ition No 4675 of 1978
Under article 32 of the Constitution of India MC Bhandare Mrs Urmila Kapoor Mrs Shobha Dikshit Hasan Imam Shanker Saran Lal and Miss Kamlesh Bansal for the Petitioners
1086 OP Rana and section Markandeya for Respondents Nos
Anil B Dewan KL Hathi P Parmeswaran PC Kapoor and MA Quadeer for Respondents Nos
Haider Abbas and Miss Kamini Jaiswal for Respondent No 8 Shia Waqf Board UP FS Nariman M Qamaruddin Mrs M Qamaruddin Z Jilani and Mrs Sahkil Ahmed for Respondent No 7 UP Sunni Central Board of Waqf MC Dhingra for Intervenor Institute for Re writing History
The Judgment of the Court was delivered by TULZAPURKAR J
By this writ petition filed under article 32 of the Constitution of India the petitioners and through them the Shia community of Mohalla Doshipura Varanasi are complaining against the various actions of the respondents including respondents 5 and 6 as representing the Sunni community of Mohalla Doshipura which constitute serious infraction andor infringement of their fundamental rights guaranteed to them under articles 25 and 26 of the Constitution in the matter of enjoying their religious faith and performance of religious rites practices and observances on certain plots and properties situated in the said Mohalla of Doshipura Police Station Jaitpura formerly Adampur in the city of Varanasi and in particular are seeking a declaration that the 9 plots of land bearing plot Nos 245 246 247 2482372 602 603 6021133 2461134 and 2471130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura and that the members of Shia community of that Mohalla have a right to perform their religious functions and practices on the said plots and structures thereon as also an appropriate writ direction or order in the nature of mandamus commanding respondents 1 to 4 not to prohibit or restrain the Shias of the Mohalla from performing their religious functions and practices thereon
It may be stated that this Court by its order dated December 12 1978 not merely granted permission to the petitioners under Order I Rule 8 CPC to institute this action qua themselves as representing the Shia community and respondents 5 and 6 as representing Sunni community but directed at certain stage of the hearing that the two Waqf Boards in UP State namely Shia 1087 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for complete adjudication of the controversy and even otherwise under the UP Muslim Waqf Act 1960 which has been done and both the Waqf Boards have also been heard through their counsel in the matter
In Mohalla Doshipura of Varanasi City there are two seats of mohammedan the Shias and the Sunnis
Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain grand sons of Prophet Mohammed during the MOHARRAM but in a different manner
The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers attained martyrdom at Karbala in Iraq
The said religious belief is practised by the men folk and the women folk of the Shia community by holding Majlises religious discourses Recitations Nowhas Marsia doing Matam wailing and taking out processions with Tabut Tazia Alama Zuljinha etc
For performing these religious rites practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them particulars whereof are as under Plot No 246 on which stands a Mosque which it is common ground belongs to both the sects as it was constructed out of general subscription from members of both the sects and every Mohammedan is entitled to go in and perform his devotions according to the ritual of his own sect or school
Plot No 2471130 on which stands the Baradari Mardana Imambara structure of white stone having 12 pillars constructed by Shias in 1893 used for holding Majlises Recitations Marsia and doing other performances
Plot No 245 on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc
1088 Plot No 247 on which there is Imam Chowk used for placing the Tazia thereon said to have been demolished by the Sunnis during the pendency of the instant proceeding
Plot No 2482372 a plot belonging to one Asadullah a Shia Muslim with his house standing thereon
Plot No 2461134 on which stands a Sabil Chabutra platform for distributing drinking water belonging to one Nazir Hussain a Shia Muslim
Plots Nos
6021133 602 and 603 being vacant plots appurtenant to the Baradari in plot No 2471130 used for accommodating the congregation assembled for Majlises etc
when it over flows the Baradari
Particulars of the religious rites practices and functions performed by the members of the Shia community on the occasion of the observance of MOHARRAM RE a the Tazia representing and signifying the dead body of Hazrat Imam Hussain is kept in the Baradari on plot No 2471130 and for the first 12 days of MOHARRAM Majlises religious discourses of men folk and women folk is held daily by the men folk in the Baradari and on the adjoining plot Nos 602 1133 603 and 602 and by the women folk in the Zanana Imam Bara on Plot No 245
b On the 6th day of MOHARRAM the Zuljana procession a procession of the replica of the horse of Prophet Mohammed which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain of not less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi non stop for another 36 hours and terminates at the place of its origin
Offerings to the horse are made not only by the Shias 1089 but also by persons of other communities during the procession under the religious belief that such offerings bring in good fortune
c On the 10th day of MOHARRAM the Tazia bedecked with flowers is taken out in huge procession to Karbala situated near Lord Bharon 3 miles from Doshipura the place signifying the Karbala in Iraq where martyrdom occurred where the flowers of the Tazia are buried and then Majlis is held at that place
d On the 11th and 12th day of MOHARRAM Majlis religious discourse is held and the Qurankhani and Tajia are performed in the Baradari and the adjoining plots which consist of offering of prayers recitations of Quran Sharif Nowhaz short melancholic poems and Marsias poems of grief and sorrow these being performed both by men folk and women folk the latter at Zanana Imam Bara
