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CASE NO.: Appeal (civil)  2699 of 2001

PETITIONER: Modern School                                                    

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 27/04/2004

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T with C.A. Nos. 2700, 2701, 2702, 2703, 2704,  2705-2706, 2707, 2708, 2709 and 2710 of 2001  

S.B. SINHA, J :

INTRODUCTION:

       How far and to what extent unaided private institutions can be  subjected to regulations is the core question involved in these appeals  which arise out of a common judgment and order dated 30.10.1998 passed by  the High Court of Delhi in C.W.P. No. 3723, 4021, 4119, 5330 of 1997.

THE LAW OPERATING IN THE FIELD:

       The Delhi School Education Act, 1973 (for short ’the Act’) was  enacted inter alia to provide for better organisation and development of  school education.  By reason of the provisions of the Act, school  education, whether imparted in a government institution, a minority  institution, an aided or unaided private institutions is sought to be  regulated.  The power of Administrator to regulate education in all the  schools in Delhi, however, is to be made in accordance with the provisions  of the Act.  Section 4 of the Act provides for recognition of the  institution.  A scheme of management for managing the affairs of the  school is required to be framed in terms of Section 5 thereof conforming  to the provisions of the rules made thereunder.   

       However, in relation to the recognised private school which does not  receive any aid, the scheme of management may apply with such variations  and modifications in the rules as may be prescribed.  It has not been  brought to our notice as to whether any separate rules have been framed as  regard scheme of management of recognised unaided private schools.  The  second proviso appended to Section 5, however, states that the scheme  relating to the previous approval of the appropriate authority shall not  apply to a scheme of management for unaided minority school.  Section 6 of  the Act provides for grant of aid to recognised schools.  The matter  relating to payment to salary to the employees of the school is controlled  by Section 10 of the Act stating that the scales of pay and allowances,  medical facilities, pension, gratuity, provident fund and other prescribed  benefits of the employees of a recognised private school shall not be less  than the amount payable to employees of the corresponding status in school  run by the State.

       Chapter V of the Act applies to unaided minority schools.  Section  15 relates to contract of service in terms whereof a written contract is  required to be entered into by and between the managing committee and  every employee of a school.  Section 17 regulates fees to be charged by  aided schools.  No such provision has been made in relation to the

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recognised unaided schools.  Sub-Section (3) of Section 17 merely requires  the manager of every recognised school whether aided or unaided to file  with the Director a full statement of the fees to be levied by such school  during the ensuing academic session, and, furthermore, except with the  prior approval of the Director, no school shall charge during that  academic session any fee in excess thereof.  The Act, therefore, does not  provide for any regulation as regards charging of any fee or any other  amount by the unaided recognised schools.   

       Section 18 the Act provides for a School Fund.  Sub-sections (1) and  (2) of Section 18 relate to aided schools whereas Sub-section (3) thereof  provides for Recognized Unaided School Fund.; and  such fund may be  credited with income accrued  to the School  by way of fees,  any charges  or payments which may be realized by the School for other specific  purposes or any other contribution, endowment, gift and the like.  Clause  (a) of Sub-section  4 of Section 18 specifies that that the income derived  by unaided schools by way of fees shall be utilized only for such  educational purposes as may be prescribed whereas in terms of Sub-Clause  (b) thereof, charges and contributions received by the school are required  to be utilised for the specific purpose wherefor they were received.  Any  endowment or gift to a Society/trust for establishment of a new school or  establishing any branch thereof, therefore, is not prohibited.       

       Section 22 provides for establishment of Delhi Schools Education  Advisory Board.  Section 24 provides for inspection of schools which is in  the following terms:

"24. Inspection of schools \026 (1) Every  recognised school shall be inspected at least  once in each financial year in such manner as  may be prescribed.

(2) The Director may also arrange special  inspection of any school on such aspects of its  working as may, from time to time, be  considered necessary by him.

(3) The Director may give directions to the  manager to rectify any defect or deficiency  found at the time of inspection or otherwise in  the working of the school.

