IMPORTANT POINT
The complaint initiated by respondent No. 2 under Section 7 of Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987 cannot be sustained as it does not disclose the offence under Section 7 of the Act. The criminal proceedings initiated on this complaint are liable to be quashed.

Headnote:(i) Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987-Section 7-Complaint against Principal and office bearer of a school run by religious minority in Aurangabad-Cognizance taken by Magistrate-Efforts to get the order quashed failing-SLP and writ petition for a declaration that the provisions of the Act, in so far as they apply to unaided educational institutions run by a religious minority, are ultra vires Article 30 of the Constitution-Whether complaint discloses the offence under Section 7 of the Act? (No).
       Held : The expression "capitation fee" is defined in Section 2(a) of the Act. 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." The word "prescribed" in that clause refers to the rates fixed as for aided schools. So far as unaided schools are concerned, the question of capitation fee would arise only if there is any "approved" rate of fees. Section 4 of the Act regulates the prescribed as well as approved rates of fees. Sub-section (1) of Section 4 empowers the Government to regulate the tuition fee or any other fee that may be received or collected by any educational institution. Sub-section (2) of Section 4 is important in this context and hence it is extracted below :
       "(2) The fees to be regulated under sub-section (1) shall-
        (a) in the case of the aided institutions, be such as may be prescribed by a university under the relevant University Law for the time being in force in the State or, as the case may be, by State Government, and
        (b) in the case of the un-aided institutions, having regard to the usual expenditure excluding any expenditure on 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 constitutions or different classes or different standards or different courses of studies or different areas.
       Thus, what is meant by prescribed rates of fees can only apply to aided educational institutions. So far as unaided schools are concerned the statute conferred an option on the State Government to approve the rates of fees. Such rates need not be uniform as for different institutions. It can as well be different rates for different institutions and also for different classes (or standard) and even for different courses of studies. It could be different rates in different areas also. This means that the State Government should have approved a rate of fees in respect of different standards applicable to Little Flower School before the school authorities are made liable for collecting capitation fees. Such a fixation of rates of fees is hence sine qua non for holding that the authorities of Little Flower School have contravened Section 3(1) of the Act. It must be pointed out that the complainant has not even averred anywhere in the complaint that the State Government has fixed any such rates of fees for any class or standard for any unaided school, much less for Little Flower School, Aurangabad. Hence we asked learned counsel for the State of Maharashtra whether the State Government has fixed any such rate applicable to this particular school. The answer was in the negative. In such a situation there is no usefulness for the complaint to proceed further. In our view any further step with this complaint, in the present set up, is only an exercise in futility. (Paras 8, 9 and 10)
       Nonetheless, the complaint instituted by respondent No. 2 cannot be sustained so long as no offence under Section 7 of the Act could be established by him. We therefore quash the criminal proceedings launched by him with the said complaint. This appeal and the writ petition are disposed of in the above terms. (Para 20)
       (ii) Constitution of India-Articles 30 and 32-Right of minority to administer educational institutions-Unaided minority educational institution-Provisions of Maharashtra Educational Institution (Prohibition of Capitation Fee) Act, 1987-Commercialisation of education-Law-No upper limit fixed by State in exercise of power under 1987 Act-Effect on writ petition-Case law referred.
       Held : The position remains unchanged till now and hence the legal position is that the State cannot impose any restriction on the right of the minorities to administer educational institutions so long as such institutions are unaided by the State, except to the limited extent that regulations can be made for ensuring excellence in education. (Para 15)
       It is a question of fact in each case whether the limit imposed by the Government regarding approved fees would hamper the right under Article 30(1) of the Constitution in so far as they apply to any unaided educational institution established and administered by the minorities. If the legislature feels that the nefarious practice of misusing school administration for making huge profit by collecting exorbitant sums from parents by calling such sums either as fees or donations, should be curbed, the legislature would be within its powers to enact measures for that purpose. Similarly, if the management of an educational institution collects money from persons as quid pro quo for giving them appointments on the teaching or non-teaching staff of such institution, the legislature would be acting within the ambit of its authority by bringing measures to arrest such unethical practices. Such pursuits are detestable whether done by minorities or majorities. No minority can legitimately claim immunity to carry on such practices under the cover of Article 30(1) of the Constitution. The protection envisaged therein is not for shielding such commercialised activities intended to reap rich dividends by holding education as a facade. We do not think it necessary to make any final pronouncement on the right of the legislature in fixing an upper limit regarding the fees to be collected from the students by such institutions because the State Government has not fixed any such upper limit of approved rates of fees as for the unaided schools established and administered by the minorities in the State of Maharashtra. That question can be considered only if any such upper limit is fixed by the State in exercise of the powers under the Act. (Paras 18 and 19)

