1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.10674 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 Montfort School, Rept.by its Correspondent, Rev.Bro.S.Dhanaraj, Kattur, Trichy - 620 019. ... Petitioner Vs. 1.The Government of Tamil Nadu Represented by the Secretary, Department of School Education, Fort St.George, Chennai - 600 009. 2.The Private Schools Fee Determining Committee, Rep.by its Special Officer, PTA Building, DPI Campus, College Road, Chennai - 600 006. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, calling for the records of the Committee, pertaining to the order dated 03.06.2011, on the file of the 2nd respondent and quash the same, in so far as it relates to the petitioner School and consequently direct the respondents to permit the petitioner School to follow the fees proposed in the representation dated 23.08.2011, for the academic year 2011-2012. For Petitioner .. Mr.G.R.Swaminathan for M/s.FR.A.Xavier Arulraj For Respondents .. Mr.S.Chandrasekar Govt. Advocate O R D E R Challenge in the Writ Petition is to an order, dated 03.06.2011, of the Private Schools Fee Determination Committee, Chennai. The petitioner has sought for a Writ of Certiorarified Mandamus, to quash the same and consequently, prayed for a direction to the second respondent, to permit the petitioner School to follow the fee proposed in the representation, dated 23.08.2011, for the academic year 2011-12. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Assailing the correctness of the Private Schools Fee Determination Committee, Chennai, Mr.G.R.Swaminathan, learned counsel for the petitioner submitted that the petitioner School is a minority institution, protected under Article 30(1) of the Constitution of India and that therefore, the Committee has no jurisdiction to interfere with their rights in determining the fee structure in the School. He further submitted that when the Act contemplates an obligation on the Private Schools Fee Determination Committee, to monitor as to whether under the guise of collection of fee, a private School is indirectly collecting or indulging in profiteering, and in the absence of any specific finding or observations, the objections submitted by the School, having regard to the infrastructure facilities and income and expenditure details, running a minority institution, the determination of the fee, mechanically done, without due weightage to the above factors, is liable to be set aside. Taking this Court through the statutory provisions of the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 and the specific reference only to "Private Schools", as explained in the provision and exclusion of other schools, leaned counsel for the petitioner submitted that there is a fundamental distinction with reference to the determination of the fee structure in respect of Private Schools specifically included and in respect of schools, the powers of the committee are restricted and circumscribed only to ascertain, as to whether other schools do not indulge in profiteering, under the guise of collection of fee. According to him, the provision of the statute makes a clear distinction between the two sets of institutions and therefore, a CBSE School run by a minority cannot be brought within the ambit of the Act and the Private Schools Fee Determination Committee, Chennai. On the merits of determination of the fee structure, learned counsel for the petitioner further submitted that the committee has not formulated any scientific method in formulating the questions and that there is a mechanical approach in rejecting the details furnished by the petitioner. In support of his contentions, learned counsel for the petitioner, placed reliance on the decisions of the Supreme Court in Modern School Vs. Union of India reported in (2004 (5) SCC 583), in P.A.Inamdar Vs. State of Maharashtra reported in (2005 (6) SCC 537) and in Action Committee, Unaided Private Schools and Others Vs. Director of Education, Delhi and Others reported in (2009 (10) SCC 1). 3.Before adverting to the facts of this case, a cursory look at the provisions of the Act 22 of 2009, viz., the Tamil Nadu Schools (Regulation and Collection of Fee) Act, 2009, (hereinafter referred to as "the Act") is required. The above Act has been enacted to provide for the regulation of collection of fee by schools in the State of Tamil Nadu and the matters connected therewith and incidental thereto. Section 2 (b) of the Act defines "aided school", as a school receiving any sum of rupees as aid out of the State funds. Section 2 (e) defines "fee" as any amount, by whatever name called, collected directly https://hcservices.ecourts.gov.in/hcservices/ 3 or indirectly by a school for admission of a pupil to any standard or course of study. Section (j) defines "private school" as follows; "(j) "Private School" means any pre-primary school, primary school, middle school, high school or higher secondary school, established and administered or maintained by any person or body of persons and recognised or approved by the Competent Authority under any law or Code of Regulation for the time being in force, but does not include,- (i) an aided school; (ii)a school established and administered or maintained by the Central Government or the State Government or any local authority; (iii) a school giving, providing or imparting religious instruction alone but not any other instructions;" 4.As per section 3 of the Act, no Government school or aided school shall collect any fee in excess of the fee fixed by the Government for admission of pupils to any Standard or course of study in that school. Sub Section (3) of Section 3 states that the fee collected by any school affiliated to the Central Board of Secondary Education shall be commensurate with the facilities provided by the school. Section 4 of the Act states that the Government shall fix the fee for admission of pupils to any standard or course of study in Government schools and aided schools. The powers and functions of the committee are dealt with in Section 7 of the Act. As per sub Section (3) of Section 7 of the Act, the committee shall have power to verify whether the fee collected by the school, affiliated to the Central Board of Secondary Education, is commensurate with the facilities provided by the school. 