MAHARASHTRA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEE) ACT, 1987

Preamble - THE MAHARASHTRA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEE) ACT, 1987

THE MAHARASHTRA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEE) ACT, 1987

[Act No. 6 of 1988]

[15th April, 1988]

PREAMBLE

An Act to prohibit collection of capitation fee for admission of students to, and their promotion to a higher standard or class in, the educational institutions in the State of Maharashtra and to provide for matters connected therewith.

WHEREAS the practice of collecting capitation fee for admitting students into educational institutions and at the time of promoting students to a higher standard or class at various stages of education is on the increase in the State;

AND WHEREAS this undesirable practice has been contributing to large scale commercialisation of education which is not conducive to the maintenance of educational standards;

AND WHEREAS the National Policy on Education 1986 envisages that the commercialisation of technical and professional education should be curbed and that steps should be taken to prevent the establishment of institutions set up to commercialise education;

AND WHEREAS with a view to effectively curb this evil practice, it is expedient in the public interest to prohibit collection of capitation fee for admission of students to, and their promotion to a higher standard or class in, the educational institutions in the State of Maharashtra and to provide for matters connected therewith; It is hereby enacted in the Thirty-eighth Year of the Republic of India as follows :-

NOTES

Statement of Objects and Reasons.--The practice of collecting capitation fee for admitting students into educational institutions and at the time of promoting students to a higher standard or class at various stages of education is on the increase in the State. This undesirable practice has been contributing to large scale commercialisation of education which is not conducive to the maintenance of educational standards. This practice has been causing frustration among the needy, poor and meritorious students. The National Policy of Education should be curbed and that steps should be taken to prevent the establishment of institutions set up to commercialise education. With a view to effectively curb this evil practice of collecting capitation fee and to maintain the excellence in the standard of education. Government considers it expedient to prohibit collection of capitation fee for admission of students to, and their promotion to higher standard or class in, educational institutions by enacting a suitable legislation in that behalf. Hence this bill.--

[Man. Act 6 of 1988].

Section 1 - Short title and extent

(1)     This Act may be called the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act. 1987.

(2)     It extends to the whole of the State of Maharashtra.

Section 2 - Definitions

In this Act, unless the context requires otherwise.--

(a)      "capitation fee" means any amount, by whatever name called, whether in cash or kind, 1[* * *] in excess of the prescribed or, as the case may be, approved, rates, of fees regulated under section 4;

2[(aa) "Deputy Director" means the Deputy Director of Education or any Officer co-designated as such by the State Government, working under the Director of Education, Director of Higher Education, Director of Technical Education, Director of Medical Education or Director of Vocational Education, or any other Directorate of the State Government entrusted with the task of supervision of educational institutions imparting any kind of education in the State]:

(b)      "educational institution" or "institution" means a school (including Kindergarten, Pre-primary, Balwadi or Nursery School), a college or an institution, by whatever name called, or a part thereof, whether managed by Government, local authority, a university or a private management including educational institution established and administered by any minority, and imparting education and training, exclusively or as one of the various activities, whether technical, professional, vocational or otherwise, and includes any other institution, or a part thereof, as the State Government may, by notification in the Official Gazette, specify; but excludes coaching class, by whatever name called;

(c)      "Local Authority",-

(i)       in relation to an educational institution managed by a Zilla Parishad, means the Zilla Parishad constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961;

(ii)      in relation to an educational institutions managed by a Municipal Corporation, means the Municipal Corporation constituted under the Bombay Municipal Corporation Act, 1888, the City of Nagpur Corporation Act, 1948 or, as the case may be, the Bombay Provincial Municipal Corporations Act, 1949;

(iii)     in relation to an educational institution managed by a Municipal Council, means the Municipal Council constituted under the 3[Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships] Act, 1965;

(d)      "management",-

(i)       in the case of an institution managed by the State Government, means the State Government;

(ii)      in the case of an institution managed by a local authority means that local authority;

(iii)     in the case of an institution managed by a University, means that University; and

(iv)    in any other case, means the managing committee or the governing body, by whatever name called, of an educational institution to which the affairs of that institution are entrusted and, where affairs are entrusted to any person whether called as Secretary, Correspondent or by any other name or designation, includes such person;

(e)      "minority educational institution" means an institution established and administered by a minority having a right to do so under clause (1) of the Article 30 of the Constitution of India:

(f)       "prescribed" means prescribed by rules made under this Act;

(g)      "rules" means the rules made under this Act;

(h)     "University" means a university constituted under any law for the time being in force.

