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Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3696 OF 2017

RUSTOM KERAWALLA FOUNDATION        ……APPELLANT

VERSUS

STATE OF MAHARASHTRA AND ORS.     ..…. RESPONDENTS

With

CIVIL APPEAL NO.3698 OF 2017

WITH

TRANSFER PETITION (CIVIL) NO.89/2013

WITH

TRANSFER PETITION (CIVIL) NO.90/2013

JUDGMENT

Uday Umesh Lalit, J.   

1. Rustom Kerawalla Foundation (appellant in Civil Appeal No.3696 of

2017 and hereinafter referred to as the Foundation), runs a school named

Vibgyor  High  School  (appellant  in  Civil  Appeal  No.3698  of  2017  and

hereinafter  referred  to  as  the  School)  in  Mumbai.   These  appellants  are

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questioning  correctness  of  the  common  Judgment  and  Order  dated

16.09.2011 passed by the High Court of Bombay in Writ Petition Nos.1925

of 2009 and 1919 of  2009 preferred by them.  Along with these appeals, two

transfer petitions, namely T.P.(C) Nos.89 and 90 of 2013 preferred by the

Appellants are also listed before us.

These  writ  petitions  challenged  the  orders  dated  03.07.2009  and

04.09.2009 passed by the Deputy Director of Education, i.e.  Respondent

No.2 who had disallowed the expenses incurred by the School towards rent

in respect of school building in the sum of Rs.2.50 crores per annum. While

so disapproving, the amounts towards other expenses claimed by the school

were  accepted  by  Respondent  No.2  as  usual  expenditure  and  the  fees

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

Rs.61,149/- for Secondary Section from the years 2008-2009 were approved.

2. The Maharashtra  Educational  Institutions (Prohibition of  Capitation

Fee) Act,  1987 (hereinafter  referred to as the Act) prohibits collection of

capitation fee for admission of students to, and prosecution of any course of

study, or for promotion to a higher standard or class.  “Capitation Fee” is

defined in the Act as, “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

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fees regulated under Section 4”.  Sections 3, 4, 6 and 7 of the Act are as

under:- “3 Demand or Collection of capitation fee prohibited-

(1) Notwithstanding anything contained in any law for the time being in  force,  no capitation fee  shall  be  demanded  or collected by or on behalf of any educational institution or by any  person  who  is  in  charge  of  or  is  responsible  for,  the management of such institution.   

(2) Notwithstanding  anything contained in  sub-section  (1), the management may in good faith, demand or, collect or accept donations  in  cash  or  kind  in  prescribed  manner,  from benevolent persons or organisations or public trusts or any other association  of  persons,  for  opening  of  new  educational institution  or  for  development  or  expansion  of  educational facilities in the existing educational institutions or for creation of endowment fund for award of scholarships, prizes or the like, but  while  collecting  or  accepting  such  donations  the management  shall  not  reserve  any  seats  in  any  educational institution  run  by  it  in  consideration  of  such  donations.  All money and articles received in donation shall be accounted for in the institution and the money shall be deposited in the name of  the  institution  in  any  scheduled  or  co-operative bank and shall  be applied or expended for the purpose for which such donations are collected or accepted or shall be applied towards the objects of the institution :  

Provided  that,  where  in  consideration  of  accepting  such donations any seat is reserved for admission to any student in such institution such acceptance of donation shall be deemed to be collection of capitation fee.  

(3) Where the State Government, on receipt of any complaint or otherwise, is satisfied that the management of any institution or  any  person  who  is  in-charge  of  or  is  responsible  for  the management of such institution, has contravened the provisions of this Act or the rules made thereunder, the State Government may, in addition to any prosecution that may be instituted under

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this Act, after giving a reasonable opportunity of being heard, direct such institution or person responsible that the capitation fee collected in contravention of this Act shall be refunded to the person from whom it was collected and on its or his failure to do so,  the amount  together with interest thereon shall  —   

(a) in  the  case  of  an  aided  educational  institution,  be deducted  from  the  grant-in-aid  payable  by  the  State Government  to  such  institution;  and then  the  same  be paid to the person from whom such capitation fee was collected; and  

(b) in  the  case  of  an  un-aided  educational  institution,  be recovered  as  arrear  of  land  revenue;  and  when  so recovered  be  paid  to  the  person  from  whom  such capitation fee was collected.  

(4) The  management  of  any educational  institution  or  any person  who  is  in-charge  of  or  who  is  responsible  for  the management  of  such  institution  demanding,  collecting  or accepting donations under sub-section (2) in connection with or in relation to any student in consideration of his admission to and prosecution of, any course of study or his promotion to a higher standard or class in institution, shall be deemed to have contravened the provisions of sub-section (1) and shall be liable to be proceeded against and punished accordingly.

4.  Regulation of Fees

(1) It  shall  be  competent  for  the  State  Government  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 standard or course of study of such institution in respect of any or all classes of students.

(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

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University Law for the time being in force in the State or as the case may be, by the 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  item 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  courses  of studies or different areas.