e On the 25th day of MOHARRAM being the death anniversary of Hazarat Zanulabadin so Hazrat Imam Hussain again Majlis Matam wailing accompanied by breast beating Nawhaz and Marsias are held and performed in the Baradari and the adjoining plots by men and in Zanana Imambara by women
f On the 40th day of the MOHARRAM Chehalum ceremony of Hazrat Imam Hussain is performed when Majlis Matam Nawhaz and Marsia are held the Tazia bedecked with flowers is taken out in procession up to Karbala near Lord Bhairon where again the flowers are buried with religious ceremonies and the Tazia is brought back to the Baradari in Doshipura
g On the 50th day of the MOHARRAM ie 50th day of the martyrdom of Hazrat Imam Hussain Pachesa is performed by taking out the Tazia again in procession to the Karbala and after burial of flowers it is brought back to the Baradari
On both these days ie Chehalum and Pachesa Majlis Qurankhani Nawhaz Marsias and Matam are performed on the Baradari 1090 adjoining plots and the Zanana Imam Bara in Doshipura
h Four days after the Moharram period the Shias observe the Barawafat which according to them is the death anniversary of Prophet Mohammad and on this day again on the Baradari adjoining plots and Zanana Imambara Majlis is held which is accompanied by Qurankhani Nawhaz and Marsias in which menfolk and women folk participate
It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole country being made of fine wood carvings about 15 ft
in height having five storeys and decorated with gold and silver and would be of the value of not less than Rs 3 lakhs
According to the petitioners the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the MOHARRAM and that in case they do not perform all these rites practices observances and functions including those relating to the Tazia they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place
The aforesaid religious faith and the performance of the rites practices observances and functions detailed above constitute their fundamental rights guaranteed to them under articles 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial
The Petitioners and through them the Shia community of Mohalla Doshipura are basing their customary rights to perform the aforesaid religious rites practices observances and functions on the said nine plots and the structures thereon on two foundations 1 Decisions of competent civil courts adjudicating these rights in their favour in earlier litigations and 2 Registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs
5 and 38 of the UP Muslim Wakfs Act 1936 which has become final as no suit challenging the Commissioner s Report and registration was filed within two years by any member of Sunni community or the Sunni Central Wakf Board
In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the UP Muslim 1091 Wakfs Act
1936 have concluded the said rights in their favour and therefore Counsel for the Petitioners pointed out that the prayer for declaration in the Writ Petition was really incidental the rights in favour of the Shia community having been already determined and the real grievance was regarding the infringement of their said rights and their enforcement and hence the substantial prayer was for mandamus commanding the respondents not to prohibit or restrain the Shias from performing their religious rites practices observances and functions on the plots and the structures standing thereon
The Petitioners  case further is that after the final declaration by the court of law in regard to their rights in their favour and the rejection of the false claims of the Sunnis the position in Mohalla Doshipura remained satisfactory for nearly two decades and the Shias could perform their religious functions and ceremonies without any let or hindrance but from the year 1960 onwards the Sunnis who were in majority and were able to muster support of local politicians and the police started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec
144 Cr
PC but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies
Thus during the period 1960 66 the Executive power under sec
144 Cr
PC came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari other structures and the appurtenant plots on the occasion of the Barawafat sometimes restraints were also placed on the Sunnis
During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of MOHARRAM Chehulam Pachesa and Barawafats usec
144 were issued by the District authorities
In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other sometimes permitting certain observances on terms and conditions during the stated hours
More often than not under the pretext of imminent danger to peace and tranquility both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders but since members of the Sunni community had very little to lose in relation to the plots and structures in question it was the Shia community that suffered most
According to the Petitioners the aggrieved party and mostly Shias were aggrieved was required to approach 1092 the superior Courts by way of appeal or revision but usually before the matter could be decided on merits the impugned orders exhausted themselves by influx of time and the remedy by way of appeal or revision was rendered infructuous and the controversy remained undecided
However when in the year 1973 on the occasion of Barawafat the City Magistrate Varanasi by his order dated 12th April 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots and Sunnis were illegally permitted to observe Barawafat on Plot No 6021133 by reciting Qurankhani Milad and Fathiha on 16th April 1963 from 9 AM to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots
This Writ Petition and the connected criminal cases being Criminal Revision and a Criminal Reference against similar earlier orders usec
