Uday Umesh Lalit, J. - (1.) Rustom Kerawalla Foundation (appellant in and hereinafter referred to as the Foundation), runs a school named Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.08.04 Vibgyor High School (appellant in and 11:30:30 IST Reason: hereinafter referred to as the School) in Mumbai. These appellants are 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 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 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.
(3.) 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 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 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. ;