(3) The fees, to be prescribed or approved under sub-section (2) shall include the following items, namely :—  

(a)  Tuition  fee,  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; (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  any  other  item,  as  the  State  Government  may approve.  

(4) The  fees  regulated  under  the  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 the review of the fee structure and may, after

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

(5)  Every  educational  institution  or  as  the  case  may  be, management  shall  issue  an  official  receipt  for  the  fees  or deposits or any other amounts collected for any purpose, which shall be specified in such receipt.  

6.  Power to enter and inspect-

(1)  Any Officer  not  below the  rank  of   Deputy  Director  of Education specially authorised by the State Government in this behalf,  may at any time during the normal working hours of any  educational  institution  enter  such  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 there is or has been any contravention of the  provisions  of  this  Act  or  the rules  made  thereunder  and search  and  inspect  any  records,  accounts,  registers  or  other documents belonging to such institution or of the management in so far as such records, accounts, registers or other documents relate to such institution and seize any such records, accounts, registers  or  other  documents  for  the  purpose  of  ascertaining whether there is or has been any such contravention.

(2) The provisions of the Code of Criminal  Procedure, 1973 relating to searches and seizures shall apply, so far as may be, to searches and seizures under sub-section (1).   7.   Penalties

Whoever  contravenes  any  provision  of  this  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  conviction,  be  punished  with

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imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which may extend to five thousand rupees.”

3. Respondent Nos.3 to 7 herein, namely parents of children studying in

the  School  along  with  other  parents  had  complained  to  the  Education

Minister  of  the  State  vide  letter  dated  19.07.2007  alleging

mal-administration  in  the  School  including   unlawful  elections  to

Parents-Teachers’ Association.  This letter suggested that the fee structure of

the School was not justified and it was submitted “..we are sure Education

Ministry  will  not  allow any  educational  institution  to  run as  a  business,

profit  center”.  While  this  letter  was  pending  consideration,  the  School

proceeded to issue Circular dated 19.03.2008 increasing school fees.  This

increase was purportedly on the basis of approval granted by the Accounts

Officer  (Education)  vide  his  letter  dated  21.02.2008  which  set  out  the

recommended expenditure and consequential increase in fees as under: “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/-

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

B) Other Income (2007-08) support      (-)   25,31,046/-        9,77,96,900/-

C) 5% increase as per GR    (+)     48,89,845/- dated 27/05/2005  

     Approved Salary Exp. + Other Exp.             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:

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- 6,845.75 Approved  Monthly Fee-6112.00

Approved  Monthly  Fee 6,845.00

Yours truly,  Sd/-  Accounts Officer  (Education –West Zone)  Mumbai.”

4. Complaining  about  the  rise  in  school  fees  from  Rs.55,000/-  to

Rs.82,500/-  per  annum,  Respondent  Nos.3  to  7  filed  Writ  Petition

No.722/2008 praying for quashing of Circular dated 19.03.2008 issued by

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the  School  regarding  increase  in  fee  structure.  Said  writ  petition  was

disposed  of  by  the  High  Court  on  20.04.2009  directing  that  the  earlier

complaint  dated  19.07.2007  which  was  still  pending  consideration,   be

disposed of  by Deputy Director and that the writ petitioners would be at

liberty to submit   any additional  submissions/material  in support  of  their

complaint.   It  was  directed  that  the  Deputy  Director  would  consider  the

entire material produced before him and pass a reasoned order. The High

Court further directed that the fees would be paid in terms of the revised fees

structure but recovery of fees would be subject to the orders to be passed by

the Deputy Director.

5. It  appears  that  a  Task  Force  was  thereafter  assigned  the  work of

scrutiny and audit  of  accounts  of  the School  which noticed that  certain

documents necessary for arriving at any decision were not submitted by the

School.   Accordingly  Respondent  No.2  by  his  letter  dated  15.06.2009

called upon the school to furnish certain details.  It further appears that as

the information was not forthcoming from the School, Respondent No.2

issued  communication  dated  30.06.2009/03.07.2009,  relevant  portion

being:

“As  per  the  orders  given  by  the  Hon’ble  High  Court  on 20.04.2009,  a  joint  decision  from  the  Education  Deputy Director  regarding  Vibgyor  High  School  Goregaon(W),  is

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expected.  As per these orders, a meeting of the Task Force was organized  at  the  office  of  the  Education  Deputy  Director, Mumbai  on 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 15.06.2009.

1. Income  & 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  &  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.

Since the above information was not  submitted  by the school,  a meeting of the Task Force was held on 30.06.2009 under  the  chairmanship  of  the  Education 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 21.02.2008 of the Accounts Officer(Education) 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 22nd 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.

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

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 Rs.10,75,22,351/- year 2008-09  

      Expenses disallowed by the Education Inspector in his report as per the GR No.SSN 11197(311/97)/Sec.Edu.3 dated 22nd July, 1999.

