Bombay High Court
Pandurang Balakashram Kaij And ... vs The State Of Maharashtra And ... on 8 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 WP / 7821 / 2021+ Group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7821 OF 2021
Mother Teresa Balakashram,
Run by Yogeshwar Bahu-Uddeshiya
Sevabhavi Sanstha, Beed,
Through its Secretary,
Lalaji S/o Tukaram Jadhav,
Age : 52 years, Occu. : Agri.,
R/o Ankushagar, Old Charhata Road,
Beed, Tq. And Dist. Beed .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
2] The Commissioner of Women and,
Child Development,
Maharashtra State, Pune
3] The District Women and
Child Development Officer,
Beed, Dist. Beed
4] The Child Welfare Committee,
Beed, Tq. & Dist. Beed .. Respondents
WITH
WRIT PETITION NO. 7786 OF 2021
Mauli Balakashram, Beed,
Run by Savitri Bahuuddeshiya
Sevabhavi Sanstha,
Kukkadgaon, Tq. Dist. Beed,
Through its Secretary,
Ranjit S/o Ramhari Jadhav,
Age 20 years, Occ. Agri.,
R/o Shahunagar, Beed, Tq. Dist. Beed .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
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2] The Commissioner of Women and
Child Development,
Maharashtra State, Pune
3] The District Women and
Child Development Officer,
Beed, Dist. Beed
4] The Child Welfare Committee,
Beed, Tq. & Dist. Beed .. Respondents
WITH
WRIT PETITION NO. 7793 OF 2021
Indira Balgrah
Run by Shri. Sant Gadge Baba
Gramvikas Sevabhavi Sanstha
Pandhurna, Tq. Bhokar, Dist. Nanded
Through its President,
Narayan S/o Vishwanathrao Shinde,
Age 53 years, Occ. Social Work,
R/o Pandhurna, Tq. Bhokar, Dist. Nanded .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
2] The Commissioner of Women and
Child Development,
Maharashtra State, Pune
3] The District Women and
Child Development Officer,
Nanded, Dist. Nanded
4] The Child Welfare Committee,
Nanded, Tq. & Dist. Nanded .. Respondents
WITH
WRIT PETITION NO. 9389 OF 2021
Gokul Balsadan (Balgrah)
Run by Sudhakarraoji Naik
Magasvargiya Samaj
Kalyan Mandal, Beed,
Through its President,
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Maroti S/o Ramrao Rathod,
Age 66 years, Occu. Social Work,
R/o Gajanan Nagar, Behind Hanuman Mandir,
Nalwandi Road, Beed,
Tq. Dist. Beed .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
2] The Commissioner of Women and
Child Development,
Maharashtra State, Pune
3] The District Women and
Child Development Officer,
Beed, Dist. Beed
4] The Child Welfare Committee,
Beed, Tq. & Dist. Beed .. Respondents
WITH
WRIT PETITION NO. 9637 OF 2021
Shri Babasai Bahhuddeshiya Sevabhavi Sanstha,
Aurangabad Sanchalit, Babasai Aidsgrast
(AIDS Stricken) Mule/Mulinche Balgruh,
Shivshankar Colony, Aurangabad
Through its President
Nitin S/o Vishwanath Wakude,
Age : 42 years, Occu : President,
R/o Shivshankar Colony,
Aurangabad, Tq. & Dist. Aurangabad and others .. Petitioners
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
2] The Commissioner of Women and
Child Development,
Maharashtra State, Pune
3] The Regional Deputy Commissioner,
Woman and Child Development,
Aurangabad Region, Aurangabad
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4] The Regional Deputy Commissioner,
Woman and Child Development,
Beed Region, Beed
5] The Regional Deputy Commissioner,
Woman and Child Development,
Latur Region, Latur
6] The Regional Deputy Commissioner,
Woman and Child Development,
Nanded Region, Nanded
7] The District Woman and Child
Development Officer, Aurangabad
8] The District Woman and Child
Development Officer, Beed
9] The District Woman and Child
Development Officer, Latur
10] The District Woman and Child
Development Officer, Nanded .. Respondents
WITH
WRIT PETITION NO. 9914 OF 2021
Kanishtha Va Varishtha Balgruha,
Ganesh Nagar, Beed,
Run by Shri Jagdamba Mahila, Bal Va
Apang Kalyan Mandal, Beed and others .. Petitioners
