pre-primary is separate and
Primary/Secondary sections expenses have been
reflected proportionately.

            3)      Regarding Fees:

                A.  Proposed Expenses for the year 2008-09
                     Proposed Expenses              Rs. 10,75,22,351/-




                                    

Expenses disallowed by the Education Inspector in his

report as per the GR No. SSN
11197(311/97)/Sec.Edu-3 dated 22 July, 1999

1.Professional Fees – 60,91,264/-

2.Building Repairs – 6,03,132/-

            3.Staff Welfare     -   5,00,009/-

                    Total            - 71,94,405/- (Less) Rs.71,94,405/-
      


            Expenses earlier approved by the 
   



            Education Inspector                 Rs. 10,03,27,946/-

            Building's rent expenses disallowed 
            (Task force)                  (less)   Rs.2,50,00,000/-





            Permissible Expenses                         Rs.7,53,27,946/-

            B. Other Income (Basis: Report of 
                the year 2007-08)       (Less)Rs. 25,31,046/-
                                                Rs. 7,27,96,900/-





            C. As per GR dated 27 May 2003 
                incremental income     (Add) Rs.36,39,845/-

                Permissible Salary and Other
                Expenses                              Rs.7,64,36,745/-

                          After   considering   the   use   of   the   building 
            during   the   year   2007-08   as   46%   for   Secondary 




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                                            24                                   191909


Section and 54% for Primary section, the below

mentioned fees is being considered.

Primary Section Secondary Section
Rs. 7,64,36,745/-X 54% Expenses Rs.7,64,36,745/- X 46% Expenses
Rs.4,12,75,842/- Rs.3,51,60,903/-

Student Count-756 Student Count-575

Yearly fees Rs. 54,598/- per Yearly fees Rs.61,149/- per
student student
Monthly fees Rs.4,550/- per Monthly fees Rs.5,096/- per
student student

For the Primary section and the Secondary
section, Rs.4550/- & Rs.5096/- respectively, such
monthly fees seem permissible.

Prima facie it appears that the salaries of
the teaching and non-teaching staff is more than the
salary prescribed by the Government. As per the GR
No. SSN 1197( 311/97)/ Sec-ed-3 dated 22 July 1999

at Sr. no.2, it is necessary to take approval from the
PTA regarding such high salary.

However, vide GR No. Mis-2009/(108/09) Sec.

Ed-3 dated 8th May 2009, order not to increase
Education and other fees without the consent of the

Free Control Committee has been passed. As per this
order, every school has been prohibited to increase
their fees without the recommendation of the Fee
Control Committee. Accordingly vide GR.No. Mis-
2009 (108/09) Sec. Ed-3 dated 11th June, 2009, a
committee has been formed to study and make

recommendations for the purposes of fixing the fees.
For taking a final decision in this regard, it will be
appropriate that the further decision is taken in the
Fee Fixation committee formed as per the above GR.

Sd/-

(Counterfoil signed by the (Dongre)
Deputy Director-Education) Education Deputy Director
Mumbai Division, for Mumbai

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25 191909

15. According to the petitioner-school, this communication

was not received by them for quite some time. Secondly, on plain

wording of the said communication, it was obvious that no final

decision was taken by respondent No. 2 on the issue of justness of the

hike in tuition fees / term fees by the petitioner-school. Thirdly, there

was intrinsic evidence to suggest that the record in the office of

respondent No. 2 was manipulated. Lastly, that respondent No. 2 was

acting under pressure or dictation of parents, which was obvious from

his communication dated 4th September, 2009, calling upon the

petitioners to give effect to his purported decision dated 3rd July, 2009.

The said letter dated 4th September, 2009 — original in Marathi with

translation provided by the petitioner-school – reads thus:-

“No. Dy.DIR/SE-4/Fee/08-09/23241-45

Office of the Deputy Director
Jawahar Bal Bhavan, Netaji Subhash
Marg, Churni Road (W),
Mumbai-400 004

Date : 4th Sept. 2009.

To,

1) Rustomjee Kerawalla Foundation
Kerawalla Chambers, Apollo Bunder,
Opp. Radio Club, Colaba,
Mumbai-400 001

2) Principal
Vibgyor High School,
Goregaon W. Mumbai.

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26 191909

SUB : Writ Petition No. 722/2008 submitted at the Hon.High Court
As well as Writ petition (Lodging) No. 511/2009

As well as Notice of Motion No. 2809/2008
As well as Notice of Motion No. 286/2009 in Writ Petition
(Lodging) No. 511/2009
REF : 1. Order of the Hon.High Court dated 20/04/2009

2. Letter no.DY.DIR/SE-1 Under Trial/08-09/17423-28

dated 03/07/09 from this office

3. Letter from Nankani & Associates dated 14/08/2009.

With regards to the above mentioned letter no. 1, as per
decision given by the Hon.High Court, orders from our office have

already been issued through our letter 03 Jul. 2009 regarding school
fees. Through the said order Annual fees for the Primary section

Rs. 54,598/- and for secondary section Rs. 61,149/- has been fixed.
We inform as mentioned below regarding the orders dated
03/07/2009 referred in the letter no. 3 from your lawyer.

From the year 2008-09, it is ordered that fees for Primary
Section Rs.54,598/- and for secondary section Rs. 61,149/- be
charged.

As per the instructions contained in the last paragraph of the

referred letter No.2, because the Fee Control committee has not
been formed, the fee determined in the decision given by this office

in the letter dated 03/07/2009 is final. In this regard, immediate
action be taken.

Sd/-

Dy.Director-Education

Mumbai Division, Mumbai.

Cc : For information & for appropriate action.

1. Education Inspector, West Division, Mumbai.

2. Smt. Avisha Gopalkrisnan, Shri 157, Jain Jinalay Marg,
Bengur Nagar, Goregaon (W), Mumbai- 60.

3. Nankani & Associates, 114 Yusuf Building, 1st Flr.,
V.N.Road, Flora Fountain, Fort, Mumbai-400 001.”

16. In this backdrop, the petitioners rushed to this Court by

way of present writ petitions challenging the abovesaid two

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27 191909

communications received from the office of respondent No. 2 for the

reliefs already referred to above.

17. Here, we do not think it necessary to advert to several

orders passed in these pending writ petitions from time to time, except

to refer to order dated 3rd August, 2010. On that day, these writ

petitions were heard in part. Considering the grievance of the

petitioners that no reason whatsoever was recorded in the decision of

respondent No. 2 dated 3rd July, 2009, insofar as disallowance of the

petitioner’s claim for buildings rent, it was thought appropriate to first

ask respondent No. 2 to record reasons for the said disallowance, so

that all other issues raised by the respective parties in the present

petitions could be answered together upon receipt of the said reasons.

The Court, therefore, instead of disposing of the petitions, directed

respondent No. 2 to permit the parties to file their response /

submissions / documents, and on the basis of which, he was called

upon to record reasons regarding the permissibility or otherwise of

amount towards school buildings rent to be recovered from the

students. Pursuant to the said direction, respondent No. 2 has passed

order dated 27th October, 2010 — original in Marathi with translation

provided by the petitioner-school – purported to be reasons for

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28 191909

disallowance of the amount towards school building rent. The same

reads thus:-

“No. DDE/Sec-4/Fee/2010/25194/96
Office of Dy. Director of Education Mumbai

Division
Jawahar Bal Bhavan,
Netaji Subhash Road,
Charni Road (West),
Mumbai 400 004

ig Dt. : 27th October 2010.

To :

1. Rustomjee Kerawalla Foundation

Kerawalla Chambers, Apollo Bunder,
Opp. Radio Club, Colaba,
Mumbai-400 001.

2. Principal

Vibgyor High School,
Goregaon (West),

Mumbai.

Sub : Fixation of rent of the Bldg. occupied by Vibgyor school.

Ref : 1. Order of the Hon’ble High Court dated 3rd August 2010
and 18th August 2010 passed in Writ Petition
No. 1919/2009- Notice of Motion No. 2/2010 and
Writ Petition No. 1925/2009.

2. Representation submitted through Advocate Nankani
& Associates dated 30th August 2010.

On the subject noted above you are hereby informed that as per
order of the Hon’ble High Court decision was given on the proposal
for fee fixation submitted by you vide this office letter No.
DDE/Sec-1/SJ/08-09/17423-28 Dt. 3/07/09 and 04/09/2009.

You have filed Writ Petition No. 1919/09 in the Hon’ble High
Court against the order passed by this Office. The Petition was
heard alongwith Notice of Motion No. 2 of 2010 and Writ Petition

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29 191909

No. 1925 of 2009 and the Hon’ble High Court has passed orders

dated 3rd August 2010 and 18th August 2010.