1. Professional Fees  - 60,91,264/- 2. Building Repairs -    6,03,132/- 3. Staff Welfare      -    5,00,009/-     4.    Total              - 71,94,405/- (Less) Rs.71,94,405/-

Expenses earlier approved by 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 27th May 2003  

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Incremental income               (Add)  Rs.36,39,845/-                            Permissible Salary & Other Expenses      Rs.   7,64,36,745/-    

After considering the use of the building during the year 2007-08 as 46% for Secondary section and 54% for Primary section, the below mentioned fees is being considered.

Primary Section Secondary Section Rs.7,64,36,745/-  x  54% Exp.

Rs.7,64,36,745/-  x  46% Exp.

Rs. 4,12,75,842/- Rs.3,51,60,903/- Students count -756 Student count -575 Yearly Fees Rs. 54,598/- per student.

Yearly Fees Rs.  61,149/-  per student.

Monthly Fee Rs. 4,550/- per student.

Monthly  Fee Rs.  5,096/-  per 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 22nd 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 Fee  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.

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

6. The  communication  dated  30.06.2009/03.07.2009  disallowing

expenses towards rent and  subsequent letter dated 04.09.2009 stating that

the fees determined in the decision dated 03.07.2009 were final and be acted

upon, were  questioned by the Appellants by filing Writ Petitions as stated

above. Considering the grievance that no reasons whatsoever were recorded

in the decision dated 03.07.2009, the High Court by its order 03.08.2010

directed  Respondent  No.2  to  permit  the  parties  to  file  their

response/submissions on the basis of which said respondent was called upon

to record reasons. Pursuant to the aforesaid order, Respondent No.2 passed

order on 27.10.2010 recording reasons for disallowing the amount towards

school building rent, the translation of relevant portion being:- “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

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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.”

7. The reasons so recorded in support of the decision dated 03.07.2009

and  the  direction  contained  in  communication  dated  04.09.2009  were

challenged before the High Court. It was submitted by the Appellants that; a)

In  terms of orders of the High Court passed on 20.04.2009 and 08.05.2009,

the proceedings were limited to examine the issues raised in the complaint

dated 19.07.2007 and as such the subsequent decision to increase the tuition

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fee could not have been the subject matter of challenge. b)  Respondent No.2

was  not  competent  to  fix  tuition  fees  and  could  not  have  exercised  any

power on the basis of procedure prescribed in Government Resolutions. c)

Respondent No.2 could not have disallowed the expenses towards building

rent on the ground of non production of the building rent certificate and in

disregard  of  the  approved/recommended  expenditure  by  the  Accounts

Officer, Education, West Zone, Mumbai in his letter dated 21.02.2008. d) As

held  by  the  High  Court  in  ASSOCIATION  OF  INTERNATIONAL

SCHOOLS  AND  PRINCIPAL  FOUNDATION  AND  ANOTHER  v.

STATE  OF  MAHARASHTRA1 the  power  to  approve  the  fees  stood

conferred by the Act on the State Government, which power could not be

delegated.

In response, it was submitted on behalf of Respondent No.1 that the

submissions  in  the  complaint  dated  19.07.2007  were  also  in  respect  of

excessive fees and alleged profiteering and therefore Respondent No.2 was

quite competent to examine the grievances and while doing so was justified

in disallowing the claim in respect of rent for school building as claimed.

Respondent Nos.3 to 7 while contesting the petitions submitted that a device

was adopted by the appellant to profiteer and the alleged rent was being paid

1W.P. No 1876 of 2010 decided on 1.09.2010 (2010 SCC Online Bombay 1291)

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by  the  Foundation  to  a  Private  Limited  Company  in  which,  very  same

trustees were the only Directors.

8. Writ Petition Nos.1925 and 1919 of 2009 were disposed of by the

High Court by its judgment and order which are presently under appeal. The

High Court rejected the submission that the scope of enquiry was limited

and confined to the allegations made in the complaint  dated 19.07.2007.

According to the High Court, the aspect regarding commercialization and

profiteering was put in issue and the authorities were within their rights to

consider  the  matter.   It  was  further  observed  that  even  if  it  were  to  be

accepted that Respondent No.2 had no right to prescribe the fees in respect

of unaided institutions, in exercise of his powers under Section 6 of the Act

he could certainly find out if any part of fees was in excess of what was

prescribed under Section 4(3) of the Act and whether collection was without

any approval by the State Government.  It was observed by the High Court:- “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.”

Very same thought was expressed by the High Court in para 53 of the

judgment in following terms:

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“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 building 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 said proposal,  including  the  grievance  of  the  parents  (such  as respondent  Nos.3  to  7)  that  the  amount  spent  by  the  school towards buildings rent is a subterfuge and device 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 façade 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.”  

With  this  view  the  High  Court  disposed  of  the  matters  and  the

operative part of the order reads thus: “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.”

