B.C. Ray, J.
1. The petitioner No. 1, Sree Jain Swetamber Terapanthi Vidyalaya, a society registered under the West Bengal Societies Registration Act, 1860, and the petitioner No. 2, Assistant Secretary of the said society have made this Writ application challenging the validity of the orders passed by the West Bengal Board of Secondary Education dated 19th Mar. 1977 and 25th July, 1077 respectively holding that the Election of members of the Managing Committee from the Guardians' Constituency was not valid and directing the appointment of an Ad hoc Committee or an Administrator to run the administration of this School as well as to complete re-constitution of the Managing Committee in accordance with the Rules and also by the later order rejecting the prayer for Special Constitution as regards the reconstitution of the Managing Committee of this school.
2. The salient facts of the case as appeared from the Writ application is that the petitioner No. 1 is a society registeded under the West Bengal Societies Registration Act, 1860 and the purpose of the society as appears from its memorandum and Articles of Association is to take over, maintain, manage, regulate, conduct, guide, help, locate, remove, improve and develop the present existing educational institution known as Sree Jain Swetamber Terapanthi Vidyalaya; to impart, free of charge or otherwise secular, moral, physical, commercial and religious education according to the tenets of Jain Swetamber Tarapanthi Community in particular and to the boys and girls of other community in general. It was also provided therein that all properties of the Vidyalaya both moveable and immoveable including its funds shall be held by the Board of Trustee in the name of the Vidyalaya and they shall hold the said properties and funds, subject to the Rules and Regulations of the Vidyalaya and Trustees of any settlement endowment or donation shall hold the same subject to the terms thereof. The Executive Committee was vested with powers and duties of appointment of teachers, professors and other officers and employees of the said institution on such terms and conditions as they may think fit and proper and the Executive Committee is also empowered to suspend or dismiss or grant leave to any of the teachers, professors, officers or other employees of the Vidyalaya. It has been sitated that the petitioner No. 1 i. e., the society has been all along managing and running three schools, viz., (1) Sree Jain Swetamber Terapanthi Vidyalaya (Boys' High School), (2) Sree Jain Swetember Terapanthi Vidyalaya (Girls' High School) and (3)' Sree Jain Swetamber Terapanthi Vidaya-laya (Primary Section). The petitioner No. 1 it has been stated, is the financing, founder and the Managing Body having full control and power over the funds, properties and other assets of all the three Schools. It has also been stated that this society was formed in the year of 1916 for preservation of its culture, heritage, religion, philosophy, ethics, etc., and for imparting moral, physical, commercial and religious education according to the tenets of Jain Swetamber Terapanthi Religion to the children belonging to the said community and also to other boys reading in the said School. The term of the Managing Committee expired sometime on 31st Dec. 1974. The Secretary, Managing Committee of the said institution convened a meeting of the Managing Committee for preparation of the Election Programme for reconstitution of the Managing Committee. The provisional voters' list and inclusion and substitution applications of guardians etc. were finalised according to the said programme at a meeting of the Managing Committee held on 21st Sept. 1974. The Election Officer was also appointed in the meeting of the Managing Committee, and the Election Officer also accepted his appointment and agreed to hold the Election, The election from the teachers' category was completed on 4th Oct. 1974 and election from the categories of Founder, Doner, Medical practitioner and the Persons interested in education was also completed by the Election Officer on 9th Oct. 1974. The election of the Guardians' Category was scheduled to be held on 13th Oct. 1974, but owing t0 the filing of a suit being Title Suit No. 1484 of 1974 and an interim order made therein, the said election could not be held on the date fixed. The interim order, was, however, vacated on 19-3-1975 and thereafter election from the Guardians' category was held on 15-4-1975, The same was duly intimated to the respondent No. 3, President, West Bengal Board of Secondary Education and it was also notified on the Notice Board of said institution. No objection was raised to the holding of such election from any quarter. After completion of election the same was duly communicated to the Director of Public Instruction and District Inspector of Schools. But unfortunately no departmental nominee was placed nor any communication was received from the District Inspector of Schools (S. E.) or from the Director of Public Instruction in this matter. In the meantime an Ad hoc Committee was appointed by the West Bengal Board of Secondary Education for running the administration of this institution on 9th Feb. 1976. Against that an application was moved before this Court and after hearing the parties the Court directed to appoint a Supervisor to supervise the election of the Managing Committee to be held within a period of six months. Against that an appeal being F. M. A. No, 491 of 1976 was preferred. The appeal was disposed of with this direction that the appellants will hand over the copies of the documents relating to the holding of election to the learned Advocate appearing for the Board and the President of the Board will consider the papers and also papers which he received from the office of Director of Public Instruction as well as from the District Inspector of Schools and will pass appropriate orders. The president