# Mtv Buddhist Religious And Charitable Trust & Anr v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1064
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Writ C No. 19316 of 2020
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mtv-buddhist-religious-and-charitable-trust-anr-v-state-of-u-p-ors-48964
- **Pages:** 12

## Headnote

Civil Law - The Constitution of India, 1950-
Allahabad High Court Rules- Chapter XXII
Rule 7 - Filing the earlier writ petition
wherein
liberty
was
granted
to
the
petitioners to approach the authorities for
redressal
of
their
grievances,
cannot
amount to abandonment of the claim of the
petitioners to seek a direction that the
petitioner-institution be treated as Minority
Institution and other ancillary reliefs.

Withdrawal of writ petition with liberty to
approach the authorities would not amount to
abandonment of claim and a subsequent writ
petition will be maintainable against the order
so passed by the authority.

Civil Law - The National Commission for
Minority
Educational
Institutions
Act,
2004- Section 2(g)- Section 11- Uttar
Pradesh Private Professional Educational
Institutions (Regulation of Admission and
Fixation of Free) Act, 2006- Sections 2 & 3
(a)- Section 3(h)- Minority Institution as
defined in U.P. Act No.24 of 2006 in an
institution which is not only established
and is being administered by a minority
but it should be notified as such by the
State
Government-
Thus,
mere
administration
of
an
educational
institution by minority or minorities is not
sufficient or enough to declare such an
Educational Institution to be a Minority
Educational Institution even within the
meaning of section 2(g) of the Act, 2004 -
When the petitioner no.2 was established,
the petitioner no.1, on its own showing
was not a minority. Merely because after
the members of the Trust-petitioner no.1
adopted
Bhuddhism
and
thus
the
petitioner no.1 became minority and it has
since been administering the petitioner
no.2, petitioner no.2 will not become a
Minority Educational Institution for the
reason that it was established at a time
when admittedly the petitioner no.1 was
not a minority which is said to have
become minority only in the year 2015- If
a society or a Trust did not comprise of
members of any Minority Community
(either linguistic or religious) at the time
when
it
established
an
educational
institution and subsequently attains the
status
of
a
minority
and
starts
administering such an institution, in our
considered opinion, in such a situation the
educational
institution
concerned
will
neither be a Minority Institution within
U.P. Act No.24 of 2006, nor shall it be
Minority Educational Institution within
Act, 2004.

Merely administering the educational institution
is not sufficient to grant it minority status but it
is incumbent that the society or trust has to
comprise of minority members at the time of
establishing the Institution and any conferment
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1065
of minority status subsequently will not grant
minority status to the educational institution.
(Para 11, 12, 18, 33, 36)

Writ Petition rejected. (E-3)

Case law/Judgements relied upon:-

## Text

_Characters 0–39,988 of 41,671. This is a partial read: ask again with offset=39988 for what follows._

1064 INDIAN LAW REPORTS ALLAHABAD SERIES
Guardianship Act, 1956 or Guardians and
Wards Act, 1890 GWA, as the case may be.
In view of aforesaid, this Court is not
inclined to exercise its extraordinary
jurisdiction to entertain the present petition
seeking a writ of habeas corpus.

11. The instant habeas corpus petition
lacks merit and it is hereby dismissed.
----------
(2022) 9 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 19316 of 2020

Mtv Buddhist Religious And Charitable
Trust & Anr. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anuj Dayal, Amit Jaiswal Ojus Law, Nipun
Singh, Raghav D. Garg

Counsel for the Respondents:
C.S.C., Gyanendra Kumar Srivastav, Kshitij
Mishra, Rishabh Kapoor

Civil Law - The Constitution of India, 1950-
Allahabad High Court Rules- Chapter XXII
Rule 7 - Filing the earlier writ petition
wherein
liberty
was
granted
to
the
petitioners to approach the authorities for
redressal
of
their
grievances,
cannot
amount to abandonment of the claim of the
petitioners to seek a direction that the
petitioner-institution be treated as Minority
Institution and other ancillary reliefs.

Withdrawal of writ petition with liberty to
approach the authorities would not amount to
abandonment of claim and a subsequent writ
petition will be maintainable against the order
so passed by the authority.

