# Anshuman Singh Rathore v. U.O.I. Ors. Opp. Parties

- **Citation:** (2024) 3 ILRA 1872
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-22
- **Case number:** Writ-C No. 6049 of 2023
- **Bench:** Vivek Chaudhary, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anshuman-singh-rathore-v-u-o-i-ors-opp-parties-51575
- **Pages:** 61

## Headnote

A.S.G.I.,
Afzal
Ahmad
Siddiqui,
Mahendra
Bahadur Singh, Mohd. Kumail Haider, Sanjeev
Singh, Shailendra Singh Rajawat, Sudhanshu
Chauhan, Syed Husain, Vikas Singh

Civil Law - Civil Procedure Code, 1908 -
Order XL Rule 1, Sections 151 & 152 -
Appointment
of
Receiver
-
Interlocutory
Mandatory Injunction - Appeals under Order
XLIII Rule 1(s) challenging orders dated
17.01.2024 and 31.01.2024 appointing District
Magistrate, Varanasi as Receiver for Vyas Ji
Tehkhana (cellar) and directing worship/rituals -
Held, appointment of Receiver justified as
plaintiff established strong prima facie case of
possession by Vyas family since 1551, supported
by map in Din Mohammad case (1937) and
Commissioner's report (1996) - No evidence of
appellant's possession over tehkhana - Order
dated 31.01.2024 correcting omission of relief
(b) valid under Sections 151/152 CPC, as it
rectified accidental slip without altering merits -
Actus curiae neminem gravabit applied -
Interlocutory mandatory injunction to restore
worship (stopped in 1993) upheld, as it restores
status quo ante, not final relief - No clash of
interest in District Magistrate's role as Receiver
and ex-officio member of Kashi Vishwanath
Trust Board - Pleas of limitation, res judicata,
and non-joinder/mis-joinder premature without
written St.ment or framed issues - Dorab
Cawasji Warden guidelines satisfied. (Para 61165)

Appeals dismissed.

List of Cases Cited:

## Text

_Characters 0–39,932 of 201,635. This is a partial read: ask again with offset=39932 for what follows._

1872 INDIAN LAW REPORTS ALLAHABAD SERIES
raising illegal constructions is allowed to
raise additional constructions in the garb of
compounding, by paying additional money,
to the
authority. While
development
authority benefits in the form of additional
revenue
from
compounding
the
unscrupulous elements operating in the
field also benefit. Everyone wins at the cost
of planned development.

6. Question arises thus as to whether
the development authorities are established
to secure planned development or are to
facilitate large scale violation of building
bye-laws in the name of compounding. In
the facts of the present case also we find
from the instructions that though the
authority has been made aware that
constructions are being raised contrary to
the building plan and in excess of the
permissible area over which constructions
are allowed in the building plan but instead
of ensuring that constructions are restricted
only in accordance with the approved plan,
the authority is facilitating compounding by
calling upon the private respondents to get
such illegality regularized. This approach
of the development authority has to be
discouraged.

7. The development authority has
been
constituted
to
ensure
that
constructions are allowed to be raised
strictly as per the plan. The foremost
endeavor has to be ensure that no
constructions contrary to the plan are
allowed.
The
practice
of
allowing
deviations and then facilitating such
departures from the norms by getting the
maps compounded must stop.

8. In the facts of the present case, we
call upon the respondents to ensure that no
constructions in excess of the sanction plan
is allowed to be raised on the spot. The
State Government is also directed to issue
immediate directions to all development
authorities to ensure that no constructions
are allowed to be raised over and above the
permissible
constructions
as
per
the
building bye-laws. We may also specify
that the norms for constructions as per the
building bye-laws must not be relaxed in
cases of compounding, inasmuch as the
compounding can only be to facilitate expost facto approval of plan, but while doing
so, the building norms cannot be relaxed.
What is not permissible under the building
bye-laws should not be allowed by way of
compounding. The Principle Secretary of
the Department of Housing shall, therefore,
file his personal affidavit in compliance of
the above directions. The Vice-Chairman
shall ensure that no constructions on the
plot is allowed to be raised except in
accordance with the sanction plan. The
authority shall also make an assessment of
the damage which apparently has been
caused to the petitioner's construction on
account of deviations allowed while raising
constructions by the private respondents.