after considering those papers as well as the papers which were supplied by the petitioners held that election held on 15-4-1975 was not valid, It was also held that there should be a fresh election of Guardians' representative according to the Rules and procedure laid down by the Board. The term of the Managing Committee appointed on 7th Feb. 1976 was also over, and in order to avoid an administrative vacuum the Board would take an appropriate step to appoint an Administrator or an Ad hoc Committee with direction to complete reconstitution of Managing Committee according to the Rules. This order was made by the Board on 19th Mar. 1977 and this has been annexed as Annexure 'A' to the petition. Against this order the petitioner moved an application in the Writ jurisdiction and obtained Civil Rule No. 2361 (w) of 1977 and an order of interim injunction restraining the respondents from appointing an Administrator or an Ad hoc Committee in this institution and also from interfering with the functions of the petitioners in respect of administration and management of this institution for a week. This interim order, however, was converted into an order of maintaining status quo in respect of management and administration of the School and the respondents were directed to consider the application of the petitioners for Special Constitution within a period of two months from the date. On 25th July, 1977 the Secretary of the West Bengal Board of Secondary Education intimated the petitioners that the application for Special Constitution was considered by the Board and the same was rejected in respect of this institution. This has been annexed as Annexure 'C' to the petition. The above two orders have been challenged in this Writ application on the , ground inter alia that this institution is run by Jain Swetamber Terapanthi Vidyalaya which is a religious and linguistic minority and as such they are entitled to maintain and manage their institution without any interference from the Board in respect of the constitution of the Managing Committee of the School. In other words, it has been submitted that this institution is entitled to get the benefit of Articles 29 and 30 of the Constitution of India, which provide that a religious community being minority has right to establish and administer educational institutions according to their own choice. It has also been submitted that no reasonable opportunity of hearing was given before rejecting their application for Special Constitution, and therefore, it is violative of the principles of natural justice. The instant Rule was issued and an interim order of maintaining status quo for a period of fourteen days were made from 22nd Sept. 1977. The said interim order was subsequently vacated.
3. An affidavit-in-opposition has been filed on behalf of Respondents Nos. 2, 3 and 4 sworn by Sri Anil Chandra Bis-was, Secretary, West Bengal Board of Secondary Education. It has been stated that the Board took the decision at its meeting dated July 21, 1977 after considering the views of the Director of Secondary Education contained in their memo dated June 14, 1977, to the following effect:--
(a) Sri Jain Swetamber Terapanthi Vidyalaya is said to have been started in 1916.
(b) That an Association named 'Sri Jain Swetamber Terapanthi Vidyalaya' is said to have been formed and registered in 1937.
(c) The Association appears to have been formed and registered nearly two decades after the School was started.
(d) The jurisdiction and control of the said Association over the High School is subject to further probe.
(e) The name of the Association as 'Sri Jain Swetamber Terapanthi Vidyalaya' is also intriguing.
(f) The affairs of the High School in recent times had been in bad shape in consideration of which the Board appointed an Ad hoc Committee to manage the institution.
4. It was further decided that the. Directorate recommended that in order to bring normalcy to the institution and tone up discipline and academic standard the prayer for Special Constitution should be rejected.
5. In para 9 of the said affidavit-in-opposition it has also been averred that from the records of the school as well as from the Souvenir published in 1973 six persons were mentioned as the founders. It has also been stated that the name of the society was not recognised by the West Bengal Board of Secondary Education as the 'Founder' of the school, and the object of the society, it was stated, was for taking over management and not to sponsor or start the Jain. Swetamber Terapanthi Vidyalaya. It has also been stated in para 10 of the said affidavit-in-opposition that the petitioners in the writ petition are society and Society and the Managing Committee are two distinct entities. As such the writ application at the instance of the society is not maintainable, in law, as the Managing Committee has been superseded earlier, and the same had become defunct long ago having no valid existence. In para 13 of the said affidavit-in-opposition it has been denied that the institution was started according to the tenets of the Jain Swetamber Terapanthi Religion. It has also been averred in para 16 of the affidavit-in-opposition that it is disputed that the petitioners belong to Jain Swetamber Terapanthi Community, which is a religious and linguistic minority community within the meaning of Articles 26. 29 and 30 of the Constitution of India. In para 23 it has been stated that in considering the application for Special Constitution the Board had to take into consideration the recommendation of the Director of Secondary Education under Rule 8 (2) of the Rules of 1969. It has been further stated that the Recognition Committee being a committee of the Board took a tentative decision in this matter as per settled practice and custom of the Board and the final decision had been taken by the West Bengal Board of Secondary Education in its meeting held on July 21, 1977.
