# Divine Faith Fellowship Church Kumar, Sambhal & Anr v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** Writ-C No. 30476 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/divine-faith-fellowship-church-kumar-sambhal-anr-v-state-of-u-p-ors-49313
- **Pages:** 10

## Headnote

A. National Commission for Minorities Act,
1992 - Section 9 - UP Commission for
Minorities,
1994
-
Commission
for
Minorities
-
Nature
and
object
-
Commission
passed
the
order
and
adjudicated the issue - Validity challenged
- Practice of summoning the officers and
trying to pressurize them to pass orders
by the Commission - Permissibility - Can
the Commission act like the Court - Held,
UP Commission cannot usurp the power of
civil court for resolving property disputes,
such as dispute of evicting a person from a
shop owned by the Church - Minorities
Commissions have no power to adjudicate
the dispute, which has to be adjudicated
by the civil court - High Court found the
Commission acted beyond their functions
as provided under the Acts and also
strongly deprecated the practice adopted
by the Commission for Minorities to
adjudicate disputes. (Para 11, 20, 22 and
24)

B. Court - Meaning and essence - In order
to constitute a Court in strict sense of the
term an essential condition is that the
Court should have, apart from having
some of the judicial trappings, power to
give decision or definitive judgments
which has finality and authoritativeness
which are the essential tests of a judicial
pronouncement. The pronouncement of a
definitive judgment is considered the
essential "sine qua non" of a Court. (Para
17)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

1192 INDIAN LAW REPORTS ALLAHABAD SERIES

56. The instant writ petition is
allowed.

57. Copy of this order be placed
before the Registrar General for necessary
follow up and compliance thereof.
----------
(2023) 10 ILRA 1192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No. 30476 of 2023

Divine Faith Fellowship Church Kumar,
Sambhal & Anr. ...Petitioners
Versus
State of U.P. & Ors. . ..Respondents

Counsel for the Petitioners:
Ms. Akansha Mishra

Counsel for the Respondents:
C.S.C.

A. National Commission for Minorities Act,
1992 - Section 9 - UP Commission for
Minorities,
1994
-
Commission
for
Minorities
-
Nature
and
object
-
Commission
passed
the
order
and
adjudicated the issue - Validity challenged
- Practice of summoning the officers and
trying to pressurize them to pass orders
by the Commission - Permissibility - Can
the Commission act like the Court - Held,
UP Commission cannot usurp the power of
civil court for resolving property disputes,
such as dispute of evicting a person from a
shop owned by the Church - Minorities
Commissions have no power to adjudicate
the dispute, which has to be adjudicated
by the civil court - High Court found the
Commission acted beyond their functions
as provided under the Acts and also
strongly deprecated the practice adopted
by the Commission for Minorities to
adjudicate disputes. (Para 11, 20, 22 and
24)

B. Court - Meaning and essence - In order
to constitute a Court in strict sense of the
term an essential condition is that the
Court should have, apart from having
some of the judicial trappings, power to
give decision or definitive judgments
which has finality and authoritativeness
which are the essential tests of a judicial
pronouncement. The pronouncement of a
definitive judgment is considered the
essential "sine qua non" of a Court. (Para
17)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Yogendra Singh @ Ballu & anr. Vs St. of U.P.
& ors.; 2008 SCC Online All 1145

2. Managing Director, U.P. Co-operative Bank
Ltd. & anr. Vs Chairman, U.P. State Minorities
Commission & ors.; 2003 SCC OnLine All 2107

3. Ekdant Housing Vs Maharashtra State
Minorities Commission & ors.; 2017 SCC Online
Bom 6228

4. Bal Patil Vs U.O.I.; AIR 20005 SC 3172

5. Brij Nandan Sinha Vs Jyoti Narayan; 1955(2)
SCR 955 : IR 1956 SC 66

6.
Ganesan
Vs
T.N.
Hindu
Religious
&
Chariatable Endowments Board; 2019 (7) SCC
108

7. Manavaala Goundan Vs Kumarappa Reddy;
ILR (1907) 30 Mad 326 : 2 MLT 267

8. St. of U.P. & ors. Vs Dr. Manoj Kumar
Sharma; 2021 SCC Online SC 460

9. Divisional Manager, Aravali Golf Club & anr.
Vs Chander Hass & anr.; 2007(14) Scale 1
10 All. Divine Faith Fellowship Church Kumar, Sambhal & Anr. Vs. State of U.P. & Ors.
1193
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Ms. Akanksha Mishra,
learned counsel for the petitioners and Ms.
Uttara Bahuguna, learned Additional Chief
Standing Counsel for the respondent nos.1,
4 and 5.

