Bombay High Court
Akhil Bhartiya Sanskrut ... vs The State Of Maharashtra And ... on 4 October, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
996.WP.10709.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10709 OF 2021
WITH
CIVIL APPLICATION NO.13785/2022
IN
WRIT PETITION NO.10709 OF 2021
Samaj Prabodhan Pratishthan,
Parali Vaijnath, Dist. Beed,
through its Secretary,
Bhagwan Nagorao Deshmukh,
Aged : 50 years, Occ: Agriculture,
R/o. Parali Vaijnath, Dist. Beed. ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women & Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President. ... RESPONDENTS
WITH
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WRIT PETITION NO.10682 OF 2021
WITH
CIVIL APPLICATION NO.13795/2022
IN WP/10682/2021
Jagdamba Shikshan Prasarak Mandal,
Majalgaon, Dist. Beed,
through its Secretary,
Bhagwan Nagorao Deshmukh,
Aged : 50 years, Occ: Agriculture,
R/o. Majalgaon, Dist. Jalna ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Jalna.
5. The District Women & Children
Development Officer, Beed.
6. The District Child Welfare
Committee, Jalna,
through its President.
7. The District Child Welfare
Committee, Beed, through
its President ... RESPONDENTS
WITH
WRIT PETITION NO.10699 OF 2021
Shahu Maharaj Bahuddeshiya
Sevabhavi Sanstha Va Shikshan
Prasarak Mandal, Ashti, Dist. Beed,
through its President,
Sukhdeo Suryabhan Pokale,
Aged : 45 years, Occ: Agriculture,
R/o. Ashti, Tq. Ashti, Dist. Beed. ... PETITIONER
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VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President ... RESPONDENTS
WITH
WRIT PETITION NO.10706 OF 2021
Chhatrapati Shahu Pratishthan,
Ambajogai, Dist. Beed,
through its Secretary,
Baliram Balu Chopane,
Aged : 47 years, Occ: Agriculture,
R/o. Morewadi, Tq. Ambajogai
Dist. Beed ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
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3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President ... RESPONDENTS
WITH
WRIT PETITION NO.10710 OF 2021
Vaidyanath Bahuddeshiya Jankalyan
Shikshan Sanstha, Latur
through its President,
Laxman Nivrutti Munde,
Aged : 40 years, Occ: Agriculture,
R/o. Krushna Nagar, Parali Vaijnath,
Dist. Beed ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President ... RESPONDENTS
WITH
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WRIT PETITION NO.10711 OF 2021
Akhil Bhartiya Sanskrut Pracharini
Sanstha, Parali Vaijnath, Dist. Beed,
through its Secretary,
Laxman Nivrutti Munde,
Aged : 40 years, Occ: Agriculture,
R/o. Krushna Nagar, Parali Vaijnath,
Dist. Beed ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President ... RESPONDENTS
WITH
WRIT PETITION NO.10722 OF 2021
Jeevandhara Bahuddeshiya Sevabhavi
Sanstha, Tokwadi, Tq. Parali Vaijnath,
District Beed,
through its President,
Sanjay Bhaskarrao Munde
Aged : 40 years, Occ: Agriculture,
R/o. Tokwadi, Tq. Parali Vaijnath
Dist. Beed ... PETITIONER
VERSUS
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1. The State of Maharashtra,
through Principal its Secretary
to the Government of Maharashtra
in Women & Child Development
Department, Maharashtra State,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Women and Child Development
Maharashtra State, Pune.
3. The Regional Deputy Commissioner,
Women and Child Development
Aurangabad.
4. The District Women & Child
Development Officer, Beed.
5. The District Child Welfare
Committee, Beed,
Near Chandan Hotel,
Opp. Panchayat Samiti, Beed
through its President. ... RESPONDENTS
...
Advocate for Petitioners : Mr. Patil N.P. Jamalpurkar
AGP for respondents : Mr. S.B. Yawalkar
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 04.10.2022
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. Learned AGP
waives service for respondents. At the joint request of the parties the
matters are being disposed of by this common judgment since though the
petitioners are different the respondents are the same and the petitioners
are impugning the self same common order passed by the respondent No.2
Commissioner - Women and Child Development dated 17.08.2021 rejecting
their applications for registration of Children Home under Section 41 of the
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Juvenile Justice (Care and Protection of Children) Act, 2015 (herein after
the Act of 2015).