As per the above order of the Hon’ble High Court you have

submitted a proposal dated 30th August 2010 for fixation of fees
after taking in to account the disallowed expenses of building rent.

Government has issued a detailed order vide Government
Resolution dated 22nd July 1999 in respect of fixation of fees of

unaided schools.

While taking into account the expenses at the time of the fixing
the fees the above Government Resolution has been considered.

The proposal submitted by you to this office for fixation of fees
in pursuance of the order passed by the Hon’ble High Court in Writ

Petition No. 722 of 2008 and other Writ Petitions has been received
and such received proposal was scrutinized. As per the criteria laid
down by the Government from time to time and by the Task Force
constituted under GR dated 3rd July 1999 and the final decision

dated 3rd July 2009 was communicated.

Your attention was drawn to schedule “A” of Secondary School
Code in relation to provisions of fixation of building rent and further
the directions given by respected Education Director, Maharashtra

State Pune, vide letter dated 19th July 1996 about documents to be
submitted with the proposal for fixation of fees of unaided schools.

In your proposal you have not submitted rent certificate,
certified by Executive Engineer PWD, for allowing building rent,
required under above both the provisions. However instead of
submitting certified normal rent certificate you have submitted rent

certificate prepared on the basis of market value prepared by the
valuer (Shrinivas S. Kini & Co.). As per prescribed provisions you
have not submitted reasonable rent certificate of the Competent
Authority. Therefore while fixation of fees the cost of rent of the
building proposed by you cannot be taken into account.

Sd/-

Sunil Chowhan
Dy. Dir. of Education
Mumbai Div. Mumbai.

Copy of intimation and necessary action.

1. Education Inspector, West Ward, Greater Mumbai.”

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30 191909

18. The reasons so recorded are justification given for the

order issued by respondent No. 2 purportedly on 3rd July, 2009, and the

direction contained in communication dated 4th September, 2009, which

are impugned in these petitions.

19. The first contention of the petitioners is that respondent

No. 2 has exceeded his authority in deciding on question regarding hike

in tuition / term fees introduced by the petitioner-school. In that the

subsequent proceedings in terms of the orders of this Court dated 20th

April, 2009 and 8th June, 2009 were limited to examining the issues

raised in complaint made by respondents No. 3 to 7 and other parents,

dated 19th July, 2007. No other issue could have or ought to have been

examined by respondent No. 2, whereas the decision of the petitioner-

school to increase the tuition / term fees was taken much later, on 19th

March, 2008, which, therefore, could not have been the subject-matter

of challenge in complaint dated 19th July, 2007. According to the

petitioners, the question whether respondent No. 2 was competent to

fix the tuition / term fees specified by the petitioners for their students

in the garb of regulating the fee structure of the school itself was the

core issue. Respondent No. 2 could not have exercised power on the

basis of procedure prescribed in the Government Resolution, even if

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31 191909

the same was to be considered as issued in exercise of powers under

Article 162 of the Constitution by the State Government. The next

contention of the petitioners is about the scope of the purported

complaint sent by the parents dated 19th July, 2007. Further,

respondent No. 2 could not have disallowed the expenses incurred by

the petitioners towards building rent paid by the petitioners to the lessor

merely on the ground of non-production of a Building Rent Certificate

from the Executive Engineer and also in disregard of the approved /

recommended expenditure by the Accounts Officer, Education, West

Zone, Mumbai, dated 21st February, 2008 for the year 2008-09.

Moreover, the insistence of respondent No. 2 to produce the certificate

of the Executive Engineer was based on procedure prescribed in

Government Resolution dated 22nd July, 1999, which Resolution has

already been quashed and set aside by this Court in Writ Petition

(Lodging) No. 1876 of 2010 decided on September 1, 2010, being ultra

vires. It is next contended that respondent No. 2 had no power to

review his own order. Besides, the decision of respondent No. 2, by no

standard, can be said to be reasoned order. In spite of the specific

direction by this Court to do so, respondent No. 2 has not analysed the

stand taken by the petitioners before him, including about his authority

to regulate the fees of unaided private minority school. Lastly, the

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32 191909

petitioners have also challenged the impugned decisions of respondent

No. 2 on the ground that they suffer from the vice of malafides in fact

and in law, tantamounting to abuse or colourable exercise of power.

20. Respondent No. 1 has resisted the above contentions on

the arguments that the complaint made by the parents dated 19th July,

2007 was also in respect of excessive fees and allegation of profiteering

by the Management. In the context of the said complaint, respondent

No. 2 was obliged to examine the grievance of the parents in that

behalf, and, while doing so, was justified in disallowing the claim of

the petitioners in respect of buildings rent charges, which, according to

him, was unsubstantiated. In the first place, respondent No. 2 referred

to the recommendation of the task force and on the second occasion, in

proceedings for recording reasons, in spite of opportunity given to the

petitioners, no documentary evidence was produced by the petitioners

to accept their stand that the expenses so incurred were justified to the

extent of the said claim of the petitioners, being in the sum of Rs. 2.5

crores per annum. Thus, respondent No. 2 disallowed the claim under

that head. Respondents No. 1 and 2 further contended that respondent

No. 2 was competent to examine the issue in respect of the petitioners’

claim towards school building rent expenses and whether in the facts

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33 191909

and circumstances of the case, that claim can be accepted as usual and

permissible expenditure or results in indirectly transferring the

expenditure towards lands and buildings on the students tantamounting

to Capitation Fee. Respondent No. 2 was competent to examine those

matters on the basis of procedure specified in the Government

Resolution dated 22nd July, 1999 and 15th July, 2010, as also

Government Resolution dated 19th July, 1996, and more particularly,

the provisions of the Secondary Schools Code – 2002, including Rules

49.3, 50.6 and 89.1 read with Schedules ‘A’ and ‘B’ thereof.

According to respondents No. 1 and 2, the petitioners did not

co-operate with respondent No. 2. Instead of furnishing the desired

information, untenable issues were raised by the petitioners, as a result

of which, respondent No.2 was driven to decide the issue against the

petitioners as they failed to substantiate the claim towards the building

rent. Respondents No. 1 and 2 have also refuted the allegation of

manipulation of office records of respondent No. 2 or that his decision

was mala fide in fact or in law. These respondents have also relied

upon the Task Force Report. These respondents supported the

conclusion reached in the impugned decisions of respondent No. 2

disallowing the petitioners’ claim towards building rent to the extent of

Rs. 2.5 crores per annum.

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34 191909

21. Respondents No. 3 to 7 have also contested these

petitions. According to respondent No. 3, three core issues would arise

for consideration. The first core issue, which is in three parts, is:

(i) Whether the devise adopted by the petitioners was to profit from

tuition / term fees? Moreover, the petitioners themselves should be

blamed for not furnishing necessary information demanded by

respondents No. 2, and were responsible for preventing respondent

No. 2 from passing a comprehensive, reasoned order to unravel the

maladministration and profiteering by the school management.

(ii) Whether fraud has been committed by the petitioners on the Charity

Commissioner while obtaining sanction for alienation of immovable

property of a public charitable trust (which runs the petitioner-school)

to a private limited company to facilitate the commercialisation of

education to siphon off funds to the private company in which the very

same persons are the only three trustees in control of the affairs of the

Trust and were the only Directors in the private limited company? The

circuitous transaction effected was in violation of law. (iii) The next

shade of the first core issue, according to respondent No. 3, is that, it is

indisputable that the State Government has authority to regulate

tuition / term fees in private unaided schools, including unaided

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35 191909

minority schools, if the same were resorting to commercialisation and

profiteering by virtue of provisions of the Maharashtra Educational

Institutions (Prohibition of Capitation Fee) Act, 1987 (hereinafter

referred to as “the Capitation Fee Act”).

22. The second core issue is: Whether the regulations by the

State should be at the stage of admission to the school or at the post-

audit stage? The third issue, according to respondent No. 3, is:

Whether the two Government Resolutions dated 22nd July, 1999 and

15th July, 2010 could be taken into account, and are valid and

mandatory? Further, the opinion expressed by the Division Bench of

this Court in Writ Petition (Lodging) No. 1876 of 2010 decided on

September 1, 2010 is per incuriam, and in any case, whether the

present petitions can be proceeded, irrespective thereof?