144 CrPC were heard and disposed of by the High Court by a common judgment delivered on August 8 1975
Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time the High Court felt that where a situation arose year after year making it necessary to take action usec
144 Cr
PC it would be proper exercise of its discretion to interfere with the impugned order if found to be illegal or improper so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec
144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide lines to the Magistrates in the exercise of their discretionary power under sec
144 by observing that though the section does not empower a Magistrate to decide a dispute of a civil nature between the private individuals he must before passing his order take into consideration the nature of the claims set up by the rival parties in order to judge whether or not it was possible to afford protection to those who seek only the lawful exercise of the legal and natural rights that the authority of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of duties rather than in suppressing them and that this power is not to be used in a manner that would either give material advantage to one 1093 party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a competent Court
On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court s decision in earlier litigation and quashed the City Magistrate s order dated 12 4 1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases
Against this common judgment rendered by the High Court on August 8 1975 Civil Appeal No 941 of 1976 and Crl
432 to 436 of 1976 were preferred by Mohammad Ibrahim a Sunni Muslim all of which were disposed of by this Court by a Common judgment dated 6 12 1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec144 when those orders had ceased to be operative and that the High Court should not have given findings on rights title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit
Feeling aggrieved by the said judgment Gulam Abbas and others filed a Review Petition No 36 of 1977 in Civil Appeal No941 of 1976 which was dismissed by this Court on 16th December 1977 after making some observations Questions of title cannot be decided here under sec
144 but previous judgment on them may have a bearing on the question whether and if so what order could be passed under sec
144 CrPC It was asserted on behalf of the Petitioners Gulam Abbas and others that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which the Magistrates  orders under sec
144 Cr PC related has already been decided
If that be so we have no doubt that the Magistrate will respect that decision in making an order under sec
144 Cr
PC in the future
 According to the Petitioners even after the aforesaid decision of this Court the city Magistrate Varanasi who had passed an order on 15 12 1977 under sec
144 directing both the communities of Mohalla Doshipura to follow the terms and conditions laid down in this said order on the representation being made by the Shias on 17 12 1977 bringing to his notice this Court s order dated 16 12 1977 in the Review Petition modified his earlier order on 19 12 1977 1094 permitting holding of Majlis only at the house of Shamsher Ali but in respect of other properties postponed the passing of his order till 21 1 1978 but on that day he merely passed an order stating that his initial prohibitory order dated 15th December 1977 as modified on 19th December 1977 has exhausted itself as Moharram had passed off and further observed that while passing orders on the occasion of Moharram Chehalum and Pachesa etc
in the coming years due regard will be given to the judgment of this Court dated 16 12 1977 in Review Petition along with the decisions rendered in earlier civil litigation in representative character between the parties including the Allahabad High Court s decision in second Appeal No 1726 of 1935
But one week later the same City Magistrate passed another order under sec
144 Cr P C on 28th January 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite contrary to his earlier order dated 21 1 1978 and in utter disregard of the judgment of this Court in Review Petition No 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias in fact by that order the City Magistrate completely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining plots in Mohalla Doshipura
This order dated 28 1 1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13 2 1978 on the ground that the impugned order had ceased to be operative by then and Revision had become infructuous
Subsequent to this on several occasions requests were made by Shias of Mohalla Doshipura seeking permission for doing ceremonies and taking out Tazia Procession but on every occasion the City Magistrate refused permission
In the circumstances a Writ Petition No 3906 of 1978 was filed by Gulam Abbas and other Shia Muslims in the Allahabad High Court praying for mandamus against the State of U P and its Magisterial officers Varanasi directing them to grant permission for performing some ceremonies and taking out Tazias but the same was dismissed by the High Court in limini on 2291978 principally relying on the earlier judgment dated 6121976 of this Court in Civil Appeal No 941 of 1976 Special Leave Petition No 6226 of 1978 against the same was filed by Gulam Abbas and others but it was withdrawn on 4 12 1978 as they were advised to file the present Writ Petition
During the hearing the Petitioners have amended their Petition by challenging the latest order passed by the City Magistrate Varanasi on 24th November 1979 under sec
144 Cr P C prohibiting both Shia and Sunni communities from holding their Majlises and imposing other 1095 restrictions the restriction on Recitation of Tabarra by Shias is not challenged on the occasion of celebration of Moharram Festival at the Baradari and the adjoining plots in question in Mohalla Doshipura