6. A supplementary affidavit has been filed on behalf of the petitioners. In para 2 it has been stated that Jain community is divided into two sects, viz., Swetamber community and Digamber community. The petitioners are followers of Swetamber community which is the follower of Lord Mahavira. The Jain community has its own culture, heritage, philosophy and religion. It has its own language, namely prakrita Language in which its canonical works are written though at present the Prakrita Language is not a spoken language. The Jain community is a religious minority community in India, According to the Census. 1971, the members of the Jain Community formed 0.47% of the total population of India. It has been stated in para 5 of the said supplementary affidavit that Sree Jain Swetamber Terapanthi Vidyalaya (Registered Society) was established in the year of 1916 and at that time 81 families of Jain Swetamber Terapanthi religious and linguistic minority community donated to the tune of Rs. 94,167/- and a Trust Fund was created with the aforesaid donations with the object of establishing a Vidyalaya.
The institution was established to run, manage, establish and administer and to finance the Jain Swetamber Terapanthi, Vidyalaya i. e., the institution for the purpose of imparting the religious education, heritage, philosophy and culture to the children of the members of the said religious community and this institution was established bv the said society which was at that time un-re-gistered. The school is being run, managed and administered by Sree Jain Swetamber Terapanthi Vidyalaya, the society and it is the only educational institution of the Jain community. The society which was already in existence being found as early as in 1916 and which established the school also in 1916 was registered under the Societies Registration Act. 1860 in the year 1936-37. 81 families of the community who donated for the Trust Fund for the establishment as well as administration of the said Vidyalaya were made life members of Sree Jain Swetamber Terapanthi Vidyalaya (Regd. Society) under Clause 4 of the Memorandum of Association. It has also been stated that after the registration of the society in 1937 on an application for recognition made by the society this school got its first affiliation from the Calcutta University vide its letter No. 16169/PRO. 923 dated June 17, 1940. The said recognition continued up to the year 1943. The school due to the outbreak of the second World War was closed. Thereafter the society purchased the land at premises Nos. 3 and 4, Portuguese Church Street. Calcutta comprising of an area of 28 Cottah of land in accordance with the resolutions dated 23-4-45. 28-2-46 and 20-12-48 at a consideration of the Rs. 6,00,000/- in the year 1949. After spending about Rs. 1 lakh in respect of repairing, construction and for furniture and fixtures etc. for the purpose of its educational, religious and social activities as well as for the other purpose of the school, the said school was restarted from Mar. 30 1950, by Sri Jain Swetamber Terapanthi Vidyalaya (Regd. Society) at the said premises and since then the said institution is being run in an atmosphere of religious surroundings and teachings of the Jain religion which is one of the subjects of the school's curriculum. On Dec. 13, 1950, the petitioner No. 1 society applied for renewal of affiliation to the Registrar, University of Calcutta. On Jan. 1. 1952 the West Bengal Board of Secondary Education by his letter dated 13th Dec, 1951, through its Secretary intimated the Secretary of the petitioner No. 1 that the President granted provisional recognition to the school for one year with effect from 1st Jan. 1952 subject to fulfilment of certain conditions. A Managing Committee thereafter was constituted according to the Rules of the School Code, 1961. The election of the members of the Managing Committee was not held according to the Rules of Management framed under the Act. But it was completed by nomination by the Executive Committee of the petitioner No. 1 and the petitioner No. 1 requested the Board of Secondary Education to approve the same. The Board allowed the unapprov-ed Managing Committee to function as a Caretaker Committee till the reconstituted Managing Committee is approved by the Board. It has also been stated that the society is running the administration of the school and it has been always giving the financial aid and assistance to the members of the teaching and non-teaching staff and also for other purposes of the school as the Founder of the said school. It has also been stated that all the furniture and fixtures and all other assets of all these four schools which are being run in the said premises have been provided by Sri Jain Swetamber Terapanthi Vidyalaya (Regd. Society), the petitioner No. 1, and the same belongs to it. It has been further stated that Rule 8 of the Rules of Management of Recognised Non-government Institutions (Aided and Unaided) is violative of Article 14 of the Constitution of India inasmuch as there is no clear guideline suggesting in which case the Special Constitution would be sanctioned and in which case it would not. No affidavit in counter have been made controverting the statement of allegations made in supplementary affidavit.
