High Court
Facts
1 WP.5797-20 & ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5797 OF 2020Om Shanti Balakashram (Balgraha), Naldurg,Tal. Tuljapur, Dist. Osmanabad,Run by Shri Kulswamini Bahu-UddeshiyaSamajik Sanstha, Kamatha,Tal. Tuljapur, Dist. Osmanabad,Through its President,Sau. Anita Sanjay Rathod,Age 39 years, Occu. Household,R/o Deep Nagar Tanda,Tal. Tuljapur, Dist. Osmanabad. … PetitionerVersus1.The State of Maharashtra,Through its Principal Secretary,Women and Child Development Dept.,Mantralaya, Mumbai.2.The Commissioner of Women andChild Development,Maharashtra State, Pune.3.The District Women andChild Development Officer,Osmanabad, Dist. Osmanabad.… RespondentsWITHWRIT PETITION NO.5817 OF 2020Vishwasagar Balakashram, Latur,Run by Vishwasagar Shikshan Prasarak Mandal,Latur, Tal. &, Dist. Latur,Through its Secretary,Shri. D. T. Suryawanshi,Age 45 years, Occu. Agri.,… PetitionerVersus1.The State of Maharashtra,Through its Principal Secretary,
Legal Reasoning
10 WP.5797-20 & ors.odtSection 41 of the Act of 2015. This issue has been no moreres-integra. This Court in case of Jai Sevalal (supra) onidentical issue held that the institution under registered Act2000 and its registration is in force on the date ofimplementation of the Act 2015 shall be deemed to beregistered under the Act 2015 and these institutions shall applyfor renewal of registration after one year of the enforcement ofthe Rules 2018. In this case also, the impugned communicationwas impugned. 12.In paragraph No.19 of the above judgment, it has beenobserved that Rule 22(1)(b) mandates all child careinstitutions registered under the Act 2000 and deemed to beregistered under the Act of 2015 to get registration certificaterenewed after completion of a year as per the provisions of theActs and Rules. Act of 2015 came into force with effect from01.01.2016 and Rules 2018 were operating with effect from14.03.2018. 13.In para No.21 it has been observed that reading theproviso to Sub Section 1 of Section 41 of the Act 2015 and subrule 1(b) of Rule 22 of the Rules 2018 harmoniously theirresistible conclusion drawn that in need of care andprotection of children in conflict with law registered under the 11 WP.5797-20 & ors.odtAct 2000 will be deemed to be registered under the Act 2015and these institutions shall get renewal of their registrationafter completion of one year as per the provisions of the Actsand Rules. The leverage has been given of one year for theseinstitutions to get the registration renewed. Once theregistration is granted under the Act 2015 that registrationwould be valid for five year and after five years, the institutionwill have to seek renewal. Reference can be had to Sub Section6 of Section 41 of the Act 2015. 14.In paragraph No.22 it has been observed that to applyfor renewal of registration after one year is also necessarybecause these institutions deemed to be registered did notundergo rigors of registration under Act 2015 so as to give anopportunity to the authority to verify compliance ofrequirement of the Act 2015 and the Rules. 15.In paragraph No.23 it has been observed that theconspectus of the aforesaid discussion leads us to an irresistibleconclusion that the institutions registered under the Act 2000,and the said registration validity in force on the date of theimplementation of the Act 2015, shall be deemed to beregistered under the Act 2015 and these institutions shall applyfor renewal of registration after one year of the enforcement of 12 WP.5797-20 & ors.odtthe Rules 2018. 16.Herein the case, the petitioners had applied forregistration. The authority had verified the requirement of theAct 2015 and Rules of 2018 and found certain shortfalls. Theopportunity was granted to the petitioners to remove theshortfalls. However the petitioners failed to comply with.Hence they did not get registration. The petitioners have nocase that they were applied for renewal of their existingregistrations. Merely the institution is registered under the Actof 2000 is not excused from complying with the requirement ofthe Act 2015 and the Rules. The authorities had applied thesame scale and found that the petitioners were deficit tocomply with the requirements. The petitioners did not feel itappropriate to remove the defects. Hence, this Court is of theview that the impugned communication does not affect therights and interest of the petitioners. In other words, it is statedthat since the life of the registration of the petitioners underthe Act 2000 were extended for one year and there were nocompliances as required under the new Act. The petitionerscannot claim that by way of the impugned communication theyhave deprived of their right to get the children and funds fromthe Government. The Ratio laid down in the case of Jai Sevalal(supra) would apply to the extent of opportunity to apply for 13 WP.5797-20 & ors.odtrenewal. 17.For the above reasons, all writ petitions stand dismissed.18.However, the petitioners are at liberty to move anapplication for renewal of their registration under the Act of2015 and Rules of 2018 within a month from today. Thereafter,the concerned authority shall verify the compliances asrequired under the Act of 2015 and Rules of 2018 within three(3) months thereafter and communicate the decisions to thepetitioners. 19.Rule made discharged, in the above terms.(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)…vmk/-