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai
2] The Commissioner of Women and
Child Development,
Maharashtra State, Pune
3] The Regional Deputy Commissioner,
Woman and Child Development,
Aurangabad Region, Aurangabad
4] The Regional Deputy Commissioner,
Woman and Child Development,
Beed Region, Beed
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5] The Regional Deputy Commissioner,
Woman and Child Development,
Latur Region, Latur
6] The Regional Deputy Commissioner,
Woman and Child Development,
Nanded Region, Nanded
7] The District Woman and Child
Development Officer, Aurangabad
8] The District Woman and Child
Development Officer, Beed
9] The District Woman and Child
Development Officer, Latur
10] The District Woman and Child
Development Officer, Nanded .. Respondents
WITH
WRIT PETITION NO. 11457 OF 2021
Pandurang Balakashram,
Kaij, Tq. Kaij, District Beed
Run by Gramlok Samaj Vikas Mandal,
Umarga (K), Tal. Ahmedpur, Dist. Latur and others .. Petitioners
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai - 32.
2] The Commissioner, Women and
Child Development,
Maharashtra State, Pune
3] The Regional Deputy Commissioner,
Woman and Child Development,
Aurangabad Region, Aurangabad
4] The Regional Deputy Commissioner,
Woman and Child Development,
Beed Region, Beed
5] The Regional Deputy Commissioner,
Woman and Child Development,
Latur Region, Latur
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6] The Regional Deputy Commissioner,
Woman and Child Development,
Nanded Region, Nanded
7] The District Woman and Child
Development Officer, Aurangabad
8] The District Woman and Child
Development Officer, Beed
9] The District Woman and Child
Development Officer, Latur
10] The District Woman and Child
Development Officer, Nanded .. Respondents
WITH
WRIT PETITION NO. 7446 OF 2022
Vaibhav Balgraha, Neknoor,
Tal. & District Beed,
Run by Maharashtra Sevabhavi Sanstha,
Beed, Tal. & Dist. Beed,
Through its President,
Ranjana Chandrasen Ghodke,
Age : 43 years, Occu. Household,
R/o Jagdamba Nivak, Vishaveshwar Colony,
Bhakti Construction, Beed, District Beed .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai - 32.
2] The Commissioner, Women and
Child Development,
Maharashtra State, Pune
3] The Regional Deputy Commissioner,
Woman and Child Development,
Beed Region, Beed .. Respondents
WITH
WRIT PETITION NO. 7447 OF 2022
Niwara Balgraha, Georai,
Tal. Georai, District Beed,
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Run by Maharashtra Sevabhavi Sanstha,
Beed, Tal. & Dist. Beed,
Through its President,
Ranjana Chandrasen Ghodke,
Age : 43 years, Occu. Household,
R/o Jagdamba Nivak, Vishaveshwar Colony,
Bhakti Construction, Beed District Beed .. Petitioner
Versus
1] The State of Maharashtra,
Through its Principal Secretary,
Woman and Child Development Department,
Mantralaya, Mumbai - 32.
2] The Commissioner, Women and
Child Development,
Maharashtra State, Pune
3] The Regional Deputy Commissioner,
Woman and Child Development,
Beed Region, Beed .. Respondents
...
Advocate for petitioner in all WPs : Mr. S.S. Thombre
AGP for the respondent - State : Mrs. M.A. Deshpande (in all WPs)
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 22 AUGUST 2022
PRONOUNCED ON : 08 SEPTEMBER 2022
JUDGMENT (MANGESH S. PATIL, J.) :
Rule. Rule is made returnable forthwith. Learned AGP
waives notice for all the respondents. At the joint request of the
parties, the matters are heard finally at the stage of admission and are
being disposed of by this common judgment.
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2. Though petitioners are different entities, the respondents
are the same and petitioners are seeking the same relief in similar set
of facts. With a view to avoid rigmarole, we are disposing of these
petitions by this common judgment.