7. Mr. Rabindra Nath Mitra, learned Advocate, appearing on behalf of the petitioner has submitted that the Jain Swetamber Terapanthi Vidyalaya i. e. the High School for Boys and Girls has been established and administered by the Jain Swetamber Terapanthi Vidyalaya, a society registered under the Societies Registration Act for the purpose of imparting the religious education, heritage and culture of Swetamber community which is a religious minority community having a special script, prakrita of its own. It has been stated by Mr. Mitra that this institution is further entitled to the benefit of Articles 26, 29 and 30 of the Constitution. Rule 8 of the Rules framed under the West Bengal Board of Secondary Education Act. 1989 for Management of Recognised Nongovernment Institutions (Aided and Unaided) are not applicable to the reconstitution of the Managing Committee of this instant institution. Several decisions have been cited at the Bar on this point. It has been submitted further that the institution was not founded by the six members of the Jain community as has been stated in affidavit-in-opposition. This will appear from the Souvenir published in 1973 and also from the past records of this school. It has been submitted on the other hand, that it would appear clearly from the Souvenir as well as from the Register of life members maintained by the school that 81 persons belonging to Swetamber Jain community donated a sum of Rs. 94,187/- for the purpose of establishment of this institution, i. e. Sree Jain Swetamber Terapanthi Vidyalaya. It has also been submitted that the petitioner No. 1 is a society registered under the Societies Registration Act and it has been empowered to take over, maintain, manage and regulate the existing educational institution known as Sree Jain Swetamber Terapanthi Vidyalaya and also to impart secular, commercial and religious education according to the tenets of the Jain Swetamber Terapanthi Religion to the Boys and Girls of the said community and also to the Boys and Girls of the other community in general. It has further been submitted that the institution was established and run by the society which was at first an unregistered society and was subsequently registered under the Societies Registration Act.
8. It has been submitted by Mr. Mitra that the order passed by the West Bengal Board of Secondary Education at its meeting held on July 21, 1977 rejecting the prayer for Special Constitution in respect of this institution is wholly illegal, arbitrary and unwarranted inasmuch as the Board simply endorsed the report of the Recognition Committee of the West Bengal Board of Secondary Education without considering the same and coming to its independent decision. It has been submitted that to grant or not to grant Special Constitution is exclusively within the power of the Board and it is for the Board to decide the same at its meeting. The Board cannot send the matter to the Recognition Committee for its consideration and cannot merely accept the report of the Recognition Committee without giving into its own decision on this matter. It has been also submitted that the Recognition Committee is not empowered under the West Bengal Board of Secondary Education Act to consider the matter relating to the grants of Special Constitution for reconstitution of the Managing Committee and the impugned order is wholly illegal and without jurisdiction. The consideration of the said report by the Board vitiated the impugned order as contained in the letter of the Secretary dated July 25, 1977. It has been further submitted by Mr. Mitra that the Rules framed under the West Bengal Board of Secondary Education Act, 1953 for Management of Recognised Non-government Institutions (Aided and Unaided) Rules, 1969 shall not affect the power of the State Government to frame Rules for composition, powers and functions of the Managing Committee of an institution to which the provisions of Article 26 or Article 30 of the Constitution apply. The instant institution being established and administered by the religious minority is immune from the application of the provisions of these Rules and as such the provision is to be made by the Government for the constitution, powers and functions of the Managing Committee of this institution. Therefore, the refection of the application for Special Constitution by the Board under Rule 8 Sub-rule (2) of the said Rules is also illegal and unwarranted being in contravention of the above Rule.
9. Mr. A. P. Chatterjee, learned Standing Counsel, appearing on behalf of the respondents Nos. 2, 3 and 4 has submitted firstly that in order to come within the provisions of Articles 26, 29 and 30 it is incumbent on the part of the petitioners to prove that this institution was established and it is being administered by a minority sect either based on religion or on language. Mr. Chatterjee has submitted that this institution was founded by six persons whose names appear from old record', of this school as well as from the Souvenir published in 1973, and the Jain Swetambcr Terapan-thi Vidyalaya, the petitioner No. 1, which is a society was registered under the Societies Registration Act some time in 1936-37 and from its Memorandum and Articles of Association, it appears that the society has been formed to run and administer the said institution which has been established already. Mr. Chattorjee, therefore sumbmitted that Article 30 is not applicable inasmuch as the institution was not established by the members of the minority sect or in other words' by the petitioner No. 1 --a registered society, for the purpose of promoting the religious and cultural tenets of this Jain Swetamber Community. In connection with this submission Mr. Chattorjee has also submitted that Jain Swetamber sect which is one of the sects within Hindu Religion cannot be termed a religious minority particularly in State of West Bengal where members of the Hindu Religion are admittedly a majority community. It has also been submitted by Mr. Chatterjee that Jain religion is a part of the Hindu Religion and Prakrita script which is claimed as the separate script of this sect is denied by Mr. Chatterjee the learned Standing Counsel. He has submitted that Prakrita is not the spoken language of the members of this community and it cannot be said to be the script of this community. It has also been submitted that several languages such as Sanskrit, Bengali etc. derived many expressions from this script. Therefore, it has been submitted by Mr. Chatterjee that this Jain Swetamber Community cannot be said to have a separate language or script of their own. In support of his submission Mr. Chatterjee strongly relied on the decision reported in : AIR1971SC1731 as well as 25 Cal WN 273 : (AIR 1921 PC 77) and (1904) ILR 31 Cal 11 (PC).