The Petitioners have pointed out that Shias do not utter Tabarra a ritual regarded as a filthy abuse of the elected Imams hurting the feelings of Sunnis but have fairly conceded the justness of the prohibition against uttering Tabarra
Petitioners have contended that the exercise of the power under sec
144 Cr P C has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions and in stead of being in aid of such lawful exercise it is in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality
By their counter affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni community have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds
On merits they have denied that there is clear on decisive material on record either in the form of judicial pronouncements or the registration of the Shia Wakfs of Mohalla Doshipura under the U P Muslim Wakfs Act 1936 concluding in favour of Shias  title to the concerned plots or structures thereon or their entitlement to the performance of the religious rites practices observances and functions on the property in question as claimed it is contended that a clear and sharp distinction must be made between title and ownership of the concerned plots of land title and ownership of the structures on those plots and the rights exercisable by the Shia community over the concerned plots and structures thereon and there are considerable gaps and inadequacies in the documents and the material before the Court in that behalf which can only be filled in by trial and by recording evidence and in the absence of adequate material no declaration as to the title to the plots or the structures or even as to the rights in or over the plots and structures thereon could be granted in favour of the Shia community
In other words the contention is that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a Petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto
In this behalf respondents 5 and 6 have doubted and disputed the effect and binding nature of the earlier court decisions particularly of the judgments rendered by the Munsif s Court Vanarasi in Suit No 232 of 1934 1096 Fathey Ullah  Ors
vs Nazir Hussain and Ors and by the Appellate Courts in appeals therefrom on the entire Sunni community and as regards registration of the Shia Wakfs they have contended that the position arising out of the U P Muslim Wakfs Act 1936 and the U P Muslim Wakfs Act 1960 in the context of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious consideration
As regards reliefs sought against the orders passed by a City Magistrate or Sub Divisional Magistrate under sec
144 Cr P C it is contended that no mandamus under article 32 is competent in as much as these are judicial or quasi judicial orders passed by a Court under sec
144 Cr P C and no fundamental right can be said to be infringed by any judicial or quasi judicial orders alternatively are administrative even if it were assumed that these orders are administrative or executive orders passed by Executive Magistrates these cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and in the instant case the impugned orders subsequent to this Court s decision dated 16 12 1977 in Review Petition No 36 of 1977 have been passed by keeping in mind the observations or the guide lines contained in that decision and in light of the emergent situation then obtaining in the locality
In the circumstances the Petitioners are not entitled to any of the reliefs sought by them in the Writ Petition Lastly it has been contended that the present Writ Petition is barred by res judicata or principles analogous to res judicata by reason of this Court s decisions in a Civil Appeal No 941 of 1976 b Review Petition No 36 of 1977 and c Order permitting withdrawal of SLP No 6226 of 1978 on 4121978
In any case the view taken by a Bench of three judges of this Court in their judgment dt
6 12 1976 and reiterated in the order dt
16 12 1977 on the Review Petition however wrong it may appear to be should not be disturbed
The two Boards Shia Central Wakfs Board and Sunni Central Wakfs Boards impleaded as parties to the Writ Petition under this Court s Order dated 28th March 1980 have supported the respective cases of each community represented by the Petitioners on the one hand and respondents 5 and 6 on the other respectively and each one has placed such additional material before the court as was in its possession touching the registration of Shia Wakfs and Sunni Wakfs under the two enactments UP Muslim Wakfs Act 1936 and UP Muslim Wakfs Act 1960
1097 It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under article 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof complained by granting appropriate reliefs in that behalf
But as stated earlier counsel for the Petitioners contended before us and in our view rightly that all that the Shia community is seeking by this Petition is enforcement of their customary rights to perform their religious rites practices observances and functions on the concerned nine plots and structures thereon which have already been adjudicated determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental
It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon
However it is clear that even if the Petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them
This is not to suggest that the petitioners or the Shia community have failed to prove that they have existing or established title and ownership over the plots andor over the structures thereon an aspect which will have to be considered on merits though secondarily the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them
In this behalf as stated earlier they are basing their customary rights on two foundations namely decisions of competent Civil Courts adjudicating these rights in their favour and registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs
5 and 1098 38 of the UP Muslim Wakfs Act 1936 and we proceed to examine critically these two foundational basis
