# State of U.P. and others / v. Committee of Management, Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur and another

- **Citation:** (2009) 2 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-06
- **Case number:** Civil Misc. Intervener Application No. 87478 of 2009
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-committee-of-management-anjuman-madarsa-noorul-islam-41661
- **Pages:** 7

## Headnote

High Court Rules-Chapter XII Rule 5A
read with Code of Civil Procedure-Order
I
Rule
8-A-Intervener
Application-in
pending
Special
Appeal-at
proposed
applicant neither supporting case of
either the Appellant or Respondentsapplication with allegation of collusion
between State Government as well as
management of Madarsa run by Muslim
community-question
whether
muslim
belongs to minority community or notrequired investigation of facts-neither
question of law nor mixed question of
law-held-intervener
application
not
maintainable-rejected.

Held: Para 22

It is thus evident that the applicant
intervenor neither proposes to support
any of the parties in the writ petition nor
the issues raised by the parties. We,
therefore,
do
not
find
that
this
application as an intervenor can be
allowed
and
the
applicant
can
be
permitted
to
advance
submissions
opposing all the parties in the writ
petition.
In
fact,
the
remedy
lies
elsewhere. The intervenor-applicant, if
so advised, may avail such remedy as
admissible in law before the appropriate
forum
with
appropriate
pleadings,
grounds, reliefs, etc.
Case law discussed:
AIR 1985 SC 1622, 1999 (3) SCC 141, AIR
2000 SC 1296, AIR 2001 SC 1861, 2003 (5)
SCC 480, 2006 (5) SCC 62, 1999 (4) SCC 630,
JT 2007 (12) SC 86.

## Text

2 All] State of U.P. and others V. Committee of Management and another
581
22. In view of above, the writ
petition is allowed. A writ in the nature of
certiorari is issued quashing the impugned
order dated 9.5.2008 (Annexure-15) with
consequential benefits. A writ in the
nature of mandamus is issued directing
the Registrar to hold the fresh election of
the Society in question in pursuance to
power conferred by Sub Section (2) of
Section 25 of the Societies Registration
Act, 1860 expeditiously and preferably
within a period of four months from the
date of receipt of a certified copy of this
order. For the interim period, the District
Magistrate, Bareilly shall appoint a
receiver who shall be an officer of the
district to do routine work of the society
in question till new elected committee
resumes office.

23. The writ petition is allowed
accordingly with no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2009

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Intervener Application No.
87478 of 2009
In
Special Appeal No. 517 of 2009

State of U.P. and others ...Respondents/
Appellants

Versus
Committee of Management, Anjuman
Madarsa Noorul Islam Dehra Kalan,
Ghazipur and another
...Petitioners/
 Respondents

Counsel for the Intervener:
Sri V.K.S. Chaudhary
Sri Boopendra Nath Singh
Counsel for the Respondents:
Sri Ch. N.A. Khan
S.C.

High Court Rules-Chapter XII Rule 5A
read with Code of Civil Procedure-Order
I
Rule
8-A-Intervener
Application-in
pending
Special
Appeal-at
proposed
applicant neither supporting case of
either the Appellant or Respondentsapplication with allegation of collusion
between State Government as well as
management of Madarsa run by Muslim
community-question
whether
muslim
belongs to minority community or notrequired investigation of facts-neither
question of law nor mixed question of
law-held-intervener
application
not
maintainable-rejected.

Held: Para 22

It is thus evident that the applicant
intervenor neither proposes to support
any of the parties in the writ petition nor
the issues raised by the parties. We,
therefore,
do
not
find
that
this
application as an intervenor can be
allowed
and
the
applicant
can
be
permitted
to
advance
submissions
opposing all the parties in the writ
petition.
In
fact,
the
remedy
lies
elsewhere. The intervenor-applicant, if
so advised, may avail such remedy as
admissible in law before the appropriate
forum
with
appropriate
pleadings,
grounds, reliefs, etc.
Case law discussed:
AIR 1985 SC 1622, 1999 (3) SCC 141, AIR
2000 SC 1296, AIR 2001 SC 1861, 2003 (5)
SCC 480, 2006 (5) SCC 62, 1999 (4) SCC 630,
JT 2007 (12) SC 86.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. We have heard Sri V.K.S.
Chaudhary, learned Senior Advocate
assisted by Sri B.N. Singh, Advocate on
Intervener Application filed on behalf of
Adhivakta Samanvay Samiti U.P. through
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
its Secretary Sri R.K. Ojha, Advocate,
Office at 198 Lukerganj, Allahabad,
learned
Standing
Counsel
for
the
appellant (in Special Appeal No. 517 of
2007) and Ch. N.A. Khan and other
learned counsels appearing for the parties
in all the connected matters.