23. Besides the above three core issues, respondent No. 3 has

countered the contentions raised by the petitioners. We may add that,

to buttress the allegation that the petitioners were indulging in

profiteering and commercialisation, respondent No. 3 has referred to

the salaries of the school staff, which, according to the petitioners, are

higher than approved norms. As is noticed earlier, none of the parents

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36 191909

have chosen to challenge the decision of respondent No. 2, who has

accepted the other expenses claimed by the petitioner-school. It is the

petitioners who have approached this Court to challenge the opinion of

respondent No. 2 disallowing their claim in respect of buildings rent.

In these petitions, the parents cannot be permitted to enlarge the scope

of proceedings relying upon other expenses claimed by the petitioners

which have already received approval of the Authority.

24. Respondent No. 3 has also raised issues about the manner

in which the petitioners have advisedly prevented respondent No.2

from recording reasons regarding the maladministration of the school,

in particular, in the context of the claim of buildings rent. Further, the

petitioners hastened the hearing of Writ Petition (Lodging) No. 1876 of

2010 filed by the Association of International School and Peace

Foundation, an association of private unaided schools, of which the

petitioner-school is also a member, so as to pre-empt the present

proceedings by getting declaration that the Government Resolutions

dated 22nd July, 1999 and 15th July, 2010 were ultra vires; and could

not be made the basis to regulate the fee structure of the petitioner-

school. Respondent No. 3 was represented by her advocate in one

matter, and she appeared in person in the companion petition.

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37 191909

25. Respondents No. 4 to 7 are represented by separate

advocate, who has supported the argument of the other respondents

and, in addition, contends that the main issue in the present cases is:

Whether the petitioner-school has indulged in profiteering by raising

the tuition / term fees to abnormally high level on the pretext of having

incurred expenses towards building rent to the extent of Rs. 2.5 crores

per annum. According to these respondents, respondent No. 2 has

merely disallowed the expenses towards the building rent, and on that

basis, proportionately reduced the fee structure. It is the case of these

respondents that the Trust has indulged in profiteering by fraudulently

leasing the property to a private limited company, whose only Directors

are the trustees of the school Trust, which private limited company,

in turn, has purportedly leased the constructed building to the Trust and

has charged building rent therefor at the market rate. According to

these respondents, although the impugned decision of respondent No. 2

does not specifically advert to this aspect, considering the fact that

respondents No. 4 to 7 had raised that argument before respondent No.

2, it could be inferred that the conclusion of respondent No. 2 is

founded on the said objection. According to this respondent, the

petitioner-school has resorted to such ingenuity, so as to pass off the

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capital expenditure as a revenue expenditure, by recovering the same in

the name of buildings rent from the students in short time, and to later

on make huge profits at the expense of the school, the children and the

parents, more so contrary to the undertaking given to the local

Authorities, which had allotted the land to the original allottee at

virtually no cost for running an educational institution in the interests

of charity and for the benefit of the public at large. Even these

respondents contend that the State Authorities relied on Government

Resolutions, including G.R. dated 27th May, 2003, which has been

justly introduced after the decision of the Apex Court in T.M.A. Pai’s

case (AIR 2003 SC 355). That G.R. has not been set aside by any

Court of competent jurisdiction nor has been challenged in these

petitions. These respondents further contend that the withdrawal of

earlier Writ Petition by them, being Writ Petition No. 722 of 2008,

cannot come in their way to challenge the action of the petitioners of

fixing high fees on the ground that the petitioner-school is engaging in

profiteering and commercialisation while resisting these petitions. It is

further contended that the petitioner-school is adopting double

standards. In that, the petitioners are relying on audit report to contend

that the expenses referred to therein have been recommended by the

Accounts Officer, Education, West Zone, which recommendation was

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based on Government Resolutions dated 22nd July, 1999 and 27th May,

2003. On the other hand, the order of respondent No. 2 is criticised by

the petitioners, because it refers to the Guidelines provided in

Government Resolution dated 22nd July, 1999, which has now been set

aside by the Court. It is further contended that the Accounts Officer

was not the competent Authority to grant approval to the fee structure

prescribed by the petitioners. That has to be done by respondent No. 2,

being the statutory Authority in that behalf.

26. These respondents have then highlighted the circuitous

transaction effected between Madhya Pradesh Mitra Charitable Trust

(M.P.M.C.T.), the original allottee of the land in question from

MHADA and the Rustomjee Kerawalla Foundation (R.K.F.) Trust and

the private limited company – Kare Edumin Pvt. Ltd. (K.E.) and

another charitable trust called “Rajasthan Vidhya Nidhi” (R.V.N.). We

shall advert to those details a little later. The sum and substance of the

stand taken by respondents No. 4 to 7 is that the petitioners have

succeeded in playing fraud on the Charity Commissioner as well as

MHADA, the local authority. In the circumstances, this Court must

uphold the conclusion reached by respondent No. 2 of disallowing the

petitioners’ claim towards building rent by lifting the corporate veil and

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disregard the permission granted by the Charity Commissioner or

MHADA, the local authority, as the case may be, as the said

transactions have been effected only to create subterfuge so as to

siphon off the amount to the extent of Rs.2.5 crores per annum in the

garb of building rent / lease rent, which would eventually be enjoyed

by the same three persons, who are trustees in the Trust as well as the

only Directors in the private limited company. The said Directors

would eventually reap profit, whereas the school will bear the loss

towards building rent and that loss will be passed on to the students to

justify high tuition fees / term fees.

27. Having considered the rival submissions, at the outset, we

will first consider the sweep of order passed by the Division Bench of

this Court dated 20th April, 2009 in Writ Petition No. 722 of 2008 and

connected petitions. The order records the concession of the Deputy

Director that he will pass a reasoned order on the complaint dated 19th

July, 2007 made by the parents. On the basis of the said statement, the

Court proceeded to dispose of the petition as withdrawn, with liberty to

the parents – petitioners in the said petition – to submit additional

submissions / material on which they intended to rely in support of

their complaint dated 19th July, 2007; and the Management of the

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school was given opportunity to make further submissions, including

response to the additional submissions / material to be relied by the

parents. The Deputy Director was then expected to consider the entire

material produced before him by the respective parties afresh and pass

a reasoned order and communicate the same to the parties within the

specified time. The Court reiterated that the issues raised in the

complaint made by the parents dated 19th July, 2007 alone were to be

decided by the Deputy Director; and, till the said decision, the parents

would not approach any other authority. The Court, further, vacated

the interim order, which was operating in favour of the students /

parents, with clarification that the amount recovered from them as per

the revised fee structure shall be subject to the order of the Deputy

Director. On perusal of the said order dated 20th April, 2009, the stand

taken by the petitioners in these petitions that the Deputy Director was

called upon to only consider the issues raised in the said complaint

dated 19th July, 2007 deserves acceptance. As a matter of fact, that

position is reinforced from the subsequent order passed by the same

Division Bench dated 8th June, 2009 in Review Petition No. 19 of 2009.

28. Having said this, we will now turn to the complaint dated

19th July, 2007. On perusal of the said complaint, it is noticed that,

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amongst other grievances, the parents of students studying in the

petitioner-school had raised the issue about the unjust enrichment by

the petitioner-school by not reverting back amount from the savings

under the head “Franchisee Fees” to the parents (about 12 – 15%).

Besides, in Point No. 6, specific grievance has been made that the

original fee structure was inclusive of a premium paid for the KKEL

Billabong Brand, which amount has been pocketed by the school. Not

only that, apprehension was placed on record by the parents in the form

of Point No. 7 that the school was likely to further increase the fees,

which the earlier P.T.A. had successfully prevented the school from

introducing the same. In the penultimate paragraph of the

communication, the principal grievance about blatant manipulation

resorted to by the school to install a dummy P.T.A. with purpose is

highlighted. Besides, the apprehension was that, taking advantage of

the situation, the petitioner-school will successfully push the fee hike,

which it has been trying to do for the last two years. It is further noted

that the present body of parents would not have approved any fee hike,

as the quality of education delivered in the school was way below the

standard even for the current level of fees presently charged. In the

summation, it is alleged that the petitioner was running the school as a

business profit centre. In other words, the complaint, amongst others,

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was also in relation to the excessive fees charged by the school and

allegation against the Management of indulging in commercialisation

and profiteering. It is, therefore, not possible to countenance the

argument of the petitioners / Management that the scope of enquiry

before the Deputy Director in terms of order dated 20th April, 2009

passed in Writ Petition No. 722 of 2008 was not in respect of matters

regarding excessive fees charged or likely to be charged by the school,

resulting in commercialisation and profiteering. It is true that the

petitioners / Management revised the fees on 19th March, 2008 – much

after the complaint was sent by the parents on 19th July, 2007. In that

sense, the justness of the matter specified in the circular dated 19th

March, 2008 issued by the petitioner / Management of the school was

not the subject-matter of complaint dated 19th July, 2007 as such.