(4) If the manager fails to comply with any  direction given under sub-section (3) the  Director may, after considering the explanation  or report, if any, given or made by the  manager, take such action as he may think fit,  including \026  

(a)     stoppage of aid, (b)     withdrawal of recognition, or (c)     except in the case of a minority  school, taking over of the school  under section 20."

       The Administrator in exercise of its power conferred upon it under  Section 28 of the Act framed rules known as the Delhi School Education  Rules, 1973 (The Rules).  Rule 44 mandates that every society or trust  desiring to establish a new school (not being a minority school) shall  give an intimation therefor in writing communicating their intention to  establish the school.  Rule 50 provides for the conditions for  recognition.  Rule 51 enumerates the facilities to be provided by a school  seeking recognition.  Rule 59 provides for the scheme of management of  recognised schools.  Chapter VI of the Rules provide for grant-in-aid and  conditions therefor.  Chapter VIII provides for recruitment and terms and

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conditions of service of the employees of private schools other than  unaided minority ones.  Chapter XIII of the Rules specifies the mode and  manner in which fees and other charges in aided schools should be  expended.  Rule 151 provides for development fees.   

       The expression ’Fees’ has been defined in Rule 157.  Chapter XIV  provides for establishment of a school fund.  Rules 172 to 177 provide for  the manner in which the fees realised by the aided and unaided  institutions are to be utilised.  

       Rules 176 and 177 of the Rules read thus :

"176.  Collections for specific purposes to be  spent for that purpose \026

Income derived from collections for specific  purposes shall be spent only for such purpose.

177.    Fees realized  by unaided recognized schools  how to be utilized -                             

(1)     Income derived by an unaided recognized  school by way of fees shall be utilised in  the first instance, for meeting the pay,  allowances and other benefits admissible to  the employees of the school.

Provided that savings, if any, from the fees  collected by such school may be utilised by  its managing committee for meeting capital  or contingent expenditure of the school, or  for one or more of the following purposes,  namely :-    

a)      award of scholarships to students; b)      establishment of any other recognised  school, or  c)      assisting any other school or  educational institution, not being a  college, under the management of the  same society or trust by which the  first mentioned school is run. (2)     the savings referred to in sub-rule (1)  shall be arrived at after providing for the  following, namely :- (a)     pension, gratuity and other specified  retirement and other benefits  admissible to the employees of the  school; (b)     the needed expansion of the school or  any expenditure of a development  nature; (c)     the expansion of the school building  or for the expansion or construction  of any building or establishment of  hostel or expansion of hostel  accommodation; (d)     co-curricular activities of the  students; (e)     reasonable reserve fund not being less  than ten per cent, of such savings; (3)     Funds collected for specific purposes, like  sports, co-curricular activities,  subscriptions for excursions or  subscriptions for magazines, and annual

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charges, by whatever name called, shall be  spent solely for the exclusive benefit of  the students of the concerned school and  shall not be included in the savings  referred to in sub-rule (2). (4)     The collections referred to in sub-rule (3)  shall be administered in the same manner as  the monies standing to the credit of the  Pupils Fund as administered."

       Rule 180 mandates that the unaided schools shall submit returns. ANALYSIS:

       The said Act and the rules framed thereunder provide for a complete  code not only as regard regulation of education but also organisation and  development thereof.                  Establishment of a private educational institutional has been held  to be a fundamental right by this Court in T.M.A. Pai Foundation and  Others Vs. State of Karnataka and Others [(2002) 8 SCC 481].  The  fundamental right to establish educational institution as contained in  Article 19(1)(g) of the Constitution of India would, however, be subject  only to the reasonable restrictions which may be imposed by any law in  terms of Clause (6) thereof.  The Act is a law regulating education.  The  Act seeks to regulate education \026 necessary corollary whereof would be  that education imparted in an individual institution may also be subjected  to regulation.  But any control or regulation over education or  educational institution must be imposed only by a legislative act and not  by any executive instruction. [See Union of India Vs. Naveen Jindal and  Anr., (2004) 2 SCC 510]