2. The petitioners have filed the
instant writ petition under Article 226 of
the Constitution of India seeking a
mandamus upon respondent nos.4 and 5 for
complying
with
the
orders
dated
12.12.2022 and 17.4.2023 passed by the
National
Commission
for
Minorities,
Government of India (hereinafter referred
to as 'the Commission').

3. Petitioner-Divine Faith Fellowship
Church, Sambhal claims to be a Nongovernmental
Organization
(in
short
'NGO'), which works for promotion and
betterment of the Christian Community.
Petitioners further claim that they have 17
shops around Church area, which is
property of the Church. In one of the shops
bearing Shop no.13/1 some land grabbers
have entered into possession illegally.
Petitioners moved an application
on
4.6.2022 before U.P. Commission for
Minorities (hereinafter referred to as 'the
U.P. Commission') seeking direction upon
respondent nos.4 and 5 for eviction of
respondent no.6, who according to the
petitioner was an unauthorized occupant of
the shop in question. The U.P. Commission
considered this application as a civil case
and issued notices to the government
officers to appear before it. Accordingly,
Nayab Tehsildar appeared before the U.P.
Commission and submitted its report
stating that Shop No.13/1 was leased out by
the Church to one Mr. Amit son of Satish
Chandra and Kamal son of Kalyan Das,
who is said to be the encroacher, was
actually the partner of Amit, who was the
tenant of the petitioner. Since, the Church
wanted to throw out the tenant, a case of
encroachment was set up against the
partner of the tenant. On this, the U.P.
Commission directed the Nayab Tehsildar
to get the copy of the Lease Deed or
Partnership Deed, which was executed
between the tenant and his partner.
Obviously, the private document was not
with the Officer and the same could not be
produced. In fact, a document was
produced by the petitioners wherein it was
said that the Partnership Deed between
Amit and Kamal has come to an end,
hence, Kamal could not be in possession of
the shop in question. It is then that the U.P.
Commission had gone ahead and came to a
conclusion that Kamal has illegally taken
possession of Shop no.13/1 situated in
Church area and the tenant has helped him
to do so, hence, both are liable to be
punished. The U.P. Commission further
ordered that an FIR be registered against
Kamal as he was found by the U.P.
Commission to be an illegal occupant.

4. When the order passed by the U.P.
Commission was not complied with, the
petitioners sent another representation to
the National Commission for Minorities,
Government of India at New Delhi. The
Commission again treated the application
as a case and called the officers to appear
before it. After hearing the petitioners and
the Sub Divisional Magistrate (on behalf of
the concerned District Magistrate), passed
an order on 12.12.2022 that the respondents
(District Administration) should help the
petitioners to get the possession of the shop
in question from the trespassers. The
Commission
further
directed
the
respondents to remove the encroachment
within 15 days after completion of local
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
election
and
send a report to the
Commission.

5. Since, order of the Commission
passed on 12.12.2022 was not complied
with, so the petitioners have filed the
instant petition with the following prayers:-

"(i) to issue a writ, order or
direction in the nature of mandamus
commanding the respondent no.4 (i.e.
District
Magistrate,
Sambhal)
and
respondent
no.5
(i.e.Sub
Divisional
Magistrate, District Sambhal) and to direct
them to ensure compliance of orders dated
'12.12.2022' and '17.4.202' passed by the
National
Commission
of
India,
Government of India.

(ii) to issue any other writ, order
or direction as this Hon'ble Court may
deem fit and proper.