However, the complaint dated 19th July, 2007 made by the parents,

indisputably, makes reference to the issue of likelihood of hike in

school fees and illegitimate demand by the School Management in the

form of fees, which was to indulge in commercialisation and

profiteering. For, the said complaint specifically asserts that the parents

/ complainants apprehend that the Management of the school was

likely to enhance the fees to unreasonable and unacceptable level. It

is, therefore, not possible to countenance the stand of the petitioners

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that the issues raised by the parents in the complaint dated 19.7.2007

were limited to unlawful PTA elections, quality issues, and levy of fees

only for Assessment Year 2007-2008, being not commensurate with

the quality of education being imparted. One cannot be oblivious of the

fact that the said complaint sent by the parents was in the nature of

representation and not a Petition or plaint filed before the Court which

requires articulation of material facts and particulars. Representation of

this nature is bound to be loosely worded and will have to be

understood in its totality and not deciphered with mathematical

exactitude as is sought to be done by the petitioners. The fact that

specific prayer was asked in the Writ Petition filed by the parents to

challenge the circulars issued by the School regarding fee revision

dated 19th March, 2008 and no specific order was passed by the Court

thereon cannot militate against the parents nor can come in the way of

respondent No.2 to exercise his statutory duty. It can be said that

respondent No.2 in the impugned communication not only examined

the matter in the context of the order of this Court dated 20.4.2009, but,

also in discharge of his statutory duty to ascertain whether there has

been any contravention of mandate of the Capitation Fee Act.

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29. To put it differently, the complaint dated 19.7.2007

included issue regarding excessive fees being charged by the

school. The Deputy Director of Education was competent to

examine that grievance so as to ascertain whether there is or

has been contravention of the provisions of the Capitation Fee

Act. In this view of the matter, reliance placed by the petitioners

on the decisions of the Apex Court in the case of Direct Recruit

Class II Engineering Officers’ Association Vs. State of

Maharashtra & Ors. [ (1990) 2 SCC 715 para-35 at

page-740], and in the case of M. Nagabhushana Vs. State of

Karnataka [ (2011) 3 SCC 408 paras 12, 13, 17, 18, 20, 21

& 22 thereof ] to contend that the respondents, in particular

respondent No.2, could not have traversed the issue of approval

of the fees fixed by the school, will be of no avail. In other

words, the issue of profiteering and commercialization by the

school was very much open to enquiry by respondent No.2 and

more so the apprehension of the parents that the school was

likely to introduce revision of the fees which would result in

commercialization and profiteering. Assuming for the sake of

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argument that the opinion of respondent No.2 was in relation to

the fee revision circular issued by the school dated 19th March,

2008, even that would not come in the way of respondent No.2

to ascertain whether the demand made therein contravenes the

mandate of the Capitation Fee Act.

30. Understood thus, merely because the circular regarding

revision of fees was introduced at a subsequent point of time for

academic year 2008-09, vide circular dated 19th March, 2008, that

would not preclude the parents to pursue the grievance regarding

excessive fees, being in the nature of capitation fee, during the enquiry

before the Deputy Director in connection with the grievance made in

the complaint dated 19th July, 2007, nor is it possible to suggest that the

Deputy Director was incompetent to examine the said matter at all.

If the law authorises the Deputy Director to enquire into the question of

justness of the revised fees to be demanded by the school, and whether

it partakes the colour of capitation fee, it may not be possible for the

Court to accept the extreme argument of the petitioners / Management

that the impugned decision of the Deputy Director be completely

disregarded. To say otherwise would mean that the Deputy Director,

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even though competent to enquire into the fact whether the revised fees

demanded by the school results in capitation fee, could not have done

so because of the order of the Court dated 20th April, 2009. Taking

such a view would be a pedantic approach. On the other hand, what

we need to enquire is: Whether the conclusion reached by the Deputy

Director that the revised fee structure proposed and notified by the

Management of the School, which includes the amount spent by the

Management towards buildings rent, results in comercialisation and

profiteering by the Management? That, however, will be subject to

holding that the Deputy Director is competent to examine the said

matter. We shall refer to that aspect a little later.

31. We shall, therefore, now turn to the question: Whether

the Deputy Director was competent to authoritatively hold that the

revised fee structure unilaterally notified by the school could not be

given effect to in toto, as it results in recovering expenses other than

usual expenditure such as the expenditure on land and buildings in the

name of buildings rent, which are not permissible expenses? We have

no difficulty in accepting the stand taken by the petitioner /

Management that the petitioner, being unaided minority institution, is

free to fix its own fee structure. The said right, however, is

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circumscribed to the extent that the fee structure so fixed by the private

unaided minority school should not result in profiteering and

commercialisation. The petitioners relying on the decisions in TMA

Pai’s case and in the case of Kochi University of Science and

Technology and another Vs. T.P.J. and others [ (2008) 8 SCC 82

para-16] would contend that an educational institution is entitled to

chalk out its own fees structure year-wise on the basis of the projected

receipts and expenditure, and it is not open to the State Authorities to

interfere with those matters which are purely administrative in nature.

Further, the educational institution must be left with its own devises to

explain the receipts and expenses as before the Chartered Accountant

and to call upon to furnish the basis for fixation of higher fee would be

laying down onus on the educational institution which it cannot

discharge with accuracy. It was argued that the demand by respondent

No.2 Deputy Director of calling upon the petitioner to justify the

reasonableness of the amount of the expenses incurred towards the

lease rent by furnishing building rent certificate was bad in law and

contrary to the decisions of the Apex Court. The broad proposition

canvassed by the petitioners that the private unaided schools can fix

their fees by themselves is not open to debate at all. As aforesaid, that

right is not an absolute right, but, subject to the assessment by the State

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Authorities of whether the fees so fixed and demanded by the private

unaided schools does or does not result in commercialization or

profiteering. To that extent, it is open to the State Authorities to

regulate the fee structure determined by the school. That regulation

should be at what stage need not detain us, for the time being. The

question will have to be examined in two ways. The first is as to:

Whether the State Authorities have power, under the existing law, to

regulate the school fees fixed by the Management of the unaided

minority school? The second facet of the said issue is: Whether the

revised fee structure proposed or notified by the school would result in

infraction of the provisions of the Act of 1987 and implicitly

tantamount to indulging in commercialisation and profiteering. In a

given case, if adverse finding is to be recorded in that behalf, it matters

not at what stage the State Authorities must intervene to regulate the

revised fee structure determined by the private school.

32. We shall first advert to the provisions contained in the

Secondary Schools Code. Here, we may notice that the question

whether the provisions of the Secondary Schools Code acquire

statutory force or are merely in the nature of administrative instructions

is already referred to the Full Bench of our High Court in the case of

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Shikshan Mandal & Ors. v. State of Maharashtra & Ors. in Writ

Petition No. 6727 of 2010 and other connected matters vide order dated

26th October, 2010. In the said decision, the Division Bench has noted

that the provisions of the Secondary Schools Code ought to be

construed as having statutory force. Nevertheless, we would proceed

to examine as to whether the provisions of the Secondary Schools Code

can be the basis to hold that the Deputy Director was competent to

examine the question of justness of the fee structure proposed or

notified by the School Management.

33. At the outset, the provisions in the Secondary Schools

Code-2002 can govern only secondary or higher secondary schools.

The grievance regarding fee structure of primary school cannot be the

subject-matter before the Authority under the Secondary Schools Code.

Chapter II of this Code deals with matters of Recognition, Organisation

and Management of schools. Section VI thereof deals with matters

concerning Fees and Free-studentships. Rule 49.1 envisages that

school shall charge only standard rates of “tuition fees”. The standard

rates of tuition fees are prescribed in different stages / areas of the

State, as referred to in Rule 49.2. Rule 49.3, which is relevant for us,

envisages that the unaided schools may be allowed to charge tuition

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fees at rates higher than the standard rates, with the previous approval

of the Director. Rule 50.6 prescribes items on which term fees can be

expended. None of the items referred to therein provide for expenses

towards buildings rent. The other relevant provisions in the Secondary

Schools Code in respect of school fees and term fees can be found in

Chapter IV, in Section I. This chapter deals with matters pertaining to

Grant-in-aid. In that sense, the provisions contained in this chapter

may not be directly attracted to unaided private minority school. Rule

89.1 contained in Section I of this chapter provides for items of

expenditure held admissible for grant-in-aid as listed in Schedule A,

and those held inadmissible for grant-in-aid as listed in Schedule B.