Dealing first with Civil Court s decisions in earlier litigations it would be necessary to refer to two or three earlier litigations and to state accurately the result in each which will have a bearing on the rival contentions of the parties hereto
In Suit No 849 of 1878 filed by Sheikh Sahib and Ors
Shia Muslims against Sheikh Rahmatu and Ors
Sunni Muslims in the Munsif s Court at Benaras the dispute pertained to the mosque in Plot No 246 and the Plaintiffs  rights to hold their Majlises on 9th and 12th of MOHARRAM inside the mosque and to keep and repair their Tazia in that mosque and the learned Munsif Shri Pramode Charan Banerji by his judgment dated 29th March 1879 held  a that the disputed mosque was built by general subscription that it belonged to members of both the sects and that every Mohammedan had a right to worship in it b that the plaintiffs failed to establish their claims about the holding of the Majlises and the cooking and distribution of food in the mosque but the probabilities were that the Majlises of 9th and 12th MOHARRAM were held by them on or close to the platform on the surrounding ground and c that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra apartment of the mosque and to repair the same in the tiled Saeban Varandah of the mosque and the defendants were restrained from interfering with plaintiff s rights in respect of the above matter the rest of the plaintiffs  claim was dismissed
Civil Appeal No 73 of 1879 was preferred by the plaintiffs against that part of the decision which went against them and cross objections were filed by the defendants against declaratory relief and injunction passed against them but both the appeal as well as the cross objections were dismissed by Shri Ram Kali Choudhary Subordinate Judge Banaras on 16th December 1879 and the trial court s decree was confirmed
In other words this litigation declared the mosque in plot No 246 to be a public mosque at which every Mohammedan became entitled to worship and further declared the plaintiffs right to keep their Tazia in the apartment attached to the mosque and repair it in the Varandah thereof and to hold their Majlises on 9th and 12 of MOHARRAM on or near the platform on the surrounding ground of the mosque as early as on 29th March 1879
1099 It appears that the Sunni Muslims of Mohalla Doshipura Varanasi repeatedly tried to put forward their false claims and rights over some of the Plots in question and in particular attempted to encroach upon plot No 6021133 which had been recorded as Banjar Qadim barren land in the revenue records by falsely alleging that it was a grave yard where they had buried their dead
The then Maharaja of Banaras plaintiff No 1 filed Suit No 424 of 1931 in the Court of Additional Munsif Banaras against Shamshuddin and Ors
representing all Muslims residing in Banaras under O 1 R 8 CPC though the nominee defendants were Sunni Muslims praying for a declaration of his rights as owner and Zamindar and for a permanent injunction restraining the defendants from interfering with his rights and also for removal of fictitious graves if any on that plot
It may be stated that Shias of Varanasi had never claimed the plot to be a grave yard though they were claiming other rights to perform their religious ceremonies and functions thereon but only Sunnis were claiming the plot as their grave yard and therefore the suit and the reliefs were virtually directed against the Sunni Muslims residing in Banaras
It appears that since a portion of the plot No 6021133 to the extent of two Biswas had been taken by one Abdul Hamid also a Sunni under Qabuliyat dated 7th January 1907 on payment of Rs 14 as Parjat from the Maharaja for construction of a house and since even after his death plaintiffs Nos 2 to 5 though in continuous possession of the said portion as Abdul Hamid s heir s could not construct a house over that portion because of defendants  interference they were also joined as co plaintiffs in the suit
It was alleged that the defendants had interfered with the plaintiffs  rights by claiming plot No 6021133 to be a grave yard and they had built some bogus graves since one year back to support their illegal stand
The suit was contested primarily on the ground that the plot in question was an old grave yard and that the defendants representing Sunni Muslims had acquired a right to bury their dead in the said plot
The suit was dismissed by the trial court the learned Munsif holding that the plot in question was an old grave yard and the defendants had acquired customary right to bury their dead
All the plaintiffs filed an appeal being Civil Appeal No 134 of 1932 but subsequently plaintiffs Nos 2 to 5 retired leaving plaintiff No 1 the Maharaja alone to fight out the case
Shri Kanhaiya Lal Nagar the learned Subordinate Judge by his judgment dated 6th February 1933 allowed the appeal and decreed the suit in favour of the Maharaja
In the course of his judgment he made a reference to the fact that 1100 the plot in question had become an apple of discord between the two rival Muslim communities of Shias and Sunnis that the former was using it for holding their religious meetings on occasions of festivals marriages and for Taziadari with structures on adjoining places while she latter wanted to make their encroachments by burying their dead just in close proximity with the above sacred places in order to wound the former s religious feelings but one had to look to the proprietory title and possession of His Highness the Maharaja
On appreciation of oral and documentary evidence on record the learned Sub Judge held a that the plot in question was not a grave yard but that between 1929 and 1931 attempts had been made by the Sunni Muslims to manufacture and fabricate evidence indicating that it was a grave yard b that the Sunni Muslims had acquired no customary rights in the matter of burial of their dead over the plot in question and c by permanent injunction he restrained the defendants and through them the Muslims of Banaras in effect Sunni Muslims from using the said plot in the future as a burial ground