       This Court analysing the provisions of Articles 19, 26 and 30 of  Constitution of India in T.M.A. Pai Foundation (supra) inter alia stated: a)      The majority community as well as linguistic and religious  minorities would have a right under Articles 19(1)(g) and 26  to establish educational institutions. In addition, Article  30(1), in no uncertain terms, gives the right to the religious  and linguistic minorities to establish and administer  educational institutions of their choice. b)      The Scheme framed by this Court  in  Unni Krishnan, J.P. Vs.  State of A.P.[ (1993) 1 SCC 645]  is unconstitutional as  thereby restrictions imposed   make it difficult, if not  impossible, for the educational institutions to run  efficiently.  The restrictions thus imposed cannot be said to  be reasonable ones.  c)      The private unaided educational institutions imparting  education cannot be deprived of their choice in matters, inter  alia, of selection of students and fixation of fees and it is  not open to the court to insist that statutory authorities  should impose any condition for the purpose of grant of  affiliation or recognition which would completely destroy the  institutional autonomy  and the very objective of  establishment of the institution. d)      Education, particularly, higher education must be perceived in  the light of the idea of an academic degree as a "private  good" that benefits the individual rather than a "public good"  for society which is now widely accepted.  The logic of  today’s economics and an ideology of privatization have  contributed to the resurgence of private higher education and  the establishing of private institutions where none or very  few existed before.  e)      The right to establish and administer broadly comprises of the  following rights :-  (a) to admit students;  (b) to set up a reasonable fee structure;

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(c) to constitute a governing body;  (d) to appoint staff (teaching and non-teaching); and  (e) to take action if there is dereliction of duty on the part  of any employees.  f)      While the private educational institutions in the matter of  setting up a reasonable fee structure may not resort to  profiteering but they may take into consideration the need to  generate funds to be utilized for the betterment and growth of  the educational institution, the betterment of education in  that institution and to provide facilities necessary for the  benefit of the students.  The regulatory measures must, in  general, be to ensure the maintenance of proper academic  standards, atmosphere and infrastructure and the prevention of  mal-administration by those in charge of management.  The  fixing of a rigid fee structure would be an unacceptable  restriction. The essence of a private educational institution  is the autonomy that the institution must have in its  management and administration.   g)      There, necessarily, has to be a difference in the  administration of private unaided institutions and the  government aided institutions.  In the latter case, the  Government will have greater say inter alia in fixing of fees  but in the case of private unaided institutions, maximum  autonomy in the day-to-day administration  has to be with the  private unaided institutions. Bureaucratic or governmental  interference in the administration of such an institution will  undermine its independence.  h)      While running an educational institution is not a business, in  order to examine the degree of independence that can be given  to a recognized educational institution, like any private  entity that does not seek aid or assistance from the  Government, and that exists by virtue of the funds generated  by it, including loans or borrowings, it would be important to  note that the essential ingredients of the management of the  private institution include the recruiting students and staff,  and the quantum of fee that is to be charged. i)      An unaided institution can charge fee from the students.  One  cannot lose sight of the fact that we live in a competitive  world today, where professional education is in demand.  A  large number of professional and other institutions  have been  started by private parties who do not seek any governmental  aid. In a sense, a prospective student has various options  open to him/her where normally economic forces have a role to  play. The decision on the fee to be charged must necessarily  be left to the private educational institution that does not  seek or is not dependent upon any funds from the Government.    The object of setting up an educational institution is by  definition "charitable", the making of profit  should not be  the object. . There can, however, be a reasonable revenue  surplus, which may be generated by the educational institution  for the purpose of development of education and expansion of  the institution.         

       The Judgment of this Court in T.M.A. Pai Foundation (supra) came to  be interpreted by a Constitution Bench of this Court in Islamic Academy of  Education & Anr. Vs State of Karnataka & Ors. [(2003) 6 SCC 697]  wherein   inter alia the following question was raised for consideration:   "Whether the educational institutions are  entitled  to fix their own fee structure;"

       Answering the said question, this Court held:

"7. So far as the first question is concerned,  in our view the majority judgment is very  clear.  There can be no fixing of a rigid fee

