# Azad Ahmad & Ors v. National Commission for Protection of Child Rights (N.C.P.C.R.) & Ors

- **Citation:** (2023) 5 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-29
- **Case number:** Special Appeal Defective No. 354 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azad-ahmad-ors-v-national-commission-for-protection-of-child-rights-n-c-p-c-r-50273
- **Pages:** 6

## Headnote

A. Service Law - Entertaining larger
public interest issues in a writ petition -
In case any petition is filed and the
Bench comes to the conclusion that it
involves some issues relating to Public
Interest, the Bench may not entertain it
as a PIL but the Court has its option to
convert
it
into
a
public
interest
litigation and ask the Registry to place
it before a Bench which has jurisdiction
to entertain the PIL as per Rules. (Para
25)

In view of the aforesaid, Registry is directed to
register the PIL as a separate case and place it
before Hon'ble the Chief Justice for appropriate
direction or before the appropriate PIL Bench.
(Para 26)

Special appeal disposed of. (E-4)

Precedent followed:

## Text

5 All. Azad Ahmad & Ors. Vs. National Commission for Protection of Child Rights (N.C.P.C.R.)
 & Ors.
699
cases and these suits/cases along with
record, as above, shall be duly forwarded to
this Court within two weeks and the same
shall stand transferred to this Court in
exercise of suo motu powers of this Court.

46. It is requested to the respected
Chief Justice to kindly nominate an
appropriate Bench for trial and disposal of
such suits, so withdrawn.

47. This Court appreciates the
assistance provided to it by Sri Hari
Shankar Jain, Sri Vishnu Shankar Jain, Sri
Prabhash Pandey and Sri Pradeep Kumar
Sharma, learned counsel for the applicants,
Sri Punit Kumar Gupta, learned counsel for
the respondent no.1, Sri Wajahat Hussain
Khan, learned senior counsel assisted by
Sri Nasiruzzaman and Sri J.H. Khan,
learned counsel for the respondent no.2, Sri
Prateek Rai, learned counsel for the
respondent no.3, Sri Birendra Prasad
Maurya, Sri Kamlesh Narayan Pandey,
learned counsel for the respondent no.4 and
Sri Radhey Shyam Yadav, learned counsel
for the proposed respondent no.5, and more
particularly to Sri Manish Goyal, the
learned Additional Advocate General for
the State appointed as Amicus Curiae by
this Court, who is assisted by Ms. Anjali
Goklani, Advocate, for rendering valuable
assistance to this Court in disposal of this
transfer application.

48. Let a copy of this order be
transmitted to the trial Judge/District Judge,
Mathura, forthwith for ensuring compliance
as above.

49. Costs easy.
----------
(2023) 5 ILRA 699
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2023
BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 354 of 2023

Azad Ahmad & Ors. ...Appellants
Versus
National Commission for Protection of
Child Rights (N.C.P.C.R.) & Ors.
 ...Respondents

Counsel for the Appellants:
Gauri Shankar Maurya, Adil Hussain

Counsel for the Respondent:
Rakshit Raj Singh, A.S.G.I., C.S.C.

A. Service Law - Entertaining larger
public interest issues in a writ petition -
In case any petition is filed and the
Bench comes to the conclusion that it
involves some issues relating to Public
Interest, the Bench may not entertain it
as a PIL but the Court has its option to
convert
it
into
a
public
interest
litigation and ask the Registry to place
it before a Bench which has jurisdiction
to entertain the PIL as per Rules. (Para
25)

In view of the aforesaid, Registry is directed to
register the PIL as a separate case and place it
before Hon'ble the Chief Justice for appropriate
direction or before the appropriate PIL Bench.
(Para 26)

Special appeal disposed of. (E-4)

Precedent followed:

1. Dinesh Kumar Singh @ Sonu Vs St. of
U.P. & ors., Writ Petition No. 2599 (MB)
of 2014, decided on 05.01.2017 (Para
10)

2. St. of U. P. & ors. Vs Neeraj Chaubey & ors.,
(2010) 10 SCC 320 (Para 25)
700 INDIAN LAW REPORTS ALLAHABAD SERIES
Present intra-Court appeal arises out of
the proceedings drawn by the learned
Single Judge in Writ-A No. 2474 of 2023
wherein two orders, namely, the order
dated 17.05.2023 and the other order
dated 27.03.2023 have been passed. By
the order dated 17.05.2023, intervention
application moved by the NCPCR has been
allowed
and
the
NCPCR
has
been
permitted to intervene in the proceedings.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Om Prakash Shukla, J.)

