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Jai Sevalal Sevabhavi Sanstha, Takarwan, Through its President, Ambadas & Others v/s The State of Maharashtra, Through its Principal Secretary to the Government of Maharashtra in Women & Child Development Department, Maharashtra State, Mantralaya & Others


Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- CHILD & COMPANY PVT LTD [Amalgamated] CIN = U18102WB1995PTC071417

Company & Directors' Information:- K K R DEVELOPMENT PVT LTD [Active] CIN = U70101WB1981PTC034258

Company & Directors' Information:- D P S DEVELOPMENT PVT LTD [Active] CIN = U45202WB1988PTC044797

Company & Directors' Information:- DEVELOPMENT CORPN PVT LTD [Active] CIN = U13209WB1939PTC009750

Company & Directors' Information:- CHILD & CO PVT LTD [Strike Off] CIN = U51909WB1950PTC019001

    Writ Petition Nos. 4831 of 2020, 4967 of 2020, 5052 of 2020, 4897 of 2020, 4899 of 2020, 4963 of 2020, 5051 of 2020, 5053 of 2020, 5054 of 2020, 5055 of 2020 to 5061 of 2020, 5063 of 2020 to 5070 of 2020, 5072 of 2020, 5073 of 2020, 5076 of 2020 to 5086 of 2020, 5089 of 2020 to 5102 of 2020, 5500 of 2020

    Decided On, 22 December 2020

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MR. JUSTICE S.V. GANGAPURWALA & THE HONOURABLE MR. JUSTICE SHRIKANT D. KULKARNI

    For the Petitioner: N.P. Patil Jamalpurkar, S.S. Thombre, Advocates. For the Respondents: P.V. Mandlik, Senior Advocate/AGP, S.B. Yawalkar, Senior Advocate.



