# Mohd. Nasir Husain v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-11
- **Case number:** Misc. Bench No. 8898 of 2014
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-nasir-husain-v-state-of-u-p-ors-54640
- **Pages:** 6

## Headnote

Constitution of India, Art.-25 & 26-
Seeking
permission
to
sacrifice
the
buffalo-in madarsa or school on occasion
of Idul Zuha-by Muslim community-held
considering little hardship of particular
community-administration or the court
can not compromise with sanctity of
institution-in
absence
of
statutory
provision
or
rights
granted
under
constitution-Court are loath to grant
indulgence-state authority to consider
and take appropriate decision-keeping in
view of statutory and constitutional
provision-petition disposed of.

Held: Para-18
While preferring the Writ Petition, the
petitioner has not come forward with the
pleading to indicate that some statutory or
Constitutional rights has been granted to
Muslim community by the Parliament or the
State Legislature to sacrifice buffaloes at
any place including Madarsa or schools. In
the like manner, for every community,
Hindus or Christians, rights conferred by the
Constitution
or
the
statute
may
be
protected by the Courts, being custodian of
law. But in the event of right which is not
guaranteed by the Constitution, or by any
statute legislated by the Parliament or the
State Legislature within their jurisdiction,
the Courts are loath to interfere and grant
indulgence.

Case Law discussed:
2011 (5) ADJ 674; AIR 1958 SC 255; AIR 1984
SC 51; AIR 1954 SC 388; AIR 1954 SC 282.

## Text

1102 INDIAN LAW REPORTS ALLAHABAD SERIES
but also would be in accordance with the
aforesaid verdict of the Apex Court.

8. The petition under section 482
CrPC is allowed. Consequently the
proceedings of the aforesaid criminal case
are quashed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.09.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Misc. Bench No. 8898 of 2014

Mohd. Nasir Husain ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Afzal Hasan

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-25 & 26-
Seeking
permission
to
sacrifice
the
buffalo-in madarsa or school on occasion
of Idul Zuha-by Muslim community-held
considering little hardship of particular
community-administration or the court
can not compromise with sanctity of
institution-in
absence
of
statutory
provision
or
rights
granted
under
constitution-Court are loath to grant
indulgence-state authority to consider
and take appropriate decision-keeping in
view of statutory and constitutional
provision-petition disposed of.

Held: Para-18
While preferring the Writ Petition, the
petitioner has not come forward with the
pleading to indicate that some statutory or
Constitutional rights has been granted to
Muslim community by the Parliament or the
State Legislature to sacrifice buffaloes at
any place including Madarsa or schools. In
the like manner, for every community,
Hindus or Christians, rights conferred by the
Constitution
or
the
statute
may
be
protected by the Courts, being custodian of
law. But in the event of right which is not
guaranteed by the Constitution, or by any
statute legislated by the Parliament or the
State Legislature within their jurisdiction,
the Courts are loath to interfere and grant
indulgence.

Case Law discussed:
2011 (5) ADJ 674; AIR 1958 SC 255; AIR 1984
SC 51; AIR 1954 SC 388; AIR 1954 SC 282.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1 Heard learned counsel for the
petitioner Sri Afzal Hasan, learned
counsel for the petitioner and the learned
Additional Standing Counsel.

2 The present writ petition under
Article 226 has been preferred being
aggrieved with the inaction on the part of the
district administration in not permitting the
petitioner and his Muslim community to
perform their religious rites, "Qurbani"
(sacrifice) which according to petitioner's
counsel is the message of Holy Quran. It is
submitted that the petitioner possesses
fundamental right conferred by Articles 25
and 26 of the Constitution of India to
perform the religious rites of Quarbani under
Personal Law and practice.

The petitioner in the present writ
petition, has claimed for following reliefs:-

(i) issue a writ order or direction in the
nature of mandamus commanding the Opp.
Parties to permit the petitioner and other
members of Muslim community to sacrifice
buffalo on the occasion of Idul-Zuha in
Village-Sattijor, Post-Bankasahi, ParganaCharda, Tehsil-Nanpara, District-Bahraich.
3 All]. Mohd. Nasir Husain Vs. State of U.P. & Ors.
1103

(ii) issue any other suitable order or
direction which this Hon'ble Court may
deem, fit, just and proper under the
circumstances of the case in favour of the
petitioner.

(iii) allow the instant writ petition of
the petitioner with costs.