However as regards the prayer for actual removal of graves he took the view that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove them and they were given liberty to read Fathia or attend to the graves if any there was clear evidence of only one old grave that of one Hakim Badruddin situate on the southern side of the plot in suit as shown in Map Paper No 3A existing since 1307 H or 45 years with due regard to the rights of the Maharaja
This decree was upheld by the High Court and it thus became final
Two things become clear from the aforesaid decision
In the first place though the suit was directed against all muslims residing in Banaras defendants representing them under O1 R8 P C the customary rights of Shias to perform their religious ceremonies and functions on plot No 621133 or on adjoining plots were not but the customary rights of Sunnis in the matter of the burial of their dead on the plot were the subject matter of litigation and secondly the decision was virtually against all Sunni Muslims residing in Banaras to the effect that the plot in question was neither a grave yard nor had they any customary right to bury their dead in the said plot and such rejection of their claim must be held to be binding on the entire Sunni community not only of Doshipura but all those residing in the city of Banaras albeit as against the Maharaja
Then comes the third and the most important litigation which was between the two rival sects of Muslims of Mohalla Doshipura 1101 Varanasi and that is Suit No 232 of 1934 filed in the Court of City Munsif Banaras by Fathey Ullah and Ors
Sunni Muslims against Nazir Hussain and Ors
Shia Muslims
The plots in dispute were Khasra Nos 245 246 247 2482372 602 603 6021133 2461134 and 2471130 same as are involved in the instant Writ Petition which were claimed to be Sunni Wakfs by long user
The plaintiffs asserted their customary rights specified in para 4 of the plaint over the said plots and structures thereon
It was alleged that the defendants  ancestors had no rights in these plots except for placing their Tazia in a Huzra apartment on the mosque and repairing the same and holding their Majlises on the 9th and the 12th of the MOHARRAM apparently accepting the decision of Pramode Charan Banerji in the earlier litigation being Suit No 849 of 1878 as affirmed in Civil Appeal No 73 of 1879 but they had made unauthorised constructions on some of the plots
The plaintiffs prayed that the defendants be directed to remove their unauthorised constructions and that a perpetual injunction be issued against them restraining them from holding their majlises near the mosque or Imam Chowk
Or on any other plot in suit except on 9th and 12th of MOHARRAM
The defendants contested the suit and denied that the plots were Sunni Wakfs and further denied that the plaintiffs had acquired any customary right over them
They asserted their exclusive rights to perform their religious ceremonies and functions over the plots and averred that existing constructions details whereof were specified had been put up long ago exclusively by the Shias and were used for their religious ceremonies and functions
The trial court Shri Shah Ghayas Alam Sahib the Additional Munsif partly decreed the suit on 2nd February 1935
He ordered the demolition of the construction on plot No 245 being Zanana Imambara and issued a perpetual injunction restraining the defendants from holding their Majlises in the Baradari being Mardana Imambara on plot No2471130 except on the 9th and 12th of MOHARRAM but he dismissed the suit so far as it related to the demolition of Chabutra platform of Asadullah s house in plot No 2482372
The Shias went up in appeal being Civil Appeal No 65 of 1935 while the Sunnis filed a cross objection regarding that part of the relief which was denied
Shri Brij Narain the learned second Additional Sub Judge of Banaras on 18th September 1935 allowed the defendants  appeal set aside the decree of the trial Court and dismissed the plaintiffs  suit with costs through out the cross objection was also dismissed with costs
It was admitted by both the parties before the appellate Court that His Highness the Maharaja of Banaras was the Zamidar of the plots 1102 in question and the Khasras of 1291 Fasli 1884 AD also showed the same thing
The appellate Court held a that in plot No 246 there was a Pokhta mosque which was wakf property but that none of the other plots in suit were appurtenant to that mosque in 246 as was claimed by plaintiffs and that neither the plaintiffs nor members of Sunni community were owners of any of the plots in question b that the plaintiffs had failed to prove that the other plots were wakfs in their favour c that the plaintiffs had failed to prove that they had been exercising customary rights specified in para 4 of the plaint over the plots in suit except in the mosque in plot No 246 d that the boundary walls on plot No 245 described in settlement papers to be Chabutra Imam Sahib Zanana Imambara had been built by Shias about 25 years ago and that this plot had all along been used by Shia ladies for mourning purposes during the MOHARRAM e that the Baradari Mardana Imambara was built by the Shias in the year 1893 AD 1311 Hizri on plot No2471130 which had been in their possession all along and it was a Wakf f that the defendants and the Shia Muslims were entitled to use plots Nos2461134containing Sabil Chabutra and 2471130 the Baradari ie Mardana Imambara for holding their majlises on all the days during the MOHARRAM but were not entitled to hold Majlises an Thursday of the remaining portion of the year g that on plot No 2482372 there existed the house of Asadullah a Shia Muslim being defendant No 5 to the suit and the construction Chabutra that appertained to the house had been rightly directed not to be demolished
