Judgment : D. MURUGESAN, J. The appellant is the unsuccessful writ petitioner. 2. Thefollowing few facts are relevant for disposal of this writ appeal: (i) The appellant is the Secretary of “Zamindarini Kamulammal Memorial Higher Secondary School Committee” of ZKM Higher Secondary School. On 24.10.2005, the District Education Officer, Uthamapalayam issued a show cause notice purportedly under rule 23 of Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 (herein after referred to as “the Rules” as well as under Section 7 of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee Act,1992) (herein after referred to as “the Capitation Fee Act”). The show cause notice was issued on the ground that the appellant had collected excess fees from the student over and above the prescribed fee by the competent authority. The appellant had submitted an explanation of 9.11.2005 seeking for certain particulars from the District Educational Officer to enable them to submit the explanation. Nevertheless by the order impugned in the writ petitio dated 12.11.2005, the District Educational Officer had directed the appellant to refund the excess fee collected from the students within a period of fifteen days to them. (ii) The said order was questioned by the appellant on the ground that thee was no proper opportunity, as the impugned order was passed without furnishing the details required by the petitioner and therefore the impugned order was in violation of the principles of natural justice. (iii) Secondly, it was questioned that the District Educational Officer cannot order refund unless the prosecution case ends in conviction, as such relief is restricted under Section 7 of the Capitation Fee Act. 3. Both the above contentions were negatived by the learned single Judge and consequently, the writ petition was dismissed. 4. We have heard Mr.S. Nagamuthu, learned counsel for the appellant Mr. Rajarajan, learned Government Advocate forte first respondents and Mr.P. Muthuvijay Pandian for the second and third respondents. 5. The question that falls for our consideration is that, as to whether the District Educational Officer would have the power to order refund of excess fees collected from the students either in exercise of the power under Section 7 of the Capitation Fee Act or in exercise of powers conferred under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 made there under. 6. 6. The learned counsel for the appellant had submitted that as the entire proceedings right from the show cause notice was under the provisions of the Capitation Fee Act, the District Educational Officer would have the power to order refund in terms of Section 7(2) of the Act. Section 7 of the Capitation Fee Act reads as follows: “7. Penalties: (1) Whoever contravenes the provisions of this Act or the rules made thereunder shall, on conviction be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and with fine which may extend five thousand rupees: Provided that the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence or imprisonment for a term of less than three years. (2) Where the conviction is for an offence under Section 3 or under Section 4, the educational institution or the person convicted thereunder shall refund to the person from whom- (a) the capitation fee was collected in contravention of Section 3, such capitation fee; (b) the fee of deposit was received or collected in excess of the amount payable under Section 4, such excess amount”. Sub Section 2 of Section 7 of the Capitation Fee Act contemplates that the educational institution or the person convicted thereunder shall refund to the person from whom the capitation fee was collected in contravention of Section 3, such capitation fee and the fee or deposit was received or collected in excess of the amount payable under Section 4, such excess amount. 7. Whether the provisions of this Section could be made applicable to the facts of this case itself is in dispute, as the said Act though had come into force on 20.8.1992, it is not brought to our notice whether the Educational Institutions like the petitioner were notified in terms of clause 2(b) of Section 7 of the Capitation Fee Act. It is also not brought to our notice as to whether the fee has been prescribed by issue of a Draft Notification published in the Tamil Nadu Governmetn Gazette as contemplated in the provision to Section 4(1) of the Capitation Fee Act. In the absence of the above, the invocation of the provisions of the Capitation Fee Act cannot be upheld. 8. In the absence of the above, the invocation of the provisions of the Capitation Fee Act cannot be upheld. 8. Nevertheless, Section 32 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 contemplates a prescription of fees and other charges. In terms of the said section, no private school shall levy any fee or collect any other charge or receive any other payment except a fee, charge or payment specified by the competent authority. There is also an embargo on the Educational Institutions from collecting over and above the fees prescribed under section under Section 32 of the Capitation Fee Act. The authority who could prescribe the fees and charges as provided under Section 32 of the Capitation Fee Act, has been prescribed under rule 23 of the Rules. By virtue of both the above provisions, it is incumbent that an Educational Institution can only collect the fees prescribed under the above provisions. 