10. Mr. Chatterjee has also submitted that the decision of the Board in refusing to grant Special Constitution as regards the formation of the Managing Committee of this institution cannot be assailed on the ground that the Board considered the report of the Recognition Committee. The Recognition Committee which is formed under Section 18 of the West Bengal Board of Secondary Education Act, 1963 has been empowered to advise the Board on all the matters concerning the recognition of institution. The Board being a statutory body and an administrative authority as distinct from a Tribunal or a judicial body in the matter of considering an application for grant of Special Constitution it takes the opinion of the Recognition Committee in this matter for the purpose of giving a proper and fair decision of this matter, the said decision or determination of the Board cannot be said to be vitiated on that ground. It is entirely within the discretion of the Board how to exercise its discretionary power in this regard. Mr. Chatterjee has referred in this connection to the decisions of Local Govt. Board v. Arlidge (1915 AC 120).
11. As regard the first submission that the institution being established by the petitioner No. 1 for promotion of the religious tenets and culture of the Jain Swetamber Community, is entitled to the benefit of Articles 29 and 30 of the Constitution of India, it is necessary to consider the scope of Articles 29 and 30 of the Constitution of India which guarantee cultural and educational rights of the citizens belonging to a particular sect having a distinct language, script and culture of its own as well as minorities either based on religion or language to establish and administer educational institutions of their choice. This question has been clearly decided by the Supreme Court In re : Kerala Education Bill 1957, AIR 1958 SC 956 at p. 976 para 20 S. R. Das, C. J. who spoke for the Supreme Court observed as follows:
'The text and the marginal notes of both the articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities, Under Clause (1) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the rights to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and. therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them,'
It has also been held in the said case that to constitute a minority community in order to claim the fundamental rights guaranteed by Articles 29(1) & 30(1) of the Constitution persons belonging to that community must numerically be a minority in the particular region or State in which the educational institution is or intended to be situated. It is to be considered first whether persons belonging to the Jain Swetamber faith do form numerically a minority compared to the total pupulation of this State, It has been stated on oath in para 19 of the petition that Jain Swetamber Terapanthi sect, is a religious and linguistic minority. In the supplementary affidavit sworn on behalf of the petitioners on 22nd Apr. 1981 it has been averred in para 4 of that affidavit that the Jain Community is a religious minority community in India and according to the Census of 1971, the members of this community formed only 0.47%, There is no counter to the sup-plementary affidavit and this statement has not been controverted by the respondents Nos. 2 to 4, Moreover, the averments made in para 19 of the petition have also not been specifically traversed. The deponent in the affidavit-in-opposition merely disputed this statement made in para 19 of the petition. Therefore, in view of this state of pleadings, in my opinion, the members professing Jain faith and belonging to the Jain Swetamber Terapanthi sect do constitute a religious minority in India, particularly in West Bengal where this educational institution is situa-ed. The next question interlinked with' this is whether this Jain religion is a part of the Hindu Religion and as such the members belonging to the said religion cannot be called as belonging to a religious minority. Mr. Chatterjee, the learned Standing Counsel, has argued with a great force that Jain Religion is one of the branches of Hindu Religion and essentially and in fact it constitutes a part of the Hindu Religion. Therefore according to Mr. Chatterjee the members professing such faith cannot be termed as belonging to a sect different from the members of the Hindu Religion within the meaning of Articles 29 and 30 of the Constitution of India. This argument has been tried to be repelled by Mr. R. N. Mitra by submitting that Jain Swetamber sect is different from the Hindu Religion and for this reason, the Jains have been mentioned separately in the various Acts, such as Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956. According to Mr, Mitra the member belonging to the Jain sect profess a faith different from the Hindu Religion and as such they are entitled to the protection of Articles 26, 29 and 30 of the Constitution of India as it is one of the religious minorities in the State of West Bengal.