18

9. While issuing notice on 14.11.2011, this Court stayed the operation of

the  aforesaid  judgment  and order  passed  by the  High Court.  During the

pendency of these matters Writ Petition Nos.2701 of 2012 and 2542 of 2012

were  filed  by  the  Appellants  in  the  High  Court  of  Bombay  challenging

constitutional validity of Sections 2 and 4 of the Act. The Appellants later

filed Transfer Petition Nos.89 and 90 of 2013 in this Court seeking transfer

of said Writ Petitions to this Court in which notice was issued by this Court

on 01.02.2013.  After hearing the learned counsel for the parties, this Court,

on  07.10.2015  felt  that  one  of  the  disputes  was  about  admissibility  of

expenditure  incurred  by  the  appellants  towards  lease  rents.   The  Court

recorded the submission of the counsel appearing for the Appellants that it

was  not  possible  to  supply  a  copy  of  “building  rent

certificate” provided by a competent authority and that the Appellants could

furnish the details about the rent paid and the certificate of the valuer to

show that the lease rent paid by the Appellants was reasonable and that the

matter could thereafter be verified by Respondent No.2 through concerned

Executive Engineer.   This Court permitted the Appellants to submit material

which would be considered by Respondent No.2 who would then submit a

report to this Court.  Pursuant to the aforesaid directions, an affidavit was

filed by Respondent No.2  on 11.02.2016 stating that the Executive Engineer

19

vide his  letter  dated 07.01.2016  had informed Respondent  No.2 that  he

could not certify or verify whether lease rent paid by a private party was as

per the market rate.  The affidavit however, stated that in order to ascertain

whether the rent paid by the School was reasonable or not, the Appellants

had  produced  reports  of  valuation  prepared  by  approved  valuer.   The

affidavit annexed copies of the reports of such valuers namely, Cushman and

Wakefield,  Shrinivas  M.  Kini  and  Co.  and  Santosh  Kumar.   In  his

subsequent  affidavit  filed  on 02.03.2016 Respondent  No.2  in  a  tabulated

form placed a summary of valuation reports as under:-

Summary of Valuation Reports

Name  of Valuer

Year  of valuation

Building Area mentioned in  Report (including Pool  and Sports facility)

Building Area mentioned in the  Report (Including Pool  and Sports facility)

Rate  per sft.  per month

Annual Lease rent

Cushman  & Wakefield

2008 1,08,202 88 11.4 Cr.

Cushman  & Wakefield

2011 1,08,202 94 12.2 Cr.

Cushman  & Wakefield

2014 1,08,202 103 13.3Cr.

Shrinivas M. Kini & Co

2008 69,795 81.34 6.8 Cr.

Shrinivas M. Kini & Co

2010 69,795 96.15 8.05 Cr.

Santosh Kumar

2008 81,547 88 8.6 Cr.

20

Kakode  & Associates

2008 89,181 (Mentioned 75  to  80) considered 75

8.02 Cr.

Kakode  & Associates

2010 89,181 (Mentioned 100 to 105) considered 100

10.07 Cr.

10. When the matters were taken up for final hearing, Dr. Abhishek Manu

Singhvi,  Mr.  Aspi  Chinoy  and  Mr.  Praveen  Samdani,  learned  Senior

Advocates appeared on behalf of Appellants and submitted:-          (i) Power under Section 4 of the Act could be exercised only by the State

Government and such power could not be delegated. (ii)  Respondent No.2

could have exercised power under Section 6 which was in  the nature of

Search and Seizure but such power could not be utilized to regulate the fees.

(iii) Expenses towards lease rent are permissible and not barred under the

Act or the Rules or the Regulations; and (iv) There was complete lack of

jurisdiction to regulate fees with regard to minority schools, in the absence

of any exploitation or profiteering.

It  was  also  submitted  that  the  Appellants  would  argue  the  issues

regarding constitutional validity of certain provisions in the High Court in

pending  Writ  Petitions  and  they  would  not  press  for  transfer  of  those

petitions to this Court.

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Mr.  Sunil  Fernandes,  learned  Advocate  appearing  for  Respondent

No.3  submitted  that  the  land  in  question  was  originally  given  by

Maharashtra  Housing  and  Area  Development  Authority  (“MHADA”  for

short) on behalf of the State Government at a concessional rate to a Trust

and part of such land was then sub-leased to a company which in-turn had

allowed the Foundation to run the School from the building situated thereon.

He further submitted that the trustees of the Foundation themselves were

Directors in the company and the payment of lease rent was nothing but a

device to siphon substantial sums of money.  None appeared for Respondent

Nos.1 and 2.

11. After  conclusion of  submissions,  a note was filed on behalf of  the

appellants on 04.03.2017 annexing documents concerning the allotment and

permission to sub-lease.  The facts as set out in the note were as under:

“Maharashtra  Housing  and  Area  Development  Authority (MHADA)  is  the  owner  of  a  land  earmarked  under  the Development Plan (DP) for a restricted user of only a school and a play ground (PG) and as such the intrinsic value of the same is much lesser than a plot of land which can be used for any purposes including residential  or  commercial.   Under an Agreement of Lease dated 4th December 2002 MHADA granted to Madhya Pradesh Mitra Charitable Trust (MPMCT), lease in respect  of  land  admeasuring  6032.86  sq.mts  situated  at Goregaon  (West),  Mumbai  for  a  one  time  premium  of Rs.40,17,151/- and a lease rent of Rs.1/- per year for a tenure of 30 years……….The calculation of one time lease rent by way of premium and other charges including rent are made as per the policy of MHADA  and reproduced at Schedule II of the

