JUDGMENT : 1. All the above writ petitions have been taken up together for consideration because the petitioners are identically placed and relief sought for is the same. 2. Heard Mr. Pravin Samdani, Dr. Milind Sathe, learned senior counsel and Mr. Prateek Seksaria, learned counsel appearing for the respective petitioners; and Mr. Pabale and Mr. Samant, learned AGPs for the respondents-State. 3. These matters were heard on 23.06.2020 and today is fixed for delivery of order. 4. Basic challenge made in this bunch of writ petitions is to the Government Resolution No.Misc-2020/CR33/SM-6 dated 8th May, 2020 issued by the Principal Secretary to the Government of Maharashtra, School Education and Sports Department. 5. Petitioners have also challenged consequential letters issued by different Education Inspectors and Education Officers of Zilla Parishads calling upon the different schools represented by the petitioners to comply with the above Government Resolution dated 08.05.2020 and threatening coercive action in case of non-compliance. 6. Petitioners represent private unaided and private unaided minority schools in the State of Maharashtra affiliated to different Education Boards, such as, Indian Certificate of Secondary Education Board (ICSE), Central Board of Secondary Education (CBSE) as well as International Boards, such as, Cambridge Assessment International Education (CIE) and International Baccalaureate (IB). Being private educational institutions, they are not dependent on any kind of grant or assistance from the government. The expenses of the respective schools are met from the funds primarily collected from fees. 7. Presently the world is facing a grave crisis in the form of a pandemic on account of corona virus or COVID-19. India is no exception. On 14.03.2020, Government of India notified COVID-19 pandemic as a notified disaster under the Disaster Management Act, 2005. Government of Maharashtra vide notification dated 23.03.2020 declared a lock-down in the State of Maharashtra on account of the pandemic. 8. Government of Maharashtra in the School Education and Sports Department issued the impugned Government Resolution dated 08.05.2020 regarding non-increase of fees for the academic year 202021 in the educational institutions in the State of Maharashtra. It is stated that the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 are being implemented in the State of Maharashtra in order to prevent and control the spread of corona virus (COVID-19) disease which has been declared as a global pandemic and for that lock-down is currently underway in the State. It is stated that the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 are being implemented in the State of Maharashtra in order to prevent and control the spread of corona virus (COVID-19) disease which has been declared as a global pandemic and for that lock-down is currently underway in the State. Government has received complaints that some institutions / schools are compelling the students and parents to pay the fees though as per Circular No.6 the institutions / schools were instructed to collect fees after the lock-down period. In such circumstances it is stated that exercising powers under section 21 of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 and section 26 (i) and (l) of the Disaster Management Act, 2005, government has taken the following decisions:- 1. For convenience of parents, an option be given to deposit the due / balance fee for the academic years 2019-20 and 2020-21 on monthly / quarterly basis instead of one time payment; 2. No increase / hike in fees for the academic year 2020-21; 3. If some educational facilities are not required to be used for the academic year 2020-21 and if proportionate cost can be reduced, then resolution shall be passed and fee reduced accordingly; 4. Parents shall be given the option to pay the fee online to avoid inconvenience during the lock-down period. 8.1. It has been clarified that the impugned resolution shall be applicable to students of all boards, all mediums and from pre-primary to class 12. 8.2. The above Government Resolution has been issued by order and in the name of Governor of Maharashtra. 9. Basic challenge to the impugned Government Resolution is that under section 6 of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 (briefly “the 2011 Act” hereinafter), management of private unaided schools and permanently unaided schools are competent to propose the fee in such schools, that too, at least 6 months before commencement of the next academic year. Power of approval of the proposed fee is given to the Executive Committee of the Parent Teachers Association. As per section 6(1A), brought in by way of amendment, the fee structure declared by the private unaided schools and permanently unaided schools shall be binding on all concerned. Section 21 does not confer any power on the State Government to tamper with the fee structure of private unaided schools. As per section 6(1A), brought in by way of amendment, the fee structure declared by the private unaided schools and permanently unaided schools shall be binding on all concerned. Section 21 does not confer any power on the State Government to tamper with the fee structure of private unaided schools. No such power is traceable to section 26 of the Disaster Management Act, 2005 (briefly “the 2005 Act” hereinafter) either. Even if clauses (i) and (l) of section 24 of the 2005 Act is considered no such power is discernible. Therefore, the impugned resolution is without jurisdiction. 