As regards the two plots namely plot No 602 Two Biswas and ten Dhoors which was taken on lease by one Sheikh Fazil a Sunni barber from the Maharaja of Banaras under a Patta dated 26th June 1927 and plot No 603 Two Biswas Three Dhoors which was taken on lease by one Mahomad Niamat Ullah a Sunni weaver from the Maharaja under a Patta dated 15th September 1930 the appellate Court observed that these did not appear to have remained in the possession of the plaintiffs Sunni Muslims
The decision clearly establishes the title or ownership of Shias over at least two main structures Zanana Imambara on plot No 245 and Baradari on plot No 2471130 and the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld and those claimed by the Sunni Muslims were rejected and the plaintiffs  suit stood wholly dismissed
The Sunnis preferred an appeal to the High Court being Second Appeal No 1726 of 1935 but the same was dismissed by the High Court by its judgment 1103 dated 9th December 1938
Dealing with the question of the Shias  right to hold their Majlises in the Baradari in the context of the position that the Baradari had been built by the Shias for that purpose the High Court observed the plaintiffs in the present suit have claimed that the Shias defendants are not entitled to hold their Majlises in the Baradari which the Shias have built
This appears to us to be a very strange proposition
Where a community has made a building for the purpose of its own religious services it appears to us contrary to law that any one can question the right of that community to hold its services
 The clear implication is no restriction could be imposed on Shias in the matter of holding their Majlises and other services in the Baradari built by them as was done by the lower appellate Court
Counsel for respondents 4 and 5 strenuously contended that the aforesaid litigation was not a representative one so as to bind the entire Sunni community of Mohalla Doshipura Banaras by the result thereof and in that behalf counsel pointed out that neither the title of the plaint showed that the suit had been filed by the plaintiffs as representing all the members of Sunni community of Mohalla Doshipura Varanasi nor was any copy of the Order passed by the trial Court granting leave to the plaintiffs to file the suit in representative capacity produced and there was no statement in any of the judgments indicating the representative character of the suit
It is not possible to accept this contention for more than one reason
In the first place besides reciting in para 1 of the plaint that the plaintiffs were Muslims of Sunni sect and defendants were Muslims of Shia sect both settled in Mohalla Doshipura of Banaras City in para 11 there was an express averment that the suit was filed under Order 1 r 8 CPC and that a proclamation be issued by the Court in the interest of justice so that those from Sunni sect and Shia sect of Muslims who desired to contest the suit may get themselves impleaded to the suit secondly a public notice under Order 1 r 8 of the CPC with the Court s seal was actually published in Urdu language in the issue of Oudh Panch dated 19th August 1934 English translation whereof has been annexed as Annexure VI to the Writ Petition and the original issue of Oudh Panch Lucknow dated 19th August 1934 was produced during the hearing setting out in brief the averments and the reliefs contained in the plaint and inviting members of both Sunni and Shia sects to get them impleaded as party to the suit if they so desired thirdly the expenses of such publication of the notice amounting to Rs 7 have been shown as an item of costs 1104 incurred by the plaintiffs in the Bill of costs appearing at the foot of the preliminary decree passed by the trial Court in the suit certified copy whereof was produced by respondents 5 and 6 and lastly the suit Register general Index of the Court of Additional Munsif Extract copy whereof has been produced shows that public notice was published in Oudh Panch and the copy of the newspaper issue was filed in the Court on 21st August 1934 and the bill received from that Newspaper was also filed on 25th Sept 1934
From this material which is available on the record it seems to us clear that the Suit No 232 of 1934 had been filed in the representative capacity both as regards the plaintiffs as well as the defendants and all the formalities under Order 1 r 8 of the CPC had been complied with
A crude attempt was made at a belated stage of hearing by respondents 5 and 6 to get over the effect of the aforesaid material by producing a document which purports to be a certified copy of a purported Order said to have been passed by the Additional Munsif Banaras rejecting the plaintiffs  application to file the suit in a representative character
To say the least the document is of a spurious character reciting a dubious order
Apart from the fact that this document is seeing the light of the day nearly fifty years after the expiry of litigation the copy does not bear any seal of the court the order recites that the defendants have denied the plaintiffs  status and capacity as being representatives of their Sunni sect and have also denied their status as representatives of Shias whereas there is no such denial to be found at all in the written statement and what is more it passes one s comprehension how such an order rejecting the plaintiffs  application for leave under O 1 r 8 came to be passed on 24th August 1934 5 days after the publication of the public notice in the issue of Oudh Panch on 19th Aug 1934 and if the order dt
24th August 1934 was genuine how could expenses of such publication be shown as an item of plaintiffs costs in the preliminary decree passed on 2nd Feb 1935 and why were the issue of Oudh Panch and the Bill from the Newspaper filed in the Court on 21st August 1934 and 25th Sept 1934 respectively