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lease  deed  dated  4th December  2002……….By  a  tripartite agreement  dated  21st December  2004  entered  into  between MHADA,  MPMCT  and  KARE  Educational  Institute  (India) Limited (now known as KARE Edumin Pvt. Limited) the said KARE was  granted  a  sub-lease  in  respect  of  a  plot  of  land admeasuring 3016.44 sq. mtrs.  out of the total of 6032.86 sq mtrs.  for  the  residual  term  of  the  original  lease.   Though MPMCT had paid 40 lakhs to MHADA for the entire 6032.86 sq. mtrs. of land, KARE  paid to MHADA over and above the said  sum  a  premium  of  Rs.  5,  02,144/-.  Kare  also  paid  to MPMCT  sum of Rs. 30,00,000/- for acquiring the leasehold rights in respect of 3016.44 sq. mtrs. (50% of the original land leased  to  MPMCT).  Pertinently,  1508.22  sq.  mtrs  out  of 3016.44 sq. mtrs (50%) is reserved under the Development Plan (DP Plan)  as  a  play  ground (PG)……..KARE using its  own resources and /or amounts borrowed from banks and financial institutions  constructed  thereon  a  building  comprising  of Ground +12 upper floors and fully furnished the said building with  central  air  conditioning,  high speed elevators  and other state of the art amenities such as swimming pools, etc……By and under a registered Deed of Lease dated 31st July 2006, Kare assigned  to  RKF2 the  leasehold  right  alongwith right  to  use, occupy  and  enjoy,  the  finished  building  with  all  the infrastructure and amenities therein for a term of 26years at a fixed rent of Rs. 2,50,00,000/- per annum (without any clause for escalation). Pertinently, the said lease agreement is only in respect  of  the  building  along  with  the  infrastructure  and facilities and/or amenities thereon and no right, title or interest and /or any assignment of leasehold right in respect of the land is given by virtue of the said agreement by KARE to RKF.”

12. Along  with  the  note,  the  Appellants  produced  certain  documents

including  Agreement  of  Lease  dated  04.12.2002,  the  relevant  recitals  of

which are:- “WHEREAS the Authority is possessed of or otherwise

well  and  sufficiently  entitled  to  a  piece  or  parcel  of  land 2 RKF is abbreviation for the Foundation

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admeasuring  6032.86  sq.  mt.  situated  at  S.No.  16(pt) corresponding  C.T.S.  223  &  224,  village  Pahadi  Goregaon, Goregaon  (west),  Mumbai-400104,  in  the  registration Sub-District  of Andheri  Mumbai  Suburban District  and more particularly described in the Schedule I hereinunder written and shown  by  red  coloured  boundary  line  on  the  plan  hereto appended (hereinafter referred to as “the said land”).

AND WHEREAS the lessee requested to the government vide its application dated 14.02.1999 to grant the plot of land on lease situated at Mouje Pahadi, Goregaon (W) Motilal Nagar-I for  the  purpose  of  constructing,  maintaining  and  locating building for School.

AND WHEREAS on the request of the lessee, the Govt. of Maharashtra as per the provisions, Regulation 16(2) of the MHADA (Disposal of Land) Regulations 1982, decided to lease out the plot of land under 2% discretionary quota of the State Government,  for  plots  developed by the Authority  to  Lessee and  the  Government  in  Housing  and  Special  Assistance Department vide its letter No.ADL-7799/Case No.3746/Desk-1 dated  15.05.1999  directed  the  Mumbai  Housing  and  Area Development  Board,  a  regional  board  of  the  Authority established  under  Section  18  of  the  said  Act  (hereinafter referred to as “the said board”) to allot the said plot of land to the lessee on the terms and conditions hereinafter appearing and contained;

AND  WHEREAS  in  response  to  the  Government directions it has been proposed by the Authority vide its letter No.Motilal  Nagar-1/File-45/L-Br/5228  dated  24/10/2001  and letter  No.CO/MB/ALM/(B)/Madhya  Pradesh/4828/2002  dated 2/11/2002 to allot the said plot of land on lease admeasuring 6032 sq. mts. in S.No. 16(pt) corresponding C.T.S. No. 223 and 224  at  village  Pahadi  Goregaon,  Goregaon  (West)  Mumbai- 400104  to  the  lessee  for  the  purpose  of  constructing maintaining and locating School & P.G. (Hereinafter refereed to as “the said purpose”) for a period of 30 years lease with effect from the date of taking over the possession of the said land by

24

the lessee, for the said purpose on the terms and conditions rent and covenants herein after appearing and contained.

AND WHEREAS in pursuance of the said decision, the said  Board  vide  No.Motilal  Nagar-I/File-45/L-Br./5228  dated 24/10/2001  and  letter  No.CO/MB/ALM/(B)/Madhya Pradesh/4828/2002  dated  02.11.2002  for  Rs.40,17,151/- (Rupees  Forty  Lakhs Seventeen Thousand  One Hundred and Fifty One Only) towards lease premium, 1% annual lease rent, 8% capitalized lease rent and nominal lease rent Rs. 1/- per year for 30 years and legal charges for school and for playground Lease Premium, annual lease rent and nominal lease rent Rs.1/- per year for 30 years (as per Schedule II affixed herewith) on terms and conditions hereinafter appearing contended.  