9.1. Another submission made is that if the impugned Government Resolution cannot be traced to any valid statutory source of power, then it may be construed and contended to be an executive action under Article 162 of the Constitution of India. But even this contention will not be available to the State because the field covered by the impugned Government Resolution is already occupied by a legislation viz., the 2011 Act. That apart, this Court in Association of International Schools Vs. State of Maharashtra, 2010 (6) Mh.L.J. 816 , has held that right to establish educational institution is a fundamental right guaranteed by Article 19(1)(g) of the Constitution of India. This right includes right to set up a reasonable fee structure. The right under Article 19(1)(g) is however subject to reasonable restrictions under clause (6) of Article 19. However, this Court held that reasonable restrictions on the right guaranteed by Article 19(1)(g) can only be placed by law enacted by the legislature and not by a circular or resolution issued under Article 162 of the Constitution of India. 9.2. Therefore, it is contended that the impugned Government Resolution dated 08.05.2020 cannot be sustained under any circumstances. 10. Learned AGP prays for time to obtain instruction and to file affidavit. 11. However, having regard to the challenge made and the contentions advanced in support thereof, we are of the view that an issue of considerable significance has been raised by the petitioners and further hearing is called for. 12. Issue notice returnable 6 (six) weeks. 13. Learned AGPs waive notice for all the respondents. 13.1. State may file affidavit by the next date. 14. On the prayer for interim stay, we are of the considered view that petitioners have made out a good case for stay of the impugned Government Resolution dated 08.05.2020. 12. Issue notice returnable 6 (six) weeks. 13. Learned AGPs waive notice for all the respondents. 13.1. State may file affidavit by the next date. 14. On the prayer for interim stay, we are of the considered view that petitioners have made out a good case for stay of the impugned Government Resolution dated 08.05.2020. We say this for the following reasons: 15. The 2011 Act has been enacted to provide for the regulation of collection of fee by educational institutions in the State of Maharashtra and for matters connected therewith and incidental thereto. Section 2(k) defines ‘fee’ to mean the amount fixed as a fee under sections 5 and 6 and includes tuition fee etc. While section 5 empowers the government to regulate the fee in government schools and aided schools in the manner as may be determined by the government, section 6 makes it clear that the management of private unaided schools and permanently unaided schools shall be competent to propose the fee in such schools; such proposal must be submitted at least 6 months before commencement of the next academic year. Power of approval of the proposed fee is given to the Executive Committee of the Parent Teachers Association constituted under section 4. 16. The 2011 Act was amended vide the Maharashtra Educational Institutions (Regulation of Fee) (Amendment) Act, 2018. As per the amendment, sub-sections (1A), (1B) and (1C) have been inserted after sub-section (1) in section 6. A perusal of the newly inserted provisions would go to show that the management of private unaided schools and permanently unaided schools may declare at the time of admission itself the standard wise fee structure for all the standards; if it is declared for a part then fee structure for the remaining part shall be declared at least before one year of commencement of that academic year. Such fee structure as declared by the school shall be binding on all concerned. The management is also empowered to increase the fee in the manner provided in sub-sections (1B) and (1C). 17. Section 21 of the 2011 Act provides general power on the government to issue directions to any educational institution consistent with the provisions of the 2011 Act and the Rules framed thereunder for carrying out the purposes of the 2011 Act or for giving effect to any of the provisions contained therein. 18. 17. Section 21 of the 2011 Act provides general power on the government to issue directions to any educational institution consistent with the provisions of the 2011 Act and the Rules framed thereunder for carrying out the purposes of the 2011 Act or for giving effect to any of the provisions contained therein. 18. Prima facie having regard to the scheme of section 6, we are of the view that section 21 could not have been invoked by the State Government to have issued the impugned Government Resolution. 