9. List as fresh on 8.4.2024.
----------
(2024) 3 ILRA 1872
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.03.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 6049 of 2023
alongwith other connected cases

Anshuman Singh Rathore ...Petitioner
Versus
U.O.I. Ors. ...Opp. Parties
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1873
Counsel for the Petitioner:
In Person, Aditya Kumar Tiwari, Ghulam
Mohammad Kamil

Counsel for the Opp. Parties:
A.S.G.I.,
Afzal
Ahmad
Siddiqui,
Mahendra
Bahadur Singh, Mohd. Kumail Haider, Sanjeev
Singh, Shailendra Singh Rajawat, Sudhanshu
Chauhan, Syed Husain, Vikas Singh

Civil Law - Civil Procedure Code, 1908 -
Order XL Rule 1, Sections 151 & 152 -
Appointment
of
Receiver
-
Interlocutory
Mandatory Injunction - Appeals under Order
XLIII Rule 1(s) challenging orders dated
17.01.2024 and 31.01.2024 appointing District
Magistrate, Varanasi as Receiver for Vyas Ji
Tehkhana (cellar) and directing worship/rituals -
Held, appointment of Receiver justified as
plaintiff established strong prima facie case of
possession by Vyas family since 1551, supported
by map in Din Mohammad case (1937) and
Commissioner's report (1996) - No evidence of
appellant's possession over tehkhana - Order
dated 31.01.2024 correcting omission of relief
(b) valid under Sections 151/152 CPC, as it
rectified accidental slip without altering merits -
Actus curiae neminem gravabit applied -
Interlocutory mandatory injunction to restore
worship (stopped in 1993) upheld, as it restores
status quo ante, not final relief - No clash of
interest in District Magistrate's role as Receiver
and ex-officio member of Kashi Vishwanath
Trust Board - Pleas of limitation, res judicata,
and non-joinder/mis-joinder premature without
written St.ment or framed issues - Dorab
Cawasji Warden guidelines satisfied. (Para 61165)

Appeals dismissed.

List of Cases Cited:

1. Bharat Sanchar Nigam Limited Vs Prem
Chandra Premi, (2005) 13 SCC 505

2. Mohd. Aslam @ Bhure Vs U.O.I., (1997) 5
SCC 575

3. T. Krishnaswamy Chetty Vs C. Thangavelu
Chetty, AIR 1955 Mad 430

4. Dwaraka Das Vs St. of M.P., (1999) 3 SCC 500
5. My Palace Mutually Aided Cooperative Vs B.
Mahesh, 2022 LiveLaw (SC) 698

6. UPSRTC Vs Imtiaz Hussain, (2006) 1 SCC 380

7. Plasto Pack, Mumbai Vs Ratnakar Bank Ltd.,
(2001) 6 SCC 683

8. Metro Marines Vs Bonus Watch Co. (P) Ltd.,
(2004) 7 SCC 478

9. Jayalakshmi Coelho Vs Oswald Joseph
Coelho, (2001) 4 SCC 181

10. Dorab Cawasji Warden Vs Coomi Sorab
Warden, (1990) 2 SCC 117

11. Gurunanak Dev University Vs Parminder
Kumar Bansal, 1993 Supreme (SC) 458

12. Samir Narain Bhojwani Vs Aurora Properties
and Investments, (2018) 17 SCC 203

13. St. of U.P. Vs Ram Sukhi Devi, (2005) 9 SCC
733

14. Mohd. Mehtab Khan Vs Khushnuma Ibrahim
Khan, (2013) 9 SCC 221

15. Deputy Director Land Acquisition Vs Malla
Atchinaidu, MANU/SC/0121/2006

16. Niyamat Ali Molla Vs Sonargon Housing
Cooperative Society Ltd., (2007) 13 SCC 421

17. Madan Lal Vs Sneh Gupta, AIR 2001 Del 433

18. Syed Khuwaja Syed Ahmed Vs Maharashtra
Housing and Area Development Authority, 1983
Mah LJ 120

(Delivered by Hon'ble Vivek Chaudhary,h,
J.& Hon'ble Subhash Vidyarthi, J.)

(A)
Reference
Order
And
Introductory Facts (Paragraphs 1 to 9)

(B)
Submissions
Of
Parties
(Paragraphs 10 to 25)

(C)
Preliminary
Objection
(Paragraphs 26 to 46)
1874 INDIAN LAW REPORTS ALLAHABAD SERIES

(D) History Of Madarsas In State
Of U.P. And Relevant Provisions Of
Madarsa
Act
And
Regulations
(Paragraphs 47 to 52)

(E) Grounds Of Challenge:

(I) Violative Of Secularism Article
14 (Paragraphs 53 to 71)

(II) Violative Of Articles 21 And 21A (Paragraphs 72 to 84)

(III) Conflict Of Madarsa Act And
U.G.C. Act (Paragraphs 85-98)

(F) Conclusion (Paragraph 99)

(A) REFERENCE ORDER AND
INTRODUCTORY FACTS

1. A Single Judge Bench hearing Writ
A No. 29324 of 2019 (Mohammed Javed
versus State of U.P. and others), passed the
following order on 23.10.2019: -

"1. Heard learned counsel for
petitioner.

2. Sri Alok Sharma, learned
Additional Chief Standing Counsel has
accepted notices on behalf of opposite
party no.1 and 3, Sri Afzal Siddiqui,
learned counsel has accepted notices on
behalf of opposite party no.2.