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structure by the Government.  Each institute  must have the freedom to fix its own fee  structure taking into consideration the need to  generate funds to run the institution and to  provide facilities necessary for the benefits  of the students.  They must also be able to  generate surplus which must be used for the  betterment and growth of that educational  institution.  In paragraph 56 of the judgment  it has been categorically laid down that the  decision on the fees to be charged must  necessarily be left to the private educational  institutions that do not seek and which are not  dependent upon any funds from the Government.   Each institute will be entitled to have its own  fee structure.  The fee structure for each  institute must be fixed keeping in mind the  infrastructure and facilities available, the  investments made, salaries paid to the teachers  and staff, future plans for expansion and/ or  betterment of the institution etc.  Of course  there can be no profiteering and capitation  fees cannot be charged.  It thus needs to be  emphasized that as per the majority judgment  imparting of education is essentially  charitable in nature.  Thus the surplus/ profit  that can be generated must be only for the  benefit/ use of that educational institution.   Profits/ surplus cannot be diverted for any  other use or purpose and cannot be used for  personal gain or for any other business or  enterprise..."

       The Court, having regard to the fact that the validity of the  statutes/ regulations governing the fixation of fees had not been  considered, directed constitution of a committee headed by a retired High  Court Judge for the said purpose.  One of us while concurring with the  said directions stated: "147. On a bare reading of the relevant  paragraphs of the judgment some of which are  referred to hereinbefore, it is beyond any  doubt that in the matter of determination of  the fee structure the unaided institutions  exercise a greater autonomy.  They, like any  other citizens carrying on an occupation, must  be held to be entitled to a reasonable surplus  for development of education and expansion of  the institution.  Reasonable surplus doctrine  can be given effect to only if the institutions  make profits out of their investments. As  stated in paragraph 56, economic forces have a  role to play.  They, thus, indisputably have to  plan their investment and expenditure in such a  manner that they may generate some amount of  profit.  What is forbidden is (a) capitation  fee and (b) profiteering.          154.The fee structure, thus, in relation to  each and every college must be determined  separately keeping in view several factors  including, facilities available, infrastructure  made available, the age of the institution,  investment made, future plan for expansion and  betterment of the educational standard etc.   The case of each institution in this behalf is  required to be considered by an appropriate

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Committee.  For the said purpose, even the  books of accounts maintained by the institution  may have to be looked into.  Whatever is  determined by the Committee by way of a fee  structure having regard to relevant factors  some of which are enumerated hereinbefore, the  management of the institution would not be  entitled to charge anything more."   

       The principles for fixing fee structure of particular institutions  have, thus, been illustrated in T.M.A. Pai Foundation (supra) and Islamic  Academy of Education (supra) but it must be borne in mind that those  principles were laid down in absence of any statute operating in the  field.  Where, however, a statute operates in the field, regulation of  education would be governed thereby.  In this case, as the regulation of  education is governed by a Legislative Act, the court cannot impose any  other or further restrictions by travelling beyond the scope, object and  purport thereof.                  The High Court by reason of the impugned judgment travelled beyond  the legislative scheme as regards administration of a private institution  as also fixation of fee while issuing the impugned directions in the light  of the decision of this Court in Unni Krishnan (supra).  It is not in  dispute that pursuant to or in furtherance of the directions issued by the  High Court a Committee known as Duggal Committee was constituted.  The  said Committee has submitted its report.  Pursuant to the recommendations  made by the Committee, a circular dated 15th December, 1999 has been issued  purported to be in terms of Sub-Section (3) and (4) of Section 24 of the  Act.  The same apparently is beyond the scope and purport of the Act and  the Rules as the directions thereunder can be issued only for the purpose  of rectifying the defect and deficiencies found at the time of inspection  or otherwise in the working of the school and not pursuant to the  recommendations made by a committee constituted in terms of the judgment  of the High Court.  ’Defects and deficiencies’ within the meaning of the  said provisions would mean defects and deficiencies while applying the  provisions of the Act and the rules framed thereunder only and not the  recommendations of a committee de’hors ’the Act’ and ’the rules’.  The  said directions, therefore, do not have the force of law within the  meaning of Clause (6) of Article 19 of the Constitution of India.  State  indisputably can issue directions which would only meet the criteria of a  ’law’ within the meaning of Article 13 of the Constitution  of India. (See  Naveen Jindal (supra)