NOTES

Approved rates of fees.--

The rates of fees are regulated by the State Government, every three years.--

See section 4.

Educational Institution.--

[1]Coaching classes are not educational institution.

For definition of 'primary school', 'primary education', 'secondary education', 'higher secondary', 'junior college'- See section 2(j)(i). (ii). (iii) to (vi) of the Maharashtra Educational Institution (Management) Act. 1976.

[2]For definition of'college'- See section [3]c) of the Maharashtra Educational Institution (Management) Act, 1976.

Section 3 - Demand or Collection of capitation fee prohibited

1[Demand or Collection]

(1)     Notwithstanding anything contained in any law for the time being in force, no capitation fee shall be 2[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, from, or in relation to, any student in consideration of his admission to, and prosecution of any course of study, or of his promotion to a higher standard or class in, such institution.

(2)     Notwithstanding anything contained in sub-section, (1), the management may 3[in good faith, demand or, collect or accept donations in cash or kind in the prescribed manner.] from benevolent person 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 :

4[* * *]

(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 unaided 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.

NOTES

Capitation.--"A poll tax,[4] taxes of a fixed amount upon all persons or upon all the persons of a certain class, resident within a specified territory, without regard to their property or the occupation in which they may be engaged. - (Ballentine's Law Dictionary.)

Prohibition on capitation fee.--Collection of capitation fee for admission or promotion of student in any educational institution is prohibited.

Exemption.--See section [5](2), second para of the proviso.

[6]Conditional Donations.--Conditional donations to reserve certain number of seats are prohibited after commencement of this Act.

Refund of capitation fee.--See section 3(3).

Refusal to pay refund.--See section 3(3)(a)(b).

(4)     [7]The management of any educational institution or any person who is incharge of or who is responsible for,[8] the management of such institution 4[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 subsection (1) and shall be liable to be proceeded against and punished accordingly.

Section 4 - 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 unaided 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 subsection (2) shall include the following items, namely :-

(a)      Tuition fees, 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 this 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.

NOTES

Autonomous institutions : Increase in fees : Whether covered by Capitation Fees Act.--

In the instant case, the institution is governed by University Act and not amenable to Capitation Fees Act. The increase having been made in accordance with sections 23 and 66 of the University Act, cannot be challenged under the Capitation Fees Act.--

Jawahar Annaldamla and others v. Jamnalal Bajaj Institute of Management Studies and others, 2000 (2) Bom. C. R. 475 : 2000 (2) Mah. L. J. 749 : 2000 (1) All M. R. 457.

Section 5 - Aggrieved person can file a police complaint

1[Any person from whom a capitation fee or donation has been demanded or collected by the management of any educational institution or on behalf of any educational institution by any person who is in charge of, or is responsible for, the management of such institution, in relation to any student in consideration of his admission to, and prosecution of. any course of study, or of his promotion to a higher standard or class in such institution, may file a complaint against such management or such person, as the case may be, with the concerned police station within thirty days from the date on which such capitation fee or donation or both has been demanded or collected by such management or such person).

NOTES

Inquiry proceedings.--

[9]The State Government may appoint any Gazetted Officer to hold inquiry. After submission of his report. State Government may take steps as provided in sec. 3(3).

Powers of Inquiry Officer.--

See section 5(2), (3) and section 6(1), (2).

Defamatory complaints.--

See section 9 of this Act and section 250 of Criminal Procedure Code, 1973.

