# Hindu Personal Law Board v. Union of Bharat

- **Citation:** (2021) 1 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** P.I.L. Civil No. 2084 of 2021
- **Bench:** Ritu Raj Awasthi, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hindu-personal-law-board-v-union-of-bharat-46708
- **Pages:** 4

## Headnote

(A) Civil Law - Public Interest Litigation
- doctrine of constitutional trust -
maxim - Salus populi suprema lex esto
- the good of the people shall be
supreme law - it cannot be believed
that
a
constitutional
authority
or
functionary
would
not
act
in
accordance with and within the scope
of its powers as indicated in the
Constitution of India - Courts have
very limited role with regard to judicial
legislation - neither the Courts can
legislate nor they have any competence
to issue directions to legislature to
enact a law in a particular manner -
legislature is supreme in its own sphere
under the Constitution - subject to the
limitations
provided
for
in
the
Constitution
itself
-
legislature
to
decide nature of operation of the
statutes - as to when and in what
respect and of what subject-matter the
laws are to be made.(Para - 5,6,)

Petitioner in person is only seeking a direction
for the concerned respondent to consider for
legislating a law regulating religious conversion
and no specific direction is being sought to
Parliament or any State Legislature to enact any
legislation.(Para -3)

HELD:- In view of aforesaid dictum, it is clear
that no direction can be issued for enacting any
legislation in any particular manner by High
Courts under Article 226 of the Constitution of
India.(Para - 8)

Writ Petition dismissed. (E-6)

List of Cases cited :-

## Text

1 All. Hindu Personal Law Board Vs. Union of Bharat
659
crime number this Court has granted
protection, as an exceptionally compelling
measure which is not to be treated as a
precedent, we provide that for 3 weeks
from the pronouncement of the judgment
petitioner(s) shall not be arrested in Case
Crime No. 1 of 2014 referred hereinabove,
during which, it shall be open for them to
apply for anticipatory bail under section
438 which may be considered by the Court
concerned as per law, but, this protection
shall cease immediately on expiry of 3
weeks as aforesaid. Thereafter, the law
shall take its own course. Subject to these
observations and leaving it open for the
petitioner to raise the question of validity of
sanction in the event a chargesheet is filed
before a Court of criminal jurisdiction, at
the appropriate stage, we dismiss these writ
petitions, but only for the aforesaid reason
without entering into the merits of the
sanction order impugned herein.
----------
(2021)01ILR A659
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE MANISH MATHUR, J.

P.I.L. Civil No. 2084 of 2021

Hindu Personal Law Board ...Petitioner
Versus
Union of Bharat ...Respondent

Counsel for the Petitioner:
Asok Pande

Counsel for the Respondents:
A.S.G.

(A) Civil Law - Public Interest Litigation
- doctrine of constitutional trust -
maxim - Salus populi suprema lex esto
- the good of the people shall be
supreme law - it cannot be believed
that
a
constitutional
authority
or
functionary
would
not
act
in
accordance with and within the scope
of its powers as indicated in the
Constitution of India - Courts have
very limited role with regard to judicial
legislation - neither the Courts can
legislate nor they have any competence
to issue directions to legislature to
enact a law in a particular manner -
legislature is supreme in its own sphere
under the Constitution - subject to the
limitations
provided
for
in
the
Constitution
itself
-
legislature
to
decide nature of operation of the
statutes - as to when and in what
respect and of what subject-matter the
laws are to be made.(Para - 5,6,)

Petitioner in person is only seeking a direction
for the concerned respondent to consider for
legislating a law regulating religious conversion
and no specific direction is being sought to
Parliament or any State Legislature to enact any
legislation.(Para -3)

HELD:- In view of aforesaid dictum, it is clear
that no direction can be issued for enacting any
legislation in any particular manner by High
Courts under Article 226 of the Constitution of
India.(Para - 8)

Writ Petition dismissed. (E-6)

List of Cases cited :-

1. Manoj Narula Vs U.O.I. , (2014) 9 SCC 1
(Constitution Bench)

2. Municipal Committee, Patiala Vs Model Town
Residents Assn., (2007) 8 SCC 669

3. St. of H.P. Vs Parent of a student of Medical
College, (1985) 3 SCC 169
4. V.K. Naswa Vs U.O.I., (2012) 2 SCC 542 :
(2012) 1 SCC (Cri) 914
660 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Gainda Ram Vs MCD, (2010) 10 SCC 715

(Delivered by Hon'ble Ritu Raj Awasthi, J.
& Hon'ble Manish Mathur, J.)

