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2001 Supreme(Raj) 1310
Supreme Court
Honble K.T. THOMAS & S.N. PHUKAN, JJ.
Father Thomas Shingare and Ors. - Appellant
Versus
State of Maharashtra & Ors. - Respondents
Criminal Appeal No. 1291 of 2001
Decided On : December 14, 2001
R.K. Jain, H.W. Dhabe, Sr. Advocate, Manoj Swarup, Hiren Dasan, Ajay Gupta, Manish Khandelwal, A.H. Joshi, S.S. Shinde, S.V. Deshpande & Shakil Ahmed Syed, Advocates
Headnote:Maharashtra Educational Institution (Prohibition of Capitation Fee) Act, 1987 and Constitution of India, Art. 30 and 32 – Right of minority to administer educational institutions – Unaided minority educational institution – Held – State can not impose any restriction on the right of minority to administer educational institutions so long as such institutions are unaided by State, except to the limited extent that regularisation can be made for ensuring excellence in education. (Paras 15,18 & 19)
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. (Para 18)
(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 alone 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 tires to Article 30 of the Constitution. Alternatively, it is prayed that this Court may 1 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 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 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 c
