1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.784 OF 2001 1. Smt.Vidya Kishore Rao ) Principal, Age 50 years ) 2. Smt.Sulabha Dattatray Mujumdar Sr. Clerk, Age 55 years ) 3. Smt.Rashmi Rajendra Sawant ) (Ku. Sheela Vishnu Pawar) ) Jr. Clerk, Age 27 years. ) Occupation Service, ) Attached to Indian Education Society’s ) Ash Lane Kinder Garten (which includes ) Playcentre and Shishukunj) ) Babrekar Marg, Dadar, ) Mumbai—400 028. ) : Petitioners V/s. The State of Maharashtra. : Respondent ... Mr.A.P.Mundargi with Mr.Ganesh Gole and Mr.A.D.Gangal for the petitioners. Ms A.T. Jhaveri, Addl. Public Prosecutor for the State. ... CORAM : S.A. BOBDE, J. DATE : JULY 24, 2009. ORAL JUDGEMENT: 1. By this petition, the petitioners have challenged the order of the 2 Sessions Court in revision upholding the order of the Addl. Chief Metropolitan Magistrate, 5th Court, Dadar, Mumbai. The Courts below have refused to discharge the petitioners from a prosecution under section 7 of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987, hereinafter referred to as the “Act”, which reads as follows:- “7. 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.” The contravention that was alleged was that the petitioners on behalf of the School had received capitation fees prohibited by the Act. The Act, vide section 3, prohibits any educational institution or by a person who is incharge of, or is responsible for, the management of such institution, from collecting capitation fee. “Capitation fee” has been defined by section 2(a) as follows:- “(a) “capitation fee” means any amount, by 3 whatever name called, whether in cash or kind paid or collected, directly or indirectly, in excess of the prescribed or, as the case may be, approved, rates of fees regulated under section 4.” 2. The petitioners’ school is an unaided school imparting education upto pre-primary stage. It collected development funds from guardians of students who are admitted to it. The amounts received by the petitioners were duly acknowledged by receipts issued by the petitioners. Initially, the Anti-Corruption Bureau on a complaint from one of the parents raided the petitioners’ school and apprehended its employees while accepting an amount of Rs.3,000/- by way of post-dated cheque for which the petitioners had issued a stamped receipt. The Anti-Corruption Bureau filed a charge-sheet against the petitioners in the Court of the Metropolitan Magistrate at Dadar. Apparently, at some stage, it was noticed that the Anti-Corruption Bureau had no locus in the matter and, therefore, the prosecution was taken over by the police. The petitioners were charged with violation of the Act for having accepted development funds from guardians of the students. 3. On 24.11.1999 the petitioners made an application before the Addl. Chief Metropolitan Magistrate stating that they were not public 4 servants and, in any case, the Act was not applicable because kindergarten classes are unaided and no fees are prescribed by the Government under the Act. The Addl. Chief Metropolitan Magistrate dismissed the application. Against that decision, the petitioners filed a Revision Application before the Sessions Court, Mumbai. The learned Addl. Sessions Judge dismissed the application on 17.4.2001. Hence, this Writ Petition. 4. Mr.Mundargi, the learned counsel for the petitioner, submitted that the charge of receiving capitation fee in contravention of the provisions of the Act can be said to have been made out where the State has not regulated or approved the rate of fees chargeable by the institution under section 4 of the Act. The learned counsel relied on the definition of “capitation fee” in section 2(a). Section 4, insofar as it relevant, reads as follows:- “4. (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 5 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.” The only question, therefore, falls for consideration is whether the act of the petitioners in receiving development fund can be said to amounts to receiving capitation fee in contravention of the provisions of the Act. On 6 a plain construction of the definition of “capitation fee”, collection of which is prohibited, it appears that no offence can be said to have been made out since no rates of fees were regulated by the State Government under section 4. The term “capitation fee” has been defined to mean any amount collected in excess of the approved rates of fees regulated under section 4. It must follow, therefore, that where no rate of fees has been regulated or approved by the State, the amount so collected cannot be described as capitation fee. 5. The learned counsel for the petitioner relied on the judgment of the Supreme Court in Father Thomas Shingare v. State of Maharashtra [(2002) 1 SCC 758] where the Supreme Court observed in paragraph 9 as follows:- “9. Thus, what is meant by prescribed rates of fees can only apply to aided educational institutions. So far as unaided schools are concerned the statute conferred an option on the State Government to approve the rates of fees. Such rates need not be uniform as for different institutions. It can as well be different rates for different institutions and also for different classes (or standard) and even for 7 different courses of studies. It could be different rates in different areas also. This means that the State Government should have approved a rate of fees in respect of different standards applicable to Little Flower School before the school authorities are made liable for collecting capitation fees. Such a fixation of rates of fees is hence sine qua non for holding that the authorities of Little Flower School have contravened Section 3(1) of the Act.” This judgment leaves little doubt that no liability under the Act can be imposed on the petitioners under the Act for collecting the amounts in question. The Courts below took an erroneous view of the matter and blindly misconstrued the penal provisions which, needless to say, must be strictly construed. The petition, therefore, deserves to be allowed and is, accordingly, allowed. The impugned orders are quashed and set aside. Rule is made absolute in the above terms. (S.A. BOBDE, J.)