1. Heard Mr. Ashok Pande petitioner
in person and Mr. S.B. Pandey, Assistant
Solicitor General of India, assisted by Mr.
Ambrish Rai, learned Central Government
Counsel for respondents.

2. The petition has been filed in the
nature of Public Interest Litigation seeking
the following relief:-

(i) issue a writ of mandamus directing
the concerned respondent to consider for
legislating a law regulating the religious
conversion on the pattern of the law
legislated on the subject by the State of
U.P. and other States.

(ii) to issue any such other order or
direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the present case.

(iii) Allow the writ petition with cost.

3. Petitioner in person has submitted
that the Court would very well be within its
jurisdiction to issue a direction as prayed
for in the petition to ameliorate the
condition with regard to a particular sect or
religion. It has been further submitted that
the petitioner in person is only seeking a
direction for the concerned respondent to
consider for legislating a law regulating
religious conversion and
no specific
direction is being sought to Parliament or
any
State
Legislature
to
enact
any
legislation. It is submitted that in view of
this distinction, this petition in nature of
public
interest
litigation
would
be
maintainable
since
it
only
seeks
consideration of petitioner's grievance
particularly since all the laws giving
criminality to any act or omission have
been legislated by the Union and therefore
the law regulating religious conversion
should also be made by Union of India.

4. With regard to aforesaid prayer, a
Constitution Bench of Hon'ble the Supreme
Court in the case of Manoj Narula v.
Union of India reported in (2014) 9 SCC 1
had
declared
a
similar
relief
not
maintainable in context of the doctrine of
constitutional trust.

5. The subject of doctrine of
constitutional trust has been explained in
the aforesaid judgment in context of
debates held in the Constituent Assembly
and particularly with regard to separation
of jurisdiction and powers of various
constitutional functionaries and authorities.
It
was
held
that
the
doctrine
of
constitutional trust clearly is with regard to
the maxim Salus populi suprema lex esto. It
was held that it cannot be believed that a
constitutional authority or functionary
would not act in accordance with and
within the scope of its powers as indicated
in the Constitution of India.

6. Hon'ble the Supreme Court referred
to various judgments of the Supreme Court
itself in which it has been clearly held that
Courts have very limited role with regard to
judicial legislation since neither the Courts
can legislate nor they have any competence
to issue directions to legislature to enact a
law in a particular manner.

7. Relevant portion of the judgment is
as follows:-

"124.In Municipal Committee,Patiala
[Municipal Committee, Patialav. Model
Town Residents Assn., (2007) 8 SCC 669]
this Court referred to Parent of a student of
1 All. Hindu Personal Law Board Vs. Union of Bharat
661
Medical College[State of H.P.v.Parent of a
student of Medical College, (1985) 3 SCC
169. This was a judgment delivered by a
Bench of three learned Judges.] and held
that legislation is in the domain of the
legislature. It was said:

"It is so well settled and needs no
restatement at our hands that the legislature
is supreme in its own sphere under the
Constitution subject to the limitations
provided for in the Constitution itself. It is
for the legislature to decide as to when and
in what respect and of what subject-matter
the laws are to be made. It is for the
legislature to decide as to the nature of
operation of the statutes.""

"125. More recently, V.K. Naswa
[V.K. Naswa v.Union of India, (2012) 2
SCC 542 : (2012) 1 SCC (Cri) 914]
referred to a large number of decisions of
this Court and held that the Court cannot
legislate or direct the legislature to enact a
law. It was said: (SCC p. 547, para 18)

"18. Thus, it is crystal clear that the
court has a very limited role and in
exercise of that, it is not open to have
judicial legislation. Neither the court can
legislate, nor has it any competence to
issue directions to the legislature to enact
the law in a particular manner.""