3 According to petitioner's counsel,
an application was moved to District
Magistrate,
Bahraich
by
Muslim
community of village Sattijor, post office
Bankasahi,
Pargana
Charda,
Tehsil
Nanpara, district Bahraich to permit them
to perform religious rites of Quarbani of
buffaloes and goats etc., at courtyard of
school namely, Aljametul Nooriya Darul
Barkat (Madarsa), which is a registered
society under the Societies Registration
Act. It is submitted that on the festival of
Idul-Zuha (Bakreed), the muslims of the
country have right to sacrifice goats
buffaloes etc., to perform Quarbani. It is
done at the occasion of Idul-Zuha.
Submission of petitioner's counsel is that
sacrifice is performed at the high price of
goats ranging from 5000/- to 25000/-.

4 The petitioner's counsel relied upon
earlier Division Bench judgment of this court
dated 6.3.1995 passed in Writ Petition
No.6177 of 1990 Mohd. Farooq Nori Vs.
State of U.P. And others. Relying upon the
said judgment, petitioner's counsel submits
that the petitioner has right to perform
Qurbani at the Madarsa or alike schools.

5 So far as the judgment delivered
by the Division Bench of this court in the
case of Mohd. Farooq Nori (supra) is
concerned, the argument advanced by
learned counsel for the petitioner seems to
be not sustainable for the reason that in
the case of Mohd. Farooq Nori (supra),
their lordships held, to quote:-

"... But, however, we are of the view
that the District Magistrate is appropriate
cases any may regulate the place where
such buffalos could be slaughtered."

The Division Bench further held as
under:-

"... Hence the petitioner can be
granted only a limited relief that he may
be permitted to sacrifice buffalos on the
Idul-Zuha day or two days thereafter and
the place where the sacrifice may take
place would be for the administration to
decide. With the aforesaid observations
the writ petition is disposed of.

 Sd/- R.K. Gulati.

Sd/- S.H.A. Raza.

6.3.95"

From the aforesaid conclusion, the
finding recorded by the division Bench,
there appears to be no room of doubt that
Court declined to issue the mandamus
with regard to place of sacrifice and leave
it open for the administration to take a
decision.

6 Learned counsel for the petitioner
has given much emphasis and relied on
Articles 25 and 26 of the Constitution of
India. For convenience, Article 25 and 26
are reproduced as under:-

""25. Freedom of conscience and
free profession, practice and propagation
of religion.-- (1) Subject to public order,
morality and health and to the other
provisions of this Part, all persons are
equally entitled to freedom of conscience
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
and the right freely to profess, practice
and propagate religion.

2. Nothing in this article shall affect
the operation of any existing law or
prevent the State from making any law-

a. regulating or restricting any
economic, financial, political or other
secular activity which may be associated
with religious practice;

b. providing for social welfare and
reform or the throwing open of Hindu
religious institutions of a public character
to all classes and sections of Hindus.

Explanation I: The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh
religion.

Explanation II: In sub-Clause (b) of
clause (2), the reference to Hindus shall
be construed as including a reference to
persons professing the Sikh, Jaina or
Buddhist religion, and the reference to
Hindu religious institutions shall be
construed accordingly.

26. Freedom to manage religious
affairs.-- Subject to public order, morality
and health, every religious denomination
or any section thereof shall have the
right-

a.
to
establish
and
maintain
institutions for religious and charitable
purposes;

b. to manage its own affairs in
matters of religion;

c. to own and acquire movable and
immovable property; and

d. to administer such property in
accordance with law."

7 A combined reading of Articles
25 and 26 reveals that the conscience and
free profession, practice and propagation
of religion is subject to public order,
morality and health. The religious affairs
have also been subjected to public order,
morality and health. Thus, right to
perform religious rites, has been subjected
to public order, morality and health. The
public order, morality and health is a
question which falls within the domain of
the Administration subject to statutory
and constitutional limitations.

8 In a case reported in 2011 (5) ADJ
674: Vasudev Gupta Vs. State of U.P.
And Others, (Writ Petition No.3362
(M/B) of 2011 (Vasudev Gupta Vs. State
Of U.P., through Principal Secy., Home &
Others
Judgment
date
9.5.2011),
a
Division Bench of this Court, of which
one of us (Hon'ble Mr. Justice Devi
Prasad Singh) was a member, has
observed as under:-

"33. In A.S. Narayana's case (supra),
Hon'ble Supreme Court reiterated that
right to religion guaranteed under Articles
25 and 26 of the Constitution of India is
not absolute and unfettered right to
propagate religion which is subject to
legislation by the State limiting or
regulating any activity - economic,
financial, political or secular which are
associated with religious belief, faith,
practice or custom. The religious practice
is subject to reform on social welfare by
appropriate legislation by the State(para
19).