12. Article 26 of the Constitution of India guarantees the fundamental right to every religious denomination or any section thereof to establish and maintain institution for religious purpose as well as to manage its own affairs in the matter of religion.
13. The word 'denomination' has been defined in the Webster's Seventh New College Dictionary as a religious organisation, a general name for a category. The word 'Sect' has been defined in the Webster's Seventh New College Dictionary, as a class or order, a separate group adhering to a distinctive doctrine. In : 1SCR1005 the Commr., Hindu Religious Endowment, Madras v. Sree Lakshmindra Thirtha Swamiar, it was held that under Article 26(b) of the Constitution a religious denomination or organisation including a math enjoys complete autonomy in the matter of deciding what rights and ceremonies are essential according to the tenets of the religion they hold and no doubt the authority has no jurisdiction to interfere with their decision in such matters. Article 29 guaranteed the fundamental right of any section of a citizen residing in the territory of India having a distinct language, script or culture of its own to conserve the same -- only limitation being that in case of an educational institution maintained by such section and receiving aid out of the State Fund it cannot deny admission to its institution on grounds of religion race, caste or language. Similarly, Article 30 ensures that all minority communities either based on religion or on language shall have the right to establish and administer educational institution of their choice. The scope of these above two Articles were considered in AIR 1958 SC 956 and it was held that the right of a minority community to establish and maintain educational institution of its choice is a necessary concomitant to the right to conserve its distinct language, script or culture, and this is conferred by Article 30(1). This is subject to Clause (2) of Article 29. It has also been held that this benefit is not restricted only to the educational institution established by the religious or linguistic minority or students belonging to them. Such institution may also admit students of other community, and there being no limitation as to the subjects to be taught in such an educational institution. This institution may impart secular education also.
14. In AIR 1963 SC 540 Sidhrajbhai Sabbai v. State of Gujarat. Shah, J. who spoke for the Supreme Court observed as follows :--'The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike fundamental freedom guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of minorities in the matter of setting up of educational institution of their own choice, the right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable, because it is in the public or national interest though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a 'teasing illusion.' 'a promise of unreality,'
15. Similar view was taken in : 2SCR73 , W. Proost v. State of Bihar, : 1SCR173 , The Ahmedabad St. Xaviers College Society v. State of Gujarat. Therefore, to avail of the benefit of Articles 26, 29 and 30 it is necessary to establish that the Jain Swetamber Terapanthi Sect is a minority sect professing a faith different from the Hindu religious faith. In : 83ITR720(SC) Wealth Tax Commr. v. Champa Kumari at p. 2124 para 11 the Supreme Court observed that the question whether the Jains are a sect of Hindus or Hindu dissenters are not required to be decided in this case. Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the 'Hindu'. In the statutes such as Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoptions and Maintenance Act, 1956 Jains were mentioned specifically and as such they are to be governed by the provisions of these enactments as the Hindus, The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression 'Hindu undivided family' will certainly include the 'Jain undivided family'. 'Therefore this decision clearly lays down that Jains may not be Hindus by religion. Para 6 Clause (iv) of the Hindu Law provides that the Hindu Law applies to Jains, Buddhist. Sikhs etc. in India. Therefore Jains have been specifically mentioned in the Hindu Law for the purpose of application of Hindu Law to them. In (1904) ILR 31 Cal 11 Bhagwan Koer v. J. C. Bose it has been held by the Privy Council that a Sikh is a Hindu within the meaning of the word Hindu as used in Section 2 of Probate and Administration Act (V) of 1881. It has also been held that as to Jains in India Hindu Law applies generally to their case in the absence of custom varying that law.
16. The Privy Council has observed in the case of Sheokuarbai v. Jeoraj, 25 Cal WN 273 : (AIR 1921 PC 77) that the Jains are of Hindu origin, they are Hindu dissenters, although they do not practise the Sradhs or ceremony for the dead which is at the base of the religious theory of adoption, the Jains have so generally adopted the Hindu Law that the Hindu rules of adoption are applied to them in the absence of some contrary usage.