       This Court in T.M.A. Pai Foundation (supra), thus, not only upheld  the right to establish and administer educational institutions as being  guaranteed by Articles 19(1)(g) and 26 subject to the provisions of  Articles 19(6) and 26(a) and, particularly, minorities under Article 30,  it emphasised the requirement of grant of greater autonomy to the private  unaided institutions.  The Court while holding that the scheme framed in  Unni Krishnan (supra) as unconstitutional made an observation that thereby  ’education’ in respect of important features thereof is sought to be  nationalised, viz., right of a private unaided institution to give  admission and to fix fee.  By reason of such a scheme, as private  institutions became indistinguishable from the government institutions  which would amount to curtailing of all essential features of the right of  administration of a private unaided educational institution, the same was  liable to be struck down being unfair and unreasonable.  The Court in no  uncertain terms held that the fixing of a rigid fee structure, dictating  the formation and composition of a governing body, compulsory nomination  of teachers and staff for appointment or nominating students for  admissions would be unacceptable restrictions.  It is true that a  declaration was made to the effect by the Court that since the object of  setting up of educational institution is by definition "charitable" as fee  cannot be charged which would not be required for the purpose of  fulfilling that object.  The Object of an educational institution although

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may not be to make profiteering but generation of a reasonable revenue  surplus for the purpose of development of education and expansion of the  institution is permissible.  In the case of unaided private schools, this  Court held that the maximum autonomy must be with the management as  regards administration, disciplinary powers, admission of students and the  fees to be charged.  This Court noticed that the examination results at  all levels of unaided private schools despite stringent regulations of the  governmental authorities were far superior to the results of the  government-maintained schools.  The Court held that curtailment of income  of such private schools is impermissible as it disables those schools from  affording the best facilities because of lack of funds.  It was suggested  that if the lowering of standards from excellence to a level of mediocrity  is to be avoided, the solution lies in the States not using their scanty  resources to prop up institutions that are able to otherwise maintain  themselves out of the fees charged, but in improving the facilities and  infrastructure of state-run schools and in subsidizing the fees payable by  the students there.

       We are bound by the decisions of the larger Benches of this Court.

       This Court, having regard to T.M.A. Pai Foundation(supra) cannot  thus issue any direction or make a scheme which would not be  constitutional being violative of clause (6) of Article 19 of the  Constitution.  

Indisputably, the standard of education, the curricular and co- curricular activities available to the students and various other factors  are matters which are relevant for determining of the fee structure.  The  courts of law having no expertise in the manner and/ or having regard to  its own limitations keeping in view the principles of judicial review  always refrain from laying down precise formulae in such matters.   Furthermore, while undertaking such exercise the respective cases of each  institution, their plans and programmes for the future expansion and  several other factors are required to be taken into consideration.  The  Constitution Bench in Islamic Academy of Education (supra) which as  noticed hereinbefore subject to making of an appropriate legislation  directed setting up of two committees, one of which would be for  determining fee structure.  This Court both in T.M.A. Pai Foundation  (supra) and Islamic Academy of Education (supra) had upheld the rights of  the minorities and unaided private institutions to generate a reasonable  surplus for future development of education.

       Dawn Oliver in Constitutional Reform in the UK under the heading  ’The Courts and Theories of Democracy, Citizenship, and Good Governance’  at page 105 states:

"However, this concept of democracy as rights- based with limited governmental power, and in  particular of the role of the courts in a  democracy, carries high risks for the judges - and  for the public.  Courts may interfere inadvisedly  in public administration.  The case of Bromley  London Borough Council v. Greater London Council  ([1983] 1 AC 768, HL) is a classic example.  The  House of Lords quashed the GLC cheap fares policy  as being based on a misreading of the statutory  provisions, but were accused of themselves  misunderstanding transport policy in so doing.   The courts are not experts in policy and public  administration - hence Jowell’s point that the  courts should not step beyond their institutional  capacity (Jowell,2000).  Acceptance of this  approach is reflected in the judgments of Laws LJ  in International Transport Roth GmbH Vs. Secretary  of State for the Home Department ([2002] EWCA Civ