9. Thequestion in this writ appeal is as to whether in exercise of the powers under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules made thereunder, the District Educational Officer could order refund of the excess fees collected from the studentse 10. Before a school is established, it should obtain permission from the Government in terms of Section 6 of the Capitation Fee Act. Section 11 of the Capitation Fee Act contemplates the provision for grant of recognition to a private school and Section 12 contemplates the power on the competent authority to withdraw the recognition. Section 13 provides the effect of withdrawal of recognition and Section 14 relates to payment of grant. In so far as the Aided Schools are concerned, they have been extended with the provisions of Section 14, inthe event a private school which does not comply with any of the provisions of Act or any Rules made or direction issued thereunder, the Government may with hold permanently or for any specified period, the whole or part of any grant referred to in sub- Section 1 of Section 14 of the Capitation Fee Act. Such Aided School can also be proceeded under Section 12 of the Capitation Fee Act where the competent authority may withdraw permanently or for any specified period the recognition of any private school which does not comply with any of the conditions of the Rules, therein. 11. Such Aided School can also be proceeded under Section 12 of the Capitation Fee Act where the competent authority may withdraw permanently or for any specified period the recognition of any private school which does not comply with any of the conditions of the Rules, therein. 11. Inso far as unaided schools are concerned, though the provisions of Section 14 of the Capitation Fee Act does not apply, the provisions of Section 12 of the Capitation Fee Act would apply for withdrawal of recognition by competent authority. Except the above said provisions, our attention is not drawn as to any of the other provisions, except the competent authority to either impose any punishment or order refund of the excess fee collected by the Educational Institutions. Perhaps for the said reason only the Legislature would have through to enact the Law viz., Capitation Fee Act empowering a prosecution and punishment. 12. Considering the fact that any order of refund would also result in serious consequence, an embargo is placed on the authority before directing refund of the excess fee collected from the students. Normally such orders could be passed only after conviction. Though the learned counsel appearing for the third respondent would vehemently contended that the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, should be read in consonance with the provisions of the Capitation Fee Act and if the interpretation is applied, the District Educational Officer would have the power to order refund. We are afraid as to whether such arguments could be accepted for the simple reason that such exercise of power would result in adding a provision with an enactment which the legislative had not included to confer a power to the authorities. If such interpretation is accepted, it would amount to a Legislation by the Court. 13. That apart, we are not inclined to go in detail as to the application of the provisions of Capitation Fee Act in view of the fact that we are not favoured with the particulars, whether the Notification has been made to make the Educational Institution in question amenable to the provisions of the Capitation Fee Act and whether any prescribed fee has been notified in the Tamil Nadu Governmetn Gazettee 14. Keeping in mind only the provisions of Section 32 of the Capitation Fee Act and rule 23, we are of the considered view that by the said provisions, no power is conferred on the District Educational Officer to order refund of excess fees collected. In that view of the matter, we are inclined to accept the submissions made by the learned counsel for the appellant. 15. Accordingly, the impugned order is set aside. However, it is made clear that the first respondent District Educational Officer is empowered to take such other action under the provisions of the Act either for withdrawal of grant or for with holding of grant to the petitioner school, in the event the petitioner school have violated the fees and charges prescribed under the said Capitation Fee Act. We also make it clear that in the event the provisions of Capitation Fee Act is invoked on the ground that it has been made applicable to the petitioner Institution and such order of refund could be also made after the prosecution ends in conviction in terms of Section 7(2) of the Capitation Fee Act. The order in this writ appeal shall not be construed to take away the power of the Educational Authorities in accordance with the provisions of the respective enactments. 16. With the above observation, the writ appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.