3. The petitioners are the public trust and societies registered
under the relevant laws and were running child care homes under the
relevant provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter the Act of 2000).
4. The petitioners' grievance is that since their child care
homes were already registered under the Act of 2000, by virtue of the
provisions of Section 41 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter the Act of 2015), there was no need
for fresh registration of their child care homes. Initially, only a writ of
mandamus was sought directing the respondents nos. 3 and 4 who are
the District Women and Child Development Officer and Child Welfare
Committee for the concerned district, to allot inmates to the petitioners'
child care homes. However, by the communications under challenge,
issued by the respondent no. 2 - the Commissioner of Women and
Child Development, Maharashtra has rejected the petitioners'
proposals for renewal of licences by them pursuant to the directions of
this Court in writ petition no. 4831 of 2020 and connected matters by
the judgment and order dated 22-12-2020 (Jay Sevalal Sevabhavi
9 WP / 7821 / 2021+ Group
Sanstha Takarwan, Tq. Majalgaon, District - Beed Vs. The State of
Maharashtra and others). By way of amendment, the petitioners are
now challenging even such communications rejecting their proposals
for renewal of the registration.
5. Learned advocate for the petitioners Mr. Thombre
vehemently submitted that the petitioners have been running child care
homes for years together smoothly and without any objection from the
respondents. Even if the Act of 2015 has replaced the Act of 2000,
they are entitled to continue to run the child care homes without re-
registration. In view of section 41 of the Act of 2015, there was no
question of re-registration. Only they were expected to get the licence /
permissions renewed. Respondent no. 2 has ignored the provisions
and has treated the petitioners' request as if they were seeking a fresh
permission. The whole approach of the respondent no. 2 is unmindful
of the provisions of the law and is illegal.
6. Mr. Thombre would submit that if at all the respondent
no. 2 had some objections regarding necessary compliances to be
made, the petitioners ought to have been given an opportunity to rectify
the shortcomings. However, merely because the petitioners had
approached this Court and that he was called upon to take a decision
that the impugned communications have been issued mala fide as one
of the petitioners had initiated a contempt proceeding against him for
10 WP / 7821 / 2021+ Group
dis-obedience of the directions in writ petition no. 4831 of 2020. He
has issued similar communications of the same date to all the
petitioners which are impugned in these petitions. The whole approach
is illegal and the communications be quashed and set aside.
7. Mrs. Deshpande, learned AGP supported the
communications. She would submit that though the petitioners' child
care homes were registered under the Act of 2000, it was imperative
for them to get such permissions renewed within one year of
enforcement of the Act of 2015. She would point out that even this
Court was alive to the rigours of the Act of 2005 and the rules framed
thereunder which prescribe for stringent compliances to be made by
the societies running the child care homes, keeping in mind the best
interest of the inmates. It was not a mere formality or technical
compliance. The respondents were legally bound to scrutinize the
proposals for renewal strictly in accordance with the Act of 2015 and
the rules framed thereunder in the year 2018 and particularly rules
22(2) and 23 (2). There is no illegality and the petitions be dismissed.
8. She further pointed out the statistics and the documents
annexed to the affidavit in reply to point out that already sufficient child
care institutions have been registered throughout Maharashtra and
considering the number of children, sufficient number of institutions
11 WP / 7821 / 2021+ Group
have already been registered and there is no need for registration of
any more institutions.
9. We have carefully gone through the papers including the
impugned communications and the affidavit in reply filed by the District
Women and Child Development Officer i.e. respondent no. 3.
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
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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 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
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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 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."
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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.
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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.
13. The writ petitions are partly allowed.
14. The impugned communications are quashed and set
aside.
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15. The respondent no. 2 shall now take decisions on the
petitioners' proposals afresh in the light of the observations made
herein-above by giving opportunity to them of hearing and even an
opportunity to rectify the shortcomings in the proposals, if any.
16. The petitioners shall approach the respondent no. 2 once
again within four (4) weeks from today whereupon the respondent no. 2
shall take final decision within 16 weeks from today.
17. Rule is made absolute in the above terms.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