2. The petitioners are the Public Trusts and Societies registered
under the Maharashtra Public Trusts Act and the Societies Registration Act
intending to set up child care homes. The petitioners and some such similar
trusts and societies had approached this Court seeking a mandamus
directing the respondents to consider their proposals. The other petitioners
were seeking renewal of their licences which were issued to them under the
Juvenile Justice (Care and Protection of Children) Act, 2000 (herein after
the Act of 2000). Whereas the petitioners were seeking a new registration
under Section 41 of the Act of 2015. The impugned decisions have been
taken after the directions of this Court in Writ Petition No.4831/2020 and
connected matters decided on 22.12.2020 (Jay Sevalal Sevabhavi Sanstha
Takarwan, Tq. Majalgaon, District Beed Vs. The State of Maharashtra and
Ors.).
3. It is to be noted that as is mentioned herein above, by similar
impugned communications addressed to each of the petitioners the
proposals have been turned down by the respondent No.2.
4. The Trusts and Societies which were already registered under
the Act of 2000, had challenged the similar communications refusing to
renew their licences by preferring Writ Petition No.7821/2021 (Mother
Teresa Balakashram Vs. The State of Maharashtra and Ors.) and connected
matters. We have partly allowed the Writ Petitions on 08.09.2022 and have
996.WP.10709.21.odt
directed the respondent No.2 to take decision afresh, by observing that the
impugned communications were illegal. We reproduce paragraph No.10 to
12.
"10. There cannot be any dispute about the consequences of
the Act of 2015 replacing the Act of 2000 viz-a-viz registration of
child care homes, in view of section 41 of the former. Section 41 of
the Act of 2015 lays down the provision of registration of child care
institutions. Sub-Section (1) mandates registration of such
institutions but the proviso clearly prescribes that the institutions
having valid registration under the Act of 2000 on the date of
commencement of the Act of 2015 shall be deemed to have been
registered. Precisely for this reason, while deciding writ petition no.
4831 of 2020 with connected mattress, it was observed that the
petitioners - institutions were not required to be registered afresh,
albeit, since the registration under the Act of 2015 can be only for a
period of 5 years at a time requiring renewals thereafter from time to
time, in view of Sub-Section (6) of Section 41, it was imperative for
the petitioners' child care homes to renew their registration within
one year as was required by Rule 22(1)(b) of the Rules of 2018
framed under the Act of 2015. It was also specifically observed that
such re-registration under the Act of 2015 has been mandated
because of the rigours of the registration of institutions under the Act
of 2015. It was clearly noticed that the provisions of the Act of 2015
and the rules of 2018 were required to be obeyed and an opportunity
to the concerned authorities would be available to look into the strict
compliances of such institutions under the new provisions. The
following question was formulated by this Court while deciding writ
petition no. 4831 of 2020 :
"Whether the Institutions granted registration under the
Juvenile Justice (Care and Protection of Children) Act, 2000
would be required to apply for registration under the Act-
2015 and / or seek renewal of registration after 1 year?"
While answering this question, the following observations have been
made which according to us need to be borne in mind while deciding
these petitions :
"12. Sub Section 1 of Section 41 of the Act-2015 is
circumscribed by the proviso appended to it.
Proviso appended to said Sub Section carves out an
exception. The institutions possessing valid registration under
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the Act-2000 on the date of commencement of the Act-2015
shall be deemed to be registered under the Act-2015.
15. The institutions, though registered under the Act- 2000,
are required to comply with the provisions of the Act-2015 in
all respects. All the requirements, such as, the infrastructure
and all other aspects are to be complied as required under the
Act-2015. Under the Act-2000 some of the institutions were
registered for 5 years and renewals were granted to them
from time to time and in cases of few institutions the
registration did not provide for the period of registration.
Under the Act-2015 once registration is granted the same is
valid of 5 years as per Sub Section 6 of Section 41 and those
institutions are required to apply for renewal. The petitioner
institutions upon enactment of the Act-2015 and Rules- 2016
would be governed by the Act-2015 and Rules framed
thereunder. The registration under the Act-2015 cannot be
valid for more than 5 years unless renewed.