Civil Law - The National Commission for
Minority
Educational
Institutions
Act,
2004- Section 2(g)- Section 11- Uttar
Pradesh Private Professional Educational
Institutions (Regulation of Admission and
Fixation of Free) Act, 2006- Sections 2 & 3
(a)- Section 3(h)- Minority Institution as
defined in U.P. Act No.24 of 2006 in an
institution which is not only established
and is being administered by a minority
but it should be notified as such by the
State
Government-
Thus,
mere
administration
of
an
educational
institution by minority or minorities is not
sufficient or enough to declare such an
Educational Institution to be a Minority
Educational Institution even within the
meaning of section 2(g) of the Act, 2004 -
When the petitioner no.2 was established,
the petitioner no.1, on its own showing
was not a minority. Merely because after
the members of the Trust-petitioner no.1
adopted
Bhuddhism
and
thus
the
petitioner no.1 became minority and it has
since been administering the petitioner
no.2, petitioner no.2 will not become a
Minority Educational Institution for the
reason that it was established at a time
when admittedly the petitioner no.1 was
not a minority which is said to have
become minority only in the year 2015- If
a society or a Trust did not comprise of
members of any Minority Community
(either linguistic or religious) at the time
when
it
established
an
educational
institution and subsequently attains the
status
of
a
minority
and
starts
administering such an institution, in our
considered opinion, in such a situation the
educational
institution
concerned
will
neither be a Minority Institution within
U.P. Act No.24 of 2006, nor shall it be
Minority Educational Institution within
Act, 2004.

Merely administering the educational institution
is not sufficient to grant it minority status but it
is incumbent that the society or trust has to
comprise of minority members at the time of
establishing the Institution and any conferment
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1065
of minority status subsequently will not grant
minority status to the educational institution.
(Para 11, 12, 18, 33, 36)

Writ Petition rejected. (E-3)

Case law/Judgements relied upon:-

1. V. D. Barot Vs St. of Guj. & ors.,(2002) 10
SCC 668

2. H.P Fin. Corp. Vs Anil Garg & ors.,(2017) 14
SCC 634

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Sudeep Seth, learned
Senior Advocate, assisted by Shri Amit
Jaiswal and Shri Anuj Dayal for the
petitioners, Shri Sanjay Bhasin, learned
Senior Advocate, assisted by Shri Rishabh
Kapoor, learned counsel representing the
Director General Medical Education and
Training, Uttar Pradesh, learned State
Counsel for other State-respondents and
Shri Gyanendra Kumar Srivastava, learned
counsel representing the National Medical
Commission.

2. By instituting these proceedings
under Article 226 of the Constitution of
India initially a challenge was made to the
orders dated 05.10.2020 and 07.10.2020,
both issued by the Director General
Medical Education and Training, U.P.
requiring the Management/Principals of all
Dental College and Medical Colleges in the
State of U.P. running in private sector to
submit their proposals so that the fee to be
charged by these institutions from the
students may be determined. Another
prayer made in the writ petition is to quash
the order dated 26.07.2018 passed by the
State Government in the Department of
Medical Education and Training, whereby
the
representation
dated
12.06.2018
preferred by the petitioner was rejected.
The said order dated 26.07.2018 was
passed by the State Government in
compliance of an order dated 22.06.2018
passed by this Court in Writ Petition
No.21980 of 2018 instituted by the
petitioners whereby the State Government
was directed to look into the grievance of
the petitioners and pass appropriate orders
on their representation. By the said order
dated 26.07.2018 the State Government has
refused to treat the petitioners-institution as
Minority Institution.

3. The petitioners have also prayed to
issue a direction to the Director General
Medical Education and Training to treat the
petitioner no.2-College as a Minority
Institution in view of the minority status
granted to the said College by National
Commission for Minority Educational
Institutions (herein after referred to as
"National Commission"). It has also been
prayed that the respondents-State of U.P. in
the Department of Minority Welfare as also
in the Department of Medical Education
and Training be directed to allow the
privileges of a Minority Institution to the
petitioner-college.
Subsequently
by
amending the writ petition, the petitioners
have also prayed for quashing of a
Government
Order
dated
06.11.2020,
issued by the State Government, in the
Department of Medical Education and
Training, whereby the fee to be charged by
the
petitioner
no.2-College
from
its
students for pursuing MBBS and MDS
courses has been determined. By amending
the writ petition, another prayer has been
made to quash the Government Order dated
28.08.1999, whereby the State Government
in the Department of Medical Education
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
and Training has determined certain criteria
for declaration of a non-Government
Medical/Dental/Para Medical College to be
a Minority Institution on the basis of
language and religion, that is to say,
Linguistic
Minority
Institution
and
Religious Minority Institution.