Arguments
2 WP.5797-20 & ors.odtWomen and Child Development Dept.,Mantralaya, Mumbai.2.The Commissioner of Women andChild Development,Maharashtra State, Pune.3.The District Women andChild Development Officer,Latur, Dist. Latur.… RespondentsWITHWRIT PETITION NO.5807 OF 2020Mamata Mulinche Balakashram, Latur,Run by Manisha Shikshan Prasarak Mandal,Labour Colony, Latur, Tal. &, Dist. Latur,Through its Secretary,Shri. Mahesh Suryawanshi,Age 40 years, Occu. Agri.,… PetitionerVersus1.The State of Maharashtra,Through its Principal Secretary,Women and Child Development Dept.,Mantralaya, Mumbai.2.The Commissioner of Women andChild Development,Maharashtra State, Pune.3.The District Women andChild Development Officer,Latur, Dist. Latur.… Respondents...Advocate for Petitioners in all WP : Mr. S. S. Thombre.AGP for Respondents-State : Mr. A. S. Shinde.…CORAM : S. G. MEHARE, ANDSHAILESH P. BRAHME, JJ. 3 WP.5797-20 & ors.odtRESERVED ON : 19.11.2024PRONOUNCED ON : 09.12.2024JUDGMENT : (Per S. G. Mehare, J.) :-1.Rule. Rule made returnable forthwith and heard finallyby the consent of the parties.2.The petitioners have impugned the direction issued byrespondent No.2 dated 29.05.2020, directing all District Women andChild Development Officers and the Chairman, Child WelfareCommittees not to allot the children to the institutions which arenot registered under the Juvenile Justice (Care and Protection ofChildren) Act 2015 (‘The Act of 2015’ for short).3.The petitioners are institutions registered under the JuvenileJustice (Care and Protection of Children) Act, 2000 (for short ‘Act of2000’). They run the institutions for in need of abundant children.Their registrations of the institutions were in force till 2018. Afterrepealing the Act of 2000, rules were framed in 2018. In the Act of2015, Section 41 was newly enacted. Under that section, theinstitutions like petitioners were to register the institutions byapplying online. The registration certificates under the Act of 2000were not for any prescribed period. However, in the Act of 2015, thelife of registration certificates is five years. The executives weredirected to implement the new law, and rules. Hence, respondentNo.2 by his directions to respondent No.3 directed to publish an 4 WP.5797-20 & ors.odtadvertisement inviting applications for the license to run suchinstitution. In the said directions, it was clarified that theregistration certificates of the institutions already registered underthe Act of 2000 and the Act of 2015 have been lapsed and theyshould also have to submit online proposals/ applications. 4.The petitioners had also submitted their proposals as per theadvertisements. Their proposals were scrutinised. Respondent No.3had recommended them for licenses and registration favourably.However, the names of the petitioners were not found place in thelist published with the resolution dated 08.03.2019. Thereafter, theimpugned directions were issued.5.In view of the impugned directions/circular, the concerneddepartment is not allocating the children to the institutions of thepetitioners nor the Government funds were released. In short, thepetitioners would submit that their institutions were registeredunder the Act of 2000. It need not to apply afresh for registrationunder the Act of 2015. The registration of the institutions under theAct of 2000 are deemed to be registered. Hence, the impugneddirection does not bind it. Therefore, it should be quashed and setaside. 6.Respondent Nos.1 to 3 filed affidavit-in-reply. It hasbeen contended in affidavit-in-reply that as per Section 41(1)of the Act of 2015, the registration of the petitioner’s societies 5 WP.5797-20 & ors.odtis compulsory. The institutions which were already registeredunder the Act of 2000 were not exempted. The MaharashtraState Juvenile Justice (Care and Protection of Children), Rules2018 (‘The rules 2018’ for short) were framed by notificationdated 14.03.2018. Those rules came into force on the sameday. 7.By circular dated 25.09.2017 addressed to respondentNo. 3 were directed to publish the advertisement in localnewspapers inviting applications for registration. Bycommunication dated 27.04.2018, it was directed that if thoseinstitutions fail to submit online applications for registrationstheir registration should be cancelled. The last date forapplication was 23.05.2018. Accordingly, on 03.05.2018 theadvertisements were published in newspapers of each District.The off-line submissions were also allowed. After the proposalswere submitted, by Government Circular dated 27.07.2018,time was extended to submit new online proposals till30.08.2018 and also allowed to submit the report of shortfallsfound at the time of scrutiny. The said circular wascommunicated to respondent No.3. It is the submission of therespondents that it has provided just and sufficient opportunityto comply with all shortfalls mentioned in scrutiny sheet.However, the petitioners failed to comply with the same. 6 WP.5797-20 & ors.odtFailing to comply with Section 41(1) of the Act of 2015 ispunishable under Section 42 of the said Act. After followingdue procedure and Government Resolutions