(iii) to award cost of this petition
to the petitioners"

6. On contra, Ms. Bahuguna, learned
Additional
Chief
Standing
Counsel
appearing on behalf of respondent nos.1, 4
and 5 opposed vehemental and submitted
that
both
the
State
and
National
Commission for Minorities had been set up
for a purpose but it is seen that, very often
these
Commissions
have
been
exceeding their powers and jurisdiction
and further, they are trying to usurp the
powers which they do not possess. They
have started working as Court and
deciding lis between the parties, for
which they are not empowered. Further,
it has become a common practice by
these Commissions of summoning the
officers and pressurizing them to pass
certain
orders.
Very
often
these
Commissions are seen deciding disputes
or engaging in areas which are beyond
their jurisdiction.

7. On perusal of record, we find
that the National Commission for
Minorities had been established under
National Commission for Minorities
Act, 1992 (hereinafter referred to as 'the
1992 Act'). This Act was enacted for
the
purpose
of
safeguarding
and
protecting the interest of minorities.
The function of the Commission for
Minorities is to evaluate the progress of
development of minorities under the
Union and under the States. The main
function of these Commissions is to
monitor the working of the safeguard
provided in the Constitution and Acts
passed by the Parliament and State
Legislatures. The Commission is to
make recommendation for the effective
implementation of the safeguard. They
are also empowered to look into
specific
complaint
regarding
deprivation of rights of minorities and
to take up such matters with the
appropriate
authorities.
They
are
enacted to conduct studies, research and
analyse the issues relating to socio
economic and educational development
of minorities and to suggest appropriate
measures in respect of the minorities to
the State Government and to the Central
Government.

Preamble of the Act

8. Chapter III of the 1992 Act lays
down functions of the Commission as
follows :-

"Section 9. Functions of the
Commission .-(1) The Commission shall
perform all or any of the following
functions, namely:-
10 All. Divine Faith Fellowship Church Kumar, Sambhal & Anr. Vs. State of U.P. & Ors.
1195

(a) evaluate the progress of the
development of minorities under the Union
and States;

(b) monitor the working of the
safeguards provided in the Constitution
and in laws enacted by Parliament and the
State Legislatures;

(c) make recommendations for
the effective implementation of safeguards
for the protection of the interests of
minorities by the Central Government or
the State Governments;

(d) look into specific complaints
regarding
deprivation
of
rights
and
safeguards of the minorities and take up
such
matters
with
the
appropriate
authorities;

(e) cause studies to be undertaken
into
problems
arising
out
of
any
discrimination
against
minorities
and
recommend measures for their removal;

(f) conduct studies, research and
analysis on the issues relating to socioeconomic and educational development of
minorities;

(g) suggest appropriate measures
in respect of any minority to be undertaken
by the Central Government or the State
Governments;

(h) make periodical or special
reports to the Central Government on any
matter pertaining to minorities and in
particular difficulties confronted by them;
and

(i) any other matter which may be
referred toy it by the Central Government.

2) The Central Government shall
cause the recommendations referred to in
clause(c) of sub-section (1) to be laid
before each House of Parliament along
with a memorandum explaining the action
taken or proposed to be taken on the
recommendations relating to the Union and
the reasons for the non-acceptance, if any,
of any of such recommendations.

(3) Where any recommendation
referred to in clause (c) of sub-section ( 1)
or any part thereof with which any State
Government is concerned, the Commission
shall
forward
a
copy
of
such
recommendation or part to such State
Government who shall cause it to be laid
before the Legislature of the State along
with a memorandum explaining the action
taken or proposed to be taken on the
recommendations relating to the State and
the reasons for the non-acceptance. if any,
of any of such recommendation or part.

(4) The Commission shall, while
performing any of the functions mentioned
insub-clauses (a), (b) and (d) of sub-section
(1), have all the powers of a civil court
trying a suit and in particular, in respect of
the following matters, namely:-

(a) summoning and enforcing the
attendance of any person from any part of
India and examining him on oath;

(b) requiring the discovery and
production of any document;

(c)
receiving
evidence
on
affidavits;

(d) requisitioning any public
record or copy thereof from any court or
office
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) issuing commissions for the
examination of witnesses and documents;
and

(f) any other matter may be
prescribed."