2. The applicant has approached this
Court with the prayer that it should be
allowed to be heard in the above
mentioned
appeal
alongwith
other
connected matters so that the applicant
may support the judgment of Hon'ble
Single Judge impugned in this appeal
holding that Muslims are not entitled to
be recognized as religious minority in the
State of U.P. and accordingly, Madarassas
run by Muslim communities are not
entitled for grant in aid since they cannot
be
treated
as
minority
religious
institutions.

3. At the outset this Court enquired
from the learned counsel for the applicant
as to how this application is maintainable,
inasmuch as, whether the applicant is
supporting
the
petitioner
or
the
respondents of the writ petition.

4. Learned counsel for the applicant
submitted that he is supporting the
judgment since it has decided an issue of
national importance. Further, in respect to
one prayer in the writ petition he is
supporting the petitioner and in respect to
the other prayer in the writ petition he is
supporting the respondents though the
grounds
of
support
are
absolutely
different. He further submitted that since
he is supporting the judgment on certain
issues decided by Hon'ble Single Judge,
therefore, the applicant is entitled to be
heard in these appeal and the intervention
deserved to be allowed.

5.

In
order
to
show
the
maintainability of the application reliance
is placed on Chapter XXII Rule 5-A of
the Allahabad High Court Rules, 1952
(hereinafter referred to as the "High
Court Rules") and Order I Rule 8-A of
the Code of Civil Procedure (hereinafter
referred to as the "CPC"). It is contended
that though Order I Rule 8-A CPC
provides that the Court may hear a person
but the word 'may' in the facts and
circumstances and the purpose for which
the rule is made, is liable to be construed
as 'shall'. In support of the above
submission reliance is placed on a passage
from "Interpretation of Statutes" by
Jagdish Swaroop and "Principles of
Interpretation of Statutes" by G.P. Singh.
Besides, Sri Chaudhar cited authority of
the Apex Court in The Collector
(District Magistrate) Allahabad and
another Vs. Raja Ram Jaiswal, AIR
1985 SC 1622 (Para 19); Saraswati
Industrial Syndicate Ltd. Vs. CIT, 1999
(3) SCC 141 (para 12); State of Bihar
and another Vs. Bal Mukund Sah and
others, AIR 2000 SC 1296 (para 14); and
Municipal
Council
Hansi,
District
Hissar Vs. Maniraj and others, AIR
2001 SC 1861 (para 6). He further argued
that Section 107 CPC confers power upon
the appellate Court which is possessed by
the trial court and, therefore, the provision
of Order 1 Rule 8A C.P.C. would have
application in Special Appeal also. Sri
Chaudhary
further
argued
that
the
applicant is trying to protect the public
fund from being squandered by the State
authorities for purposes other than public
and national interest and it is his
fundamental duty under Article 51-A of
the Constitution of India to protect the
same. Besides, such grant-in-aid to the
institutions in question is also violative of
Article 27 of the Constitution of India,
2 All] State of U.P. and others V. Committee of Management and another
583
therefore, the applicant is entitled to be
heard in the matter and to advance his
submissions.

6. On the contrary, all the parties in
the
appeals
whether
representing
appellants or the respondents opposed the
intervention application and contended
that the applicant has not interest in the
matter in issue in writ petition but certain
issues which were not involved directly or
otherwise in the writ petition but have
been decided by Hon'ble Single Judge on
his own and now to support those issues
only the present application has been
filed, though the applicant is neither
supporting
the
petitioner
nor
the
respondents in the writ petition but a
different case altogether so as to destroy
the case of both the sides. Sri J.K. Tiwari,
learned Standing Counsel placed reliance
on
the
Apex
Court's
decision
in
Rajasthan Public Service Commission
and another Vs. Harish Kumar Purohit
and others, 2003 (5) SCC 480 and Ravi
Rao Gaikwad and others Vs. Rajaji
Nagar Youth Social Welfare Assn. and
others, 2006 (5) SCC 62. The other
learned counsel adopted the arguments of
Sri Tiwari and said that the application
sould be rejected.