4. Shri Sanjay Bhasin, learned Senior
Advocate,
representing
the
Director
General Medical Education and Training at
the outset has submitted that this petition is
not maintainable for the reason that prior to
filing of the instant writ petition the
petitioners had instituted Writ-C No.31941
of 2018 whereby a challenge was made to
quash the order dated 26.07.2018 which is
under challenge in this petition as well. He
has also stated that another prayer made in
the Writ-C No.31941 of 2018 was for
issuing a direction to the State authorities to
acknowledge and treat the petitionerCollege as Minority Institution and to
confer all benefits available to Minority
Institutions. He has further stated that
during the pendency of the Writ C
No.31941 of 2018 the Director General
Medical Education and Training had issued
two letters/orders dated 29.01.2019 and
04.02.2019 directing the petitioner-College
to submit its proposal for fixation of fee for
its Post Graduate Courses and these two
letters/orders
dated
29.01.2019
and
04.02.2019
were
challenged
by
the
petitioners by filing Civil Misc. Writ
Petition No.5612 of 2019. He has further
stated that the aforesaid writ petitions,
namely,Writ-C No.31941 of 2018 and Civil
Misc. Writ Petition No.5612 of 2019 were
withdrawn by the petitioners with the
liberty
to
approach
the
respondentauthorities for redressal of their grievances.
In view of these facts, it has been submitted
that in terms of the provisions contained in
Chapter XXII Rule 7 of the Rules of the
Court this petition is a successive writ
petition on the same cause of action, which
cannot be entertained.

5. It has, thus, been argued by Shri
Sanjay Bhasin, learned Senior Advocate
representing the Director General Medical
Education and Training that the instant writ
petition seeks a prayer to quash the orders
dated 05.10.2020 and 07.10.2020 which are
akin to the orders dated 29.01.2019 and
04.02.2019 which were challenged in the
earlier writ petition which was withdrawn
without seeking liberty to file a fresh
petition. Further submission of Shri Bhasin
is that the order dated 26.07.2018 which
has been challenged in this writ petition
was challenged in Writ C No.31941 of
2018 which was also withdrawn without
seeking liberty to challenge the same.
Accordingly, he submits that the instant
writ petition being second writ petition for
the same relief is not maintainable which is
liable to be dismissed.

6. In reply to the objection raised by
Shri Bhasin regarding maintainability of
the writ petition, it has been argued on
behalf of the petitioners by Shri Sudeep
Seth that the instant writ petition has been
preferred after disclosing filing of the
earlier writ petitions and the order dated
05.08.2019
granting
liberty
to
the
petitioners to withdraw the said writ
petitions so as to approach the authorities
for redressal of the grievances. It has
further been argued by Shri Sudeep Seth
that through letters/orders dated 29.01.2019
and 04.02.2019 which were challenged in
Writ-C No.5612 of 2019 proposal for fee
fixation for the academic session 2019-20
was required to be submitted whereas by
means of the orders dated 05.10.2020 and
07.10.2020, which are under challenge in
the instant writ petition, proposal has been
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1067
sought from the petitioner-College for fee
fixation for the academic session 2020-21
and hence these orders dated 05.10.2020
and 07.10.2020 give fresh cause of action
and hence the instant writ petition is
maintainable. It has also been urged that the
order dated 06.11.2020, whereby fee to be
charged by the petitioner-College has been
fixed by the State Government, also gives a
fresh cause of action for which the instant
writ petition is maintainable.

7. In respect of the order dated
26.07.2018 whereby the representation for
treating the petitioner-College as Minority
Institution was rejected by the State, it has
been submitted that the said order was
challenged by filing Writ-C No.31941 of
2018, however, the same was permitted to
be withdrawn by this Court by means of the
order dated 05.08.2019 with liberty to
approach the authorities for redressal of the
grievances. Further contention is that
despite representations/letters made by the
petitioners on 18.07.2020 and 27.09.2020
to the State Government in respect of the
decision dated 26.07.2018 with the prayer
to reconsider the same, since no decision
was taken by the authorities as such the
said order dated 26.07.2018 has been
challenged in this writ petition which
accordingly is maintainable in respect of
the prayer for quashing the order dated
26.07.2018 as well.

8. When we consider the rival
submissions made by the parties in respect
of the maintainability of the writ petition,
what we notice is that so far as the
challenge
to
the
orders/letters
dated
05.10.2020 and 07.10.2020 is concerned,
the same pertain to proposal for fee fixation
for the academic year 2020-21 which were
never challenged in earlier writ petitions
filed by the petitioners. As regards the
prayer relating to quashing of the order
dated 06.11.2020, we may record that the
said order was also never challenged in the
earlier writ petitions and as a matter of fact,
the said order gives fresh cause of action to
the petitioners to challenge the same. In
respect of the decision dated 26.07.2018,
which though was challenged in the earlier
writ petition, we may observe that the
representation made by the petitioners
dated
12.06.2018
was
considered
in
compliance of the order dated 26.06.2018
passed by this Court in Writ Petition
No.21980 of 2018. By the said order, the
prayer of the petitioners for treating the
petitioner-College as Minority Institution
was rejected. This order was challenged in
Writ C No.31941 of 2018, however, the
same was permitted to be withdrawn by
this Court by means of the order dated
05.08.2019 with liberty to the petitioners to
approach the authorities for redressal of
their grievaces. The petitioners are said to
have made representations on 15.07.2020
and 27.09.2020 in regard to the order dated
26.07.2018 to reconsider the same and
when no decision was taken by the
authorities, in the present writ petition
amongst other prayers, a prayer has been
made to quash the said order dated
26.07.2018 as well.