5.The Tamil Nadu Schools (Regulation and Collection of Fees) Act, 2009 and the Tamil Nadu Schools (Regulation and Collection of fee) Rules, 2009, came to be challenged by the Tamil Nadu Nursery Matriculation Higher Secondary School Association, represented by the General Secretary, before the Division Bench of this Court and the same was decided on 09.04.2010 (the Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association, Vs. State of Tamil Nadu and others, reported in 2010 (2) L.W. 726). In the judgment, cited supra, except one writ petition, all the writ petitions have been filed by unaided private school Managements, belonging to either minorities or otherwise and they sought for a declaration on the ground, inter alia that the Act and the Rules, stated supra, are unconstitutional and violative of (i) the right to establish and administer educational institutions, which right is guaranteed under Article 19(1)(g), (ii) the right to establish and maintain institutions for religious and charitable purposes, which is guaranteed under Article 26 of the Constitution of India and (iii) a right of the minorities to establish and administer educational institutions guaranteed under Article 30 of the Constitution of India. The three limbs https://hcservices.ecourts.gov.in/hcservices/ 4 of arguments made by the learned counsel appearing for the petitioners in paragraph Nos.5 to 7 are reproduced hereunder; "5.The principal submission of the learned counsel for the petitioners is that the regulation of collection of fee by the unaided and minority schools is impermissible. It infringes the Fundamental Right of the unaided educational institutions whether belonging to minorities or otherwise to practice any profession or to carry on any occupation, trade or business, which is available under Article 19(1)(g) of the Constitution of India. This law imposing the restrictions thereunder cannot be said to be in the interest of general public and the restrictions cannot be considered to be reasonable. 6.The second limb of the submissions of the petitioners is concerning the minority unaided schools. It is submitted that they have the freedom to manage their religious affairs under Article 26 of the Constitution and the right to establish and administer their educational institutions under Article 30 of the Constitution is infringed by this Enactment. 7.The third limb of the argument is that the power under Section 11 of the Act given to the District Committee or any of its members to enter, search and seize the record or the documents of the school or its management is excessive and arbitrary, and therefore violative of Article 14 of the Constitution of India." 6.Perusal of the Division Bench judgment in Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association, cited supra, further shows that all the three judgments viz., (i) Modern School Vs. Union of India reported in (2004 (5) SCC 583), (ii) P.A.Inamdar Vs. State of Maharashtra reported in (2005 (6) SCC 537) and (iii) Action Committee, Unaided Private Schools and Others Vs. Director of Education, Delhi and Others reported in (2009 (10) SCC 1), relied on by the learned counsel for the petitioner, in this writ petition, have been considered by the Division Bench and per contra, learned Additional Advocate General, referring to paragraph No.6 of the judgment in Islamic Academy of Education and another Vs. State of Karnataka, reported in (2003) 6 SCC 697 and paragraph No.7 of the judgment in T.M.A Pai Foundation and others Vs. State of Karnataka and others, reported in (2002) 8 SCC 481, has submitted that the Government is empowered to constitute a committee to fix the fees for the school. He has also further submitted that in the State of Tamil Nadu, there are about 5500 Nursery/Primary Schools, 4100 Matriculation Schools, 38 Anglo Indian Schools an 500 State Board Schools of Tamil Medium, totalling to 10,138 schools, which were unaided. As there was no uniformity in their fee structure and large number of schools were charging high fees, the legislation was required. It was also contended that to maintain uniformity, such legislation, cannot be said to be unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ 5 7.After considering the following judgments, (i)T.M.A. Pai Foundation and others Vs. State of Karnataka and others [(2002) 8 SCC 481], (ii) Islamic Academy of Education and another Vs. State of Karnataka [(2003) 6 SCC 697], (iii) P.A.Inamdar and others Vs. State of Maharashtra and others [(2005) 6 SCC 537]; (iv)Unnikrishnan Vs. State of Andhra Pradesh [1993 (1) SCC 645], (v) Modern School Vs. Union of India [2004 (5) SCC 583]; (vi) Unaided Private Schools of Delhi Vs. Director of Education [2009 (10) SCC 1]; Bapuji Educational Association Vs. State [AIR 1986 Karnataka 119] and (vii) District Registrar and Collector Vs. Canara Bank [2004 (5) CTC 376], the Division Bench has held that Section 11 of the Act, as unconstitutional and violative of Article 14 of the Constitution of India, but in all other respects, answered the issues, stated supra, in favour of the enactment. Thus, all the educational institutions, whether it is aided or minority, fall within the ambit of the statutory provisions. 