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IN THE HIGH COURT OF BOMBAY
G.H. Guttal V.V. Kamat, JJ.
Kobad Jehangir Bharda.... Appellant.
Versus
Farokh Sidhwa others.... Respondents.
Appeal No. 1172 of 1989 in writ Petition No. 2053 of 1989, decided on 7-5-1990.
Advocates appeared :
K.R. Zaiwalla with Rajiv J. Mane, for the petitioner.
S.T. Tijoriwala with D.D. Kapadia i/by Dhebar and Shah, for the respondents Nos. 1 to 5.
U.J. Makhija, K.J. Gandhi i/b Mulla Craigie Blunt Caroe, for respondents6 to 11.
S.G. Surana, for the respondents Nos. 12 to 14.
See Secondary Schools Code, Chapter II, Section VIII, Rule 565.
Article 226- Maintainability of writ petition-Religions Madresa and School -Applicability of Bombay Public Trusts Act and Secondary School Code-Both Act and Code provisions apply to such Madresa and school- Thus the y are under governmental control and the y owe public duty-Held, writ petition maintainable.
Although the Madresa is a private body in relation to the general rule of the humanity, it is "public" in relation to the Zorastrian Parsi Community. It was created and it exists for a section of the public the Zorastrain Parsi Community as an aggregate. Its activity reflected in its objects is subject to State Regulation through the Bombay Public Trusts Act. The Madresa rests wholly on public donations which evidences the public interest in the Madresa. The discharge of the duty-the fulfilment of the objects of the trust-affects the legal rights and liabilities of the members of the community. Therefore, the totality of these facts prove that the Madresa owes public duty. The community has a public right in the proper administration of the objects of the Trust. Consequently, the members of the Community and the pupils have a public right to compel obedience to the rules of natural justice fair play.
It is competent for this Court to issue a writ under Article 226 of the Constitution of India against the Madresa.
The school does not receive grant from the Government. But this fact does not take away the public Jaw character of the Secondary Schools Code which admittedly governs the school. While the element of financial aid from the public exchequer is absent there are other determinative factor which make the Secondary Schools Code, characterised as a part of the public law of the land.
Chap. II section 8 rule 56.5 - Constitution of India Article 226 expulsion of pupil in contravention of rule 56.5 recognised school under article 226 is maintainable.
Although the madresa is a private body in relation to the general run of the humanity it is public in relation to the zorastrain parsi community it was created and it exists for a section of the public the zorastrain parsi community as an aggregate its activity reflected in its objects of subject to state regulation through the Bombay public trusts Act the madresa rests wholly on public donations which evidences the public interest in the madresa the discharge of the duty the fulfillment of the objects of the trust affects the legal rights and liabilities of the members of the community therefore the totality of these facts proves that the madresa owes public duty the community has a public right in the proper administration of the objects of the trust consequently the members of the community and the pupils have a public right to compel obedience to the rules of natural public fair play
It is competent for this Court to issue a writ under Article 226 of the constitution of India against the Madresa
2. Dadar Athornan Madrasa---hereinafter referred to as "the Madrasa"---a Public Charitable Trust registered under the Bombay Public Trusts Act, is an educational institution which trains Zorastrian Parsi Children between 6-14 years for initiating them into priesthood. It is a residential school---a seminary---having 45 inmates. The respondents Nos. 1 to 4 are the Trustees and the respondent No. 3 is the Principle of the Madrasa. The respondent No. 5, an ex-student, is a tutor in the Madrasa.
Dadar Parsi Youth Assembly School---hereinafter referred to as "the School"---is also a School run by Public Charitable Trust. The Respondents Nos. 7 to 11 are its Trustees and the respondent No. 6 is its Principal. The school imparts secular education upto S.S.C. Examination. Although, the Madrasa is not formally affiliated to the School, all the inmates of the Madrasa are admitted to the School. The inmates of the Madrasa receive education in the School. The School is recognised by the Government of Maharashtra---respondent No. 12. The respondent Nos. 13 and 14 are the Deputy Director of Education, Government of Maharashtra and the Education Inspector respectively.
3. In his petition under Article 226 of the Constitution of India, the petitioner, aged 12 years', impugned the validity of his explosion from the Madrasa and the School and certain other acts of the Respondents Nos. 1 to 11 and sought reliefs against the Respondents Nos. 12 to 14.
4. The undisputed facts are as under :---
The petitioner was admitted in the Madrasa and the School on 10th June, 1984. On 17th October, 1988, when he was expelled, the petitioner was reading in the 4th Standard.
On 9th September, 1987, Mr. Kerwala, a resident of Bharuch, pursuant to certain inquiries claimed to have been made by him, addressed to the Respondents Nos. 1 to 4, through an advocate Mrs. Patel of Baroda, a letter in which he made the following statements :---
(a) The Children studying in Madrasa who are between 6-9 years are subjected to severe beating by wooden rods, if they did not grasp the subject;
(b) The children are refused breakfast/meals, and often locked up for 24 hours without food;
(c) The food supplied to the children was insufficient. When they asked for more food, they were beaten into silence;
(d) Whenever philanthropic Zoroastrians host dinner for the inmates and in case the host is absent, the children are denied food and it was sent elsewhere;
(e) Sometimes the teachers delegate the job of beating to the students of higher classes who then beat the junior students;
(f) Mr. Kerwala personally interviewed some children and noticed marks of injury and frail bodies of the children;
(g) A Cyrus Sidhwa, who works in the institution, has specialised in injuring children by his finger-nails.
Finally Mr. Kerwala requested the respondents Nos. 1 to 4 to take steps and stop the ill-treatment of the children.
5. The first written complaint about the conduct of the petitioner was made by the Principal of the School on 29th January, 1988. It was addressed to the respondent No. 3, the Principal of the Madrasa. The substance of the complaint is this :---
(a) The petitioner does not sit down at all. When the teacher has his back to the class, the petitioner leaves his seat and sits with some other child;
(b) He talks or quarrels with other children;
(c) About a year ago, the hand of a child---Nawaz Khan was broken for which the petitioner was blamed. The Police wanted to arrest the petitioner.
In this letter dated 29th January, 1988, the Principal proceeded to convey his decision about the Petitioner in these words :---
"I beg to bring it to you attention that in
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