1. Office has reported a delay of 28
days in filing the Special Appeal.

2. Having regard to the averments
made in the affidavit filed in support of the
application seeking condonation of delay in
filing the Special Appeal and having heard
learned counsel for the parties, we are
satisfied that the delay has sufficiently been
explained.

3. Accordingly, the application is
allowed and the delay in preferring the
Special Appeal is hereby condoned.

4. Heard Sri V. K. Singh, learned
Senior Advocate assisted by Sri M. A.
Ausaf, Sri Sankalp Narain, Sri G.S.
Maurya, Sri Srivats Narain, Sri Adil
Hussain, Sri B. P. Tiwari and Sri Ayush
Tandon for the appellants, Ms. Swarupama
Chaturvedi, learned counsel appearing for
respondent No.1-National Commission for
Protection of Child Rights (NCPCR), Sri R.
C. Tiwari, learned Counsel representing the
Union of India and learned State Counsel
representing the State-respondents.

5. This intra-Court appeal arises out
of the proceedings drawn by the learned
Single Judge in Writ-A No. 2474 of 2023
wherein two orders, namely, the order
dated 17.05.2023 and the other order dated
27.03.2023 have been passed. By the order
dated 17.05.2023, intervention application
moved by the NCPCR has been allowed
and the NCPCR has been permitted to
intervene in the proceedings. The learned
Single Judge has further observed in para -
4 of the said order that the matter is of wide
ramification and some importance. Para - 4
of the said order dated 17.05.2023 is quoted
as under:-

"4. The matter is of wide
ramification and some importance and
outcome of this case will effect the
education system as well as the rights of
the
children
studying
in
Madaras.
Therefore, this Court appoints Sri S. M.
Singh Raikwar, Advocate, as amicus
curiae to assist the Court in the matter."

6. While passing the order dated
27.03.2023, learned Single Judge has
directed the Central as well as State
Governments to file their responses, in the
following words:-

"Let the Central Government
and State Government file their affidavits
explaining that how on Government
expense or the funding provided by the
Government
Exchequer
religious
education be imparted and whether this
could be in violation of Articles 14, 25, 26,
29 an 30 of the Constitution of India."

7. The order dated 27.03.2023 further
recites as under:-

"The affidavits of the Central
Government from the Secretary, Ministry
of Minority Affairs, Government of India
and State Government from the Principal
5 All. Azad Ahmad & Ors. Vs. National Commission for Protection of Child Rights (N.C.P.C.R.)
 & Ors.
701
Secretary,
Department
of
Minority
Welfare and Waqf, Government of Uttar
Pradesh should be filed answering the
petition and aforesaid questions within a
period of six weeks from today."

8. Submission of the learned Senior
Advocate representing the appellants is that
from a perusal of the two orders dated
27.03.2023 and 17.05.2023 passed by the
learned Single Judge, it is apparent and
more than clear that apart from considering
the issue raised primarily in the writ
petition, learned Single Judge also intends
to consider the issues having wider
ramification and some importance and that
outcome of the writ petition will effect the
education system as well as the rights of
the children studying in Madarsas. His
submission, thus, is that it is apparent that
the learned Single Judge intends to clearly
embark upon a journey to adjudicate the
issue of larger public interest which has
cropped up before him during the pendency
of the case, having due regard to the nature
of grievances raised by the writ petitioner
and the prayers made therein.

9. Drawing our attention to the prayer
clause of the writ petition, it has been stated
by the learned Senior Advocate that the
writ petition was filed by the writ petitioner
seeking a direction to the respondents
therein to release his withheld salary and to
pay him regular salary as admissible to him
under law. The prayers made in the writ
petition are extracted here-in-below:-

"Wherefore,
it
is
most
respectfully prayed that this Hon'ble
Court may graciously be pleased:

(A) to issue a Writ, Order or
Direction in the nature of mandamus
commanding the Opposite Parties to
release the entire withheld salary to the
Petitioner and to pay him regular salary
as admissible to him under the law."

(B) to issue such other Writ,
Order or Direction as this Hon'ble Court
may deem just and proper in the facts and
circumstances of the case.

(C) to award the cost of the Writ
Petition."

10. Thus, it has been argued by the
learned Senior Advocate that apart from
considering the prayers made in the writ
petition on the basis of pleadings made by
the writ petitioner, if certain issues relating
to larger public interest crops up, this Court
either sitting singly or in division benches
is not precluded from taking cognizance of
such issues, however, in that eventuality
the law laid down by Full Bench of this
Court in the case of Dinesh Kumar Singh
@ Sonu vs. State of U.P. & Ors. decided
on 05.01.2017 [Writ Petition No. 2599
(MB) of 2014] has to be followed.
According to learned Senior Advocate, in
such a situation that part of the matter
which touches upon or which needs to be
addressed in larger public interest has to be
referred to Hon'ble the Chief Justice for
being referred to the Division Bench
dealing with the Public Interest Litigation.