16. Proviso to Sub Section 1 of Section 110 of the Act-2015
provides that the Central Government may frame Model Rules
in respect of or any of the matters with respect to which the
State Government is required to make Rules and where any
such Model Rules have been framed in respect of any such
matter they shall apply to the State mutatis mutandis unless
the rules in respect of that matter are made by the State
Government. The Model Rules-2016 framed by the Central
Government came into force with effect from 21.09.2016.
They were published in the Gazette on 21.09.2016.
21. Reading the proviso to Sub Section 1 of Section 41 of
the Act-2015 and Sub Rule 1(b) of the Rule 22 of the Rules-
2018 harmoniously the irresistible conclusion can be drawn
that the institutions housing children in need of care and
protection or children in conflict with law registered under
the Act-2000 will be deemed to be registered under the Act-
2015 and these institutions shall get renewal of their
registration after completion of 1 year as per the provisions of
the Act and Rules. The leverage has been given of 1 year for
these institutions to get the registration renewed. Once the
registration is granted under the Act-2015 that registration
would be valid for 5 years and after 5 years the institution
will have to seek renewal. Reference can be had to Sub
Section 6 of Section 41 of the Act-2015.
22. To apply for renewal of registration after 1 year is also
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necessary because these institutions deemed to be registered
did not undergo rigors of registration under the Act-2015 so
as to give an opportunity to the authority to verify compliance
of the requirement of the Act-2015 and the rules."
In view of such clear observations, it was imperative for
the respondent no. 2 to scrutinize petitioners' proposals as per the
directions of this Court objectively. Though it is expected that the
respondent no. 2 would take decisions strictly in compliance of the
provisions of the Act of 2015 and the rules of 2018, it was imperative
for him to have followed the principles of natural justice in pointing
out the deficiencies to the petitioners and calling upon them to make
compliances, may be within the stipulated time. It is not that he was
legally obliged to treat the petitioners' proposals as fresh proposals
under section 41(1) of the Act of 2015 but it clearly appears that he
has treated these proposals in that fashion. He seems to have taken a
bold decision of out-rightly rejecting the proposals of as many as 57
institutions in one stroke by the same communication which are
under challenge in these writ petitions. The impugned
communication only vaguely asserted that it was found that the
proposals were not compliant with the requirements of law
particularly the rules 22 and 23. It merely vaguely mentioned that
the proposals were not complete in all respect and the documents
were not annexed. The impugned communication is bereft of any
concrete ground or reason for communication. It has not even been
made clear in the affidavit in reply as to if a specific order in each of
the petitioners' proposals was passed by the respondent no. 2.
11. True it is that in affidavit in reply, a subsequent
communication is annexed pointing out the deficiencies to be met by
the petitioners. We are afraid, it is a sheer afterthought. If the
respondent no. 2 was of the opinion that the proposals of the
petitioners' were deficient in some specific respect, he should have
firstly notified the objections to the petitioners and called upon them
to comply with it before taking any drastic decision of straightway
rejecting the proposals. It is like putting the cart before the horse. He
has taken the decision first and then seems to have taken steps to
notify the petitioners regarding the specific objection, whereas the
proper course should have been in the reverse order.
12. Be that as it may, the impugned communications clearly
demonstrate utter lack of any objectivity in decision making process
and even has been taken without following the principles of natural
justice. We, therefore, deem it appropriate to quash and set aside the
impugned communications and request the respondent no. 2 to take
decisions afresh in the light of the observations made herein-above."
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5. For the same reasons, We allow the Writ Petitions partly. The
impugned communications are quashed and set aside. The respondent No.2
shall now take decisions on the petitioners' proposal afresh in the light of
the observations made herein above by giving them opportunity of being
heard and by enabling them to rectify the shortcomings, if any, in their
proposals.
6. The petitioners shall approach the respondent No.2 once again
within four weeks from today and the respondent No.2 shall take final
decision within 16 weeks from today.
7. Rule is made absolute in above terms.
8. Pending civil applications are disposed of.
(SANDEEP V. MARNE, J.) (MANGESH S. PATIL, J.)
habeeb