9. We further find that U.P.
Commission was established under the U.P.
Commission for Minorities Act, 1994 and
the functions of the Commission provided
therein is almost the same as laid down in
the 1992 Act.

10. The Commission for Minorities
was set up to evaluate the progress of
development of minorities and monitor the
working of the safeguards provided in the
Constitution, look into specific complaints
regarding
deprivation
of
rights
and
safeguards of the minorities and take up
such
matters
with
the
appropriate
authorities. As per Section 9(4) of the
Commission while performing the function
mentioned in sub clause (a), (b) and (d) of
sub-section 1 while having the powers of
civil court trying a suit, could enforce
attendance of any person.

11. The U.P. Commission cannot
usurp the power of civil court for
resolving property disputes, such as
dispute of evicting a person from a shop
owned by the Church. The power of the
Commission is confined to Section
9(1)(a), (b) and (d) of the 1992 Act,
under which they can summon an
officer or have the power of civil court.
They cannot usurp the power which has
not been granted to them under the
Statute.

12. Now the question which arises
before
us
is
to
see whether the
Commission for Minorities as established
under the 1992 Act is a 'Court' or not or
can it adjudicate the issues between the
parties.

13. An identical issue came up before
this Hon'ble Court in Yogendra Singh @
Ballu and another vs. State of U.P. and
others1, wherein Lucknow Bench of this
Court has held that the powers given to the
Commission
for
the
Minorities
incorporated under the U.P. Commission
for Minorities Act, 1994 is limited. In the
said matter, the Commission for Minorities
had issued direction for holding elections
and the Court has held that such direction
issued by the Commission for Minorities is
wholly
without
jurisdiction
and
the
Commission for Minorities has acted
beyond the scope of the Act in issuing such
direction. The Court further held that the
recommendation made by the Commission
is only recommendatory and not binding
upon
the
State
Government
or
the
Government Officers.

14. A Division Bench of this Court in
the case of Managing Director, U.P. Cooperative Bank Ltd. And another vs.
Chairman,
U.P.
State
Minorities
Commission and others2, has held that
the
U.P.
Minorities
Commission,
Backward
Caste
Commission
and
Scheduled Caste Commission are only
recommendatory bodies and they can
only make recommendations to the
Government. The Court has further held
as under:

"Unfortunately, we find that
these bodies are often going beyond their
jurisdiction by passing orders staying
termination
of
service
of
some
Government employee passing injunction
orders, or closing the accounts etc. which
is not within their jurisdiction at all. These
10 All. Divine Faith Fellowship Church Kumar, Sambhal & Anr. Vs. State of U.P. & Ors.
1197
Commissions should act within their
jurisdiction and not do as they please."

15. In the matter of Ekdant Housing
vs.
Maharashtra
State
Minorities
Commission and others3, Bombay High
Court has held as under:

"3. The powers of the Minorities
Commission have been incorporated in
Section 10 of the said Act. No such
adjudicatory power has been conferred
upon the Minorities Commission. The
learned counsel appearing for the sixth
Respondent relies upon Clause (j) of Subsection (1) of Section 10 of the said Act. It
only empowers the Minorities Commission
to look into the specific complaints
regarding
deprivation
of
rights
of
minorities and take up the matters with the
appropriate authorities.

4. Prima facie, it appears to us
that
the
Minorities
Commission
has
virtually granted a decree of specific
performance by exercising the powers of
the Civil Court."

16. In the matter of Bal Patil vs.
Union of India4, the Hon'ble Supreme
Court has held as under:

"while dealing with the objects of
the commission expressed, the view that the
recommendations made by the National or
State Minorities Commissions are in the
nature of advice only and can have no
binding effect."