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158, [2002] 3 WLR 344) and of Lord Nimmo Smith in  Adams v. Lord Advocate (Court of Session, Times, 8  August 2002) in which a distinction was drawn  between areas where the subject matter lies within  the expertise of the courts (for instance,  criminal justice, including sentencing and  detention of individuals) and those which were  more appropriate for decision by democratically  elected and accountable bodies.  If the courts  step outside the area of their institutional  competence, government may react by getting  Parliament to legislate to oust the jurisdiction  of the courts altogether.  Such a step would  undermine the rule of law.  Government and public  opinion may come to question the legitimacy of the  judges exercising judicial review against  Ministers and thus undermine the authority of the  courts and the rule of law."

       The aforementioned paragraph has been noticed by this Court in  Chairman and M.D., BPL Ltd. Vs. S.P. Gururaja & Ors [(2003) 8 SCC 567].

       The States have a duty to impart education and particularly primary  education having regard to the fact that the same is a fundamental right  within the meaning of Article 21 of the Constitution of India, but as the  Government had neither resources nor the ability to provide for the same,  it appears, the Legislature permitted the Societies/Trusts to establish  the educational institutions from the savings made by them from the  Unaided Institutions.   It is not the case of the respondents that Rule 177 is  unconstitutional.  The vires or otherwise of the said rule may be  considered in an appropriate proceedings but without going into the said  question in great details, it may not be appropriate for us to read down  the provisions thereof and issue any direction in derogation thereto.  I  do not find any conflict in Rules 176 and 177 of the Rules.             In view of the fact that the plain language has been employed in  Rule 177 of the Rules, a strict construction thereof may not be justified.   The proviso appended to Rule 177 is not exhaustive.  There is no reason as  to why the expression "capital or contingent expenditure" of the school  should be given a narrow meaning, particularly having regard to the fact  that Clause (b) thereof permits the Managing Committee to establish any  other recognised school out of the saving from the fees collected by such  school and clause (c) thereof permits rendition of assistance to any other  school or educational institution under the Management of the same society  or trust by which the first mentioned school is run. The provisions of the Act and the rules framed thereunder in my  opinion are absolutely clear and unambiguous.  This Court has to interpret  the provisions of the Act and the Rules framed thereunder in the light of  the fundamental rights of the appellants.  Any direction, therefore, which  would further curtail their fundamental rights would be wholly  unwarranted.   Furthermore, the impugned judgment of the Delhi High Court was  rendered having regard to the decision of this Court in Unni Krishnan  (supra).  Unni Krishnan (supra) no longer holds the field.  Its dicta that  imparting of education is not a fundamental right stands overruled.  The  scheme framed by it has also been held to be unconstitutional.  All orders  and directions issued by the High Court pursuant to or in furtherance of  the directions in Unni Krishnan (supra) or any decision following the same  must, therefore, be kept out of consideration.  Thus, the question posed in these matters needs to be answered  differently as imparting of education is now a fundamental right.  Such a  right, therefore, requires a fresh look and not through the glasses of  Unni Krishnan (supra).   An 11-Judge Bench as also a Constitution Bench of this Court in  T.M.A. Pai Foundation (supra) and Islamic Academy of Education (supra), as

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noticed hereinbefore, have merely forbidden profiteering.   ’Profiteering’ has been defined in Black’s Law Dictionary, Fifth  edition as:  "Taking advantage of unusual or exceptional  circumstances to make excessive profits"                  Although decisions are galore the purpose would be better served by  referring to G.P. Singh Principles of Statutory Interpretation, Ninth  Edition, 2004, pages 120-122 which is in the following terms:

"4. Regard to Consequences:

If the language used is capable of bearing more  than one construction, in selecting the true  meaning regard must be had to the consequences  resulting from adopting the alternative  constructions.  A construction that results in  hardship, serious inconvenience, injustice,  absurdity or anomaly or which leads to  inconsistency or uncertainty and friction in  the system which the statute purports to  regulate has to be rejected and preference  should be given to that construction which  avoids such results.  This rule has no  application when the words are susceptible to  only one meaning and no alternative  construction is reasonably open.