3. Issue notice to opposite party
no.4 returnable at an early date.

4. Petitioner has filed present
writ
petition
claiming
that
he
was
appointed as part-time assistant teacher in
the year 2011 for the primary Section of
respondent no.4 Madrasa Nisarul Uloom
Shahzadpur, Akbarpur Post Office, District
Ambedkar Nagar on a fix salary of
Rs.4,000/- per month, subject to 8% annual
increment. He prays that no regular
appointment should be made by respondent
no.1 to 3 i.e. the State Government, the
Madarsa Shiksha Parishad and District
Minority Welfare Officer and his service
should be regularized. Further prayer is
that he should be paid salary as is being
paid to the regular teachers.

5. Petitioner places reliance upon
the provisions of U.P. Board of Madarsa
Education Act, 2004 (Madarsa Act, 2004)
and the regulations framed thereunder. At
the time of hearing, perusal of the Madarsa
Act, 2004, Section 2(h) defines:-

"Section
2(h):-MadarsaEducation" means education in Arbic
Urdu, Parsian, Islamic-studies, Tibb Logic,
Philosophy
and
includes
such
other
branches of learning as may be specified by
the Board from time to time."

6. For the purposes of Madarsa
education, a Board is constituted under
Section 3 of the Madarsa Act, 2004 which
reads :-

"Section 3(3) The Board shall
consist of the following members, namely:

(a)
a
renowned
Muslim
educationist in the field of traditional
Madarsa-Education, nominated by the
State Government who shall be the
Chairperson of the Board;

(b) the Director, who shall be the
Vice-Chairperson of the Board;

(c) the Principal, Government
Oriental College, Rampur;

(d) one Sunni-Muslim Legislator
to be elected by both houses of the State
Legislature;

(e) one Shia-Muslim Legislator to
be elected by both houses of the State
Legislature;

(f) one representative of National
Council for Educational Research and
Training;

(g)
two
head
of
institution
established and administered by SunniMuslim
nominated
by
the
State
Government;

(h)
one
head
of
institution
established and administered by Shia-
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1875
Muslim
nominated
by
the
State
Government;
(i) two teachers of institutions established
and
administered
by
Sunni-Muslim
nominated by the State Government;

(j) one teacher of an institution
established and administered by ShiaMuslim
nominated
by
the
State
Government;

(k) one Science or Tibb teacher of
an institution nominated by the State
Government;

(l) the Account and Finance
Officer in the Directorate of minority
Welfare, Uttar Pradesh;

(m) the Inspector;

(n) an officer not below the rank
of Deputy Director nominated by the State
Government, who shall be the member
Registrar;

7. From perusal of the same,
following
questions
arise
for
consideration:-

(i) Since the Madarsa Board is
constituted for education in 'Arbic, Urdu,
Parsian,
Islamic-studies,
Tibb
Logic,
Philosophy
and
includes
such
other
branches of learning as may be specified by
the Board from time to time', how come
persons of a particular religion are
provided to be member of the same? It does
not talks about exponence in the aforesaid
fields, for the purposes of which the Board
is constituted, but persons of specific
religion. It was put to learned Additional
Chief Standing Counsel as to whether the
purpose of the Board is to impart religious
education only, to which he submits that a
perusal of the Madarsa Education Act,
2004 does not indicate so.

(ii) With a secular constitution in
India can persons of a particular religion
be appointed/nominated in a Board for
education purposes or it should be persons
belonging to any religion, who are
exponent in the fields for the purposes of
which the Board is constituted or such
persons should be appointed, without any
regard to religion, who are exponent in the
field for the purposes of which the Board is
constituted?

(iii) The Act further provides the
Board to function under the Minority
Welfare Ministry of State of U.P., hence, a
question arises as to whether it is arbitrary
for providing the Madarsa education to be
run
under
the
Minority
Welfare
Department while all the other education
institutions including those belonging to
other minorities communities like Jains,
Sikhs, Christians etc being run under the
Education
Ministry
and
whether
it
arbitrarily denies the benefit of experts of
education and their policies to the children
studying in Madarsa?

8. All these questions impacts the
vires of the Madarsa Act, 2004 and are
important questions to be decided before
looking into the application of the Madarsa
Act, 2004 and the regulations framed
thereunder. Thus, I find it appropriate that
the matter may be placed before the Larger
Bench for decision on the aforesaid issue.

9. In view thereof, office is
directed to place the matter before the
Hon'ble the Chief Justice/Senior Judge for
constitution of a Larger Bench."

2. Thereafter, on the basis of the
aforesaid reference order, other writ
petitions, namely, Writ A No. 3735 of
2012, 5548 of 2014, 3615 of 2020 and Writ
(C) No. 481 of 2020, were also referred to
the Larger Bench.

3.

