[Cites 11, Cited by 0]
Bombay High Court
Rustomjee Kerawalla Foundation And ... vs The State Of Maharashtra And Anr. on 28 November, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-OS:22999-DB
932-WP-2542-2012.odt
GAYATRI
Digitally signed
by GAYATRI
RAJENDRA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RAJENDRA SHIMPI
SHIMPI Date: 2025.12.02
11:15:35 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2542 OF 2012
1. Vibgyor High, a Private Unaided Minority
School, having its address at Srirang Sabde
Marg, Goregaon West, Mumbai - 400104.
2. Shim Mathew, the Principal of
Vibgyor High, having
its address at Srirang Sabde Marg,
Goregaon (W), Mumbai - 400104 ... Petitioners
Versus
1. The State of Maharashtra
Summon/Notice/s to be served on Learned
Government Pleader appearing for the
State of Maharashtra under Order XXVIII,
Rule 4 of the Code of Civil Procedure, 1908
2. The Department of Education,
State of Maharashtra,
through the Secretary
Mantralaya, Mumbai - 400 032 ... Respondents
WITH
WRIT PETITION NO. 2701 OF 2012
1. RUSTOMJEE KERAWALLA FOUNDATION
a Public Charitable Trust
registered under the Bombay
Public Trust Act, 1950 having
its address at Kerawalla Chambers,
Apollo Bunder Opposite Radio Club,
Colaba, Mumbai - 400 001.
2. RUSTOM P. KERAWALLA,
the Trustee of Rustomjee Kerawalla
Foundation, having its address
at Kerawalla Chambers,
Gayatri Shimpi 1
::: Uploaded on - 02/12/2025 ::: Downloaded on - 05/12/2025 22:27:03 :::
932-WP-2542-2012.odt
Apollo Bunder Opposite Radio Club,
Colaba, Mumbai - 400 001. ... Petitioners
Versus
1. The State of Maharashtra
Summon/Notice/s to be served on Learned
Government Pleaser High Court O.S. appearing
for the State of Maharashtra under Order
XXVIII, Rule 4 of the
Code of Civil Procedure, 1908
2. THE DEPARTMENT OF EDUCATION,
State of Maharashtra, through the Secretary
Mantralaya, Mumbai - 400 032 ... Respondents
****
Mr. Rohit Agarwal a/w Ms. Sneha Patil i/b M/s. Maniar Srivastava &
Associates, Advocates for the Petitioner in WP No. 2542 of 2012.
Mr. Rohit Agarwal i/b L. J. Law, Advocates for the Petitioner in WP No.
2701 of 2012.
Mr. Manish Upadhye, AGP for Respondent - State in both Petitions..
****
CORAM : RAVINDRA V. GHUGE AND
ASHWIN D. BHOBE, JJ.
DATE : 28th NOVEMBER, 2025
ORAL JUDGMENT : (PER : RAVINDRA V. GHUGE)
1. Both these Petitions are in the Prioritised Category of
Cases.
2. The learned Advocate for the Petitioners submits, on
instructions, that these Petitions were lodged for challenging the validity
of Sections 2 & 4 of the Maharashtra Educational Institutions
932-WP-2542-2012.odt
(Prohibition of Capitation Fee) Act, 1987 (hereinafter referred to as the
"1987 Act"). This Court had passed an order on 4th December, 2012
thereby admitting both these Petitions. The statement of the Petitioners
that they are not praying for interim relief was also recorded. Notice was
issued to the learned Advocate General of the State of Maharashtra.
3. The learned Advocate further submits that the State of
Maharashtra has introduced the Maharashtra Educational Institutions
(Regulations of Fee) Act, 2011 (hereinafter referred to as the "MEIR
Act") in 2014. Rules have been framed thereunder. This Court has
delivered a Judgment in Euro School Education Trust Vs. Divisional
Fee Regulatory Committee, Pune and Ors.1, concluding that the MEIR
Act is a complete code in itself and provides for determination of fees
and a mechanism for a challenge by any stakeholder. We deem it
apposite to reproduce the relevant paragraph Nos. 22, 23, 24 and 25 here
under :-
"22. It could thus be seen that, the said Act is complete code
in itself. It provides as to in what manner the fees will be first
determined by the management and thereafter approved by the
Executive Committee, which has to be constituted as per
provisions of the Act, what would be the effect of the
difference in fees as approved by the management and
approved by the Executive Committee. It provides a remedy to
1 2017 (6) Mah. L. J. 343
932-WP-2542-2012.odt
the management to approach DFRC in case the Executive
Committee fails to decide the matter within the period
prescribed in sub-section (3) of section 6. Sub-section (5)
mandates the management to accept the approval by the
Executive Committee, if the difference between the proposal of
the management and decision of the Executive Committee is
not more than 15%. Only if the difference is more than 15%,
the management is entitled to prefer an appeal to the DFRC. A
further appeal is provided under sub-section (7) of section 6
either to the management or to the Executive Committee to
approach the Revision Committee, if either the management or
the Executive Committee are aggrieved with the decision taken
by the Divisional Committee.