(a)     Hardship, inconvenience, injustice,  absurdity and anomaly to be avoided

In selecting out of different interpretations  "the court will adopt that which is just,  reasonable and sensible rather than that which  is none of those things" as it may be presumed  "that the Legislature should have used the word  in that interpretation which least offends our  sense of justice".  If the grammatical  construction leads to some absurdity or some  repugnance or inconsistency with the rest of  the instrument, it may be departed from so as  to avoid that absurdity, and inconsistency.   Similarly, a construction giving rise to  anomalies should be avoided.  As approved by  Venkatarama Aiyar, J., "Where the language of a  statute, in its ordinary meaning and  grammatical construction, leads to a manifest  contradiction of the apparent purpose of the  enactment, or to some inconvenience or  absurdity, hardship or injustice, presumably  not intended, a construction may be put upon it  which modifies the meaning of the words, and  even the structure of the sentence."

It would not, therefore, be proper to impose any further  restrictions in this behalf and interpret T.M.A. Pai Foundation (supra) in  a different way so as to take away some of the rights of the appellants  which are recognised therein. We have noticed hereinbefore that T.M.A. Pai Foundation (supra) gave  a new look to the concept of ’education’, viz., opening up of economy and  concept of globalisation.  We, therefore, cannot look at the question  differently.  It must further be borne in mind that by reason of judicial  direction this Court cannot override a statute or statutory rules  governing the field and, thus, no direction can be issued by this Court

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contrary thereto or inconsistent therewith.   Furthermore, the expression ’development of education’ is a broad  term.  There does not exist any reason as to why the said right would be  limited, regulated or curtailed in absence of any provisions contained in  the Act or the rules framed thereunder.  When the law permits utilisation  of surplus fund of an institution for setting up another institution, the  Court should not come in their way from doing so. This Court, when such legislations are operating in the field should  be loathe to impose any further restrictions.  This Court normally does  not pass an order even in exercise of its jurisdiction under Article 142  of the Constitution of India which would be contrary to the law.  (See  Government of West Bengal Vs. Tarun K. Roy and Ors. 2003 (9) SCALE 671,  paragraphs 32 to 34 and Jamshed Hormusji Wadia Vs. Board of Trustees, Port  of Mumbai and Another, (2004) 3 SCC 214) The need of the day, therefore, is strict implementation and  enforcement of the statute.  The administration, in the event, comes to  the conclusion that the rules are required to be amended, they are free to  do so; but only because there are a few cases of mismanagement, the same  by itself should not be considered to be an indicia that all institutions  are being run in an unprofessional or unethical manner.  

Once, the legislature has laid down an educational scheme, the  jurisdiction of the court is merely to interpret the same.  It cannot and  should not issue any other or further direction.  It would not supplant a  statutory provision by issuing any direction except in some exceptional  cases.    

The statutory scheme of the Act must be considered also from the  point of view that a Society running several institutions may have to  impart education in different areas; slum, semi urban or urban.  It may  not, therefore, be improper for an institution to generate some surplus  fund from an institution which is situated within a metropolitan area for  the purpose of starting a school in a slum or a semi urban area.   

It may also not be necessary to issue direction as to how and in  what manner the institutions should maintain their accounts. In absence of  any statutory provision governing the field, it is for the administration   of the educational institution to determine the same having regard to the  prevailing law like Income Tax Act, 1961.

I am, furthermore of the opinion, that as it is permissible in law,  the excess income from an institution may be spent by the Society/Trust to  establish another school keeping in view the fact that more and more  educational institutions are required to be established particularly in  rural or semi urban area.  

So far as allotment of land by the Delhi Development Authority is  concerned, suffice it to point out that the same has no bearing with the  enforcement of the provisions of the Act and the rules framed thereunder  but indisputably the institutions are bound by the terms and conditions of  allotment.  In the event such terms and conditions of allotment have been  violated by the allottees, the appropriate statutory authorities would be  at liberty to take appropriate step as is permissible in law.   

       For the reasons aforementioned, I respectfully dissent with the  opinion of Brother Kapadia,J.  I would allow the appeals.  No costs.