The matters
referred
were
nominated to different Benches, but, could
not be taken up. Finally, by order dated
18.05.2023 of the Chief Justice, the present
Bench was nominated to hear the reference.
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ (C) No. 6049 of 2023 (Anshuman
Singh Rathore versus Union of India and
others) was filed meanwhile, challenging
the vires of the U.P. Board of Madarsa
Education Act, 2004 (for short 'the
Madarsa Act') on the ground that the same
violates the principle of Secularism, which
forms a part of the basic structure of the
Constitution of India as well Articles 14, 15
and 21-A of the same. He further
challenges Section 1(5) of Right of
Children
to
Free
and
Compulsory
Education Act, 2009 (for short 'the R.T.E.
Act') This Writ Petition was also nominated
to this Bench by order dated 31.07.2023 of
the Chief Justice. Hence, all these matters
with regard to vires of the Madarsa Act are
before us.

4. These petitions relate to the
enforcement of Fundamental Rights of
minor children of the marginalised and
poor Sections of the largest minority
community of the State. Looking into the
vastness of the issues involved and depth of
impact it would have upon them, this Court
appointed Sri Gaurav Mehrotra, Sri Akber
Ahmad and Sri Madhukar Ojha, Advocates,
as Amici Curiae to assist the Court vide
order dated 14.07.2023 passed in Writ A
No.29324 of 2019.

5. During the course of hearing, the
following parties filed applications seeking
impleadment/intervention
in
Writ-C
No.6049 of 2023: -

(1)
Managers
Association,
Madaris Arabiya, U.P., through Sri G. M.
Kamil, Advocate;

(2)
All
India
Teachers
Association, Madarsa Arabia, New Delhi,
through Sri Syed Hussain, Advocate;

(3) Manager Association, Arbi
Madarsa, Nai Bazar, Balrampur, through
Sri Aditya Kumar Tiwari, Advocate;

(4) Adhyayan Foundation for
Policy Research, through Sri Amrendra
Nath Tripathi, Advocate;

(5) Shikshharettar Karamchari
Association, Madaris E Arabia, Kanpur
Nagar, through Sri Mohd. Kumail Haider
and Sri Iqbal Ahmad, Advocates;

(6) Madarsa Jamia Baitul Uloom,
Balrampur, through Sri Mohd. Kumail
Haider and Sri Iqbal Ahmad, Advocates;

(7)
Teachers
Association,
Madaris Aribiya, U.P. Kanpur, through Sri
Prashant Chandra Senior Advocate assisted
by Sri M. B. Singh, Advocate.

6. The learned Counsel for all the
abovementioned applicants stated that as
the issues involved are purely legal in
nature, they would not file any counter
affidavit
and
they
advanced
their
submissions on the legal and Constitutional
issues involved in the matter. The learned
counsel for some of the parties have
submitted some Government Orders and
Notifications etc. through affidavits or
otherwise and all of those have been taken
on record.

7. We have heard at length the
petitioner Sri Anshuman Singh Rathore,
who himself is an Advocate, as well as Sri
Sudeep Kumar, learned counsel for the
petitioner,
Amici
Curiae
Sri
Gaurav
Mehrotra, Sri Akber Ahmad and Sri
Madhukar Ojha Advocates, Sri Anil Pratap
Singh,
learned
Additional
Advocate
General and Sri Sanjeev Singh, learned
Standing Counsel for the State of U.P., Sri
Sudhanshu
Chauhan
and
Sri
Anand
Dwivedi, learned counsel appearing on
behalf of Union of India, Sri Sandeep Dixit,
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1877
Senior Advocate assisted by Sri Afzal
Ahmad Siddiqui Advocate for the Madarsa
Board,
Sri
Prashant
Chandra
Senior
Advocate assisted by Sri M. B. Singh and
Sri Vikas Singh Advocates for Teachers'
Association Madarsa Aribiya, Sri G. M.
Kamil Advocate for Managers Association
Madaris Arabiya, Uttar Pradesh, Sri Syed
Hussain Advocate for All India Teachers
Association Madarsa Arabia, New Delhi,
Sri Aditya Kumar Tiwari Advocate for
Manager Association, Arbi Madarsa, Nai
Bazar, Balrampur, Sri Amrendra Nath
Tripathi
Advocate
for
Adhyayan
Foundation for Policy and Research, and
Sri Mohd. Kumail Haider and Sri Iqbal
Ahmad
Advocates
for
Shikshharettar
Karamchari Association, Madaris E Arabia,
Kanpur Nagar and Madarsa Jamia Baitul
Uloom, Balrampur.

8. The reference order doubts the
validity of specific provisions of the
Madarsa
Act
on
the
principles
of
secularism. The standing counsel before the
single judge had stated that purpose of the
Madarsa Board is not to impart religious
education. However, both, the State of U.P.
and the Madarsa Board before this Court
fairly accepted that the Board imparts not
only religious education, but, also religious
instructions and teachings. Therefore the
reference was reframed as follows: -

"Whether the provisions of the
Madarsa Act stand the test of Secularism,
which forms a part of the basic structure of
the Constitution of India."