Insofar as the item of expenses towards rent, taxes and insurance,

which is part of Schedule A framed under Rule 89.1, being expenditure

admissible for grant-in-aid to aided and recognised non-Government

Secondary Schools. Clause 2 of Schedule A provides for the amount

spent towards rent, which can be granted to the aided school as grants.

The said provision reads thus:-

“2. Rent, taxes and Insurance :

(a) Rent :

(i) Reasonable rent for the school building provided the rent is
actually paid and a certificate regarding reasonableness is
obtained from the Executive Engineer.

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(ii) In the case of schools accommodated in rent tenements of

the Maharashtra Housing Board the rent charged by the
Board of such tenements should be considered as
reasonable and such school should not be required to

produce in addition any certificate regarding
reasonableness of rent in respect of such tenements from the
concerned, Executive Engineer (Public Works and Housing
Department) of Government.

(G.R.E.S. and S.W.D. No. GAC. 1072/11986/E of 8th

February 1972)

(iii) The portion of the school building not covered by the
building grant (already paid) means the portion, the cost of
which, is arrived at after deducting the actual amount of

building grant paid by government from the total cost of the
building.

Example : The total cost of a school building is Rupees
one lakh. It is assumed that a building grant of Rs.20,000/-
was paid by Government to the school for construction of
the school building and the remaining amount of Rs.80,000/-

was collected from donations and/or their own fund and/or
loans from Government and/or from any other source the
portion worth Rs. 80,000 will thus be not covered by the
building grant and 71/2 percent of this cost (Rs.80,000)
would be admissible as rent for maintenance grant, provided

the Executive Engineer of the area concerned certifies that
the amount of rent so charged is reasonable.

(iv) In the case of building owned by a school, a reasonable
nominal rent to be calculated on the following basis namely.

(a) 7 ½ of the capital value of the building plus Municipal
taxes :

(b) Six percent of the cost of the site on which the building
is constructed; plus ;

(c) 10 ½ percent of the cost of sanitary fittings and water
supply fittings of the building.

Provided the Executive Engineer, Zilla Parishad/ Executive

Engineer Public Works Department in Greater Bombay
having jurisdiction certifies that the amount of rent charged
is reasonable. Where site of construction of school building
was granted by government to a management free of charge,
that is without any occupancy price, the question of any rent
on the cost of the site would obviously not arise.
(G.R. No. GAC – 1079/425/30-37 Dt. 19/5/1979)

(v) Where a school is located in a building owned by the
management and the building was built from donations, its

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own funds or from loans, whether from Government or

others and Government has not paid any grant towards the
cost of construction, an amount not exceeding 7 ½ percent
of the cost incurred as is certified by the Executive Engineer

as reasonable rent.

(vi) Expenditure on account of the rent of school building for
which loan has been advanced by Government according to
the usual rates in that behalf during the repayment of loan

and also thereafter.” (emphasis supplied)

34. As per this provision, the school is obliged to furnish

certificate regarding reasonableness of rent for the school building to

be obtained from the Executive Engineer so as to become entitled for

reimbursement by way of grants. To the extent of the certificate so

given by the Executive Engineer, the school would become entitled for

grants, provided the school has actually paid that amount as rent.

Schedule B vide Rule 89.1 regarding list of items of expenditure

inadmissible for grant-in-aid also makes provision in respect of the

amount spent by the school towards building rent of the school. Clause

2(a) thereof reads thus:-

“Rent, taxes and Insurance:

(a) Rent

(i) The rent charged for portion of a school building for
which a building grant was paid by Government.

(ii) Charges on account of rent for any part or parts of the
building or buildings used for residential purposes for
hostels.”

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35. On perusal of these provisions, there can be no doubt that the

norm prescribed therein is to determine the reasonableness of the

amount towards rent of the school building, so as to reckon the same

for grant or non-grant of Grant to the aided school. There is nothing

wrong in applying the principle underlying the above guidelines for

determining the reasonableness of the fee structure proposed or notified

by private unaided school in larger public interests. If the amount

spent by the private unaided school towards school buildings rent

appears to be exorbitant or unacceptable, to that extent, the State

Authorities would be competent to exclude the excess amount and

approve the fee structure proposed or notified by the private unaided

school by excluding the excess amount towards buildings rent as

unjust. The effect of such finding would be that the excess amount

claimed in cash or kind to recover the expenses incurred under the head

“Buildings Rent” by the school from the students as part of fees, even

if actually incurred by the school, will have to be treated as unusual

expenditure incurred by the school. In that case, the school cannot

recover such unusual expenditure incurred by the school from the

students in the name of fees. Such declaration and direction can be

issued by the State Authorities. The Authority referred to in Rule 49.3,

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therefore, would be competent to disapprove the fee structure proposed

or notified by the Management of the unaided School on the same

analogy of admissible and inadmissible Building Rent of the aided

School provided for in the Schedules referred to above.

36. The petitioners / Management, however, relying on the

decision in the case of State of Maharashtra v. Lok Shikshan

Sanstha, AIR 1973 SC 588, para 10, would contend that reliance

cannot be placed on the provisions of the Secondary Schools

Code-2002, as the same have no statutory force. Assuming that this

argument is correct, the question under consideration can be

conveniently answered with reference to the provisions of the

Capitation Fee Act of 1987. The provisions of the said Act are not

subject-matter of challenge in the present petitions. As a mater of fact,

the Apex Court in T.M.A. Pai’s case had occasion to consider the

question which arose before it also with reference to the provisions of

the said Act. We would proceed on the assumption that the

Management of the School need not take prior approval of the State

Government or any other Authority of the State before introducing the

fee structure determined by it. But such fee structure must adhere to

the mandate of the Capitation Fee Act of 1987. We say so because the

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Preamble of the Act expresses the legislative intent behind enactment

of the Act of 1987. It is an Act to prohibit collection of capitation fee

for admission of students to, and their promotion to a higher standard

or class in, the educational institutions in the State of Maharashtra and

to provide for matters connected therewith. This Act was enacted

because of the past experience of undesirable practice followed by the

private educational institutions to large-scale commercialisation of

education which was not conducive to the maintenance of educational

standards. The Act intends to effectively curb the evil practices, and

prohibit collection of capital fee in the public interest. The term

“capitation fee” has been defined in Section 2(a) which reads thus:-

“2. Definitions-

In this Act, unless the context requires otherwise,-

(a) “Capitation fee” means any amount, by whatever name
called, whether in cash or kind, in excess of the prescribed

or, as the case may be approved rates, of fees regulated
under section 4;” (emphasis supplied)

37. Thus, any amount, by whatever name called, collected by the

unaided institutions in cash or kind in excess of the “approved rates of

fees” regulated under Section 4 is impermissible. We may note that the

legislature has used two expressions in Section 2(a), i.e., “prescribed”

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and “approved.” The expression “prescribed” is ascribable to aided

institutions, and, on the other hand, term “approved” governs the unaided

institutions. We shall elaborate this while considering the purport of

Section 4 in particular sub-section (2) thereof. Section 2(aa) defines term

“Deputy Director” and means the Deputy Director of Education or any

officer so designated as such by the State Government working under the

specified Authority. Section 2(b) defines the term “Educational

institution”. There can be no dispute that the petitioner-school will be

covered by this expansive definition. Section 2(c) defines the term

“Local Authority”. Section 2(d) defines the term “Management”. In the

present case, clause (iv) of the said provision will be applicable, as the

petitioner-school is neither managed by the State Government or a local

authority or by a university. The term “Minority education institution” is

defined in Section 2(e). Section 2(f) defines the term “Prescribed” and

means prescribed by rules made under this Act. Section 2(g) defines the

term “Rules” and means the Rules made under this Act. Section 2(h)

defines the term “University”.

38. Section 3 stipulates that demand or collection of capitation

fee is prohibited.

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39. The relevant provision to examine the controversy on hand

is Section 4 of the Act. It postulates that the State Government is

competent to regulate the tuition fee or any other fee that may be

received or collected by any educational institution for admission to, and

prosecution of study in any class or any standard or course of study of

such institution in respect of any class of students. Thus, there can be no

doubt that the State Government has the power to regulate the fees of

even unaided private minority institution to the extent of the fees

received or collected by educational institution which partakes the

character of capitation fee. Sub-section (2) of Section 4 deals with the

fees to be regulated by the State Government under sub-section (1).