dated 08.03.2019and 06.03.2019 were issued granting registration certificate tothe eligible institutions. The Hon’ble Supreme Court in thecase of State of Tamilnadu Vs. Union of India and others, WritPetition (Criminal) No.102 of 2007, order dated 05.05.2017has directed the State Governments and Union Territories theprocess of registration of all child care institutions to becompleted by 31.12.2017. In view of the directions of theHon’ble Supreme Court, the advertisement inviting theapplication for registration were circulated in local newspaperon 11.10.2017. The Commissioner/respondent No.2 by itscommunication dated 29.05.2020, issued directions to allDistricts Women and Child Development Officer to publishadvertisement for inviting applications for registration underSection 41(1) of the Act of 2015. In response to theadvertisement, respondent No.1 received total 893 proposalsfor registration throughout the State. Out of it, 713 wereonline and 180 were offline. All those proposals werescrutinized and submitted to the State for further necessarydirections. As far as the case of the petitioners is concerned,their proposals were scrutinized. It was transpired thatstructure of the petitioners institutions is an education 7 WP.5797-20 & ors.odtinstitutions. It is not just and proper as per the norms of theAct 2015 for residence of child in need of care and protection.As well, there was no compound wall for the protection ofchildren those in need of care and protection. A just andsufficient opportunity was granted to the petitioners to complywith all the shortfalls mentioned in the scrutiny sheet.However, the petitioners failed to comply with it. Theanswering respondents took the decision of inspection to verifythe accommodation, sanitation and hygiene, nutrition and dietscale and staffing pattern of all child care institutions thosefiled online/offline applications for registration. During theinspection, it appears that no inmates were present in thepetitioners institutions and institutions are closed down.Therefore, the petitioners grievance does not survive and onlyfor that reason, the petitions deserve to be dismissed. 8.Learned counsel for the petitioners would submit thatthe registration of the institutions was never cancelled. Sincethe children were not allotted to the institutions, there were nostudents. Considering the scheme, the institute could only runif the children are only allotted to the institution. Therefore, itcannot be said that the institutions have been closed down. Hewould submit that this may not be the ground to stop theallocation of the children to their institutions or renewal of 8 WP.5797-20 & ors.odtregistration. He relied on the case of Jai Sevalal SevabhaviSanstha Vs. State of Maharashtra and others, Writ PetitionNo.4831 of 20209 with many other writ petitions of this Benchdecided pm 22.12.2020. He would submit that in this case, theissue of the application of new Act to the institutions alreadyregistered under the Act of 2000 has been set at rest and it hasbeen held that the institutions registered under the Act of 2000and the said registration validity enforced on the day of theimplementation of the Act 2015 shall be deemed to beregistered under the Act of 2015. Hence, their registrationafresh is unwarranted. 9.Learned AGP has strongly opposed the contentions of thepetitioners. He would submit that since the institutions of thepetitioners were closed down, he cannot take the advantage ofthe pronouncement of this Court in Jai Sevalal (supra). Thecase of the petitioners is on different footing. Therefore, theabove case is distinguishable on facts. Once the institutionshave been closed, they must apply afresh under the Act of2015 read with Rules 2018. Hence, the petitions deserve to bedismissed.10.Admittedly the petitioners institutions were registeredunder the Act of 2000. However, the objection has been raised 9 WP.5797-20 & ors.odtthat since the institutions were defunct, it has to apply afreshunder Section 41 of the Act of 2015. The Juvenile Justice (Careand Protection of Children) Rules, 2007 are relevant to decidethe controversy. Chapter VII of those rules was speaking ofrecognition of fit persons or fit institution for receiving ajuvenile child in need of care, protection temporarily. Rule 70thereof provides for a certification or recognition and transferof management of institutions and after care organisations.Sub Rule (4) of the said Rules speaks of the withdrawal of theregistration of such institutions. A detail procedure has beenprescribed therein before withdrawing the registration.Though the learned AGP has strongly raised the objection thatthe institutions of the petitioners were defunct, there is nothingto believe that any such inquiry as provided under the Rulesmentioned above was conducted and the certificate orregistration of the institution/organisation was withdrawnbefore 2018. However, letter of respondent No.2 dated03.05.2018 is specific that the institutions which wereregistered under the Act of 2000 and Rule 2015 are lapsed andsuch institutions shall also apply for registration. 11.The root question of these cases is whether theinstitutions which were already registered under the Act of2000 would require to apply afresh for registration under