17. The Hon'ble Supreme Court in
the matter of Brij Nandan Sinha vs. Jyoti
Narayan5 has defined the word "Court".
The Hon'ble Apex Court has held that in
order to constitute a Court in strict sense of
the term an essential condition is that the
Court should have, apart from having some
of the judicial trappings, power to give
decision or definitive judgments which has
finality and authoritativeness which are the
essential tests of a judicial pronouncement.
The
pronouncement
of
a
definitive
judgment is considered the essential "sine
qua non" of a Court and unless and until a
binding and authoritative judgment can be
pronounced by a person or body of persons
it cannot be predicated that he or they
constitute a Court.

18. The Hon'ble Supreme Court in
the matter of Ganesan vs. T.N. Hindu
Religious & Chariatable Endowments
Board6 has held as under :

"13. The definition of the Court
refers to the Civil Court constituted by
Legislature in the State for administration
of justice. The conventional definition of
the Court as mentioned in Advanced Law
Lexicon by P. Ramanatha Aiyer, Third
Edition is:

"A Court is defined in Coke on
Littleton as a place wherein justice is
judicially administered. "In every Court,
there must be at least three constituent
parts-the actor, reus and judex: the actor,
or plaintiff, who complains or an injury
done; the reus, or defendant, who is called
upon to make satisfaction for it; and the
judex, or judicial power, which is to
examine the truth of the fact, and to
determine the law arising upon that fact,
and if any injury appears to have been
done, to ascertain, and by its officers to
apply, the remedy," (3 Steph. Comm. 6th
Ed., pp.383, 385). See also Manavaala
Goundan v. Kumarappa Reddy7, Court is
a body in the government to which the
public
administration
of
justice
is
delegated; an organised body, with defined
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
powers, meeting at certain times, and
places, for the hearing and decision of
causes and other matters brought before it,
and aided in this, its proper business, by its
proper
officers,
viz.,
attorneys
and
counsels, to present and manage the
business, clerks to record and attest its acts
and decisions, and ministerial officers to
execute its commands and secure order in
its proceedings."

14. The constitution of Court in
this country has been by legislative
enactments. For constituting Civil Courts,
the Bengal, Agra and Assam Civil Courts
Act, 1887 was enacted which provided
classes of civil courts and provided for
constitution of courts of District Judges,
Subordinate Judges and Munsifs. Similarly
for civil courts in the town of Bombay,
Calcutta and Madras, the Presidency Small
Causes Act, 1882 was enacted.

15. The definition of Court as
contained in Section 6(7) as noted above,
thus, clearly indicates that what Act, 1959
refers to a Court is a civil court created in
the State. The scheme of the Act clearly
indicates that Commissioner is an authority
under the Act who is to be appointed by the
Government.
The
Commissioner
is
entrusted with various functions under the
Act and one of the functions entrusted to
the Commissioner is hearing of the appeal
under Section 69 of the Act, 1959............"

19. It has become a normal practice
by the National Commission for Minorities
and the U.P. Commission for Minorities to
keep summoning the officers and try to
pressurize them to pass orders which is
beyond their jurisdiction. Hon'ble the
Supreme Court in the matter of State of
U.P. and others vs. Dr. Manoj Kumar
Sharma8 has deprecated this practice and
has held as follows:

"17. A practice has developed in
certain High Courts to call officers at

the drop of a hat and to exert
direct or indirect pressure. The line of

separation of powers between
Judiciary and Executive is sought to be
crossed by summoning the officers and in a
way pressurizing them to pass an order as
per the whims and fancies of the Court.

18. The public officers of the
Executive are also performing their duties
as the third limbs of the governance. The
actions or decisions by the officers are not
to benefit them, but as a custodian of public
funds and in the interest of administration,
some decisions are bound to be taken. It is
always open to the High Court to set aside
the decision which does not meet the
test of judicial review but summoning of
officers frequently is not appreciable at
all. The same is liable to be condemned
in the strongest words.

19. This Court in a judgment
reported
as
Divisional
Manager,
Aravali Golf Club & Anr. v. Chander
Hass & Anr.9 observed that judges
must know their limits. They must have
modesty and humility, and not behave
like emperors. The legislature, the
executive and the judiciary all have
their own broad spheres of operation. It
is not proper for any of these three
organs of the State to encroach upon
the domain of another, otherwise the
delicate balance in the Constitution will
be upset, and there will be a reaction.
This Court held as under:
10 All. Divine Faith Fellowship Church Kumar, Sambhal & Anr. Vs. State of U.P. & Ors.
1199

"19. Under our Constitution, the
legislature, the executive and the judiciary
all have their own broad spheres of
operation. Ordinarily it is not proper for
any of these three organs of the State to
encroach upon the domain of another,
otherwise the delicate balance in the
Constitution will be upset, and there will be
a reaction.