There is a marked distinction between the language used in clauses (a)

and (b) of sub-section (2) of Section 4 of the Act. While dealing with

the case of aided institutions, the expression used is “prescribed” by a

University or State Government, as the case may be. On the other hand,

in the case of unaided institutions, with which we are concerned, the

expression used is “the State Government may approve”. Clause (a)

thereof is not applicable to our case, as it deals with the case of the aided

institutions. Clause (b) of sub-section (2) is of some significance, and

reads thus:-

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“(b) in the case of the un-aided institutions, having regard to

the usual expenditure excluding any expenditure of lands
and buildings or on any such other items as the State
Government may notify, be such as the State Government

may approve:

Provided that, different fees may be approved under clause

(b) in relation to different institutions or different classes or
different standards or different course of studies or different

areas.” (emphasis supplied)

40. On perusal of this provision, it is evident that the unaided

institutions can receive or collect fees, to compensate the “usual

expenditure” incurred by it as approved by the State Government.

No more and no less. The expenditure on lands and buildings or any

such other items as the State Government may notify is plainly excluded

from being charged in the form of fees – not being usual expenditure.

Further, the expression “on any such other items as the State

Government may notify” will have to be read ejusdem generis with the

expression “excluding any expenditure of lands and buildings”. What is

significant to note is that the State Government has the power and

authority to approve the fees fixed by the private unaided institutions.

The term “approve” will have to be construed as enabling the State

Government to regulate the fees, by disallowing the components of

expenses incurred by the school on items other than usual expenditure.

Proviso below clause (b) in Section 4(2) is an indication that the approval

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of fees fixed by the school should be accorded on case to case basis by

the State Government.

41. Although the expression “usual expenditure” has not been

defined in the Act of 1987, the purport of the said expression can be

culled out from sub-section (3) of Section 4 of the Act. The said

provision postulates that the fees to be prescribed or approved under

sub-section (2) shall include the items referred to therein. Notably, the

expenditure incurred by the school towards buildings rent is not

mentioned as one of the items in sub-section (3). Sub-section (3) of

Section 4 reads thus:-

“4. Regulation of fees.-

(1) …………….

(2) ……………

(3) The fees, to be prescribed or approved under sub-section (2)

shall include the following items, namely :-

(a) Tuition fees, whether on term basis or monthly or yearly
basis;

(b) Term fee per academic term;

(c) Library fee and deposit as security per year or for the entire
course ;

(d) Laboratory fee and deposit as security per year or for the
entire course;

(e) Gymkhana fee on yearly basis;

(f) Caution money for the entire course ;

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(g) Examination fee, if any, per year or for the entire course ;

(h) Hostel fee, Messing charges, if these facilities are provided,
whether on term basis or on monthly or yearly basis ;

(i) Any such other fee or deposit as security or amount for
other item, as the State Government may approve.”

42. Sub-section (4) stipulates that the fees regulated under this section

shall ordinarily remain in force for a period of three years and the State

Government shall appoint a committee of persons who, in the opinion of

the State Government, are experts in educational field for taking a review

of the fee structure and may, after considering the report of the

Committee, revise the fees if it considers it expedient to do so.

43. Sub-section (5) of Section 4 obligates the educational

institution or management to issue an official receipt for the fees or

deposits or any other amounts collected for any purpose, which shall be

specified in such receipt.

44. On conjoint reading of definition of “capitation fee” in

Section 2(a) read with Section 4 of the Act, it is obvious that the fees to

be fixed by the school must consist of only usual expenditure and of

items referred to in sub-section (3) of Section 4 of the Act. Any other

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amount received or collected by the school / Management, by whatever

name called, would tantamount to receiving capitation fee. As

aforesaid, expression “usual expenditure” occurring in Section 4(2)(b) is

not defined in the Act. Term “usual” would mean ordinary or

customary. The term “ordinary” would mean normal and expected, and

“necessary” means appropriate and helpful. Thus, the ordinary and

necessary expenses or operating expenses incurred by an organisation

engaged in “trade or business” would be on items such as rent, wages,

utilities and similar day-to-day expenses as well as taxes, insurance and a

reserve for depreciation. Education, whether for charity or for profit, is

an occupation. It cannot be equated to a trade or business. A priori, the

school management cannot claim whole amount spent by it towards

buildings rent from its students, unless so approved by the State

Government. The State Government, while considering the proposal for

approval of the said expenditure incurred by the school management for

the relevant period, may approve such amount which, in its opinion,

would be “reasonable” and “appropriate” amount to be recovered by the

management from its students. It is one thing to say that the

management may spend amount towards buildings rent as per the

prevailing market rate therefor, if the building in which the school is

situate is not owned by the school. Since the State Government is

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competent to approve the amount of usual expenditure, which the school

can be permitted to recover from its students by way of fees, the

concomitant is that the State Government is competent to approve the

entire amount spent by the management / school towards buildings rent

as it is or only portion thereof as reasonable and appropriate amount to

be recovered from the students. While examining the said question, the

State Government would be free to take into account the grievance of the

parents that the devise adopted by the management and the school was to

make profit by paying huge amount of Rs.2.5 Crores in the name of

building rent, even though the Trust, which is running the school, is

managed by the same three persons who are the only directors and

shareholders of the private limited company. In other words, the payer

and the receiver would be the same by using the cloak of the Trust and

the Company. Those are matters which will have to be enquired into by

the State Government. Moreover, the State Government, while

approving the claim of the petitioner-school to allow them to recover the

amount spent by the school towards buildings rent, is free to apply the

principle underlying the guidelines specified in Schedules A and

framed under Rule 89.1 of the Secondary Schools Code to ascertain as to

what could be the reasonable amount allowed to be recovered by the

school from its students. According to the petitioners in view of the

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exposition in the case of Modern School Vs. Union of India reported in

(2004) 5 SCC 583 paras – 20 & 21, the school cannot be denuded of its

entitlement to recover the expenditure incurred by it towards the

buildings rent. Moreover, the State of Maharashtra has never exercised

the power nor acted in exercise of the option conferred under Section 4

of the Capitation Fee Act as can be discerned from the dictum of the

Apex Court in the case of Father Thomas Shingare And Ors. vs State

Of Maharashtra And Ors. [ (2002) 1 SCC 758 para – 9, 10, 16 & 20

thereof ]. As aforesaid, whether the petitioners would be entitled to

claim reimbursement of the amount spent by them towards the buildings

rent in toto or only portion thereof is a matter which has to be considered

by the State Government in exercise of power under Section 4 while

granting approval to the petitioner school in that behalf. That power is

bestowed in the State Government by virtue of Section 4 of the said Act.

The validity of the said Section has not been challenged before us. The

fact that the State Government has so far not exercised that power can be

no impediment to do so hereafter. It is too elementary to state that there

can be no estoppel against the law. The decisions pressed into service by

the petitioners therefore will be of no avail.

45. Concededly, going by the plain language of Section 4 of the

Act, the power to approve or regulate fees of unaided institutions vests in

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the State Government alone. That power cannot be exercised by the

Deputy Director, unless the law permits delegation of that authority in

his favour. At the same time, however, by virtue of Section 6 of the Act,

the Deputy Director of Education and officer not below that rank

specially authorised by the State Government in that behalf has the

power to enter upon the premises of the educational institution or any

premises thereof or any premises belonging to the Management of such

institution in relation to such institution, if he has reason to believe that

some contravention of the provision of the Act of 1987 or the Rules

made thereunder has been committed by the institution. To unravel that

position, the said officer is entitled to examine any record, account or

register or documents belonging to such institution or of the

Management. By virtue of Section 10 of the Act of 1987, the provisions

of the Act have been given overriding effect to the provisions contained

in any other law for the time being in force or in any instrument having

effect by virtue of such law. The Deputy Director, in exercise of his

powers under Section 6 of the Act, therefore, would be competent to

enquire into the acts of commission and omission of the educational

institution or its Management, resulting in contravention of the

provisions of the Act. In that process, he is competent to examine the

records of the school and its Management to ascertain whether the fees

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collected by the school from its students were as per the norms

prescribed under the Act of 1987. The Act has come into force. The

powers bestowed on the specified State Authorities by virtue of the

provisions of the Act can be given effect to. To consummate the avowed

intention of the Capitation Fee Act, 1987, the authorities referred to in

the Act are obliged to discharge their duties specified therein.

46.