"126. However, a discordant note was
struck inGainda Ram [Gainda Ram v.
MCD, (2010) 10 SCC 715. This was a
judgment delivered by a Bench of two
learned Judges.] wherein this Court issued
a direction to the legislature to enact
legislation before a particular date. It was
so directed in paras 70 and 78 of the
Report in the following words: (SCC pp.
739 & 743)"

"70. This Court, therefore, disposes of
this writ petition and all the IAs filed with a
direction that the problem of hawking and
street vending may be regulated by the
present schemes framed by NDMC and
MCD up to 30-6-2011. Within that time, the
appropriate Government is to legislate and
bring out the law to regulate hawking and
hawkers' fundamental right. Till such time
the grievances of the hawkers/vendors may
be redressed by the internal dispute
redressal mechanisms provided in the
schemes.

***

78. However, before 30-6-2011, the
appropriate Government is to enact a law
on the basis of the Bill mentioned above or
on the basis of any amendment thereof so
that the hawkers may precisely know the
contours of their rights. This Court is
giving this direction in exercise of its
jurisdiction to protect the fundamental
rights of the citizens."

"127.The law having been laid down
by a larger Bench than in Gainda Ram
[Gainda Ram v. MCD, (2010) 10 SCC 715.
This was a judgment delivered by a Bench
of two learned Judges.] it is quite clear that
the decision, whether or not Section 8 of
the Representation of the People Act, 1951
is to be amended, rests solely with
Parliament."

8. In view of aforesaid dictum, it is
clear that no direction can be issued for
enacting any legislation in any particular
manner by High Courts under Article 226
of the Constitution of India.

9. So far as submission of petitioner
in person is concerned that only a direction
for consideration of petitioner's grievance
has been made in the petition, aforesaid
doctrine of constitutional trust also bars any
grant of relief prayed for in the manner as
envisaged in the petition.

10. Considering the aforesaid factors
and enunciation by Hon'ble the Supreme
662 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, the writ petition being devoid of
merit is dismissed at the admission stage
itself.
----------
(2021)01ILR A662
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 827 of 2016

Amar Deo Ojha & Anr. ...Appellants
Versus
Shri Krishna Ojha ...Respondent

Counsel for the Apellants:
Sri Chandrakesh Rai

Counsel for the Respondents:
Sri Ishwar Kumar Upadhyay, Sri Satya Priya
Upadhyay, Sri Vineet Kumar Singh, Sri H.N.
Singh

Civil Law - Specific Relief Act (47 of
1963)-
Section
38
-
Permanent
injunction
-
Cause
of
action
-
defendants
denied
ownership
of
plaintiffs over land in question &
plaintiffs were apprehending that the
defendants might encroach upon the
land, as such a cause of action was
available to the plaintiff & Court
rightly entertained
suit
-
finding
regarding ownership - To arrive at a
finding regarding ownership of land
as claimed by plaintiff - Courts below
should have independently applied
their minds & should have arrived at
an independent finding irrespective of
the finding arrived in another suit
& paper filed in that suit in which the
defendants were not party - Amin's
Report - there was a door of the
defendant no. 2 which opened on the
southern side of his house, same was
shown as a door in the Amin's report
but the existence of that door not
dealt with by the courts below -
finding ought to have been arrived at
as to what would be effect of the door
opening in the southern side of the
house of the defendant no. 2 - Both
courts committed error in holding
plaintiff to be owner of land - Decree
liable to be set aside and matter
remanded to Trial Court. (Para 10, 11,
12)

Partly allowed. (E-4)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This second appeal has been filed
against the judgement and decree dated
13.5.2016 passed by the District Judge,
Ballia, in Civil Appeal No. 31 of 2016
which had affirmed the judgement and
decree dated 14.3.2016 passed by the Civil
Judge (J.D.) Ballia in Original Suit No. 424
of 2007.

2. The plaintiff had filed a suit for the
relief of permanent injunction stating that
the defendant (appellant here) may be
injuncted
from
interfering
with
the
possession of the plaintiff over the land
marked by nos. 1-4-5-6-7-1 and by nos. 68-9-10 in the plaint map. The case of the
plaintiff had been that the area marked by
numbers 1-4-5-6-7-1 had formed a part of
plot no. 48 which was the plaintiff's sehan
land and he had inherited the same from his
grand-father, namely, Jamuna Ojha.

3. To bolster his case, the plaintiff had
taken support of the papers which were
filed in another suit being Suit no. 274 of
1993 which was filed by Vimlesh Chaubey,
a person who was not a party to the suit of
the plaintiff. Suit No. 274 of 1993 was