11. In this view, submission of
learned Senior Advocate is that no party to
the proceedings before the learned Single
Judge may have any grievance, whatsoever,
if the matters directly or tangently touching
the issues of general public interest are
taken up, however, in such a situation
recourse needs to be taken to the law laid
down by the Full Bench in the case of
Dinesh Kumar Singh @ Sonu (supra).

12. Learned State Counsel submits
that the State Authorities have been
directed to file counter affidavit in the
702 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings of the writ petition which shall
be filed once it is ready.

13. Learned Counsel representing the
Union of India Sri R. C. Tiwari has
submitted that counter affidavit on behalf
of Union of India was prepared and it was
to be filed as well, however, considering
the order dated 17.05.2023 passed by the
learned Single Judge, he has instructions to
pray for more time for preparation of the
counter affidavit. However, he does not
deny that Public Interest elements in the
matter have arisen as are apparent from a
perusal of the orders dated 27.03.2023 and
17.05.2023 passed by the learned Single
Judge.

14. Learned Counsel representing
NCPCR Ms. Swarupama Chaturvedi has
submitted that NCPCR has sought its
intervention in the matter only on account of
the
fact
that
certain
anomalies
and
discrepancies relating to rights of the children
in Madarsas have been noticed by the
NCPCR. She has categorically stated that
NCPCR has nothing to do with the original
lis
amongst
the
writ
petitioner,
the
management of the Madarsas and the State
authorities though the NCPCR has been
taking up the matter relating to children rights
involved with the State Government as well.

15. Having submitted as above,
learned counsel for NCPCR has also stated
that learned Single Judge has yet to form its
opinion as to whether the issues concerning
larger public interest have cropped up or
arisen in the matter pending before him or
not, which will be better decided once the
response from all the parties are filed
before the writ Court.

16. It has also been stated that it is
only on 17.05.2023 that the learned Single
Judge has appointed an amicus in the
matter and as to whether the issue relating
to larger public interest which has arisen
needs to be referred to appropriate Bench
of this Court in terms of the law laid down
by the Full Bench of this Court in the case
of Dinesh Kumar Singh @ Sonu (supra)
may be decided by the learned Single
Judge.

17. Learned amicus appointed in the
proceedings of the writ petition has also
submitted that in a matter like this, two
courses are available before the Bench in a
matter where apart from the regular lis
between the parties some issues concerning
general public interest also arise.

18. Leaned amicus thus has
submitted that first course is to refer the
Public Interest element arising in any
matter straightaway in terms of the Full
Bench decision in the case of Dinesh
Kumar Singh @ Sonu (supra) and the
second course is such a reference may be
made after inviting the responses from
the parties not only in relation to the
issue raised originally in the writ
petition but also in relation to the issues
concerning the larger public interest.
Thus, in his submission he has urged that
a perusal of the order dated 27.03.2023
and 17.05.2023 passed by the learned
Single Judge reveals that it is only a prima
facie view which has been formed by the
learned Single Judge that in the writ
petition pending before him certain issues
relating to larger public interest have
arisen, however, learned Single Judge has
yet to form his final opinion in the mater
as to whether issues of general public
interest have arisen before him or not.
Accordingly, his submission is that the
matter at this stage may be left to be
decided by the learned Single Judge.
5 All. Azad Ahmad & Ors. Vs. National Commission for Protection of Child Rights (N.C.P.C.R.)
 & Ors.
703

19. Ordinarily against interlocutory
orders passed by learned Single Judge,
intra-Court appeal under Chapter VIII Rule
5 of the Rules of the Court would not be
maintainable, however, since in this case
the issue raised by the appellants touches
upon the very jurisdiction of the learned
Single Judge, we have entertained this
Special Appeal.

20. We completely agree with the
order passed by the learned Single Judge
where he has expressed his opinion that the
matter at hand requires consideration not
only from the point of view of the prayers
made by the writ petitioner but also from
the point of view as to whether the funding
by the State Exchequer of the institutions
imparting religious instructions is violative
of Articles 14, 25, 26, 29 and 30 of the
Constitution of India. It is in this context
that we also agree with the learned Single
Judge where NCPCR, which is a statutory
commission incorporated primarily for
overseeing protection of children rights, as
intervenor. If any issue which has wide
ramification
concerning
the
education
system as also the rights of children being
imparted education and such institutions,
there cannot be any quarrel that such issue
does involve larger public interest and in
this appropriate case if cognizance of such
issue apart from the issues concerning the
Writ Petitioner, has been taken up by the
learned Single Judge, no one can have any
objection to the same.