To put it differently, the directions issued by the Deputy

Director can be upheld on the reasoning that the same could be and

ought to have been issued by the Deputy Director in exercise of powers

under Section 6 of the Act. In the present case, all that the Deputy

Director has done is to call upon the petitioners to produce the certificate

of reasonableness of buildings rent issued by the Executive Engineer, as

is required in terms of guidelines specified in Schedules A and B framed

under Rule 89.1 of the Secondary Schools Code. Indeed, until the

question as to whether the provisions of the Secondary Schools Code has

the statutory force is answered by the Full Bench of this Court, which

issue has been referred by the Division Bench in terms of order dated

26th October, 2010 in Writ Petition No. 6727 of 2010, we may proceed

on the basis that the said provisions are administrative instructions. The

same have not been challenged by the petitioners. For that reason, the

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insistence of the Deputy Director, respondent No.2, to produce the

reasonableness certificate issued by the Executive Engineer cannot be

faulted. Since the petitioners failed to do so, respondent No. 2 proceeded

on the basis that the petitioners have failed to substantiate the claim

towards expenditure incurred on buildings rent during the relevant

period. If the order passed by the Deputy Director is so understood,

there is no reason to overturn the same. Indeed, it would be a different

matter if the petitioners were to obtain certificate of reasonableness of

buildings rent from the Executive Engineer, on the basis of which,

respondent No. 2 could have examined the matter in the context of the

provisions of Capitation Fee Act – that the demand of the school does or

does not result in commercialisation and profiteering. The other option

available to the petitioners was to immediately approach the State

Government for approval of its revised fee structure fixed by it, which

included the entire amount spent by the school towards buildings rent.

That proposal could have been examined by the State Government on its

own merits. None of the above options found favour with the

petitioners. The petitioners, instead, took the extreme position before

respondent No. 2 that the petitioners had complete authority in fixing

their own fee structure, which could include the entire amount spent by

the school towards buildings rent.

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47. In the context of sub-section (4) of Section 4 of the Act, it

was then argued that, once the approval to the fee structure since notified

by the school was already granted by the Accounts Officer, the same

could not be revised by another Authority under the Act. For that, the

State Government is expected to constitute a Committee of persons, who

are experts in educational field, for taking the review of the fee structure.

In the first place, the fact that the Accounts Officer had verified the

accounts of the school and accepted the same as it is or otherwise would

make no difference, nor that would enure to the benefit of the petitioners.

For, as per the provisions of the Capitation Fee Act, the State

Government alone has the power to approve the fee structure of the

private unaided school. Notably, the fee structure prescribed by the

petitioner-school has not been doubted by the Deputy Director in respect

of all other items, except the expenses claimed by the Management

towards buildings rent in the sum of Rs. 2.5 crores.

48. The petitioners have placed strong reliance on the decision

of the Division Bench of this Court in the case of Association of

International Centres and Members Foundation v. State of

Maharashtra, Writ Petition decided on September 1, 2010. In the said

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matter, the Court was called upon to examine the validity of

Government Resolutions dated 16th July, 2010 and 22nd July, 1997,

respectively. The subject-matter of the said Government Resolutions is

regulation of fees that are charged by unaided secondary schools. The

Court upheld the challenge on the sole finding that the said

Government Resolutions were not issued under Article 162 of the

Constitution of India, even though the same were affecting the right

guaranteed under Article 19(1)(g) of the Constitution to the private

educational institutions. The Court held that the said two Government

Resolutions were not issued under any provisions of the Act, nor can

be ascribed to exercise of power under Article 162 of the Constitution

by the State. Indeed, in the said decision, reference is made to Section

4 of the Capitation Fee Act, 1987. With reference to the said

provision, the Court went on to observe as follows:-

“Perusal of sub section (1) of section 4 shows that it confers power
on the State Government to regulate tuition fees and other fees that
can be charged by the Educational Institutions both aided and un
aided. Clause (a) of sub-section (2) of Section 4 lays down that the
fees to be charged by the aided educational institutions are to be

prescribed by the University or by the State Government. The term
“prescribed” is defined by Section 2(f) of the Act to mean
prescribed by the rules made under the Act. Thus so far as fee that
can be charged in aided institution is concerned, it to be fixed by the
State Government by framing rules in exercise of its rule making
power under the Act which is to be found in section 12 of the Act.
So far as unaided institutions are concerned, the State Government
has two kinds of power, one to specify items of expenditure which
are to be excluded from usual expenditure which is to be taken into
consideration while determining the amount of fees to be charged

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and secondly the power which is vested in the State Government is

to approve the fees that may be fixed by the unaided institutions.
The perusal of the G.R. Shows that it enumerates the items that are
to be taken into consideration while fixing the amount of fee. So far

as G.R. of 2010 is concerned, it merely reiterates what is stated in
1999 resolution in that regard. None of these resolutions provide for
the State Government approving fees fixed by the institutions on the
contrary, they contemplate the constitution of committee of which
State Government is not part for that purpose. The Act confers

power on the State Government to approve the fees fixed and there
is no provision in the Act which empower the State Government to
delegate its power of approving fees. Therefore, the provisions of
2010 G.R. in so far as it constitutes committee for approving the
fees is concerned it is clearly contrary to the provisions of the Act

and therefore, in our opinion, the State Government could not have
issued G.R. constituting committee for approving the fees.”

ig (emphasis supplied)

49. Suffice it to observe that the abovesaid decision pressed

into service is of no avail to the controversy raised in the present

petitions. In the present matters, the points in issue are whether the

Deputy Director was competent to dwell upon the question regarding the

fee structure prescribed by the petitioner-Management in terms of

Circular dated 19th March, 2008 and further, whether the provisions of

the Capitation Fee Act of 1987 would be attracted if the private school

was allowed to include the entire expenditure incurred by it towards

buildings rent as component of fees to be recovered from its students

during the relevant period. As a matter of fact even the above quoted

observations in this decision lend support to our finding that the State

Government has power to approve and resultantly regulate the fees fixed

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by the unaided schools. Similarly, the fact that the two Government

Resolutions dated 22nd July 1999 and 15th July, 2010 have been set aside

and declared as ultra vires also does not take the matter any further for

the petitioners.

50. Notably, the petitioners have neither challenged the

provisions of the Act of 1987 nor the subsequent Government

Resolutions issued by the State Government pursuant to the decision of

the Apex Court in T.M.A. Pai’s case.

51. Be that as it may, even if we are in agreement with the

submission of the petitioners that the Deputy Director has had no

authority to regulate the fees of private unaided institutions, by virtue

of express provision contained in Section 4 of the Capitation Fee Act;

or even going by the provisions of the Secondary Schools Code, viz.,

Rule 49.3, that power could be exercised only by the Director and not

the Deputy Director; coupled with the fact that the Apex Court has

expounded that the private unaided institutions have right to prescribe

their school fees, that does not mean that the fees prescribed by the

private unaided institutions cannot be made subject-matter of scrutiny

by the Deputy Director in exercise of his powers under Section 6 of the

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Act for the limited purpose of finding out as to whether any part of the

fees is in excess of the usual expenditure and of items referred to in

Section 4(3) of the Act and collection of such amount would attract the

mischief of capitation fee, sans approval thereto by the State

Government. In view of the legislative mandate of the Capitation Fee

Act of 1987, any amount received or collected by the school from the

students, by whatever name called, in excess of the expenses on usual

expenditure or permissible items referred to in Section 4(3) and as

approved by the State Government, will be deemed to be resorting to

commercialisation and profiteering and collection of capitation fee by

the school, for the purposes of the said Act. The petitioners, therefore,

cannot succeed on the technicalities that the two G.Rs. dated 22nd July,

1999 and 15th July, 2000 have been set aside or on the contention that

the Deputy Director has had no authority to regulate the fees as such.

The fact that the Deputy Director has adverted to those G.Rs does not

take the matter any further for the petitioners. The petitioners besides

assailing the impugned communications have also assailed the order

recording reasons passed by respondent No.2 dated 3rd August, 2010 on

the ground that the same is merely pretense of having recorded reasons

which are neither cogent nor clear as required by law. Such an order

cannot be countenanced in the light of exposition in Kranti Associates

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Private Ltd., and another vs. Masood Ahmed Khan and others,

[ (2010) 9 SCC 496 ]. This argument overlooks the underlying

principal reason recorded by respondent No.2 Deputy Director to hold

against the petitioners/school. He has observed that the petitioners,

having failed to produce the certificate of reasonableness of buildings

rent issued by the Executive Engineer, were not entitled to claim

reimbursement of the amount paid by them towards the buildings rent

from its students by way of fees. Similarly the argument of the

petitioners that the reasons have been supplemented by fresh reasons in

the shape of affidavits or otherwise cannot be taken into account

considering the dictum of the Apex Court in the case of Commissioner

Of Police, Bombay vs Gordhandas Bhanji [ (1952) SCC 16 para 11],

and in the case of Mohinder Singh Gill v. Chief Election

Commissioner [ (1978) 1 SCC 405 para 8 ]. Even this grievance of the

petitioners will have to be discarded as we are inclined to take the view

that the order of the Deputy Director will have to be understood as one

passed in exercise of powers under Section 6 of the Act to ascertain

whether there has been any contravention of the provisions of the

Capitation Fee Act. The opinion of the Deputy Director can be

ascribed to Section 6 of the Act of 1987 which, for all practical

purposes, has taken the view that the petitioner-educational institution

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cannot claim reimbursement of the expenses incurred by it towards

buildings rent in the sum of Rs. 2.5 cores, having failed to substantiate

that claim by producing certificate of reasonableness of rent issued by

the Executive Engineer. He has, therefore, re-worked the fee structure

by excluding the amount towards buildings rent incurred by the

petitioner-school, as not capable of being recovered from its students –

lest attract the provisions of the Capitation Fee Act. Implicit in the

reason recorded by respondent No.2 for reworking the fee structure of

the petitioner school is that if the petitioner school is likely to or was to

demand and accept the amount from its students to recompensate itself,

the entire buildings rent expenditure incurred by the school and paid to

the private limited company, sans approval in that behalf of the State

Government. That would result in commercialization and profiteering.