7. For permitting a person to
intervene in a pending matter, no specific
provision has been made either in the
CPC or in the High Court Rules. The two
provisions on which reliance has been
placed on behalf of the applicant are
Chapter XXII Rule 5-A of the High Court
Rules and Order 1 Rule 8-A of CPC.
Therefore, first of all we propose to
consider the above two provisions.

8. Chapter XXII Rule 5-A of the
High Court Rules reads as under:

"5-A Hearing of persons not served
with notice.- At the hearing of the
application, any person who desires to be
heard in opposition to the application and
appears to the Court to be a proper
person to be heard, may be heard
notwithstanding that he has not been
served with notice under Rule 2."

9. A bare perusal of Rule 5-A shows
that where a person in the writ Court
appears and requests to be heard in
opposite on the petition and and it appears
to the Court that he is a proper person
only then he may be heard even though no
notice has been served upon him since he
was not a party impleaded in the writ
petition. To attract Rule 5-A of the High
Court Rules, two things are necessary; (1)
a person desired to be heard in opposition
to the application and (2) he appears to be
a proper person to the Court that he
should be permitted to be heard. Here the
present application is not one seeking
intervention
for
opposing
the
writ
petition. Secondly, in the dispute involved
in the writ petition, the learned counsel
for the applicant could not show as to how
he is a proper person to be heard.
Therefore, in our view, the reference
made and reliance placed on Rule 5-A is
misconceived and does not apply to the
present application. We have no manner
of doubt that wherever and whenever the
Court finds that a person is a proper party
to be heard in a matter he should be
allowed opportunity to be heard but
simply because someone has come and
requested to be heard, he cannot be
allowed as a matter of course and that too,
which all the parties in the writ petition
are opposing.

10. Then we come to Order I Rule 8A CPC which reads as under:-
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

"8-A Power of Court to permit a
person or body of persons to present
opinion
or
to
take
part
in
the
proceedings.-While trying a suit, the
Court may, if satisfied that a person or
body of persons is interested in any
question of law which is directly and
substantially in issue in the suit and that it
is necessary in the public interest to allow
that person or body of persons to present
his or its opinion on that questions of law,
permit that person or body of persons to
present such opinion and to take such
part in the proceedings of the suit as the
Court may specify.

11. To attract Rule 8-A three things
are required: (1) While trying the suit the
Court should be satisfied that a person or
body of persons is interest in any question
of law; (2) such question of law must
have directly and substantially in issue in
the suit and (3) it is necessary in the
public interest to allow such person or
body of person to present his or its
opinion on the question of law.

12. Besides, the power of the Court
to permit such person or body of persons
to
present
his
or
its
opinion
is
discretionary, inasmuch as, the Rule says
that the Court may permit such person or
body
of
persons.
Sri
Chaudhary
vehemently submitted that the word
'may' has to be read as 'shall'. In
"Principles of Statutory Interpretation" by
Sri G.P. Singh, at page 447 while
commenting upon the proposition as to
when a provision would be read as
mandatory or directory, the following
observations of Lord Cairns have been
quoted:

"There may be something in the
nature of the thing empowered to be done,
something in the object for which it is to
be done, something in the conditions
under which it is to be done, something in
the title of the person or persons for
whose benefit the power is to be
exercised, which may couple the power
with a duty, and make it the duty of the
person in whom the power is reposed to
exercise that power when called upon to
do so."

"Where a power is deposited with a
public officer for the purpose of being
used for the benefit of person specifically
pointed out with regard to whom a
definition is supplied by the Legislature of
the condition upon which they are entitled
to call for its exercise, that power ought
to be exercised and the court will require
it to be exercised."

13. The above proposition in our
view, is not at all necessary to be gone in
this matter. In our view, Rule 8-A by
itself has no application in the present
case. Therefore, it would not be necessary
for us to go into the academic question as
to whether the word 'may' in Rule 8-A
should be read as 'shall' or not. The very
first condition to attract Rule 8-A is that
there is a question of law. Sri Chaudhary
has submitted before us that according to
him the following questions are involved
in this matter which are pure questions of
law and, therefore, the applicant as
intervenor is entitled to be heard:

1.
Whether Muslims can be termed as a
minority in Uttar Pradesh?
2.
Is the Madarsa, where religious
teaching is imparted, is entitled to
grant-in-aid
from
the
State
Government?
3.
Is
the
Anjuman
Madarsa
Noorum Islam Dehra Kalan Ghazipur a
'Minority Institution' which the meaning
2 All] State of U.P. and others V. Committee of Management and another
585
of Articles 29 (1) and 30 of the
Constitution?

