1 W.P. No.1851-09 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1851 OF 2009 Anjuman-e-Taraqqi-Taleem & Anr. ..Petitioners Vs. Dy. Education Director & Ors. ..Respondents Shri Girish Kulkarni i/b Shri Sandeep R. Waghmare for the Petitioners Smt. S.S.Bhende AGP for State Shri R.B.Paranjape i/b Shri J.D.Khairnar for Respondent No.5 Shri S.H.Dere, Deputy Director of Nashik, present Coram: P.B.MAJMUDAR AND R.M.SAVANT, JJ Date: 26th July 2010 P.C. 1. Rule. With the consent of the parties made returnable forthwith and heard. 2. This Petition filed under Article 226 of the Constitution of India, takes exception to the order dated 31-10-2008 passed by the Deputy Director (Education) Nashik, by which order, the Petitioners are directed to return voluntary donations it has accepted on or before 30-1-2009. 2 W.P. No.1851-09 3. The Petitioners run a primary school in Malegaon. On complaint made by the Respondent No.5 herein who is a resident of Malegaon, an inquiry was conducted into the aspect of the Petitioners accepting Rs.250/- on account of the building fund, as the same according to the Respondent No.5 was in breach and violation of the act known as Maharashtra Educational Institutions (Prohibition of Capitation Fees)Act, 1987 (for brevity sake hereinafter referred to as the said Act). In the said inquiry, the Deputy Director by his order dated 27-11-2007 gave a clean chit to the Petitioners, inasmuch as, the Deputy Director observed that the Petitioners could not said to have fallen foul of the said Act. There is another order dated 7-2-2008 passed by the Deputy Director to the same effect. The Respondent No.5, it seems, thereafter approached the Hon’ble Lok Ayukta in respect of his said grievance. The Lok Ayukta thereupon directed the Deputy Director to conduct a denovo inquiry into the said aspect of the Petitioners institution accepting the amount on account of the building fund. The Deputy Director through the Educational Inspector, it appears, conducted an inquiry by visiting the concerned school at which time, the office bearers of the Petitioners institution remained present and produced certain documents. Pursuant to the said inquiry, the Deputy Director passed the impugned order having the consequences as mentioned in the earlier part of this Order. 4. On behalf of the Petitioners, the principal ground on which the order has been challenged is that no hearing has been given to the Petitioners as 3 W.P. No.1851-09 contemplated by Section 3(3) of the said Act. According to the Learned Counsel, sub Section (3) of Section 3 contemplates reasonable opportunity being given to the concerned institution. On the said aspect, we queried the Learned AGP appearing for the educational authorities in the above Petition. The Learned AGP on instructions of the Education Inspector and the Deputy Director who are personally present in Court submitted that though no hearing was granted at the time of passing of the said order, the hearing, in fact was granted at the time when the inquiry was conducted in the school premises of the Petitioners institution. The Learned AGP, therefore, contended that the conditions mentioned in the said sub section (3) prior to the authority arriving at its decision, have been satisfied. The Learned Counsel for the Respondent No.5 supports the contentions of the Learned AGP. 5. Having heard the Learned Counsel for the Petitioners, in our view the impugned order is required to be set aside on the ground that the Petitioners were not heard prior to the Deputy Director passing the order. It is required to be noted that sub Section (3) deals with the case where the State Government is to act on any complaint in respect of any institution demanding capitation fees. In such an event, it is mandated by sub Section (3) of the said Act that the order could be passed only by giving a reasonable opportunity of being heard. The contention of the Learned AGP that since the office bearers of the Petitioners were allowed to produced the documents etc. at the time of the inquiry conducted by 4 W.P. No.1851-09 the Education Inspector, the said condition is satisfied, cannot be accepted as admittedly before passing of the said order no hearing has been granted by the Deputy Director. More over, what is also significant to note that if in the inquiry some material adverse to the Petitioners institution had come forth, the authorities were required to issue a Show Cause Notice to the Petitioners setting out the said material and calling upon the Petitioners to give its explanation as to why the finding that the Petitioners have contravened the provisions of the said Act should not be recorded. Having not done so, in our view, the said order suffers from an infirmity and has, therefore, been passed in violation of principles of natural justice. We, therefore, set aside the impugned order dated 31-10-2008 and relegate the matter back to the Deputy Director of Education for a deno vo consideration. In our view, it would be appropriate, if a show cause notice is issued to the Petitioners and the Petitioners are directed to reply to the same and thereafter give an opportunity to the Petitioners and pass appropriate orders in accordance with law. We therefore, dispose of this petition by issuing the following directions. (a) Show Cause Notice to be issued to the Petitioners calling upon the Petitioners to show cause as regards the alleged violation of the said Act and placing on record in the show cause notice the material which is adverse to the Petitioners. The said show cause notice to be issued within a period of 4 weeks 5 W.P. No.1851-09 from date. The Petitioners to reply to the said show cause notice within a period of 3 weeks thereafter. (b) The Deputy Director of Education to hear the respective parties including the Respondent No.5 herein and pass appropriate orders within a period of 6 weeks after the initial period of 7 weeks as mentioned above, is over. (c) The parties including the Respondent No.5 would be at liberty to produce such material as they deem fit in support of their respective cases. 5. The fact that we have set aside the order, should not be construed as expression of any opinion on the merits of the case of the either of the parties and the Deputy Director directed to decide the matter on its own merits and in accordance with law. 6. All the contentions of the parties are kept open. 7. Rule is accordingly made absolute to the aforesaid extent. (R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)