20. Judges must know their limits
and must not try to run the Government.
They must have modesty and humility, and
not behave like emperors. There is broad
separation
of
powers
under
the
Constitution and each organ of the Statethe legislature, the executive and the
judiciary-must have respect for the other
and must not encroach into each other's
domains.

21. The theory of separation of
powers first propounded by the French
thinker Montesquieu (in his book The
Spirit of Laws) broadly holds the field in
India too. In Chapter XI of his book The
Spirit of Laws Montesquieu writes:

"When
the
legislative
and
executive powers are united in the same
person, or in the same body of
Magistrates, there can be no liberty;
because apprehensions may arise, lest
the same monarch or senate should
enact tyrannical laws, to execute them
in a tyrannical manner. Again, there is
no liberty, if the judicial power be not
separated from the legislative and
executive. Were it joined with the
legislative, the life and liberty of the
subject would be exposed to arbitrary
control; for the judge would be then the
legislator.
Were
it
joined
to
the
executive power, the judge might behave
with violence and oppression. There would
be an end of everything, were the same man
or the same body, whether of the nobles or
of the people, to exercise those three
powers, that of enacting laws, that of
executing the public resolutions, and of
trying the causes of individuals."

We fully agree with the view
expressed above. Montesquieu's warning in
the passage above quoted is particularly
apt and timely for the Indian judiciary
today, since very often it is rightly
criticised
for
"overreach"
and
encroachment into the domain of the other
two organs."

20. Thus, we feel, it is time to
reiterate that public officers should not be
called to court unnecessarily. The dignity
and majesty of the Court is not enhanced
when an officer is called to court. Respect
to the court has to be commanded and
not demanded and the same is not
enhanced by calling public officers. The
presence of public officer comes at the
cost
of
other
official
engagement
demanding their attention. Sometimes,
the officers even have to travel long
distance. Therefore, summoning of the
officer is against the public interest as
many important tasks entrusted to him
gets delayed, creating extra burden on
the officer or delaying the decisions
awaiting
his
opinion.
The
Court
proceedings also take time, as there is
no mechanism of fixed time hearing in
Courts as of now. The Courts have the
power of pen which is more effective
than the presence of an officer in Court.
If any particular issue arises for
consideration before the Court and the
Advocate representing the State is not
able to answer, it is advised to write
such doubt in the order and give time to
the State or its officers to respond."
1200 INDIAN LAW REPORTS ALLAHABAD SERIES

20. These days, it has become a
normal procedure where the Commission
started calling the officers at the drop of
a hat whereas Hon'ble the Supreme
Court in Dr. Manoj Kumar Sharma's
case (supra) has even deprecated the
High
Courts
for
summoning
the
officers without a solid reason. A
Commission cannot be said to be
better than the High Courts. They
cannot summon officers in each and
every matter. They have no power to
adjudicate the dispute, which has to be
adjudicated by the civil court.

21. If the Commission for
Minorities
continues
indulging
in
matters
which
are
beyond
their
jurisdiction then undoubtedly it is a
case
of
abuse
of
position
of
Chairperson or Member, who starts
working as a "Court" and starts
summoning the officers, and direct
them to execute their orders. As per
Section
4F
of
the
National
Commission for Minorities Act, 1992
Act, such abuse of position would
render
Member/Chairperson's
continuance in the Office detrimental
to the public interest and can invite
removal of such Member/Chairperson.

22. We strongly deprecate such
practice adopted by the National
Commission
for
Minorities
to
adjudicate disputes and proceed to
adjudicate matters, as if they are
Courts and also to summon the
officers without any rhyme or reason
in continuance of such adjudication or
to pressurize officers to pass any
order.
We
further
request
the
Members
or
Chairpersons
of
Commission for Minorities of the
State of U.P. and also the National
Commission for Minorities, not to
function or adjudicate any dispute as a
Court
for
which
they
are
not
empowered under the Act to do so.