19. We have carefully perused the Epidemic Diseases Act, 1897 and the Epidemic Diseases (Amendment) Ordinance, 2020 but we do not find any such enabling provision empowering the State Government to issue a resolution like the impugned one. 20. That brings us to Disaster Management Act, 2005 (already referred to as “the 2005 Act”). While section 2(d) defines ‘disaster’, ‘disaster management’ is defined in section 2(a). Since the impugned Government Resolution refers to section 26(i) and (l) of the 2005 Act, we have looked into the said section but we find that the said section deals with powers of Chairperson of District Authority which is totally an unrelated provision. Besides there are no clauses (i) and (f) in section 26. These two clauses are found in section 24 which deals with powers and functions of State Executive Committee in the event of threatening disaster situation. This section says that for the purpose of assisting and protecting the community affected by disaster or providing relief to such community or preventing or combating disruption or dealing with the effects of any threatening disaster situation, the State Executive Committee may do things as enumerated from clauses (a) to (l). Clause (i) empowers the State Executive Committee to construct temporary bridges or other necessary structures and demolish unsafe structures which may be hazardous to the public. As per clause (l), the State Executive Committee may take such steps as the Central Government or the State Government may direct in this regard or take such steps as are required or warranted by the form of any threatening disaster situation or disaster. 21. Thus from the above we do not find any power being vested on the State Government under the 2005 Act to issue a government resolution like the impugned one interfering with the fee structure of private unaided schools. 22. 21. Thus from the above we do not find any power being vested on the State Government under the 2005 Act to issue a government resolution like the impugned one interfering with the fee structure of private unaided schools. 22. Question is, if no source of statutory power for issuance of such a government resolution is discernible or traceable, can it be construed to have been issued in exercise of the executive power of the State under Article 162 of the Constitution? 23. In TMA Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481 , a bench of eleven judges of the Supreme Court held that right to establish educational institution is a fundamental right guaranteed by Article 19(1)(g) of the Constitution. This right comprises of amongst others the right to set up a reasonable fee structure. The fee structure must take into consideration the need to generate funds to be utilised 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. Interference by the government in fixation of fee structure of unaided private schools would be an unacceptable restriction; maximum autonomy has to be with the management with regard to administration and the fee to be charged. 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. 24. In Association of International Schools (supra), this Court examined the challenge to two government resolutions dated 15.07.2010 and 22.07.1999 regarding regulation of fees in secondary schools. Though the State contended that the above two government resolutions were issued under section 13 of the Maharashtra Education Institutes (Prevention of Capitation Fees) Act, 1987, this Court held that no such power was traceable to the said Act. After referring to TMA Pai Foundation (supra), this Court held that a right under Article 19(1)(g) is subject to reasonable restrictions under Article 19(6). This court examined the contours of the reasonable restrictions laid down in clause (6) of Article 19 and the decision of the Supreme Court in State of Bihar Vs. Project Uccha Vidya Shikshak Sangh, (2006) 2 SCC 545 . This court examined the contours of the reasonable restrictions laid down in clause (6) of Article 19 and the decision of the Supreme Court in State of Bihar Vs. Project Uccha Vidya Shikshak Sangh, (2006) 2 SCC 545 . It was thereafter held that the requirement of law for the purpose of clause (6) of Article 19 cannot be achieved by issuing a circular or resolution under Article 162 of the Constitution of India. 25. That being the position, we are of the prima facie view that the impugned Government Resolution dated 08.05.2020 is without jurisdiction. 26. Having said so, we are also mindful of the difficulties faced by the parents in these testing times. Therefore we feel that management of the private unaided schools may consider providing option to the students / parents to pay the fee in such instalments as is considered reasonable and also to allow them the option to pay the fee online. 27. Subject to the above, impugned Government Resolution dated 08.05.2020 is hereby stayed until further orders. Resultantly, all consequential communications shall also remain stayed. 28. Stand over to 11.08.2020.