As aforesaid, we may not construe the said order of the Deputy

Director as strictly regulating the fees or one of approval thereof. Even

so, the conclusion reached by the Deputy Director, will have to be

upheld for the reasons mentioned hitherto. In that case, the petitioners

cannot recover any amount in excess of the amount reworked by

respondent No. 2, unless approved by the State Government.

52. The petitioners had argued that there is intrinsic material

to suggest that the impugned communication dated 3.7.2009 sent by

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respondent No.2 – Deputy Director was nothing but tentative view

expressed by him subject to finalization. However, the respondent No.

2 Deputy Director unilaterally proceeded on the basis that the said

communication was his final decision due to pressure brought by the

parents. To legitimize the said fallacy, the respondent No.2 issued

another communication dated 4.9.2009 that the fees determined in his

earlier communication dated 3.7.2009 has been treated as final for the

reason stated therein. In this context, it was argued that respondent No.

2 exercised the power of review which he did not have in law. Reliance

has been placed on the decision in the case of Dr. (Smt.) Kuntesh

Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur

(UP) and others [ (1987) 4 SCC 525 para-11], and in the case of

Kalabharati Advertising Vs. Hemant Vimalnath Narichania and

others [ (2010) 9 SCC 437 paras-12 to 14 ]. In the first place, if the

Court were to accept the former contention of the petitioners that the

impugned communication dated 3.7.2009 was only a tentative opinion

expressed by respondent No.2, the argument that the effect of

communication dated 4.9.2009 issued by him was resorting to review

becomes unavailable. Further, it is not necessary to dwell upon the

disputed factual assertion that the opinion expressed by respondent No.

2 Deputy Director in his impugned communications was issued under

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dictation or influence of the parents. On perusal of the impugned

communication dated 3.7.2009, it is noticed that insofar as respondent

No.2 – Deputy Director is concerned, he has expressed his opinion

regarding the claim of the petitioner’s school in respect of buildings

rent. He further observed that the said opinion was to be given effect

subject to the decision of the committee constituted by the State. In the

communication dated 4.9.2009 respondent No.2 has noted that no

committee has been constituted by the State and for which reason the

views expressed by him in his communication dated 3.7.2009 be given

effect to. Understood thus, the grievance of the petitioners under

consideration is devoid of merits.

53. Going by Section 4 of the Capitation Fee Act, the State

Government alone is competent to approve the amount claimed by the

unaided school as usual expenditure so as to permit the school to

recover commensurate amount from the students by way of fees. If the

petitioners are keen that they should be allowed to recover the entire

amount spent by them towards buildings rent for the relevant period

from their students, they may have to pursue the matter before the State

Government for its approval. As aforesaid, the State Government

would be free to examine all aspects before taking final decision on the

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said proposal, including the grievance of the parents (such as

respondents No. 3 to 7) that the amount spent by the school towards

buildings rent is a subterfuge and devise to siphon off that amount,

which would eventually be received in the hands of three persons, who

are the only directors and shareholders of the private limited company

and also the only trustees of the Trust, which claims to have incurred

such expenditure. In other words, the payer and the receiver of the

stated expenses are the same persons under the facade or cloak of two

juristic persons. All contentions available to the respective parties may

have to be examined by the State Government on its own merits. We

are not expressing any opinion as to whether the petitioners are

entitled to claim recovery of entire amount spent by them towards

buildings rent from their students during the relevant period or

otherwise.

54. The private respondents were at pains to persuade us to

enquire into the validity of the permission granted by MHADA to

transfer the proprietary rights in the plot in favour of a private limited

company on which the building has been constructed, so as to reap

profit by recovering amount towards buildings rent from the petitioner-

school run by a public charitable Trust; as also the decision of the

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Charity Commissioner, which has enabled the public Trust to spend

such exorbitant amount towards school buildings rent in the sum of

Rs. 2.5 crores, on the argument that the said transfer as well as decision

of the Charity Commissioner were the outcome of misrepresentation

and fraud played by the petitioners. It is not necessary for us to

examine that contention in these petitions, for the view that we have

already taken. As and when the petitioner-school applies to the State

Government for approval to recover the actual expenses incurred by it

towards buildings rent from its students during the relevant period, that

plea will be available to the parents / students or otherwise can be gone

into by the State Authorities on their own and answered appropriately

in accordance with law. We, therefore, do not express any opinion in

that regard.

55. The petitioners had assailed the decision of the Deputy

Director on the ground that it is product of mala fide exercise of power

in fact and in law. Even this grievance, in our opinion, need not be

dealt with, considering the view already expressed by us hitherto.

Assuming that the impugned decisions of the Deputy Director were to

be treated as non est on this ground, that, by itself, would not permit the

petitioners to recover the entire amount spent by them towards

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buildings rent from their students during the relevant period, unless

approved by the State Government.

56. For the view that we have taken, the petitioners will have

to refund the portion of fees constituting expenses towards buildings

rent and, if the petitioners continue to receive or collect any amount

towards that head, by whatever name called, so as to recompense

themselves for the expenses incurred towards school buildings rent, it

would clearly attract the provisions of the Capital Fee Act, for which,

the school and its Management my have to face the legal consequences.

57. As a result, the petitioners may have to abide by the

opinion expressed by the Deputy Director in his impugned decision,

which means that the petitioner-school may be well-advised to recover

fees by excluding the expenses towards buildings rent for the relevant

period. Failure to abide by that opinion may invite suitable action

under the Capitation Fee Act of 1987 against the school and its

Management. We, however, express no opinion as to whether in the

fact situation of the present case, the State Government should approve

the expenses claimed by the petitioners towards buildings rent either as

a whole or only part thereof, in the context of the provisions of the

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Capitation Fee Act of 1987. All questions in that behalf are left open.

While parting, we would like to place on record that other incidental

issues were raised by the Counsel appearing for the respective parties

during the course of argument, as also reliance was placed on the

decisions in support of their contentions. However, in our opinion, it is

not necessary to burden this judgment with all those issues. Hence, we

have not elaborated on those issues or other reported decisions.

58. Suffice it to observe that the sum and substance of our

decision is that even though the private unaided school has discretion

to fix its own fee structure, it is open to the State Government to

regulate the same insofar as unusual expenditure within the meaning

of Section 2(a) read with Section 4 of the Capitation of Fee Act. As

and when the issue of recovery of any unusual expenses such as

exorbitant expenditure on buildings rent, is raised either by the parents

or it comes to the notice of the State Authorities and in spite of that, the

school continues to recover the disputed amount without taking

approval of the State Government, the Management of such school

would run the risk of legal action provided for in the Capitation Fee

Act. When such occasion arises, the Management of the school may

have only two options – first is to obtain approval of the State

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Government at the earliest opportunity for allowing it to recover the

disputed amount by way of fees from its students. The second is to

continue to recover the disputed amount stipulated by it as fees from its

students unabated and in which case the Management of the School

may run the risk of facing appropriate legal action under the provisions

of the Capitation Fee Act and other enabling enactments.

59.

In view of the above, we proceed to pass the following

order:-

ORDER

Both the petitions are disposed of on the above terms

with costs to be paid by the petitioners. Resultantly, in

absence of approval of the State Government permitting the

School to recover the expenditure from its students incurred

on buildings rent during the relevant period, the petitioners

are obliged to comply with the Court’s order dated 20th April,

2009. Ordered accordingly.

     MRS. MRIDULA BHATKAR, J.                     A.M. KHANWILKAR, J.




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