21. It is in this context only that we
find that the learned Single Judge has
rightly called upon the Central Government
as also the State Government to file their
responses not only to the issue raised by the
writ petitioner but also to the issue relating
to the larger public interest as is reflected
from the orders dated 27.03.2023 and
17.05.2023. We have no doubt in our mind,
whatsoever, that there is a clear intent in
the proceedings of the writ petition that
apart from the issue relating to the writ
petitioner claiming payment of salary the
issue of larger public interest has also to be
considered and agitated.

22. However, the question is as to
whether in such a situation the larger public
interest issues can be entertained by the
same Bench or the matter needs to be
referred to the PIL Bench as per the law
laid down by the Full Bench of this Court
in the case of Dinesh Kumar Singh @
Sonu (supra).

23. Before the Full Bench in the case
of Dinesh Kumar Singh @ Sonu (supra),
the following question was formulated for
its consideration:-

"Whether a Judge of Hon'ble
High Court sitting alone or Judges
sitting in a Division Bench hearing any
matter
in
his/their
determination
assigned by Hon'ble the Chief Justice,
can overstep into the determination of
another Bench, if any issue or question
arises in the matter including a question
in public interest, which is not connected
to the matter before him/them, and
which in his/their opinion is necessary to
be decided, and further in such case
where in his/their discretion it is
necessary to decide such question, what
should be the procedure to be adopted."

24. The Full Bench has answered the
said question in para - 15 which is also
extracted hereunder:-

"15. In the circumstances, we
hold that a Judge of the High Court
sitting alone or Judges sitting in a
704 INDIAN LAW REPORTS ALLAHABAD SERIES
Division Bench, hearing any matter in
his/their determination assigned by the
Chief Justice, cannot overstep into the
determination of another Judge sitting
alone or in a Division Bench. If any such
issue or question arises in the matter
including a question in public interest
which is not connected with the matter
before him/them and which in his/their
opinion is necessary to be decided, in
that situation the only option open to the
learned Judge or the Division Bench is to
direct the Registry to place the matter
before the Chief Justice for appropriate
directions or before the appropriate PIL
Bench and, in any case, should not
convert such a writ petition into a PIL.
The
question
is,
thus,
answered
accordingly in the negative."

25. We may also refer to a judgment
of Hon'ble Supreme Court in the case of
State of Uttar Pradesh and others v.
Neeraj Chaubey and others reported in
[(2010) 10 SCC 320]. Paragraph 10 of the
judgment in the said case, Hon'ble Supreme
Court has observed that in case any petition
is filed and the Bench comes to the
conclusion that it involves some issues
relating to Public Interest, the Bench may
not entertain it as a Public Interest
Litigation but the Court has its option to
convert it into a public interest litigation
and ask the Registry to place it before a
Bench which has jurisdiction to entertain
the PIL as per Rules. Para - 10 of the said
judgment is extracted here-in-below:-

"10. In case an application is
filed and the Bench comes to the
conclusion that it involves some issues
relating to Public Interest, the Bench
may not entertain it as a Public Interest
Litigation but the court has its option to
convert it into a public interest litigation
and ask the Registry to place it before a
Bench which has jurisdiction to entertain
the PIL as per the Rules, guidelines or by
the roster fixed by the Chief Justice but
the Bench cannot convert itself into a
PIL and proceed with the matter itself."

26. In view of the aforesaid and
having regard to the conclusion drawn by
the Full Bench of this Court in the case of
Dinesh Kumar Singh @ Sonu (supra), we
direct the Registry to register the PIL as a
separate case and place it before Hon'ble
the Chief Justice for appropriate direction
or before the appropriate PIL Bench.

27. The Special Appeal, thus, stands
disposed of in the aforesaid terms.
----------
(2023) 5 ILRA 704
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 18588 of 2015

Meena Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri D.P. Singh

Counsel for the Respondents:
C.S.C., Sri Brij Kumar Yadav

Civil Law - Uttar Pradesh Panchayati Raj
Act, 1947- Section 28 - U.P. Zamindari
Abolition and Land Reforms Act, 1950Section 122-Impugned order-allotment of
Patta in Petitioner's favour cancelled-Revision
dismissed-Review
also
rejected-bar
under
section 28 ( C) of the Act-safeguard to avoid