AND WHEREAS the lessee has agreed to take the said land admeasuring 6032.86 square metres on lease for the said terms of thirty years with effect from the date of taking over the possession of the said land i.e. the ______by the lessee for the said purpose on the terms and conditions rent and covenants hereinafter contained;  

AND WHEREAS the lessee Charitable Trust, at present to discharge their objective effectively constituted to affiliated trust namely ‘Rajashtan Vidya Nidhi’ duly registered vide No. E-20322,  Mumbai  dated  18th July,  2002  and  Rustamji Kerawalla  Foundation’  duly  registered  vide  no.  E  19386, Mumbai dated 3rd May 2001 and by letter dated 4th June 2002, accordingly requested to incorporate these affiliated trust along with the main trust and the lessee itself or through its affiliated trust  (which will  not  amount  subletting  requested  to  execute lease deed in view of compliance of the terms and conditions of allotment.)

AND  WHEREAS  it  is  expedient  and  necessary  to execute  this  indenture  to  lease  in  favour  of  the  lessee  in pursuance  of  the  above mentioned  decision  of  the  Authority agreed to by the lessee. ”

25

13. These recitals show that the allotment was made by MHADA pursuant

to the decision of the State Government to lease out a plot of land under 2%

discretionary quota of the State Government, in terms of Regulation 16(2) of

MHADA  (Disposal  of  Land)  Regulations  1982  (“the  Regulations”,  for

short).   The  Regulations  deal  with  modes  of  disposal  of  land  vested  in

MHADA by Government or acquired by MHADA. Regulation 3 speaks of

normal  modalities  of  disposal  such  as  inviting  tenders  by  public

advertisement, offers through public advertisement, public auction, etc., to

which Regulation 16 is an exception.   

Secondly, the consideration paid by the Lessee under this Deed was

one  time payment of Rs.40.17 lakhs with Rs.1/- as nominal lease rent to be

paid annually for an extent of 6032 sq. mtrs.  The recitals also show that the

Foundation was very much in picture on the day the Deed was executed and

was shown as affiliated trust.  The Deed further shows that all three trustees

of  the  Foundation  are  also  trustees  of  Madhya Pradesh  Mitra  Charitable

Trust (MPMCT).

  14. The  present  matters  are  required  to  be  considered  in  the

aforementioned factual scenario.  At this stage, we may quote Para 195 from

the  majority  decision  authored  by  Justice  B.P.  Jeevan  Reddy  in

26

UNNI  KRISHNAN  J.  P.  AND  OTHERS v. STATE  OF  ANDHRA

PRADESH AND OTHERS3:

“195. Private educational institutions may be aided as well as un-aided, Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed  by  the  Government  and/or  recognising  /affiliating authorities in the matter  of  recruitment  of  teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students,  they have to follow the rule of merit and merit alone- subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions  for  similar  courses.  These  are  and  shall  be understood to be the conditions of grant of aid. The reason is simple public funds, when given as grant- and not as loan- carry the public character wherever they go, Public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the  constitutional  mandate  of  Articles  14  and  15.  All  the Governments and other authorities in charge of granting aid to educational  institutions  shall  expressly  provide  for  such conditions (among others),  if  not  already provided,  and shall ensure compliance with the same. Again aid may take several forms. For example, a medical college does necessarily require a hospital. We are told that for a 100-seat medical college, there must  be  a  fully  equipped  700  bed  hospital.  Then  alone,  the medical college can be allowed to function. A Private Medical College may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it  to  avail  of  the  services  of  a  Government  hospital  for  the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed- may be with  some  relaxation  in  the  matter  of  fees  chargeable-  as observed.  The Governments (Central and State) and all  other authorities granting aid shall impose such conditions forthwith,

3(1993)1 SCC 645

27

if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.”

15. It  is  true that  while answering Question No.9,  larger  bench of  this

Hon’ble  Court  in  T.M.A.  PAI  FOUNDATION  v.  STATE  OF

KARNATAKA4  held  the  Scheme  framed  in  Unni  Krishnan to  be

unconstitutional.  The  aforesaid  observations  in  Para  195

are,  however,  completely  distinct  from  the  Scheme  formulated  in  the

decision of  Unni Krishnan and those observations, still hold good.  As a

matter of fact, in MODERN SCHOOL v. UNION OF INDIA & OTHERS5

the very next paragraph namely Para 196 from the decision of this Court in

Unni Krishnan was quoted by Justice S.H. Kapadia, as the learned Chief

Justice of India then was, while speaking for majority.

16. In the instant case, the plot of land came to be allotted not through

normal  competitive  channels  but  purely  under  discretionary  quota.   The

consideration payable for the plot was also not guided by market conditions,

and public property was made over purely for sub-serving public interest.