Judgment Text

S.V. Gangapurwala, J.1. Rule. Rule returnable forthwith. With the consent of learned Counsel for respective parties petitions are taken up for final hearing.2. All these writ petitions are based on similar set of facts and involve common question of law. To avoid rigmarole are decided by a common judgment.3. The petitioners in all these petitions assail the communication issued by the Commissioner Women and Child Development, Maharashtra State, Pune. Under the said communication, it is directed that only those institutions registered under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to ‘Act-2015’) shall be entitled to admit the students. The contour of the petitioners contention is that; the petitioner institutions are registered under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to ‘Act-2000’). In view of proviso to Sub Section 1 of Section 41 of the Act-2015 fresh registration is not necessary.4. Though the subject matter of consideration in all these writ petitions is same; the learned Advocates for the petitioners Mr. N. P. Patil Jamalpurkar and Mr. S. S. Thombre differed in their submissions.5. Mr. N. P. Patil Jamalpurkar, the learned Advocate for the petitioners represented by him submits that the petitioners have filed applications for registration under the Act-2015. The respondents have taken decision in respect of 131 institutions as per Government Resolution dated 08.03.2019. Thereafter, under the Government Resolution dated 06.05.2020 more particularly, Clause 6, the Government was to take decision in respect of other institutions individually. No such decision is taken as yet. The respondents be directed to take decision in respect of those institutions at the earliest.6. Mr. Thombre, learned Advocate for the petitioners represented by him is vociferous in contending that the institutions registered under the Act-2000 are not required to register afresh under the Act-2015. The learned Advocate to substantiate his submissions relies upon the proviso to Sub Section 1 of Section 41 of the Act- 2015. The learned Advocate submits that as per the proviso to Sub Section 1 of Section 41; the institution having valid registration under the Act-2000 on the date of commencement of the Act shall be deemed to have been registered under this Act. The proviso; as referred to; protects the registration of the institutions registered under the Act-2000 and they are not required to take fresh registration under the Act-2015. The learned Advocate submits that reliance on Rule 22 of the Rules of Maharashtra State Juvenile Justice (Care and Protection of Children) Rules, 2018 (hereinafter referred to ‘Rules-2018’) by the respondents is misplaced. Rules cannot override the statutory provisions. Rules are part of subordinate legislation. The statute by virtue of proviso to Sub Section 1 of Section 41 provides for a deeming effect of the institutions registered under the Act-2000 to be deemed to be registered under the Act-2015. The said provision cannot be supplanted by Rule 22. The impugned communication prohibiting the institution from admitting the students in absence of registration under the Act-2015; though the institution is registered under the Act-2000; is illegal and deserves to be set aside.7. Mr. Mandlik, learned Senior Advocate representing the respondents submits that the writ petitions are not maintainable. The learned Senior Advocate submits that initially the registration of the institution was as per the provisions of the Act-2000, subsequently amended Act-2006 came into force. The registration of most of the petitioners was during the period 2006 to 2011. On or about 22.12.2011 Government Resolution was issued by the Women and Child Development, Maharashtra State that registration of such institutions will have to be for 3 years and thereafter it will be considered for renewal of 5 years. In view of the Government Resolution dated 22.12.2011 the registration of all the petitioners came to an end.8. The State by exercising powers U/Sec. 110 of the Act-2015 framed Rules-2018. These rules came into effect from 13.03.2018. Rule 22 of the said Rules requires that all institutions running institutional care services for children in need of care and protection of children in conflict with law, whether run by the Government or voluntary organisation, shall be registered under sub-section (1) of Section 41 of the Act, irrespective of being registered or licensed under any other Act. It further mandates that all child care institutions registered under the Act-2000 which are deemed to be registered under Act -2015 to get registration certificate renewed after completion of 1 year as per the provisions of the Act and the Rules.It is further submitted by the learned Senior Advocate that the Apex Court in Special Leave to Appeal (C) No. 33352 of 2017 Balvikas Sanstha Chalak and Karmachari Sanghatana Maharashtra State Vs. The State of Maharashtra and Others under its judgment dated 15.07.2019 had observed that as Act-2015 has come into force it would be open to the concerned institute or members of the petitioners association to pursue remedy before the authorities by making fresh application for grant of registration under the Act and the Rules framed thereunder. It further observed that the proposed applications for grant of their registration will have to be scrutinized by the appropriate authority in strict compliance with the provisions of the Act and the Rules made thereunder without any exception. The learned Senior Advocate contends, it is necessary for the petitioners to make compliance of mandatory provisions. They have not complied with the same and therefore registration was not given to them. It is observed by the department that many petitioner institutions do not possess proper infrastructure and necessary facility required for child care institution as per the provisions of the Act and Rules. The petitioners have suppressed these facts. The writ petitions deserve to be dismissed.9. Upon considering the submissions of the respective learned Counsel; the moot question requiring consideration of this Court is-“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?”10. The Act-2000 was aimed at providing juvenile justice system for juveniles in conflict with law and children in need of care and protection by adopting a child friendly approach in adjudication and disposition of matters in the best interest of children and for their rehabilitation keeping in view the developmental needs of the children. The