9. Hon'ble Supreme Court in the case
of V. D. Barot vs. State of Gujarat and
others, reported in (2002) 10 SCC 668
has held that in case earlier writ petition is
permitted to be withdrawn by the Court
without liberty to file a fresh petition to
enable a person to approach departmental
authorities to make representation in the
matter, the same will not amount to
abandonment
of
the
claim.
Hon'ble
Supreme Court has held that such matter
should not be dealt with in a hypertechnical
manner but the totality of the circumstances
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
arising in a particular case has to be taken
into consideration.

10. Dealing with the law relating to
withdrawal of suit or abandonment of claim
under the Code of Civil Procedure, Hon'ble
Supreme Court in the case of Himachal
Pradesh Financial Corporation vs. Anil
Garg and others, reported in (2017) 14
SCC 634, has held that the language of the
order for withdrawal will not always be
determinative and that the backgrounds
facts are to be necessarily examined for a
proper and just decision. In the case of
Himachal
Pradesh
Financial
Corporation (supra) the appellant therein
made an application for withdrawal of the
suit stating therein that such application for
withdrawal was made to pursue the
remedies under H. P. Public Moneys
(Recovery of Dues) Act, 1973. Hon'ble
Supreme Court has held that since
withdrawal of the suit was sought with the
intention to pursue the remedy available
under H. P. Public Moneys (Recovery of
Dues) Act, 1973, hence the appellant in the
said case never intended to abandon its
claim by withdrawing the same. In this
background Hon'ble Supreme Court has
observed in the case of Himachal Pradesh
Financial Corporation (supra) that the
language of the withdrawal order cannot be
determinative
without
considering
the
background facts.

11. If we consider the submissions
made by Shri Bhasin raising the issue of
maintainability of the writ petition in the
background facts of the case and law laid
down by Hon'ble Supreme Court in the
cases of V. D. Barot (supra) and
Himachal
Pradesh
Financial
Corporation (supra), we are of the
opinion that filing the earlier writ petition
wherein
liberty
was
granted
to
the
petitioners to approach the authorities for
redressal
of
their
grievances,
cannot
amount to abandonment of the claim of the
petitioners to seek a direction that the
petitioner-institution be treated as Minority
Institution and other ancillary reliefs.

12. For the reasons as aforesaid, the
preliminary objection raised by Shri Sanjay
Bhasin,
learned
Senior
Advocate
representing the Director General Medical
Education and Training, merits rejection,
which is hereby rejected. Thus, we hold
that the writ petition is maintainable.

13.

Before
considering
the
submissions of the learned counsel for the
parties on merit of their respective claims,
we may note certain facts which are
essential for appropriate adjudication of the
issues involved in this case.

14. By means of the Government
Order dated 28.08.1999 determination of
certain standard/criteria for the purposes of
declaring
non-Government
Medical/Dental/Par Medical Colleges to be
religious or linguistic Minority Institutions
has
been
provided.
The
National
Commission for Minority Educational
Institutions Act, 2004 (herein after referred
to as "Act, 2004") was enacted by the
Parliament
to
constitute
a
National
Commission for Minority Educational
Institutions and to provide for matters
connected or incidental thereto. Section
2(g)
defines
"Minority
Educational
Institution" to mean a college or an
educational institution established and
administered by a minority or minorities.
Section 2(g) of the Act, 2004 is extracted
herein below:

"2(g). "Minority Educational
Institution" means a college or an
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1069
educational institution established and
administered
by
a
minority
or
minorities;"

15. Section 11 of the Act, 2004
defines functions and powers of the
Commission
which
empowers
the
Commission created under the said Act,
inter alia, to decide all questions relating to
the status of any institution as a Minority
Educational Institution and declare its
status as such. In pursuance of a judgment
and order rendered by a Division Bench of
this Court, dated 26.11.2015 in Special
Appeal (Defective) No.552 of 2015 which
was filed by the National Commission for
Minority
Educational
Institutions
challenging the judgment of learned Single
Judge, the State Government in the
Department of Minority of Welfare and
Waqf
issued
a
Government
Order
18.05.2016 providing therein that if an
institution is declared to be Minority
Institution by the National Commission, the
concerned department shall treat such
institution as Minority Institution and
accordingly give a certificate to the said
effect to such an institution. The State
Government in the Department of Higher
Education also issued a Government Order
dated 24.07.2017 which provided that the
institutions which have been declared as
Minority Institutions by the National
Commission
may
make
appropriate
application for being treated as a Minority
Institution,
to
the
State
Government
annexing therewith certain documents as
mentioned in the said Government Order.