35 ...Enjoyment of one's rights must
be consistent with the enjoyment of rights
3 All]. Mohd. Nasir Husain Vs. State of U.P. & Ors.
1105
by others. Where in a free play of social
forces it is not possible to bring about a
voluntary harmony, the State has to step
in to set right the imbalance between
competing
interests.
A
particular
fundamental right cannot exist in isolation
in
a
water-tight
compartment.
One
fundamental right of a person may have to
co-exist in harmony with the exercise of
another fundamental right by others also
with reasonable and valid exercise of
power by the State in the light of the
directive principles. "

9 Hon'ble Supreme Court in a case
reported
in
AIR
1958
SC
255:
Venkataramana
Devaru
v.
State
of
Mysore,, while considering Article 25,
held that restriction provided by clause (b)
of Article 25 (2), may be the ground to
regulate religious practice. On the other
hand, clause (a) of Article 25 (2) further
provides that appropriate restriction may
be imposed regulating and restricting any
economic, financial political or other
secular activities which may be associated
with religious practice.

10 In AIR 1984 SC 51:
Jagadishwaranand Avadhuta, Acharya Vs.
Police commissioner, Calcutta, Hon'ble
Supreme Court upheld the restriction
imposed in performing Tandava by
Anand Margi at public places. In a case
reported in AIR 1997 SC 1711: Bhuri
Nath v. State of Jammu & Kashmir,
Hon'ble Supreme Court held that service
of priest is a secular activity and can be
regulated by the State under Article 25
(2).

11 In AIR 1954 SC 388: Rati Lal
Vs. State of Bombay, Hon'ble Supreme
court held that State is a primary concern
with secular aspect of religious practice
than the essential religion as approved by
judicial pronouncements.

12 By catena of judgments, Hon'ble
Supreme court upheld that 'Religion' is a
matter of faith but belief in God is not
essential to constitute religion. Doctrine
of each religion constitute its essential
part, but the court is competent to
examine them..vide, AIR 1954 SC 282 :
Endowments, Madras v. Lakshmindra
Thirth Swamiar.

13 While dealing with the subject
matters
apart
from
the
statutory
provisions, Courts and citizens should not
forget the preamble of Indian Constitution
pledging for sovereign, socialist and
secular
and
democratic
republic.
Accordingly, ordinarily, it is not for the
Court to interfere with such matters as to
where a sacrifice should be done. Broadly
it is for the administration to take a
decision.

14 The fundamental right flowing
from Article 25 and 26 as held (supra), is
always subject to morality, law and order
and it does not confer blanket right to
perform religious ceremonies at the cost
of morality, health and law and order. The
constitutional framers were conscious of
multiplicity of Indian culture, practice and
traditions. Hence they have imposed
certain conditions to perform such rites in
the Articles 25 and 26. Articles 25 and 26
itself provide that integrity, unity of the
country broadly, may not be sacrificed at
the alter of religious rites.

15 Moreover in the present case, the
petitioner claims right to perform sacrifice
in the Madarsa or schools--the temple of
knowledge, education and teachings.
Whether the Madarsas or the schools can
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
be used for sacrifice of the goats or
buffaloes while performing religious
ceremonies? Whether, will it not spoil the
academic atmosphere of Madarsa or other
alike schools and may be health hazard to
the children on account of blood and flesh
and fecal matter etc.?

16 In case the petitioner a member
of Muslim community claims right to
perform sacrifice of goats buffaloes in
Madarsa, then others may come to claim
right for performing sacrifice ( ) of
goats and buffaloes in their respective
schools on the occasion of Ma Kali Puja.
Once such practice is started, then schools
and Madarsa meant for teaching purpose,
may be converted into "slaughter house"
though for a limited period in due course
of time at the cost of health, morality and,
law and order.