Going by the test laid down that aid may take several forms and that when

public  property  or  funds  are  given  as  grant,  they  carry  public  character

4  (2002) 8 SCC 481 5 (2004) 5 SCC 583

 5

28

wherever they go, the allotment made by MHADA at the instance of the

Government in favour of a lessee can certainly be termed as “aid”.  As laid

down in said para 195, among others, the condition that the institution shall

not be entitled to charge any fees higher than what is charged in Government

Institutions for similar courses, shall be understood to be the condition of

grant of aid. Will not such “aid” mean that the institution is in theory and

practice, an aided institution; in which case the fee structure has to be one

which has been prescribed in terms of Section 4(2)(a) of the Act?   We may

hasten to add that this part has not been dealt with at any juncture in the

present proceedings and before a decision in that behalf is taken, the parties

must  have  an  opportunity  to  contest  the  position,  if  they  so  wish.   Our

observations must, therefore, be taken as purely tentative.  The fact however

remains that the lessee spent Rs.40.17 lakhs only for allotment of 6032 Sq.

mtrs. through non-competitive mode.  

17. We  will  now  deal  with  the  question  whether  the  Appellants  are

entitled to take the entirety of lease rent into account while having the fee

structure approved in terms of provisions of the Act and if not, what should

be the correct  approach and for  the present  purposes,  we proceed on the

footing that the School is an unaided institution.

29

18. Section  3(1)  of  the  Act  prohibits  demand  or  collection  of  any

capitation fee from any student in consideration of his admission to, and

prosecution of any course of study, or promotion to a higher standard or

class in any educational institution. The definition of educational institution

under  Section  2(b)  means  a  school  including  kindergarten,  pre-primary,

balwadi  or  nursery,  college  or  any  institution  by  whatever  name  called

whether managed by Government, Local authority, a University or a Private

Management. Thus the extent of prohibition contemplated by Section 3(1)

squarely  applies  to  and  covers  the  School  run  by  the  Foundation.  The

definition  of  “capitation  fee”  under  Section  2(a)  means  any  amount  in

excess of the prescribed fee or as the case may be approved rates of fee

regulated under Section 4. The regulatory mechanism under Section 4 has

two facets; a) in case of aided institution, the fees to be regulated shall be

such as may be prescribed by the University or the State Government and b)

in respect of unaided institution it shall be such as the State Government

may approve. Under the first category the fees are “prescribed” either by the

University  or  by  the  State  Government  while  in  respect  of  unaided

institution the fees have to be “approved” by the State Government.  Sub

clause (4) of Section 4 speaks of constitution of a committee of experts in

education field whose reports  can be the basis  for  revision of fees.  Said

30

sub-section further provides that the fees regulated under Section 4 shall

ordinarily remain in force for a period of three years.

19. Reading sub-clause (b) of Section 4(2) along with Section 4(3) of the

Act,  three  elements  ought  to  be  considered  while  approving  the  fees  in

respect of unaided institutions, namely; (i) regard must be had to the usual

expenditure;  (ii)  excluding any expenditure on lands and buildings or  on

such other items as the State Government may notify; and (iii) the fees shall

include the items specified in sub-clause (3) of Section 4.  

The expression “excluding any expenditure on lands and buildings or

on such other items as the State Government may notify” is very crucial.

Important to note that expenditure on lands and buildings or for that matter

any  expenses  towards  rents  do  not  form part  of  any  of  the  items  under

sub-section (3) of Section 4.  While considering the ambit of the aforesaid

crucial expression in Sub-clause (b) of Section 4(2), two constructions are

possible:

(i) The qualification, “as the State Government may notify” covers

only the second part, i.e., that part of the expression occurring

after “or” namely “on any such other items”.  Thus, the power

entrusted with the State Government applies to and is restricted

to  “any  such  other  items”.  In  other  words,  the  earlier  part

31

namely, “any expenditure on lands and buildings” is a stand-

alone part and must always be excluded. If this construction is

accepted, expenditure on lands and buildings must always be

kept out of consideration while arriving at the decision with re-

gard to the fees to be approved in respect of an unaided institu-

tions.  The power of the Government to notify will only be with

respect to “other items” and not with respect to expenditure on

lands and buildings.  The fact that rent for building does not

find any place in Section 4(3) of the Act, is an indicia in favour

of such construction.  Logical extension of this thought would

be that in all matters, no expenditure on lands and buildings can

or ought to be taken into account.     

(ii) The other possible construction is that the expression “as the

State Government may notify” must apply to the entirety of the

clause including “any expenditure on lands and buildings” in

which event, the State Government may, either as a matter of

policy come out with any general notification or may decide in

the context of any individual facts and circumstances.  Since all

the  authorities  have  gone  on  the  latter  construction  in  the

present matter, we refrain from carrying the discussion further

32

and adopt the latter construction as the basis for our assessment

in the instant case.  