9. This re-framing of the reference
does not impact the scope of hearing, as the
challenge raised in the writ petition of
Anshuman Singh Rathore to the Madarsa
Act is on the ground that the provisions,
scheme and the environment created by the
Madarsa Act with regard to education in
Madarsas in the State violates Articles 14,
15 and 21-A of the Constitution of India.
The
Fundamental
Rights
under
the
aforesaid Articles, more specifically under
Article 14 and 21-A, includes right to
universal quality education, which also
includes secular education.

(B) SUBMISSIONS OF PARTIES

10. The Petitioner and his counsel
submit that the Madarsa Act violates the
principles of secularism, which forms a part
of the basic structure of the Constitution of
India; fails to provide quality compulsory
education up to the age of 14 years/ClassVIII, as is mandatorily required to be
provided under Article 21-A of the
Constitution of India; and further fails to
provide universal and quality school
education to all the children studying in
madarsas, as is mandatorily required to be
provided
under
Article
21
of
the
Constitution of India. Thus it violates the
Fundamental Rights of the students of the
madarsas. The writ petition also challenges
vires of Section 1(5) of the R.T.E. Act
which
excludes
Madarsas,
Vedic
Pathshalas and educational institutions
primarily imparting religious instructions.

11. Learned Amici Curiae also
supported the submissions of the petitioner.
They further submit that Article 25
provides the right to freedom of conscience
and the right to freely profess, practice and
propagate religion. This right does not
affect the right of regulating any social
activity which may be associated with
religious practice and right of the State
from making any law providing for social
welfare and reform. Sri Mahrotra also
submitted that while making laws which
are saved by Article 25(2), the State should
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
be progressive and reformative in its
approach, and its approach cannot be
regressive. The Madarsa Act denies the
children studying in Madarsa, the right to
receive
quality
education
like
other
children studying in regular schools and,
therefore, the Madarsa Act is a regressive
enactment, which is unconstitutional.

12. The learned Amici Curiae also
submitted that Part 4-A of the Constitution
of India deals with Fundamental Duties and
Article 51-A of the Constitution of India
inter alia provides that it shall be the duty
of every citizen to promote harmony and
the spirit of common brotherhood amongst
the people of India transcending religious,
linguistic, regional or sectional diversities,
to develop the scientific temper, humanism
and the spirit of inquiry and reform, to
strive towards excellence in all the spheres
of individual and collective activity so that
the nation constantly rises to higher level of
endeavor and achievement. Clause (K) of
Article 51-A provides that it shall be the
duty of every parent or guardian to provide
opportunities for education to his child or,
as the case maybe, ward between the age of
06 and 14 years. The learned Amici Curiae
submit that although the fundamental duties
are not enforceable and the State cannot be
compelled to act in furtherance of Article
51-A, at the same time, the State cannot act
in a manner which would be contrary to the
provisions contained in Article 51A. The
provisions of Madarsa Act making special
provisions for education to the children of a
single minority community, in a very
limited sphere of knowledge and of level
lower than the normal level of education
imparted in regular educational institutions,
is clearly violative of the fundamental
duties and, therefore, the Madarsa Act is
violative of the basic spirit of the
Constitution of India.

13. The learned Amici Curiae further
submit that Seventh Schedule appended to
the Constitution of India contains three list
- List I being the Union List, List II being
the State List and List III being the
Concurrent List. Entry 66 of List I is a
"coordination
and
determination
of
standards
in
institutions
for
higher
education or research and scientific and
technical institutions. Entry 25 in List III
is-
"Education,
including
technical
education,
medical
education
and
universities, subject to the provisions of
Entries 63, 64, 65 and 66 of List 1;
vocational
and
technical
training
of
labour." Section 9(a) and 9(j) of Madarsa
Act
contain
provisions
regarding
determination of standards of higher
education in Madarsa, power that vests in
the Central Government, as per entry 66 of
List I, and, therefore, the State does not
have the legislative competence to legislate
in this regard.

14. Section 3 of the Madarsa Act
provides for constitution of Madarsa Board
and
no
educational
qualification
is
prescribed for any person to be a member
of the Madarsa Board.

15. The learned Amici Curiae
submitted that secularism is a part of the
basic structure of Constitution of India and
the Madarsa Act violates the principle of
secularism. In support of this submission,
they have placed reliance on large number
of judgments which are referred to in later
part of the judgment.

16. The submission of the learned
Amici Curiae is that the Madarsa Act
violates Secularism and Article 14, 15,
16(5), 29(2), 30 and Article 51-A of the
Constitution of India.
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1879

17. They further submitted that to the
extent of higher education, the Madarsa Act
is directly in conflict with and violates the
U.G.C. Act and entrenches upon the field
occupied by the central legislation and thus
to the said extent is also ultravires.