JUDGMENT

Thomas, J.-Leave granted.

2. A female child, by name Shalmali, was admitted in a school run by a religious minority at Aurangabad. Her father, an advocate by profession, filed a criminal complaint before the local Judicial Magistrate against the Principal and six office bearers of the school alleging that they have committed the offence under Section 7 of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987, (for the short the Act ). The Magistrate took cognizance of the offence and ordered process to be issued against all the seven accused who are arraigned in the complaint. Those accused challenged the said order first before the Magistrate himself and later before the Sessions Court and still later before the High Court. At all those levels they failed to get the order quashed. The impugned judgment passed by a single Judge of the High Court of Bombay has upheld the order passed by the Magistrate.

3. When the special leave petition, in challenge of the said judgment of the High Court, was pending in this Court the Principal of the school along with three other office bearers filed the writ petition in this Court under Article 32 of the Constitution for a declaration that the provisions of the Act, in so far as they apply to unaided educational institutions run by a religious minority, are ultra vires to Article 30 of the Constitution. Alternatively, it is prayed that this Court may declare that the provision of the Act would not apply to "unaided minority institutions".

4. As we thought it convenient to hear arguments in the appeal as well as in the writ petition together Shri R.K. Jain, learned senior counsel for the appellants and Shri H.W. Dhabe, learned senior counsel for the State of Maharashtra and Shri Shakil Ahmed Syed, learned counsel for the complainants addressed arguments. The school in which the daughter of the complainant was admitted as a student is described as "Little Flower School" at Aurangabad. Though the complainant did not specifically state in the complaint that the school is an unaided minority school learned counsel for the State of Maharashtra conceded fairly that it is an unaided school run by a religious minority.

5. The facts alleged in the complaint in brief are the following : The school authorities collected from the complainant a sum of Rs. 120/- in the month of July 1993, and another sum of Rs. 180/- in the month of November 1993 in the account of "School Maintenance" and on 13th July 1993 they collected another amount of Rs. 600/- in the account of "Computer Fees". The said collection is in contravention of the provisions of the Act as the fees prescribed by the Government under the Act could not exceed Rs. 15/- per month. As the complainant did not want his daughter to continue to study in the same school, presumably on account of his opposition to the amount of fees collected, he wanted the Principal to issue transfer certificate to his daughter. When they was not given complainant filed a writ petition in the High Court and a direction was issued by the High Court for granting transfer certificate. After the child was taken away from the school her father - the complainant launched the prosecution by filing the complaint before the Magistrate.

6. We shall first consider whether the complaint has disclosed the offence under Section 7 of the Act. For that purpose we have to assume that the facts averred in the complaint are true. The offence said to have been committed is under Section 7 read with Section 3(1) of the Act. Section 7 reads thus :

"Whoever contravenes any provision of the Act, or the rules made thereunder, shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to five thousand rupees :

Provided that any person who is accused of having committed the offence under sub-section (1) of Section 3 of demanding capitation fee shall, on conv

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2001 Supreme(SC) 1681

Cases Referred (3)