16. The State Legislature enacted
Uttar
Pradesh
Private
Professional
Educational Institutions (Regulation of
Admission and Fixation of Free) Act, 2006
(U.P. Act No.24 of 2006). The said
enactment was passed by the State
Legislature with the object to provide for
regulating admission and fixation of fee in
private professional educational institutions
and the matters connected therewith or
incidental thereto. Section 2 of U.P. Act
No.24 of 2006 provides that this act shall
be applicable to the private aided or
unaided
professional
educational
institutions, excluding minority institutions.
Thus the said Act excludes Minority
Institution from its operation. Section 2 of
U.P. Act No.24 of 2006 is quoted herein
below:

"2. This Act shall be applicable
to
the
private
aided
or
unaided
professional
educational
institutions,
excluding minority institutions."

17. Section 3 (a) of U.P. Act No.24 of
2006 defines "aided institution" to mean a
private professional educational institution,
other than a minority institution. Sub
section (h) of section 3 of the said Act
defines "minority institution" to mean an
institution established and administered by
a minority and notified as such by the State
Government. Section 3(o) defines "unaided
institution" to mean a private professional
educational institution, not being an aided
institution. Section 3(h) of U.P. Act No.24
of 2006 is extracted herein below:

"3(h).
Minority
Institution
means an institution, established and
administered by a minority and notified as
such by the State Government."

18. Thus, Minority Institution as
defined in U.P. Act No.24 of 2006 in an
institution which is not only established
and is being administered by a minority but
it should be notified as such by the State
Government. Accordingly, an institution to
acquire the status of Minority Institution,
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
within the meaning of U.P. Act No.24 of
2006,
should
be
established
and
administered by a minority and it should
also be notified as such by the State
Government. In other words, unless and
until
an
institution
established
and
administered by a minority is not notified
as such by the State Government, it will not
be treated to be Minority Institution so far
as the application of U.P. Act No.24 of
2006 is concerned.

19. Petitioner no.1 was accorded
permission on 23.01.2001 by the Central
Government to establish a new Medical
College at Meerut. Pursuant to the said
permission accorded to petitioner no.1 by
the Central Government on 23.01.2001 the
petitioner
no.1
established
Subharti
Medical College, Meerut which is the
petitioner no.2 in this writ petition. An
application was made in the month of
September, 2015 by the President of
petitioner
no.1-Trust
to
the National
Commission for declaring the petitioner
no.2 as Minority Institution. The National
Commission took a decision on 20.03.2017
and decided to issue Minority Institution
status certificate to the petitioner no.2. The
said
decision
dated
20.03.2017
was
communicated to the President of the
petitioner no.1-Trust vide letter dated
26.04.2018 by the Secretary of the National
Commission.

20.

Accordingly,
a
certificate
declaring the petitioner no.2 as Minority
Educational
Education
covered
under
section 2(g) of the Act, 2004 was issued by
the Secretary of the National Commission
on 26.04.2018. After the said certificate
was issued by the National Commission to
the petitioner, an application was made to
the State Government for issuance of a
certificate for treating the petitioner no.2 as
a
Minority
Institution
as
per
the
Government Order dated 24.04.2017. The
petitioner thereafter instituted a writ
petition before this Court bearing No.
21980 of 2018 with the prayer to issue a
direction to the State Government to treat
the petitioner no.2 as Minority Institution
and not to interfere in its working. The said
writ petition was disposed of finally by a
Division Bench of this Court by means of
the order dated 22.06.2018 whereby the
State Government in the Department of
Medical Education and Training was
directed to look into the grievance of the
petitioners and pass appropriate order on
the representation dated 12.06.2018.

21. In compliance of the said order
dated 22.06.2018 passed by this Court, the
matter was considered by the State
Government in the Department of Medical
Education
and
Training
and
the
representation dated 12.06.2018 of the
petitioners was rejected by means of the
order dated 26.07.2018 which is one of the
orders of the State Government which is
under challenge in this writ petition.