23. In this case, Amit was a
tenant of Shop No.13/1 and Kamal
was his partner, who was running the
shop.
The
Commission
has
no
authority to declare him as trespasser
or a bhu-mafia and thereafter proceed
for registering FIR against him or
direct the authorities to comply with
the orders and report back the same to
the Commission. The only course
open
for
the
petitioner
was
to
approach the civil court by filing suit
for eviction, if it has been proved that
Kamal was an unauthorized occupant
of the shop in question.

24. In view of aforesaid facts and
circumstances, it is clear that both the
Commission and the U.P. Commission
have acted beyond their functions as
provided
under
the
Acts.
The
Commissions were established under
the Acts only to protect and safeguard
the interest of the minorities in the
State. The Commission should confine
its activities as per the objects of the
Statute
under
which
they
were
established and should not go beyond
that.

25. The instant writ petition is
devoid of merits and hence, it is
accordingly dismissed.

26. Let a copy of this order be
sent
to
the
Chief
Secretary,
Government of U.P. for circulation
amongst
the
officers/Head
of
the
Departments in the State of U.P. for
information.
10 All. ABC Vs. State of U.P. & Ors.
1201
----------
(2023) 10 ILRA 1201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ-C No. 32785 of 2023

ABC ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sadrul Islam Jafri, Sri Ambreen Masroor,
Sri N.I. Jafri (Sr. Adv.)

Counsel for the Respondents:
C.S.C.

Civil Law - The Medical Termination of
Pregnancy Act, 1971 - Section 3 - The
Medical Termination of Pregnancy Rules,
2003 - Rule 3-B - Petitioner is victim of
rape as a consequence of which she
became pregnant - Petition was filed praying
to allow her to undergo medical termination of
her pregnancy - On 27.09.2023, considering
survivor's advanced pregnancy stage of 21
weeks and 5 days, Court after reviewing
Medical Report dated 26.09.2023, directed
Chief Medical Officer to proceed with medical
termination of pregnancy of victim and submit
a compliance report - Relying on decision of
Supreme Court, Court observed that relevant
provisions of Section 3-B shall be applicable
even to unmarried pregnant women, also
applicable where pregnancy has been caused
not due to any sexual assault / rape but due to
consensual relationship - In light of statutory
provisions and judgments of Supreme Court,
petitioner was entitled to get her pregnancy
medically terminated. (Para 1, 8)

Writ petition allowed. (E-13)

List of Cases cited:
1. XYZ Vs The St. of Gujarat & ors. reported in 2023
Live Law (SC) 680, (Paras 14 to 19)

2. X Vs The Principal Secretary, Health and
Family Welfare Department, Government of
NCT of Delhi & ors., AIR 2022 SC 4917,
(Paras 19 to 21)

(Delivered by Hon'ble Surendra SinghI, J.)

1. On the previous date i.e. on
27.9.2023
considering
the
advance
stage of pregnancy of the survivor
which was 21 weeks and 5 days and the
fact that the Court was to remain closed
for the next five days i.e. from
28.9.2023 to 2.10.2023, the Court after
considering the Medical Report dated
26.9.2023, directed the CMO Ghaziabad
to carry out medical termination of
pregnancy of the victim and send his
report to this Court. It was also
mentioned that the reasons for the order
will be given later.

2. In pursuance to the order dated
27.9.2023 passed by us, the reasons for
the said order are being stated below.

3.

The
provisions
regarding
medical termination of pregnancy is
provided under Section 3 of the Act No.
34 of 1971 which as follows:-

"3. When pregnancies may
be terminated by registered medical
practitioners. - (1) Notwithstanding
anything contained in the India Penal
Code (45 of 1860), a registered medical
practitioner shall not be guilty of any
offence under that Code or under any
other law for the time being in force, if
any pregnancy is terminated by him in
accordance with the provisions of this
Act.