HIGH COURT OF JUDICATURE OF ALLAHABAD
Court No.32
Special Appeal No. 322 of 2007
State of U.P. & others .....Appellants
Versus
Committee of Management,Anjuman
Madarsa Noorul Islam Dehra Kalan,
Ghazipur & others .....Respondents ******
Hon'ble S. Rafat Alam, J.
Hon'ble Krishna Murari, J.
This special appeal is taken up today for admission pursuant to the order of date passed on the urgency application.
This is an intra Court appeal, under the Rules of the Court, filed by the State of Uttar Pradesh arising from the judgment of the Hon'ble Single Judge dated 5.4.2007 in Civil Misc. Writ Petition No. 34892 of 2004 pronouncing only the operative portion of the order whereby the order of the State Government providing grant-in-aid to respondents no.4 to 6 to the writ petition as religious Muslims Minority Institution is quashed. It has further been held that any institution founded by the writ petitioners or respondents no. 4 to 6 to the writ petition are not entitled to be recognised for grant in aid as religious minority institution in the State of Uttar Pradesh after applying twin criteria, i.e., population and strength of religious community. It has further been held by the Hon'ble Single Judge in the judgment under appeal that the Muslims have ceased to be a religious minority community in the State of Uttar Pradesh on consideration of the material on record which includes various Census reports including Census Reports of 1951 and 2001 and therefore, directs States of Uttar Pradesh to treat any Member of Muslim community equal to other non-minority religious communities without discriminating in any respect in accordance with law. The Hon'ble Single Judge further issued the following directions:
(i) A writ in the nature of mandamus is issued commanding State of Uttar Pradesh to consider Applications of petitioners and Opp.Party nos. 4 to 6 or other Applications of other institutions founded by Muslim community for recognition on Grant-in-aid in the similarly situated manner as other non-minority institutions are being dealt with in accordance with law without any discrimination.
(ii) A writ of mandamus is also issued to Union of India and the State of Uttar Pradesh to take appropriate steps to modify the notification dated 23.10.1993 issued by the Union of India accordingly.
(iii) A Writ of mandamus is further issued commanding the Chief Secretary, Uttar Pradesh to initiate an enquiry into the serious allegations of corruption made by petitioners in Paragraphs 9 to 10 of the Supplementary Affidavit dated 1.2.2007 filed by Zulfikar Ahmad, Manager, Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur.
Besides above, the authorities were further directed to hold enquiry in respect of the recognition of the institution for grant-in-aid from the year 2003 upto now by an Officer not below the rank of Principal Secretary and such enquiry is to be completed within three months from the date of presentation of a certified copy of the order.
In Civil Misc. Writ Petition No. 34892 of 2004 from which this special appeal arises, the petitioner, Committee of Management, Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur has challenged its non inclusion in the grant-in-aid list issued by the State Government vide order dated 17.5.2004.
During the pendency of the above writ petition, Civil Misc. Writ Petition No. 42265 of 2006 was filed by Bahuri Alp Sankhyak Balika Inter College for issuance of a writ of mandamus commanding the State authorities to grant one time recognition to the institution and to permit its students to appear in the Intermediate Examination, 2007 conducted by the Board of High School and Intermediate Education, U.P. The said writ petition came up before the Hon'ble Single Judge on 11.12.2006 and following four issues were framed by the Hon'ble Single Judge:
"(i) What is the definition of minority ?
(ii) Who could be recognized as a member of minority religion and what would be the criteria for recognizing minority ?
(iii) Whether minority could be recognized at national level, provincial level or at regional level ? and
(iv) Whether a community having more than 5 % of the total population in the country could be recognized as minority?"
Thereafter vide order dated 18.12.2006 both the writ petition nos. 34892 of 2004 and 42265 of 2006 were clubbed together for hearing. Further the Hon'ble Single Judge directed impleadment of Union of India, National Commission for Minorities of India and Registrar General, Census Department as respondents and called for a response from them especially with regard to the following facts:
(i) What was the total number of population of India on the date the Constitution of India came into existence?
(ii) The total population of all the minority communities including the Buddhist, Muslim, Christan etc. on the date the Constitution of India came into force ?
(iii) What is the total population of minority communities in the latest census of 2001 ?
(iv) In case Census was conducted as regards other minority groups on caste basis the details of the same shall also be produced;
(v) The Government of India shall also produce before the Court the report of Justice Sachar Committee which, according to learned Standing Counsel, is also relevant in the matter and the case was directed to be put up on 22.1.2007 for further argument.
In the meantime, aggrieved by the orders dated 11.12.2006, 18.12.2006, 21.1.2007, 1.2.2007, 20.2.2007 passed in writ petition no. 42265 of 2006, State of U.P. filed special appeal no. 321 of 2007. This court vide order dated 21.3.2007 admitted the special appeal and further proceedings before the learned Single Judge was stayed on the ground that the learned Single Judge in passing the order impugned has gone beyond the pleadings and the issue involved and raised by either of the parties.
It has been brought to our notice by the learned Advocate General that when writ petition no. 34892 of 2004 was taken up by the learned Single Judge he was informed of the order dated 21.3.2007 passed in special appeal no. 321 of 2007 and thereafter, the Hon'ble Single Judge was pleased to grant time to file the copy of the same and fixed both the writ petitions for 26.3.2007. On the said date, the copy of the order dated 21.3.2007 passed in special appeal was filed before the Hon'ble Single Judge which was taken on record and writ petition no. 42265 of 2006 was consigned to record till further orders in the special appeal. However, the judgment was reserved in connected writ petition no. 34892 of 2004 and the operative portion was delivered on 5.4.2007 and the reason was to follow.