22. While the matter was being
considered by the State Government in the
Department of Medical Education and
Training which culminated in the order dated
26.07.2018, reports were called for by the
State Government from the Director General
Medical Education and Training which
informed the State Government that before
issuing the certificate declaring the petitioner
no.2 as Minority Educational Institution
under the Act, 2004, though opportunity was
granted to the State Government, however,
none of the representatives of the State
Government could appear in the proceedings
before
the
National
Commission
and
accordingly the certificate issued by the
National Commission is a result of ex-parte
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1071
proceedings. The State Government while
passing the order dated 26.07.2018 has also
stated that in the proceedings before the
National Commission, the Minority Welfare
Department was impleaded as a partyrespondent which was a mischief played by
the petitioners for the reason that the Medical
Education Department was not impleaded as
a party-respondent in the said proceedings
though the institution in question, namely,
petitioner no.2 comes under the supervision
of Medical Educational Department of the
State Government and not that of Minority
Welfare
Department.
The
order
dated
26.07.2018 thus also observes that so far as
the Department of Medical Education of the
State Government is concerned, it did not
have
any
information
regarding
the
proceedings in which the petitioner no.2 was
declared as Minority Educational Institution
under the Act, 2004.

23. Regarding the applicability of the
Government Order dated 18.05.2016 issued
by the Minority Welfare Department of the
State Government, it has been stated in the
order dated 26.07.2018 that by the said order
no direction was issued to the Medical
Education
Department.
The
State
Government, thus, rejected the representation
made by the petitioners whereby the prayer
was made to treat the petitioner no.2 as
Minority
Institution.
The
order
dated
26.07.2018, as noticed above, was challenged
by the petitioners by filing Writ C No.31941
of 2018 which was withdrawn with liberty to
approach the authorities for redressal of the
grievances.
The
said
order
permitting
withdrawal of Writ-C No.31941 of 2018 was
passed by this Court on 05.08.2019.

24. As already noticed above, by
means
of
the
letters/orders
dated
29.01.2019 and 04.02.2019 the Director
General Medical Education and Training
required the petitioner no.1 to submit its
proposal for fixing the fee to be charged by
the College for the academic session 201920. These orders dated 29.01.2019 and
04.02.2019 were challenged in Writ C
No.5612 of 2019 which was dismissed on
05.08.2018 with liberty to approach the
authorities for redressal of the grievances.
It is the case of the petitioners, as noticed
above, that after withdrawal of Writ-C
No.31941 of 2018 the petitioners made
representation/application to the authorities
concerned for redressal of their grievances
in terms of the order dated 05.08.2019
passed by this Court, however, no decision
was taken and accordingly the order dated
26.07.2018 has been challenged in this writ
petition. On 11.05.2020 and 05.10.2020 the
Director General Medical Education and
Training again required the petitioners to
submit the proposal for fixation of fee to be
paid by the students pursuing MBBS and
BDS courses for the academic session
2020-21. The State Government by means
of the order dated 06.11.2020 again
determined the fee to be charged by the
petitioner-College
for
the
Academic
Session 2020-21 from its students pursuing
MBBS and BDS courses. These three
orders, namely, orders dated 05.10.2020,
07.10.2020 and 06.11.2020 have been
challenged in this writ petition.

25. It has been argued by Shri Sudeep
Seth, learned Senior Advocate appearing
for the petitioners that it is only the
National Commission which is empowered
to declare status of an institution as
Minority Institution for the reason that
sections 2 and 3 of U.P. Act no.24 of 2006
clearly exclude the applicability of the said
Act so far as the Minority Institutions are
concerned. It has further been argued by
Shri Seth that so far as the occurrence of
the phrase "notified as such by the State
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
Government" in section 3 (h) of U.P. Act
No.24 of 2006 is concerned, once an
institution has been declared as Minority
Institutionby the National Commission
under the Act, 2004 the question of
declaration as Minority Institution by the
State Government does not arise. He has
further argued that U.P. Act No.24 of 2006
not
being
applicable
to
Minority
Institutions declared under the Act, 2004,
which is a central enactment, its status so
declared under the Act, 2004 cannot be
altered.

26. Shri Sudeep Seth has further
argued that so far as the instructions
contained in the Government Order dated
28.08.1999 are concerned, after enactment
of 2004 Act the same have lost significance
for the reason that the Act, 2004 vests
power only with the National Commission
to declare and decide status of an institution
as Minority Institution. He has thus, argued
that
the
Government
Orders
dated
18.05.2016 and 24.07.2017 were issued not
only in compliance of the judgment dated
26.11.2015 passed by a Division Bench of
this Court in Special Appeal (Defective)
No.522 of 2015 but also in view of the
acceptance by the State Government of the
authority/power
of
the
National
Commission under the Act, 2004 to declare
an institution a Minority Institution.