18.

Opposing
the
aforesaid
submissions, the stand of State of U.P.
through the learned additional Advocate
General is that no doubt the Madarsa Board
is providing religious education as well as
religious instructions to the students, but
the State has sufficient power to impart
such education under the Constitution of
India and is rightly permitting such
education. He has also traced the history of
Madarsa education in the State of U.P. Sri
Sanjiv Singh learned standing counsel
further submits that education provided by
Madarsa Board is traditional education,
relating to religion, culture and language
which does not change with time. It is
covered by entry 25 of List III of VII
schedule to the Constitution of India.
Providing
religious
education
and
instructions is not barred or illegal. For
such religious education a separate Board is
necessarily required, which needs to have
members of such particular religion. He
further states that these madarsas are
providing
cheap
education
to
these
children,
who
belong
to
poor
and
marginalised families. The U.G.C. Act does
not relate to religious teachings, education
and
instructions
or
with
traditional
education and thus both occupy different
fields.

19. Sri. Sandeep Dixit Senior
Advocate for Madarsa Board raised a
preliminary objection against the locus
standi
of
the
petitioner
and
also
insufficiency of pleadings to challenge the
maintainability of the writ petition. He also
relies upon Article 25 to 30 of the
Constitution of India to submit that State
Government has power to provide religious
education and instructions of a particular
religion in schools. He strongly states that
nearly free education is being provided by
these madarsas to minor children, with a
monthly fee of hardly rupees 10/- or 20/-
per month and in case the Madarsas are
closed, these children would be left without
even this education. These madarsas
themselves are surviving on the aid
received from the Government. Therefore
the court, in the interest of these children
from poor families, should dismiss the
petition.

20. Sri. Prashant Chandra Senior
Advocate
appearing
for
Teachers'
Association Madarsa Aribiya, Kanpur,
opposing the petition, also supported the
preliminary
objections
and
further
submitted that even if this Court finds some
of the provisions of the Madarsa Act to be
violating Chapter-III of the Constitution of
India, still this Court should, as far as
possible, only declare such provisions of
the Madarsa Act to be ultra vires and save
the remaining provisions of the Act, either
by reading down the said provisions or by
carving the same out of the Act.

21. Sri Amrendra Nath Tripathi
Advocate
on
behalf
of
Adhyayan
Foundation
for
Policy
and
Research
submitted that it is the jurisdiction of
NCTE to provide quality education up to
Class-VIII and Madarsa Board violates the
provisions of NCTE Act also. Counsel for
respondents and intervenor broadly adopted
leading arguments made by State of U.P.,
Madarsa Board and Teachers Association,
Madarsa Arabiya, Kanpur.
1880 INDIAN LAW REPORTS ALLAHABAD SERIES

22. All the learned Counsel opposing
the petition and reference order have, while
adopting arguments of aforesaid persons,
also relied upon Articles 25 to 30 of the
Constitution of India to submit that
religious education and instructions of a
religion can be provided in schools and
thus State Government can frame such an
Act.

23.

Learned
counsel
for
the
respondents and interveners submit that the
State Government is having sufficient
power to legislate with regard to traditional
education. They submit that the UGC Act
does not cover the field of traditional
education and there is also no other Central
Act that occupies the said field of
traditional education, therefore, the State
has rightly exercised its legislative power
in the said field. Learned counsel for the
respondents and interveners, however, has
not placed any case law or other material
before us in support of their submission.
They also, despite repeated queries, could
not elaborate the difference between
traditional
education
and
modern
education, except for their submission that
religious education is covered in the field
of traditional education. They also could
not specify the provisions that could be
carved out of the Madarsa Act to save any
part of the same.

24. Mr. Sudhanshu Chauhan for the
Union of India states that the stand of the
Union of India is that religious education
and religious instructions of a single
religion cannot be included in school
education and State Government has no
power to create statutory Education Boards
permitting religious education. He further
submits that the earlier policy of Union of
India
for
providing
grants/funds
to
Madarsas was effective till 31.03.2022 and
there is no proposal of Government of India
to extend the same. He strongly opposes
challenge to vires of Section 1(5) of the
R.T.E. Act.

25. In support of their respective
submissions parties have placed reliance on
large number of precedents, which are dealt
with in the later part of this judgment.

(C) PRELIMINARY OBJECTIONS

26. Sri Sandeep Dixit, learned Senior
Advocate, appearing for the Madarsa
Board, and Sri Prashant Chandra, learned
Senior
Advocate,
appearing
for
the
Teachers' Association Madarsa Aribiya,
Kanpur, have raised two preliminary
objections with regard to maintainability of
the writ petition filed by Sri Anshuman
Singh Rathore. Their first objection is that
the petitioner is an Advocate practicing in
the High Court and he has no personal
interest in the matter, hence, he could not
have filed this writ petition. At best, he
may have filed a Public Interest Litigation,
but the present writ petition is not a Public
Interest Litigation and, hence, he has no
locus standi to file the present writ petition.

