HINDI VIDYA BHAVAN SOCIETY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The first petitioner is a society registered under the Societies' Registration Act, 1860 and is a public trust registered under the Bombay Public Trusts Act, 1950. In 1963, the First Petitioner set up Hindi Vidya Bhavan which at all material times has been and continues to be an unaided private school. The school comprises of three sections - the pre-primary, primary and secondary sections. The dispute in the present case pertains to fees that have been proposed by the school for its primary section. The primary section is recognized by the Municipal Corporation under the grant in Aid Code for approved private primary schools in Greater Mumbai.

(2.) The Municipal Corporation exercises control over private primary schools under the provisions of the Grant in Aid Code. The Code has been framed under the provisions of section 62-C (3) of the Mumbai Municipal Corporation act, 1888. The Code provides for recognition of primary schools. Rule 5 prescribes the conditions for recognition. One of these conditions is that the fees to be charged shall be in accordance with instructions issued by the education Department of the Municipal Corporation.

(3.) The legislature in the State of Maharashtra enacted the Maharashtra educational Institutions (Prohibition of Capitation Fee) Act, 1987. Section 3 (1) of the Act inter alia provides that notwithstanding anything contained in any law for the time being in force, no capitation fee shall be collected or demanded 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, from or in relation to, any student in consideration of his admission to, prosecution of any course of study, or promotion to a higher standard in a class in such institution. The expression "capitation fee" is defined by section 2 (a) of the Act to mean any amount, by whatever name called, whether in cash or in kind, in excess of the prescribed or, as the case may be, approved rates of fee regulated under Section 4. Sub section (1) of Section 4 empowers the State government to regulate the tuition fee or any other fee that may be collected by any educational institution for admission to and prosecution of study in any class, standard or course of study. Under sub-section (2) of Section 4 the fees to be regulated shall in the case of aided institutions, be such as may be prescribed by a university under the relevant university statute for the time being in force or, as the case may be, by the State Government. In the case of unaided institutions, the fees to be regulated shall be such as the State government may approve having regard to the usual expenditure excluding any expenditure on lands and buildings or on any such items as the State government may notify for unaided institutions. Different fees may be pproved in relation to different institutions, for different classes or standards, for different courses of study or for different areas.