27. Vehemently making the aforesaid
submissions, Shri Seth has argued that
refusal of the State Government to
recognize the petitioner no.2 as Minority
Institution and to issue a certificate to the
said effect even after declaration having
been made by the Central Commission
under the Act, 2004, cannot be sustained as
the same is in derogation of the statutory
authority vested in and available to the
National Commission under the Act, 2004.

28. Opposing the writ petition, Shri
Sanjay
Bhasin,
learned
counsel
representing the Director General Medical
Education and Training has vehemently
submitted that section 10 of the Act, 2004
though refers to right to establish a
Minority
Educational
Institution
and
provides that anyone who desires to
establish a Minority Educational Institution
may apply to the competent authority for
the grant of no objection certificate for the
said purpose, however, the said provisions
of section 10 of the Act, 2004 is subject to
the provisions contained in any other law
for the time being in force.

29. Shri Bhasin has further argued
that section 3(h) of the U.P. Act No.24 of
2006 defines Minority Institution to mean
an
institution
"established"
and
"administered" by a minority and notified
as such by the State Government. He has,
thus, submitted that an institution to quality
as Minority Institution should not only be
administered by a minority but should also
have been established by a minority. He has
stated that so far as the petitioner no.2 is
concerned, the said medical college was
established on permission accorded for the
said purpose to the petitioner no.1 by the
Central Government in the year 2001 and
since then petitioner no.2 has been running
the
petitioner
no.2-Medical
College
whereas for the first time the petitioner
no.1 moved the National Commission for
declaring the petitioner no.2 as Minority
Institution only in the month of September,
2015 whereupon the Commission by means
of the certificate dated 26.04.2018 granted
the petitioner no.2, run by the petitioner
no.1, the status of Minority Educational
Institution. In his submission, Shri Bhasin
has urged that Subharti Medical Collegepetitioner no.2 was established by the Trust
as a secular Trust in the year 2001 and the
9 All. Mtv Buddhist Religious And Charitable Trust & Anr. Vs. State of U.P. & Ors.
1073
Trust deed of petitioner no.1 was amended
only in the year 2015 and thus the members
of petitioner no.1 adopted the minority
religion much after establishment of
Subharti Medical College-petitioner no.2. It
has, thus, been argued that mere adoption
of minority religion by the members of
petitioner
no.1
several
years
after
establishment of the Medical College will
not permit the petitioner no.2-Subharit
Medical College to be treated as a Minority
Institution for the reason that at the time
when the petitioner no.2-Medical College
was established by the petitioner no.1, the
petitioner no.1 was not a Trust comprising
of members of any minority community.

30. It has also been argued by Shri
Bhasin that though Article 30 of the
Constitution of India provides for right of
minorities to establish and administer the
educational institutions, however, such
rights are not available to the petitionerCollege for the reason that the institution
should not only be administered but should
have been established also and in the
instant case, admittedly, at the time when
the petitioner no.2-Medical College was
established, the petitioner no.1 did not
comprise
of
members
of
Minority
Community for the reason that for the first
time an alteration in the Trust deed was
made in the year 2015 when the board of
the trust adopted a minority religion,
namely, Bhuddhism.

31.

On
careful
analysis
and
examination of the submissions made by
the learned for the parties, what we find is
that right to establish minority education
institution as given in section 10 of the Act,
2004 is subject to the provisions contained
in any other law in force. Section 10
provides that any person desirous of
establishing of a Minority Educational
Institution may apply to the competent
authority for the grant of no objection
certificate for the said purpose. The facts of
the instant case, admittedly, are that at the
time when petitioner no.2-Medical College
was established by the petitioner no.1,
members of the petitioner no.1-Trust did
not belong to Bhuddhism, a minority;
rather the members are said to have
adopted Bhuddhism only in the year 2015
and it is only thereafter that in September,
2015 the petitioner no.1 sought and prayed
for a declaration from the National
Commission under the Act, 2004 to the
effect that the petitioner no.2 is a Minority
Educational Institution.

32. The Act, 2004 has been in force
from 11.11.2004. The petitioner no.2 has
been in existence atleast from the year 2001
when the permission was accorded by the
Central Government to the petitioner no.1
to establish the Medical College. From
11.11.2004 i.e. from the date 2004 Act was
brought in force, till September, 2015 the
petitioner no.1 did not seek any declaration
from the National Commission that the
petitioner no.2 is a Minority Educational
Institution.