20.  Assuming  that  the  expenditure  on  lands  and  buildings  can  be

reckoned  while  considering  the  case  under  sub-clause  (b),  the  State

Government is empowered to exclude certain expenditure. What then is the

extent  of power and under what circumstances and in what manner  such

discretion is to be guided?  The exercise on part of the State Government

must  be guided to arrive at  a  just  balance between two essentials,  one -

interest of the unaided institution to have a just and reasonable fee structure

and the other - the very purpose of the legislation namely to curb capitation

fee.  While discharging this duty and undertaking such exercise, the State

Government must naturally be alive to and take all possible facets of the

matter into account.  In a given case, claim for payment of rent in respect of

buildings may be just and reasonable while in other cases it may not be so.

The exercise must and ought to be undertaken keeping the basic idea of the

legislation in mind.

21. If the State Government, while making over public assets or funds,

has rendered a helping hand to an institution, the resultant benefit flowing in

favour of the institution must always be taken into account in order to arrive

at  a  just  and  fair  decision  while  approving  the  fees  as  claimed  by  that

33

institution.  The least that is expected is that the institution would not seek to

profiteer from the public assets or public funds but must be made to let the

benefit flow in favour of those, for whose ultimate benefit the public assets

or funds were made over to it in the first instance.  At this juncture, we may

refer to the following passage from the majority judgment of this Court in

ISLAMIC  ACADEMY  OF  EDUCATION  &  ANR.  v. STATE  OF

KARNATAKA & ORS.6:

“7. …...The fee structure for each institute must be fixed keep- ing in mind the infrastructure and facilities available, the invest- ments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there  can  be  no  profiteering  and  capitation  fees  cannot  be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in na- ture. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. ……”

22. In the present case, the Foundation was always in the picture right

since the beginning and was named as affiliated trust in the deed in question.

It was only later that KARE Edumin Pvt. Limited came to be inducted as a

sub-lessee to which the Foundation is presently paying rupees two and a half

crores every year towards rent.  Respondent No.3 is therefore not off the

mark in her contention that in the process substantial sums of money are 6(2003) 6 SCC 697 Para 7

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being made  over  to  KARE Edumin  Pvt.  Limited  in  which company  the

trustees of the Foundation are the only Directors.  In any event of the matter,

all that the sub-lessee had expended towards acquisition of interest in the

land was Rs.30 Lakhs, which was paid to MPMCT and Rs.5.02 Lakhs that

was paid by it  to MHADA towards premium.  All the evaluation reports

relied upon and placed on record have computed the rent payable on the

basis of what was payable in market to similar premises in the locality in

question.   Evaluation  reports  have  gone  on  the  basis  of  the  locational

advantages of the land, which are nothing but elements depending upon the

market  value  of  the  locality  in  question.   Since  the  lease  deed  and

subsequent sub-lease in the present case was on non-competitive basis and

purely under the discretionary quota of the State Government, the locational

advantages of the land ought to be completely severed and segregated and

what  should be the  basis  for  computation  must  be purely that  what  was

expended “on land and buildings”.  The expenditure on lands being to the

tune of Rs.35.02 lakhs, what the Foundation and the School are entitled to is

only that,  which represents  reasonable return on such investment and the

facilities therein, or the rent as claimed, whichever is lower.     

23. With this view, we remand the matter to the State Government for

fresh  consideration.   The  High  Court  in  Para  53  of  its  judgment  had

35

observed that the State Government would be free to examine all aspects

before arriving at a final decision. While reiterating that, we further direct

the State Government to consider the matter in the light of the observations

made herein.  Since we are making over the matter to the State Government,

all those submissions advanced on behalf of the appellants that Respondent

No.2 was incompetent to deal with the matter need not be gone into.  We

direct  the  State  Government  to  consider  the matter  and pass  appropriate

orders within three months from the date of this Judgment and the status quo

as prevailing today shall continue to be in operation till such time. It goes

without saying that in case the fees as proposed by the Appellants are not

approved, consequential orders for refund in terms of Section 3(3) of the Act

shall be made.

24. Before we conclude, we must advert to one part which struck us as

incongruent.  When  the  matter  was  taken  up  on  21.02.2017,  the  State

Government was duly represented by its counsel.  The matter was thereafter

adjourned and taken up on subsequent date when none appeared for the State

Government.   On  our  enquiries,  the  learned  counsel  appearing  for

Respondent No.3 told that the counsel  who was earlier appearing for the

State  Government  would  no  longer  appear  as  his  instructions  were

withdrawn.  We had no way to confirm that as even the learned advocate on

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record  for  the  State  chose  not  to  appear.   The  matter,  therefore,  went

completely by neglect and default on part of the State Government and we

were deprived of any assistance on behalf of the State Government.   This

must be brought to the notice of the concerned authorities and we direct that

a copy of this Judgment and Order be sent to the Law Secretary for the State

as well as to the learned Advocate General for the State.

25. Lastly, since Transfer Petitions were not heard on merits, we discharge

the notice issued in Transfer Petitions and request the High Court to deal

with  the  pending  Writ  Petitions.   With  these  observations,  the  present

appeals and transfer petitions stand disposed of, with no order as to costs.  

                      …….………………….J.

                                          (Adarsh Kumar Goel)  

……………………….J. (Uday Umesh Lalit)  

New Delhi August 3, 2017