23. We may gainfully refer to the observations of the Privy
Council in the celebrated case of Nazir Ahmad vs. King
Emperor. The aforesaid principle laid down by Privy Council
has been consistently followed by the Hon'ble Supreme Court
and various High Courts. Very recently by the Apex Court in
the case of Central Coalfields Ltd. and anr. vs. SLL SML (Joint
Venture Consortium) and ors., decided on 17th August, 2016
has observed thus:-
52. There is a wholesome principle that the Courts have
been following for a very long time and which was articulated in
Nazir Ahmad vs. King Emperor namely "where a power is given to
do a certain thing in a certain way the thing must be done in that
way or not at all. Other methods of performance are necessarily
forbidden". There is no valid reason to give up this salutary
principle or not to apply it mutatis mutandis to bid documents. This
principle deserves to be applied in contractual disputes, particularly
in commercial contracts or bids leading up to commercial contracts,
where there is stiff competition. It must follow from the application
of the principle laid down in Nazir Ahmed that if the employer
prescribes a particular format of the bank guarantee to be furnished,
then a bidder ought to submit the bank guarantee in that particular
format only and not in any other format. However, as mentioned
above, there is no inflexibility in this regard and an employer could
deviate from the terms of the bid document but only within the
parameters mentioned above.
932-WP-2542-2012.odt
53. Nazir Ahmed has been followed in dozens of decisions
rendered by this Court and by other constitutional Courts in the
country. The Central Vigilance Commission has accepted this
principle in a modified form as a guiding principle in its circular
dated 31st December, 2007 wherein it is mentioned that all
organizations ought to evolve a procedure for acceptance of bank
guarantee that is compatible with the guidelines of banks and the
Reserve Bank of India. One such requirement is that the bank
guarantee should be in a proper prescribed format and should be
verified verbatim on receipt with the original. Adherence to this
principle of verbatim verification would not only avoid undue
problems for the employer but would also virtually eliminate
subjectivity on the part of the employer.
24. It could thus be seen that it is more than well settled
principle of law that when a statute requires a particular thing
to be done in a particular manner, it is to be done in that
manner alone or not at all. Undisputedly, DFRC is a creation
of the said Act and at the most can be construed to be a
statutory tribunal constituted under the said enactment. It will
be relevant to mention the observations of the Their Lordships
of the Apex Court in the case of Vatticherukuru Village
Panchayat vs. Nori Venkatarama Deekshithulu and ors., 1991
Supp. (2) SCC 228 which read thus:-
23. The jurisdiction of a Tribunal created under statute may
depend upon the fulfilment of some condition precedent or upon
existence of some particular fact. Such a fact is collateral to the
actual matter which the Tribunal has to try and the determination
whether it existed or not is logically temporary prior to the
determination of the actual question which the Tribunal has to
consider. At the inception of an enquiry by a Tribunal of limited
jurisdiction, when a challenge is made to its jurisdiction, the
Tribunal has to consider as the collateral fact whether it would act
or not and for that purpose to arrive at some decision as to whether
it has jurisdiction or not. There may be Tribunal which by virtue of
the law constituting it has the power to determine finally, even the
preliminary facts on which the further exercise of its jurisdiction
depends; but subject to that, the Tribunal cannot by a wrong,
decision with regard to collateral fact, give itself a jurisdiction
932-WP-2542-2012.odt
which it would not otherwise have except such tribunals of limited
jurisdiction when the statue not only empowers to enquire into
jurisdictional facts but also the rights and controversy finally it is
entitled to enter on the enquiry and reach a decision rightly or
wrongly. If it has jurisdiction to do right, it has jurisdiction to do
wrong. It may be irregular or illegal which could be corrected in
appeal or revision subject to that the order would become final. The
questions to be asked, therefore, are whether the tribunal has
jurisdiction under Inam Act to decide for itself finally; whether the
institution or the inamdar or the tenant is entitled to ryotwari patta
under section 3, 4 and 7 and whether the tribunal is of a limited
jurisdiction and its decision on the issue of patta is a collateral fact.
25. It could thus be clearly seen that at the inception of an
inquiry, the tribunal of limited jurisdiction is required to decide
the issue as to whether it has jurisdiction to decide the matter
which is brought before it or not. It is more than settled that a
tribunal of a limited jurisdiction will have a jurisdiction to
entertain a proceeding only if the statute under, which it is
created enables the party to approach it and to decide only the
issues which the statute empowers it to decide. The scheme of
the enactment which we have discussed hereinabove would
clearly reveal that the DFRC can be approached only by the
management and that to only in the event when the difference
between the proposal submitted by it and the one approved by
the Executive Committee is more than 15%. Conversely if the
difference between the fees proposed by the management and
approved by Executive Committee is less than 15%, in that
event the management also will have no right to approach the
DFRC. It could, also, be seen that under section 6, it is only the
management, who has a right to file a first appeal before the
Divisional Committee in case the management is aggrieved by
the decision of DFRC. It is only the second appeal as provided
under sub-section (7) of section 6, wherein right is given to file
appeal by the Management as well as Executive Committee
before Revision Committee, if either of them is aggrieved by
decision of Divisional Committee. It could thus be seen that the
932-WP-2542-2012.odt
perusal of the scheme would reveal that the statute does not
provide for initiation of proceedings before DFRC, at the behest
of individual parents."
4. The learned Advocates representing the respective parties,
therefore, jointly submit that these Petitions are rendered infructuous
since the MEIR Act is now enforced.
5. Considering the above, both these Writ Petitions are
disposed off as being infructuous.
6. Rule is discharged.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)