17. It has been submitted relying on this observation by Mr. Chatterjee, learned Standing Counsel, that Jains are Hindus and as such they cannot be regarded as a sect different from Hindu Religion for the purpose of the application of Article 30 of the Constitution,
18. In my opinion considering the decision in : 83ITR720(SC) and also of the specific mention of Jains both in the Hindu Law as well as in the various Acts such as Hindu Marriage Act, Hindu Adoptions and Maintenance Act, Hindu Succession Act etc. Jain Swetam-ber Terapanthi Sect professes a faith different from Hindu Religion. In this connection I am fortified with the pronouncement of the Supreme Court referred earlier in : 1SCR1005 as well as the definition given to the word 'Denomination' and 'Sect' as used in Article 26 of the Constitution and Article 29 of the Constitution of India, The members of Jain Sect as appears from the statements made in the petition as well as in the supplementary affidavit do form minority in comparison to the total population of India as well as of West Bengal and according to the decision of the Supreme Court in AIR 1958 SC 956 at p. 977 para 21 that the minority is to be determined by reference to the entire population Of that State. The Jain Swetamber Sect is therefore a religious minority in the State of West Bengal and as such it is entitled to the benefit conferred by Articles 29 and 30 of the Constitution of India.
19. The argument of Mr. Chatterjee, the learned Standing Counsel, that the Jain Swetamber Community is a part of the Hindu religion and members of the Hindu religion constitute the majority community in the State of West Bengal and so the members of the Jain Swetamber Sect is not a religious minority is devoid of any merit. The decision in : AIR1971SC1731 , D. A. V. College. Bhatinda v. State of Punjab does not support the submissions made by Mr. Chatterjee. In this case the question arose whether the D. A. V. College which was founded by the D. A. V. College Trust and run by a society registered under the Societies Registration Act and as association comprised of Arya Samajis are entitled to the benefit of Articles 26, 29 and 30 of the Constitution as the members of the Arya Samai is a religious and linguistic minority having 'Dev-nagri, script in running this college according to their choice and the circular issued by the Punjab University that Punjabi 'will be the sole medium of instruction and examination for the pre-University even for science group with effect from the Academic Session 1970-71' is invalid and inapplicable so far as this college is concerned. It was held that it is not necessary to go into the question of whether it is a separate religious denomination for the purpose of Article 26(1)(a) or a linguistic minority for the purpose of Article 30(1) because if it is established that the Arya Samaj had a distinct script of their own and they were a religious minority, the Arya Samajis are entitled to invoke the protection of Articles 29(1) and 30 (1). It was held that the Arya Samajis who are a part of the Hindu Community in Punjab are a religious minority and that they had a distinct script of their own, the Devnagri which entitled them to invoke the guarantees under the aforesaid provisions of the Constitution.
20. The next question that requires consideration is whether the Jain Swetamber Terapanthi Vidyalaya has been established by the members of the minority community belonging to the said sect, or in other words by the petitioner No. 1, the registered society. It has now been established by a decision of the Supreme Court in : 1SCR833 that to have the benefit of Article 30(1) of the Constitution the institution must be established and administered by the religious or linguistic minority. It has been submitted that this institution was established some time in 1916 and the registered society, i. e., the petitioner No. 1 was registered under the Societies Registration Act, in 1936-37 to run, maintain etc., the administration of this school already established. It has also been submitted that the institution was established only by persons, whose names appear as Founders from the Souvenir published in 1973 that about 81 persons belonging to Jain Swetamber Sect donated a considerable sum of money for the establishment of this institution. It also appears that this institution was temporarily closed during the Second World War and thereafter these donors and other members of the community got the petitioner No. 1 society, which according to them was in existence from the beginning of the starting of the school was registered in 1936-37, and the society was entrusted with the entire functions for running the institution after the present site was acquired by the Society and the school buildings were reconstructed and/or remodelled and all the furniture and fixtures were also purchased by the Society with the funds donated by the members of the minority community to the society. It also appears that all the members of the society are members belonging to the minority community and it is they who contributed a considerable amount of money as stated by the petitioner amounting to Rs. 56 lakhs of rupees for carrying on the administration of this school. It also appears from the Memorandum of Association of the society that this school has been established and is being run for the purpose of promoting the culture and religious tenets of this sect primarily, along with the secular education imparted to its pupils, majority of which hailed from this minority sect or religion.
21. In these circumstances. I am constrained to hold that this institution has been established by the petitioner No. 1-society solely with the funds contributed by the members of that religious minority community viz, Jain Swetamber Terapanthi Sect primarily for the purpose of promoting their culture and religious tenets and imparting the same to the pupils belonging to their community. Therefore this institution is entitled to the benefit of Article 30(1) of the Constitution of India. The impugned order rejecting the prayer for Special Constitution as 'regards the constitution and/or reconstitution of the Managing Committee of this school is therefore wholly illegal and bad. I also hold that Rule 8 of the Rules framed for Management of Recognised Non-government Institutions (Aided or Unaided), 1969 is not applicable to this institution inasmuch as it purports to interfere with the fundamental freedom guaranteed to the religious minority, i. e., the Jain Swetamber Terapanthi Sect to administer their educational institutions according to their choice. It will be appropriate to refer in this connection to the observations of the Supreme Court in : 1SCR820 where it has been held that the right to administer the institution of minority's choice enshrined in Article 30(1) of the Constitution means 'management of affairs' of the institution. This right is, however, subject to the regulatory power of the State. This regulatory power is to be exercised in such a manner as to bebefit the institution but if it exceeds that limit and imposes what is in truth not a mere regulation but an impairment of the right to administer the Article comes into play and the interference cannot be justified by pleading the interests of general public, the interest justifying interference can only be the interests of the minority concerned. Therefore, in my opinion, Rule 3 is not applicable to the Constitution of the Managing Committee of this institution and the impugned order rejecting the prayer for Special Constitution is, to that extent, illegal and void.