27. Sri. Sandeep Dixit has further
submitted that the Writ Petition No.6049 of
2023 filed by Sri. Anshuman Singh Rathore
Advocate appears to have been filed for the
benefit of Madarsas, as in case the Madarsa
Act is held to be unconstitutional or ultra
vires, the State will lose control over the
Madarsas and the Madarsas will become
absolutely free, which will not be in the
interests of the students of the Madarsas.

28. In support of their preliminary
objection regarding lack of locus standi,
they have placed reliance upon the
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1881
judgments in the cases of Jasbhai
Motibhai Desai versus Roshan Kumar,
Haji Bashir Ahmed and others (1976) 1
SCC 671 and Vinoy Kumar versus State
of U.P. and others (2001) 4 SCC 734.

29. Replying to the preliminary
objection regarding locus standi, Sri
Sudeep
Kumar,
learned
counsel
for
petitioner, and learned Amici Curiae
submitted that this is a matter relating to
Fundamental Right to life and education of
minor children of financially weak families
of a minority community of this country,
therefore, this Court cannot refuse to
entertain
the
writ
petition
involving
questions of Fundamental Rights of such
minor children belonging to a marginal
section of the society on technicalities. As
has been submitted by the State and
Madarsa Board, the children studying in
Madarsas belong to poor families, which
are unable to bear the cost of education of
regular schools and it is duty of this Court
to
come
forward
and
protect
their
Fundamental Rights, rather to refuse to
interfere on mere technicalities. They
further submit that all the aforesaid
judgments, relied upon by the respondents,
arose from disputes which are regarding
personal rights of individuals and the same
cannot be applied to a matter relating to
Fundamental Rights of minor children of
poor and marginal families. Reliance is
placed by Sri Sudeep Kumar upon a
judgment of Supreme Court in the case of
S. P. Gupta versus Union of India and
another, 1981 (Supp) SCC 87.

30. In Jasbhai Motibhai Desai versus
Roshan Kumar, Haji Bashir Ahmed and
others (1976) 1 SCC 671, it was held that: -

"13. This takes us to the further
question: Who is an "aggrieved person"
and what are the qualifications requisite
for
such
a
status?
The
expression
"aggrieved person" denotes an elastic, and
to an extent, an elusive concept. It cannot
be confined within the bounds of a rigid,
exact and comprehensive definition. At
best, its features can be described in a
broad tentative manner. Its scope and
meaning depends on diverse, variable
factors such as the content and intent of the
statute of which contravention is alleged,
the specific circumstances of the case, the
nature and extent of the petitioner's
interest, and the nature and extent of the
prejudice or injury suffered by him. English
Courts have sometimes put a restricted and
sometimes a wide construction on the
expression "aggrieved person". However,
some general tests have been devised to
ascertain whether an applicant is eligible
for this category so as to have the
necessary locus standi or "standing" to
invoke certiorari jurisdiction.
* * *

37. It will be seen that in the
context of locus standi to apply for a writ of
certiorari, an applicant may ordinarily fall
in any of these categories: (i) "person
aggrieved"; (ii) "stranger"; (iii) busybody
or meddlesome interloper. Persons in the
last category are easily distinguishable
from those coming under the first two
categories. Such persons interfere in things
which
do
not
concern
them.
They
masquerade as crusaders for justice. They
pretend to act in the name of pro bono
publico, though they have no interest of the
public or even of their own to protect. They
indulge in the pastime of meddling with the
judicial process either by force of habit or
from improper motives. Often, they are
actuated by a desire to win notoriety or
cheap popularity; while the ulterior intent
of some applicants in this category, may be
no more than spoking the wheels of
1882 INDIAN LAW REPORTS ALLAHABAD SERIES
administration. The High Court should do
well to reject the applications of such
busybodies at the threshold.

38. The distinction between the
first and second categories of applicants,
though real, is not always well-demarcated.
The first category has, as it were, two
concentric zones; a solid central zone of
certainty, and a grey outer circle of
lessening certainty in a sliding centrifugal
scale, with an outermost nebulous fringe of
uncertainty. Applicants falling within the
central zone are those whose legal rights
have been infringed. Such applicants
undoubtedly stand in the category of
"persons aggrieved". In the grey outer
circle the bounds which separate the first
category
from
the
second,
intermix,
interfuse and overlap increasingly in a
centrifugal direction. All persons in this
outer
zone
may
not
be
"persons
aggrieved".