said Act was amended twice in the year 2006 and 2011 to address gaps in it’s implementation and make the law more child friendly. During the course of the implementation of the Act several issues arouse such as increased incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in homes, responsibility and accountability of institutions, etc. have highlighted the need to review the existing law, as such the Act-2015 is enacted. The Act of 2015 has come into effect from 15th day of January, 2016. It repeals the Act of 2000.11. Sub Section 1 of Section 41 of the Act-2015 starts with the non obstante clause. The said provision mandates all institutions, whether run by the State Government or by a voluntary or non Governmental organization, which are meant, either wholly or partially, for housing children in need of care and protection or children in conflict with law, shall, be registered under the Act-2015 in such manner as may be prescribed, within a period of 6 months from the date of commencement of this Act, regardless of whether they are receiving the grants from the Central or, as the case may be the State Government or not. The institution can receive grants only if it is registered under the Act. The institution registered under the Act-2000 and receiving grants would be required to comply provisions under the Act-2015.Obligation is imposed by Sub-Section 1 of Section 41 of the Act-2015 upon every institution meant either wholly or partially for housing children in need of care / protection or children in conflict with law to be registered under the Act-2015 within 6 months.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-2015.13. It is the cardinal rule of interpretation that proviso must be considered in relation to the principal matter to which it stands as a proviso. The language of the proviso is to be construed in relation to the subject matter covered by the Section to which the proviso is appended. The normal function of the proviso is to except something or to qualify something to what is in the enactment. Proviso may be added to an enactment to create an exception to what is in the enactment.14. The institutions to claim benefit of proviso to Sub-Section 1 of Section 41 of the Act-2015 should possess valid registration on the date of commencement of the Act-2015. The said registration should be in force on the date of commencement of the Act-2015. The registration of the institutions registered under the Act-2000 but had lapsed on the date of enforcement of the Act- 2015 would not be deemed to be registered under the Act-2015. In that case, mandate of Sub-Section 1 of Section 41 of the Act-2015 shall have to be complied by such institutions.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 21.09.2016.17. The State Government exercising the power U/Sec. 110 of the Act-2015 framed the rule. Section 110(1) (xxiii) empowers the State Government to frame rules for regulating the manner in which all institutions under Section 41(1) of the Act-2015 shall be registered.18. Rule 22 of the Rules framed by the State Government provides that those institutions which are registered under the Act-2000 and deemed to be registered under the Act-2015 shall get the registration certificate renewed after completion of 1 year as per the provisions of the Act and Rules. Sub Rule 1(b) of Rule 22 gives grace of 1 year to the institutions registered under the Act- 2000 and said registration is in force on the date of commencement of the Act-2015 to get the renewal of the registration after completion of 1 year.19. Rule 22(1)(b) mandates all child care institutions registered under the Act-2000 and deemed to be registered under the Act-2015 to get registration certificate renewed after completion of 1 year as per the provision of Act and rules. Act-2015 came into force w.e.f. 01.01.2016 and Rules-2018 were operative w.e.f. 14.03.2018.Rules are part of subordinate legislation. The statutory rules framed under the powers conferred by the Act become an integral part of the Act [National Insurance Co. V/s. Swarn Singh 2004 (3) SCC 297]. The Rule cannot override the provision of the statute. It cannot militate against the provision of the Act under which it has been formed. An attempt must be made to give effect to all the provisions under a rule for interpretation of the statute. No provision should be considered as surplusage. Rule must be read in a manner that makes it workable with the statute.20. It is trite rule of interpretation that all the provisions of the statute and the Rules operating shall be read harmoniously so as to give effect to the provisions of the statute and that the provisions and the rules are not rendered otiose. Though the rule cannot affect, control or derogate from the section of the Act, so long as it does not have that effect, it has to be regarded as having the same force as the section of the Act. The Apex Court in case of The State of U. P. Vs. Babu Ram Upadhya [(1961 2 SCR 679 (CB)], observed that Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation.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. R

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eference 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.23. The conspectus of the aforesaid discussion leads us to an irresistible conclusion that the institutions registered under the Act-2000, and the said registration validly in force on the date of implementation of the Act-2015, shall be deemed to be registered under the Act-2015 and these institutions shall apply for renewal of registration after 1 year of the enforcement of the Rules-2018.24. One year, since enforcement of the Rules- 2018, has also lapsed. The institutions possessing valid registration as on the date of implementation of the Act-2015 shall apply for renewal within a period of one (1) month from today. The said application for renewal shall be considered by the authorities on its own merits in tune with the provisions of the Act-2015 and Rules-2018. The institutions not possessing valid registration as on the date of the Act-2015 or the registration having lapsed on the date of implementation of the Act-2015 are required to apply afresh. In case, such applications are made by the said institutions, the Government shall take decision upon it expeditiously and preferably within a period of three (03) months.25. Rule is disposed of accordingly with no orders as to costs.26. Writ Petitions are disposed of accordingly.
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