33. The definition of the word
"Minority Educational Institution" as given
in section 2(g) provides that an institution
shall be Minority Educational Institution if
it is established and administered by a
minority
or
minorities.
Thus,
mere
administration of an educational institution
by minority or minorities is not sufficient
or enough to declare such an Educational
Institution to be a Minority Educational
Institution even within the meaning of
section 2(g) of the Act, 2004. In the instant
case at the time when the petitioner no.2
was established, the petitioner no.1, on its
own showing was not a minority. Merely
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
because after the members of the Trustpetitioner no.1 adopted Bhuddhism and
thus the petitioner no.1 became minority
and it has since been administering the
petitioner no.2, petitioner no.2 will not
become a Minority Educational Institution
for the reason that it was established at a
time when admittedly the petitioner no.1
was not a minority which is said to have
become minority only in the year 2015.

34. As already observed above, mere
administration of an Educational Institution
by a minority will not confer on such
educational institution status of a Minority
Educational Institution in terms of section 2
(g) of the Act, 2004. Further, section 10 of
the said Act, 2004 provides that a person
who desires to establish a Minority
Educational Institution may apply for grant
of no objection certificate for the said
purpose. Section 10, thus, does not permit
any application to be moved by a person
who
did
not
establish
a
Minority
Educational Institution; rather is only
administering a Minority Institution, to
seek grant of no objection certificate.

35. We may also note that the Act,
2004 was enacted by the Parliament for a
purpose different than the purpose for
which U.P. Act No.24 of 2006 has been
enacted by the State Legislature. The
purpose of enactment 2004 Act was to
constitute a National Commission for
Minority Educational Institutions and to
provide for matters connected therewith or
incidental thereto, whereas the purpose of
enacting U.P. Act No.24 of 2006 was to
provide for regulation of admission and
fixation of fee in private professional
educational institutions and the matters
connected therewith or incidental thereto.
U.P. Act No.24 of 2006 excludes a
Minority Institution from purview of its
operation which, as observed above,
operates to regulate admission and fixation
of fee in private educational institutions.

36. What will be a Minority
Institution for the purposes of U.P. Act
No.24 of 2006 can be found in section 2(h)
where Minority Institution has been defined
to mean an institution established and
administered by a minority and notified as
such by the State Government. Thus for an
institution to qualify a Minority Institution
within the meaning of U.P. Act No.24 of
2006, it should be an institution not only
being administered by a minority but it also
ought to have been established by the
minority and it should also be notified by
the State as such. Thus, in terms of the
provisions contained in section 2(h) of U.P.
Act No.24 of 2006 there are three
conditions for an institution to qualify as
minority institution. The conditions are (i)
that the institution should have been
established by a minority, (ii) the institution
should be administered by a minority and
(iii) the institution should be notified as
such by the State Government.

37. As already noticed above, the
respondent no.2 was established at a time
when the petitioner no.1 was not a minority
as it became minority only in the year
2015. The petitioner no.1 currently said to
be a minority since the year 2015 though at
the time of establishment of petitioner no.
2, it was not a minority and hence the
petitioner 2 will, in our considered opinion,
not qualify to be a Minority Institution
within U.P. Act No.24 of 2006. Once an
institution does not qualify to be a Minority
Institution under U.P. Act no.24 of 2006, it
is difficult for us to hold that such an
institution, despite being administered
currently but was not established by a
minority, will be excluded from operation
9 All. State of U.P. Vs. Sarvan
1075
of U.P. Act No.24 of 2006. Establishing an
institution and administering it are two
different happenings. If a society or a Trust
did not comprise of members of any
Minority Community (either linguistic or
religious) at the time when it established an
educational institution and subsequently
attains the status of a minority and starts
administering such an institution, in our
considered opinion, in such a situation the
educational
institution
concerned
will
neither be a Minority Institution within U.P.
Act No.24 of 2006, nor shall it be Minority
Educational Institution within Act, 2004.

38. For the reasons given and
discussion made above, we do not find any
illegality in the decision of the State
Government not to treat the petitioner no.2
as Minority Institution so as to exclude it
from the purview of U.P. Act No.24 of
2006 and accordingly we also do not see
any
illegality
in
the
orders
dated
05.10.2010 and 07.10.2010 whereby the
Director General Medical Education and
Training had sought the proposal from the
petitioner no.2 for the purposes of fixation
of fee to be charged from the students
pursuing their MBBS and BDS Courses for
the academic year 2020-21. For these
reasons, we also do not find any illegality
in the impugned order dated 06.11.2020
passed by the State Government in the
Department of Medical Education whereby
fee to be charged from its students was
fixed.

39.