In the backdrop of the above facts, it has been urged by the learned Advocate General that the issue with regard to religious minority status of Muslims was neither pleaded nor raised in the writ petition and the Hon'ble Single Judge has erred in deciding an issue which was neither pleaded nor involved or raised by either of the parties. In support of the contention he has placed reliance on the judgment of the Hon'ble Apex Court in the case of U.P. Gram Panchyat Adhikari Sangh & others vs. Daya Ram Saroj and others, (2007) 2 SCC 138 wherein it has been observed by the Hon'ble Apex Court in paragraph 34 as under :
" 34. Another reason why the decision of the High Court is unsustainable is that the High Court held that the tubewell operators can legitimately except to remain as multi-purpose Gram Panchayat employees unless the whole concept is totally done away with. There is no pleading in the original petition, not even a whisper, about the legitimate expectation. It appears that the High Court, at the appellate stage made observations which induced some of the appellants at the last minute to urge the ground of legitimate expectation which was permitted and on the basis of it such finding has been recorded. Such an approach is not permissible. See National Buildings Construction Corpn. v. S. Raghunathan."
It has further been urged that the impugned order could not have been passed even treating the petition as Public Interest Litigation by the Hon'ble Single Judge and the exercise of jurisdiction is wholly without jurisdiction inasmuch as under the Rules of the Court and the roaster, work and jurisdiction of Public Interest Litigation was cognizable by a Division Bench presided over by Hon'ble The Chief Justice and was not allotted to the Hon'ble Single Judge. It has also been contended that aggrieved by the orders and directions of the Hon'ble Single Judge dated 18.12.2006, 22.1.2007, 1.2.2007, 20.2.2007, 28.2.2007, 14.3.2007, 16.3.2007 and 21.3.2007 in writ petition no. 34892 of 2004 another special appeal no. 388 of 2007 was filed which has been admitted vide order dated 3.4.2007 and was directed to be listed along with special appeal no. 321 of 2007 by another division bench. It has been vehemently contended that once the order dated 21.3.2007 passed in special appeal no. 321 of 2007 was brought to the notice of the Hon'ble Single Judge, judicial propriety demanded that he ought not to have decided the matter till final decision of the appeal especially when the issues sought to be decided were common in both the petitions and were already engaging the attention of a division bench in special appeal no. 321 of 2007 arising out of other connected petition no. 42265 of 2006. In support of this argument learned Advocate General has placed before us an order dated 5.4.2007 passed by the Full Bench of this court, constituted to consider the scope of the power of a Single Judge of the High Court acting on judicial side to issue direction that no affidavit will be sworn without photograph of the deponent, deferring the hearing on the ground that judicial propriety demanded the same on account of fact that the matter in issue was directly engaging the attention of the Hon'ble Supreme Court wherein the leave to appeal against the order passed by the single Judge was granted.
It has next been contended that the Hon'ble single Judge ought not to have decided an issue having such far reaching implications so lightly and hurriedly without proper opportunity to the State. In support of the contention, learned Advocate General has placed reliance on the following observations of the Hon'ble Apex Court in the case of State of U.P. & others v. S.N.Kapoor (dead) by L.Rs., 2004 (8) SCC 630 :
"We are not doubting the jurisdiction of the High Court to take cognizance of an issue wherein the element of public interest is involved and to take up and entertain the same as public interest litigation and pronounce upon such issues exercising the jurisdiction which the Constitution does vest in the High Court but that has to be done by following the established rules of practice and procedure consistently with the rules of natural justice. The High Court, if convinced, should have framed specific issues with which it proposed to deal with in public interest and then should have put the State on specific notice inviting its pleadings and documents. Any other party likely to be adversely affected and interested in being heard may have been allowed the opportunity of doing so. A larger issue involving public interest and far-reaching implications should not have been dealt with so lightly, casually and hurriedly as the High court has done. So far as the dispute raised by the private parties as writ petitioners in the High Court is concerned, the High Court could have postponed the decision in such individual writ petitions until the larger issue of public interest was decided; or else the High Court could have adjudicated upon the limited dispute as to the right of allotment over the two shops and then taken up the lager public interest issue for adjudication as a separate writ petition........"
On the other hand, learned counsel for the petitioners-respondents do not oppose the admission of the appeal. However, Sri N.A.Khan, learned counsel for the petitioners-respondents submitted that the direction so far the consideration of the claim of the petitioners regarding grant in aid may not be disturbed or stayed at this stage.
Apart from the above, with due respect to the Hon'ble Single Judge, we are prima facie of the view that His Lordship fell in error in pronouncing only the operative portion of the judgment. Our view is also supported by a Constitution Bench of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Jagdev Singh Talwandi, AIR 1984 Supreme Court 444 wherein it has been observed that a final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. In para-30 of the judgment their Lordships held as under:
"We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the high Court has to be stayed pending delivery of the reasoned judgment."
Thus, in the absence of reasons, we are deprived from testing the reasons which led the Hon'ble Single Judge to record directions contained therein, having much ramifications and, therefore, while exercising power as appellate court, we are constraint to grant interim order.
For all these reasons, prima facie a case for admission and grant of interim order is made out.
Admit.
No notice is required to be issued since all the respondents are represented through their counsel.
Connect this special appeal with special appeal no. 321 of 2007 and list on the date fixed.
Until further orders, effect and operation of the impugned order dated 5.4. 2007 passed in Civil Misc. Writ Petition No. 34892 of 2004 shall remain stayed.
Dated:6.4.2007
SKM