Section 6 - Power to enter and inspect

(1)     Any officer not below the rank of [10] [Deputy Director of Education] specially authorised by the State Government in this behalf, may at any time during the normal working hours of any educational institution enter such institution or any premises thereof or any premises belonging to the management of such institution in relation to such institution, if he has reason to believe that there is or has been any contravention of the provisions of this Act or the rules made thereunder, and search and inspect any records, accounts, registers or other documents belonging to such institution or of the management in so far as such records, accounts, registers or other documents relate to such institution and seize any such records, accounts, registers or other documents for the purpose of ascertaining whether there is or has been any such contravention.

(2)     The provisions of the Code of Criminal Procedure, 1973 relating to searches and seizures shall apply. so far as may be to searches and seizures under sub-section (1).

Section 7 - Penalties

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 :

1Provided that, any person who is accused of having committed the offence under sub-section (1) of section 3 of demanding capitation fee shall, on conviction, be punished with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which may extend to five thousand rupees.]

NOTES

Charging of extra amounts : Whether "capitation fee".--

In the instant case, a female child was [11]admitted in a school run by a religious minority at Aurangabad. Her father, an Advocate filed a criminal complaint before the Judicial Magistrate against the Principal and six office-bearers of the school alleging that they had committed the offence under section 7 of the Act. The Supreme Court held that expression "capitation fee" means 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. The word "prescribed" in that clause refers to the rates fixed as for aided schools. So far as unaided schools are concerned, the question of capitation fees would arise only if there is any "approved" rates of fees. The prescribed rate 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.--

Father Thomas Shingare and others v. State of Maharashtra and others, 2002 (1) Bom. C. R. 343 (SC) : 2002 Bom. C. R. (Cri.) 85 (SC).

Section 7A - Punishment for abetment

[12] [Whoever abets any offence punishable under this Act shall, on conviction, be punished with the punishment provided for the offence.

Section 7AA - Offences to be cognizable and non-bailable

All offences under this Ac, except the offence of the demanding of capitation fee, shall be cognizable and non-bailable.

Section 8 - Offences by companies

(1)     Where an offence under this Act, or the rules made thereunder, is committed by a company, every person, who at the time when the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that, nothing contained in this sub-section shall render any persons liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2)     Notwithstanding anything contained in sub-section (1), where any offence under this Act, or the rules made thereunder, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer or servant of the company, such director, manager, secretary or other officer or servant concerned shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section,-

(a)      "company" means any body corporate and includes a trust, a firm, a society or other association of individuals; and

(b)      "director" in relation to -

(i) ???a firm, means a partner in the firm;

(ii) ??a society, a trust or other association of persons or body of individuals, means the person who is entrusted under the rules of the society, trust or other association or body with the management of the affairs of the society, trust or other association or body, as the case may be.

Section 9 - Compensation for accusation without reasonable cause

Where in a trial of an offence under this Act, the Magistrate is of opinion that there was no reasonable ground for making the accusation he may proceed to take action against the complainant or the informant under section 250 of the Code of Criminal Procedure, 1973.

Section 10 - Act to have overriding effect

The provisions of this Act or the rules and orders made or issued thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law.

Section 11 - Protection of action taken under this Act

No suit, prosecution or other legal proceeding shall lie against the State Government or any officer of Government for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.

Section 12 - Rules

(1)     The State Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make rules for carrying out the purposes of this Act.

(2)     Every rule made under this Act shall be laid as soon as may be, after it is made before each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rules or both Houses agree that the rule shall not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.

Section 13 - Savings

Notwithstanding anything contained in this Act, all orders, circulars, resolutions, directions, rules, notifications, ordinances, statutes, schemes or appointments made or issued and all powers which were vested or exercised by any person or authority in respect of the matters referred to in this Act, whether in accordance with any law for the time being in force or otherwise, and in force immediately before the commencement of this Act shall, so far as they are not inconsistent with the provisions of this Act, continue in force or continue to be so vested and be deemed to have been made or issued or vested under the provisions of this Act unless and until superseded by anything done or any action taken under this Act.