14. Sri B.N. Singh, Advocate has
filed written arguments also today in the
Court and in para 4 thereof also the above
questions have been mentioned. A bare
reading of the above questions, in our
view, shows that the above questions
cannot be said to be pure questions of
law. On the contrary, they are questions
involving investigation into facts and, at
the best, some of them may be said to be
mixed questions of facts and law. The
first question formulated by the applicant,
as to whether Muslims can be termed as a
minority in U.P. cannot be decided by
construing only some statutory provisions
but needs a detailed investigation into
several
factual
information
needs
collection of evidence and scrutiny
threadbare of such facts. Similar is the
position with respect to question no. 2 and
3. If a question would have been raised
"what minority is", the same may be said
to be a pure question of law needs to be
decided in the light of constitutional
provisions contained in Articles 29 and 30
of Constitution of India but when the
question is as to who is a minority and
whether a particular community can be
said to be minority etc., such questions
cannot be said to be a pure question of
law. As said above, these questions
involve collection of evidence, relevant
facts and figures and, therefore, are
questions of fact or at the best mixed
questions of facts and law. The three
issues/questions
which
have
been
formulated by the applicant on which it
intends to address the Court, since in our
view, cannot be said to be the questions of
law, therefore, Rule 8-A as such has no
application in the case in hand and cannot
help the applicant for maintaining the
application in question.

15. Then comes the basic questions
as to who intervenor is and when
intervention application can be allowed.

16.

In
Saraswati
Industrial
Syndicate (supra) the Apex Court
categorically held that purpose of granting
an intervention application is to entitle the
intervenor to address argument in support
of one or the other side. Therein the
persons
who
filed
the
intervention
application supported the case of the
assessee and opposed the view taken by
the Income Tax Department. Therefore,
the Apex Court allowed the intervention
application and heard intervenor in that
case. This view was reiterated in State of
Tamil Nadu Vs. Board of Trustees of
the Port of Madras, 1999 (4) SCC 630.

17. Again it came to be considered
in Ravi Rao Gaikwad (supra) where an
order of the High Court permitting the
intervenors to participate in the case
before Hon'ble Single Judge was under
challenge. The Apex Court considered as
to what was the issue involved in the writ
petition before the Hon'ble Single Judge
and thereafter observed that the persons
making impleadment application cannot
throw any light on those matters and
relying
on
Saraswati
Industrial
Syndicate (supra) set aside the order of
the High Court whereby the intervenors
were allowed to participate in the matter.
This has been followed in Ram Nandan
Singh and others Vs. A.G. Office
Employees Co-op. House Construction
Society Ltd., Ranchi and others, JT
2007 (12) SC 86.
586 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

18. Coming to the judgements relied
upon by the applicant we find that in Bal
Mukund Sah (supra) the intervenor
supported general category candidates
who had filed the writ petition before the
High Court. In Maniraj (supra) the
property of a person seeking intervention
was sought to be taken away without
either impleading him or hearing him.
Therefore, the Court held that he was a
necessary and proper party though he had
filed the application titled as 'Intervenor'.
This fact is evident from the following in
para 6 of the judgment:

"In
the
circumstances,
the
application made by the appellant ought
to have been allowed when the direction
adversely and seriously affected the
valuable rights of the appellant over the
immovable property in dispute."

19. Similarly, in Raja Ram Jaiswal
(supra) serious allegations were made
against Hindi Sahitya Sammelan and its
impleadment application was rejected by
the High Court. The Apex Court found
that the allegations of mala fide and
ulterior motive leveled against Hindi
Sahitya Sammelan cannot be heard in its
absence and observed that the High Court
wrongly rejected the application for
impleadment. It also found that Sammelan
was a proper party to be heard and this
was not disputed by Sri Nariman, learned
counsel appearing for the appellant in that
case.