39.
To
distinguish
such
applicants from "strangers", among them,
some broad tests may be deduced from the
conspectus made above. These tests are not
absolute and ultimate. Their efficacy varies
according to the circumstances of the case,
including the statutory context in which the
matter falls to be considered. These are:
Whether the applicant is a person whose
legal right has been infringed? Has he
suffered a legal wrong or injury, in the
sense, that his interest, recognised by law,
has been prejudicially and directly affected
by the act or omission of the authority,
complained of? Is he a person who has
suffered
a
legal
grievance,
a
person"against whom a decision has been
pronounced which has wrongfully deprived
him of something or wrongfully refused him
something, or wrongfully affected his title
to something?"

Has he a special and substantial
grievance of his own beyond some
grievance or inconvenience suffered by him
in common with the rest of the public? Was
he entitled to object and be heard by the
authority before it took the impugned
action? If so, was he prejudicially affected
in the exercise of that right by the act of
usurpation of jurisdiction on the part of the
authority? Is the statute, in the context of
which the scope of the words "person
aggrieved" is being considered, a social
welfare measure designed to lay down
ethical
or
professional
standards
of
conduct for the community? Or is it a
statute dealing with private rights of
particular individuals?"

31. In Vinoy Kumar versus State of
U.P. and others (2001) 4 SCC 734, it was
held that: -

"2. Generally speaking, a person
shall have no locus standi to file a writ
petition if he is not personally affected by
the impugned order or his fundamental
rights have neither been directly or
substantially invaded nor is there any
imminent danger of such rights being
invaded or his acquired interests have been
violated ignoring the applicable rules. The
relief under Article 226 of the Constitution
is based on the existence of a right in
favour
of
the
person
invoking
the
jurisdiction. The exception to the general
rule is only in cases where the writ applied
for is a writ of habeas corpus or quo
warranto or filed in public interest. It is a
matter of prudence, that the Court confines
the exercise of writ jurisdiction to cases
where legal wrong or legal injuries are
caused to a particular person or his
fundamental rights are violated, and not to
entertain cases of individual wrong or
injury at the instance of third party where
there is an effective legal aid organisation
which can take care of such cases. Even in
3 All. Anshuman Singh Rathore. Vs. U.O.I. Ors.
1883
cases filed in public interest, the Court can
exercise the writ jurisdiction at the instance
of a third party only when it is shown that
the legal wrong or legal injury or illegal
burden is threatened and such person or
determined class of persons is, by reason of
poverty, helplessness or disability or
socially or economically disadvantaged
position, unable to approach the Court for
relief."

32. However, in S. P. Gupta versus
Union of India and another, 1981 (Supp)
SCC 87, a larger bench consisting of seven
Judges of the Supreme Court held that: -

"...But it must now be regarded
as well settled law where a person who has
suffered a legal wrong or a legal injury or
whose legal right or legally protected
interest is violated, is unable to approach
the Court on account of some disability or
it is not practicable for him to move the
Court for some other sufficient reasons,
such as his socially or economically
disadvantaged position, some other person
can invoke assistance of the Court for the
purpose of providing judicial redress to
the person wronged or injured, so that the
legal wrong or injury caused to such
person does not go unredressed and
justice is done to him. ...
* * *

It may therefore now be taken as
well established that where a legal wrong
or a legal injury is caused to a person or
to a determinate class of persons by
reason of violation of any constitutional
or legal right or any burden is imposed in
contravention of any constitutional or
legal provision or without authority of law
or any such legal wrong or legal injury or
illegal burden is threatened and such
person or determinate class of persons is
by reason of poverty, helplessness or
disability or socially or economically
disadvantaged
position,
unable
to
approach the Court for relief, any member
of the public can maintain an application
for an appropriate direction, order or writ
in the High Court under Article 226 and
in case of breach of any fundamental
right of such person or determinate class
of persons, in this Court under Article 32
seeking judicial redress for the legal
wrong or injury caused to such person or
determinate class of persons. Where the
weaker Sections of the community are
concerned, such as under trial prisoners
languishing in jails without a trial,
inmates of the Protective Home in Agra,
or Harijan workers engaged in road
construction in the district of Ajmer, who
are living in poverty and destitution, who
are barely eking out a miserable existence
with their sweat and toil, who are helpless
victims of an exploitative society and who
do not have easy access to justice, this
Court will not insist on a regular writ
petition to be filed by the public-spirited
individual espousing their cause and
seeking relief for them. This Court will
readily respond even to a letter addressed
by such individual acting pro bono
publico. It is true that there are rules
made by this Court prescribing the
procedure for moving this Court for relief
under Article 32 and they require various
formalities to be gone through by a person
seeking to approach this Court. But it
must not be forgotten that procedure is but
a handmaiden of justice and the cause of
justice can never be allowed to be
thwarted by any procedural technicalities.
The Court would therefore unhesitatingly
and without the slightest qualms of
conscience cast aside the technical rules
of procedure in the exercise of its
dispensing power and treat the letter of the
public-minded individual as a writ petition
1884 INDIAN LAW REPORTS ALLAHABAD SERIES
and act upon it.