22. In view of the findings made above it is not necessary to consider whether the order refusing Special Constitution by the West Bengal Board of Secondary Education dated 4th of July, 1977 is one made in accordance with the provisions of Rule 8 (2) of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 because of the consideration by the Board of the report of the Recognition Committee whom the matter was referred. However, as arguments have been advanced by the parties on this point, I think it proper to deal with this branch of submission made by the learned Advocates for the parties. Sub-rule (2) of Rule 8 of the said Rules made in 1969 was amended and substituted by new Sub-rule (21 published in Calcutta Gazette dated 11th Jan. 1974. This Rule empowers the Board to approve on the application of any institution of the Special Constitution of a Committee in favour of such institution or class of institutions and in approving of Special Constitution of a Committee the Board shall pay due regard to the recommendations of the Director. This Rule merely requires the Board while considering the application for approval for Special Constitution of a Committee made by any institution shall consider the recommendation of the Director of Public Instruction, West Bengal. Therefore, this Rule does not require the Board to take the opinion and/or report of the Recognition Committee on this matter. Moreover, Section 19 of the West Bengal Board of Secondary Education Act, 1963 clearly specifies the powers and functions of the Recognition Committee Sub-section (3) of the said Section provides that the Recognition Committee shall advise the Board on all matters concerning the recognition of institutions and no recognition to any institution shall be accorded by the Board except on the recommendation of the Recognition Committee. Therefore, the Recognition Committee which is a statutory body has not been empowered to exercise any power of considering and giving any opinion on the question of the Special Constitution of a Committee of an institution. The resolution adopted by the West Bengal Board of Secondary Education at its meeting held on 4-7-1977 wherein the report of the Recognition Committee was considered and the prayer for Special Constitution in respect of Sri Jain Swetamber Terapanthi dyalaya was rejected is, in my opinion, not a proper and valid order as the said order is vitiated by taking into consideration of the report of the Recognition Committee and determining matter on its basis. It is now well settled that statutory powers are to be exercised by the statutory bodies in the manner as provided in the statute or statutory Rules and Regulations framed thereunder. Neither Rule 8 (2) nor Section 19 of the said Act thus provide for referr-ing the matter to the Recognition Committee on the question of Special Constitution of committee of an institution and consideration of the said report by the West Bengal Board of Secondary Education.
23. Mr. Chatterjee has tried to submit referring to the decision made by the House of Lords in the case of Local Govt. Board v. Arlidge (1915) A. C. 120 where question arose whether the Local Board rightly determined a matter on the report of the Inspector. It was held that when the duty of deciding an appeal is imposed on the authority, the authority is to act judicially while deciding the appeal. In dong so the authority may obtain information in any way it though best giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the authority failed in this duty, its order might be the subject of cer-tiorari and it must itself be the subject Of mandamus. This case has got no application to the facts of the present case in view of the fact that the Board was empowered by Rule 8 (2) to exercise its power in determining Special Constitution of a committee in respect of an institution in the manner provided therein. I have held that the Board while deciding the matter did not act in accordance with the manner laid down in the said Rule and as such the decision is bad.
24. In the premises aforesaid this Rule succeeds and is made absolute.
25. Let a Writ in the nature of Mandamus be issued on the respondents Nos. 2, 3 & 4 to forbear from giving effect to the order of appointment of Administrator or Ad hoc Committee as made on Mar. 19, 1977 mentioned in Annexure 'A' to the petition as well as the order dated 4th of July, 1977 rejecting prayer of Special Constitution of Managing Committee for Swetamber Terapanthi Vidyalaya as annexed in the Annexure 'C' to the petition.
26. Let a Writ of Certiorari be issued directing the respondents to quash and set aside the impugned orders mentioned in Annexures 'A' and 'C' to the petition.
27. There will, however, be no order as to costs.
28. The prayer for stay is refused.