17 In India, there are thousands of
sects, communities, castes, creeds and
religions from far East to West and from
North to South and substantial number of
them indulge into sacrifice of goats etc.
We are of the view that the educational
institutions whether it is Madarsa, school,
college or university, should not be
permitted to perform the ceremony of
sacrifice of goat, buffaloes or any other
animals. Ordinarily, there appears to be
no reason to permit sacrifice in Madarsa,
schools, colleges or institutions for
sacrifice of goats, buffaloes etc. A little
hardship in performing sacrifice at the eve
of
festival,
does
not
mean
that
administration
or
courts
should
compromise with the sanctity of schools,
colleges or Madarsas. In the present case,
the petitioner has not invited attention of
any statutory provisions which may
confer him right to perform sacrifice in
the Madarsa or schools. Hence it shall not
be appropriate for us to permit to perform
sacrifice in the Madarsa or schools etc.,
which are meant to educate children.

18 While preferring the Writ
Petition, the petitioner has not come
forward with the pleading to indicate that
some statutory or Constitutional rights has
been granted to Muslim community by
the Parliament or the State Legislature to
sacrifice buffaloes at any place including
Madarsa or schools. In the like manner,
for
every
community,
Hindus
or
Christians,
rights
conferred
by
the
Constitution or the statute may be
protected by the Courts, being custodian
of law. But in the event of right which is
not guaranteed by the Constitution, or by
any statute legislated by the Parliament or
the
State
Legislature
within
their
jurisdiction, the Courts are loath to
interfere and grant indulgence.

19 Of-course, it is for the
authorities or the Government to look into
such
matters
and
take
appropriate
decision
within
the
Constitutional
parameters or the statutory mandate. In
the cosmopolitan country like India,
having thousands of communities, castes
and
creeds,
in
case
Courts
start
interfering, then the Courts may loose
their impartial stature, and it shall be a
remorseful and bad day in the history of
administration of justice.

20 Subject to what has been
observed hereinabove, we are not inclined
to pass any order/direction with regard to
the relief claimed by the petitioner. We
leave it open to the good sense of the
Government and its authorities to look
into such matters in case they are
represented for the purpose and it shall be
incumbent upon them to act within the
3 All]. Kismat & Anr. Vs. State of U.P. & Ors.
1107
four corners of the Constitution while
dealing with such matters. Application
moved by the petitioner be considered
expeditiously.

21 Subject to above and with liberty
to respondents and adjudication of dispute
by District Magistrate expeditiously, the
writ petition is disposed of finally.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc. Bench No. 9502 of 2014

Kismat & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramendra Kumar Misra

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Petition
claiming
compensation-failure
of
vasectomy operation- unwanted child
birth-unless negligence of doctor provedno such claim can be entertained under
writ
jurisdiction-moreover
even
after
noticing
pregnancy-no
positive
steps
taken to remove rather decided to give
birth-itself denotes desirable deliverycase law relied by petitioner based on
civil court decree-can not be basis to
award compensation-petition dismissed
with liberty to approach civil court.

Held: Para-9
Whether, as a matter of fact, the
operating surgeon had exercised due and
reasonable care while performing the
surgery or conversely whether, as the
claimant suggests, there was negligence
on the part of the surgeon in performing
the surgery, cannot be determined in
writ proceedings under Article 226 of the
Constitution.
These
are
matters
of
evidence which, in fact, can be resolved
only on the basis of material which is
produced in the course of the trial of a
suit. Santra (supra), in fact, was a case
which originated in a suit before the trial
Court as was the subsequent decision of
the Supreme Court in Shiv Ram (supra).
The remedy under Article 226 of the
Constitution can, in appropriate cases,
be availed of for remedying a violation of
the fundamental rights, such as the right
to life and personal liberty under Article
21 of the Constitution. Where, however,
a claim of the nature, such as the
present, intrinsically depends upon proof
of an act of medical negligence, such a
claim cannot be determined in exercise
of writ jurisdiction under Article 226 of
the Constitution. A suit for the recovery
of the amount of a claim of that nature
would be dealt with under the provisions
of Section 9 of the Code of Civil
Procedure, 1908.

Case Law discussed:
(2000) 5 SCC 182; (2005) 7 SCC 1.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The first petitioner has moved this
Court in its writ jurisdiction under Article
226
of
the
Constitution,
seeking
compensation of Rs.5 lacs for a failed
vasectomy operation, claiming this amount
to be necessary for the education and
survival of the second petitioner, who is the
child born subsequent to the surgery.

2. The marriage of the first
petitioner
is
stated
to
have
been
solemnized sixteen years ago. The first
petitioner and his spouse have five
children of whom the last was stated to
have been adopted. The first petitioner