8.A combined reading of the statutory provisions makes it clear that the committee shall have the powers to determine the fee collected by any school, affiliated to Central Board of Secondary Education, commensurate with the facilities provided by them and also to verify whether the fee collected is justified and it does not amount to profiteering or charging of exorbitant fee. When the committee has the power to verify whether the fee collected by the school, affiliated to Central Board of Secondary Education, is commensurate with the facilities provided by the school and to hear complaints, with regard to the collection of excess fee by a school affiliated to the Central board of Secondary Education and also to recommend the Central Board of Secondary Education, for disaffiliation of the school, if it comes to a conclusion that the school has collected excess fee, it goes without saying that the committee is also empowered to determine fees to be collected by the said institution. 9.As per Sub Section (4) of Section 7 of the Act, the committee shall have the powers to regulate its own procedure in all matters arising out of the discharge of its functions and shall, for the purpose of making enquiry under this Act, have all the powers of a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:- (i) summoning and enforcing the attendance of any witness and examining him on oath; (ii) the discovery and production of any document; (iii) the receipt of evidence on affidavits; and (iv) the issuing of any commission for the examination of witnesses. 10.The contention that perfunctory and unscientific mechanism has been adopted by the committee for determining the fee structure for the various schools in the State of Tamil Nadu, is liable to be rejected, as the method adopted by the committee is in terms of sub Section 4 of Section 7 and Section 6 of the Act and the rules framed thereunder, regarding the factors to be taken into consideration by the committee in the matter of determination of fee leviable by the schools. The procedure, as per sub Section 4 of Section 7 of the Act, cannot https://hcservices.ecourts.gov.in/hcservices/ 6 be said to be unscientific. Needless to say that the statutory provisions indicating the factors to be taken into account by the committee, in the course of determination of proper fee, have been upheld by the Division Bench and therefore, the contentions, to the contrary made in the writ petition, is rejected. The issues raised by the petitioner have already been extensively analysed by the Division Bench. On the aspect of the questionnaire, framed by the committee, at paragraph No.41, the Division Bench has also observed that the committee has sought for information in a prescribed format and found the same to be quite exhaustive. 11.Even the preamble to the enactment makes it clear that the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 is an act to provide for the regulation of collection of fee by schools in the State of Tamil Nadu and matters connected therewith and incidental thereto. It is also well settled that the object and intention of the legislation, spirit of the statute, can always be gathered from the preamble, which is a part of the statute and can be read along with other provisions to find out the meaning of the words in the enactment. There is no specific exclusion of the school affiliated to the Central Board of Secondary Education. As stated supra, when there is a power to prohibit collection of fee, to ascertain as to whether the fee collected by the school, affiliated to the Central Board of Secondary Education, is commensurate with the facilities provided by the school and to hear complaints with regard to the collection of fees by such schools, to recommend to the Central Board of Secondary Education for its affiliation of the school, if the committee comes to a conclusion that the school has collected excess fee, then the construction of any statutory provision should not lead to any anomalies in determining the fee structure for all the schools in the State of Tamil Nadu, which includes a school affiliated to the Central Board of Secondary Education. As stated supra, there is no exclusion of the above said school from the purview of the Act. To give effect to the provisions of the Statute, all the provisions, with the intention to be gathered from the preamble of the Act, has to read harmoniously. 12.In the light of the above and following the decision of the Division Bench of this Court, in the Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association, Vs. State of Tamil Nadu and others reported in 2010 (2) L.W. 726, the contentions made by the petitioner cannot be countenanced. 13.In the result, the writ petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs. 14. After the pronouncement of the orders, Mr.G.R.Swaminathan, learned counsel brought to the notice of this Court that the Private Schools Fee Determination Committee, Chennai - 6, has issued a notice, dated 15th September, 2011, which has been received yesterday, ie., on 28.09.2011, fixing enquiry on the issue of re-fixation, based on the appeal objection at 11.00 a.m., on 20.12.2011, in the Office of the Committee for fee fixation, Chennai. It is https://hcservices.ecourts.gov.in/hcservices/ 7 made clear that dismissal of this writ petition would not foreclose the right of the petitioner to prosecute the appeal objection and that the Private School Fee Determination Committee, Chennai - 6, can decide the request on merits. Sd/- Assistant Registrar(AS) /True Copy/ Sub-Assistant Regsitrar To 1.The Government of Tamil Nadu Represented by the Secretary, Department of School Education, Fort St.George, Chennai - 600 009. 2.The Private Schools Fee Determining Committee, Rep.by its Special Officer, PTA Building, D.P.I.Campus College Road, Chennai - 600 006 +One cc to Mr.FR.A.Xavier Arulraj, Advocate, SR.No.34181 +One CC to The Spl Govt. Pleader, SR.No.34363 sml rl/5 c- 20.10.2011 W.P.(MD)No.10674 of 2011 https://hcservices.ecourts.gov.in/hcservices/