20. Therefore, in all the three cases,
we find that the intervention was allowed
either when the person was supporting
one of the party or that he was found to be
a necessary and proper party to the
dispute before the Court. Here the
Madarsas were allowed grant-in-aid by
the State Government by issuing a
Government Order in the year 1996.
Some of the Madarasas, whose list was
given, were allowed the said benefit.
Some more Madarsas (to be precise 67
Madarsas) were sought to be extended the
said benefit by means of an order dated
17.5.2004, which did not include the
institution of the petitioner-respondent in
this appeal, i.e., Anjuman Madarsa Nooral
Islam Dehra Kalan, Ghazipur. Therefore,
the said institution challenged the said
order on the ground that that non
inclusion of the petitioner-respondent's
name in the said list was illegal. There is
no challenge to the Government Order of
1996 which is a matter of policy to
provide grant-in-aid to the Madarsa. What
the applicant intervenor intends to submit
is that no grant-in-aid whatsoever could
be allowed to any Madarsa at all and,
therefore, the order dated 17.5.2004
challenged in the writ petition deserves to
be quashed and to this extent the
intervenor
is
supporting
petitioner
respondent no. 1 in the writ petition but it
is opposing their further prayer to provide
grant-in-aid to this institution for the
reason that according to the intervenorapplicant such grant to Madarasas is
illegal. Exfacie, the intervenor's case is
absolutely different. In absence of any
challenge to the Government Order of
1996, neither any such plea can be
allowed to be raised nor can be heard by
this Court in a matter where such an order
is not at all in dispute. On the contrary,
the parties in the writ petition have placed
reliance on the said Government Order for
taking its benefit. Ex facie, therefore, it is
evident that the intervenor's application is
not supporting either of the party in the
writ petition but intend to make out a new
case of its own.
2 All] Islamuddin V. Sri Umesh Chandra Tiwari and another
587

21. Moreover, the appeals before us
have been filed alleging that the issues
decided by Hon'ble Single Judge never
arose in the matter and the respondents
before us also agree so far as this aspect is
concerned.
The
intervenor
has
categorically said in the application in
para 5 that all the parties are colluding for
the said purpose. Para 5 of the application
is reproduced as under:

"5. That it appears that both State
of
U.P.
and
the
Committee
of
Management and Anjuman Madarsa
Noorul Islam Dehra Kalan, have filed
appeals, from the grounds of appeal and
the contents of appeals it appears that the
both State of U.P. and the committee of
Management
Anjuman
Madarsa
are
colluding with each other on main
question decided. This is a question of
national importance and is likely to affect
the whole country. In such State of affairs
is necessary and the intervener who has
filed the application on the very date the
special appeal No. 322 of 2007 was listed
for admission. The intervener must be
heard, it appears that no order has been
passed on the intervener application it
appears no application came before the
court and it not listed for orders."

22. It is thus evident that the
applicant intervenor neither proposes to
support any of the parties in the writ
petition nor the issues raised by the
parties. We, therefore, do not find that this
application as an intervenor can be
allowed and the applicant can be
permitted
to
advance
submissions
opposing all the parties in the writ
petition.
In
fact,
the
remedy
lies
elsewhere. The intervenor-applicant, if so
advised, may avail such remedy as
admissible in law before the appropriate
forum
with
appropriate
pleadings,
grounds, reliefs, etc.

23. In view of the above discussion,
we are clearly of the view that this
application is not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2009

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Contempt Application No. 4969
of 2006

Islamuddin

...Applicant
Versus
Sri Umesh Chandrara Tiwari and another

 ...Respondents

Counsel for the Applicant:
Sri Arvind Srivastava
Sri Zuber Ahmad Siddique

Counsel for the Respondents:
A.G.A.

Contempt of Courts Act 1971-read with
Section 5 of Limitation Act-contempt
proceeding initiated after one yearreference made before the Division
Bench-whether
the
provisions
of
limitation Act applicable in proceeding of
contempt Act? Held-"No" except Section
17 of no other provision of limitation Act
applicable.

Held: Para 76

We,
therefore,
answer
both
the
questions referred by the Hon'ble Single
Judge in negative and hold that for the
purpose of Section 20 of Act 1971, the
Act 1963 and its provisions (exceptSection
17)
have
no
application
whatsoever. The law laid down by the
Apex Court in Pallav Sheth (supra) does