In our view the three or four circumstances which we have indicated above conclusively establish that the suit was filed by the plaintiffs as representing entire Sunni community of Mohalla Doshipura Varanasi against the defendants who represented the Shia community and as such the final decision in that litigation is binding on members of both the communities
1105 Counsel for respondents 5 and 6 next contended that the decision in this litigation Suit No 242 of 1934 would not operate res judicata against them or the Sunni community of Mohalla Doshipura inasmuch as Munsif s Court at Banaras did not have either pecuniary or subject wise jurisdiction to grant the reliefs claimed in the instant writ petition in other words that Court was not competent to decide the present subject matter and such the bar of res judicata under section 11 of the Civil Procedure Code 1908 was not attracted and it would be open to the respondents 5 and 6 and the members of the Sunni community to agitate question of title either to the plots or to the structures thereon or even the Shias  entitlement to their customary rights over them
In support of this contention counsel relied on two decisions namely Rajah Run Bahadoor Singh vs Mussumut Lachoo Koer and Mst
Gulab Bai vs Manphool Bai
It is not possible to accept this contention for the reasons which we shall presently indicate
It is well settled that section 11 of the CLC is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives namely that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation
In Daryao and others vs The State of UP this Court at page 582 has observed thus Now the rule of res judicata as indicated in section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis on which the said rule rests is founded on considerations of public policy
It is in the interest of the public at large that finality should attach to the binding decisions pronounced by Courts of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation
 Reference in this connection was made by the Court to the famous decision in the leading Duchess of Kingston s4 case
Halsbury s laws 1106 of England and Corpus Juris
In Gulab Chand Chhotalal Parikh vs State of Bombay now Gujarat the question was whether after the dismissal of a writ petition on merits after full contest by the High Court under article 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the liability on the same ground was entertainable or not and this Court held that on general principles of res judicta the decision of the High Court on the writ petition operated as res judicata barring the subsequent suit between the same parties with respect to the same matter
On a review of entire case law on the subject including Privy Council decisions this Court at page 574 observed thus As a result of the above discussion we are of opinion that the provisions of section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata any previous decision on a matter in controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it will operate as res judicata in a subsequent regular suit
It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter
The nature of the former proceeding is immaterial
We do not see any good reason to preclude such decisions on matters in controversy in writ proceeding under articles 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest Emphasis supplied
The above observations were approved by this Court in a subsequent decision in the case of Union of India vs Nanak Singh
It is thus 1107 clear that technical aspects of section 11 of C P C as for instance pecuniary or subject wise competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked
The two decisions relied upon by counsel for the respondents 5 and 6 were directly under section 11 of C P C Even under section 11 the position has been clarified by inserting a new Explanation VIII in 1976
It was not disputed that the Munsif s Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and therefore the decision of such competent Court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata
The contention raised by counsel for respondents 5 and 6 in this behalf therefore has to be rejected
It was then faintly urged by counsel for respondents 5 and 6 that the dismissal of plaintiffs  suit No 232 of 1934 would not confer any rights on the Shia community who were party defendants to the suit
The contention is merely required to be stated to be rejected
Not only were the Sunnis  customary rights specified in para 4 of the plaint over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs Sunni Muslim had sought an injunction restraining the Shias from exercising their customary rights
Therefore the decision in this litigation which bore a representative character not merely negatived the Sunnis  customary rights claimed by them over the plots and structures but adjudicated determined and declared the Shias  entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura
There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias  entitlement to customary rights over the plots and structures in question whatever be the position as regards their title to the plots or structures
We have already indicated that this decision even upholds their title to two main structures Zanna Imambara and Mardana Imambara Barardari
In our view therefore this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias  community to perform their religious ceremonies and functions over the plots and structures 1108 in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed
Turning to the other fundamental basis on which the petitioners are claiming their customary rights for performing their religious ceremonies and functions on the plots and constructions in question is the registration of these plots and structures thereon as Shia Wakfs under the U P Muslim Wakfs Act 1936
A two fold plea has been raised by counsel on their behalf namely a that the Report of the Chief or Provincial Commissioner of Wakfs dated 28th31st October 1938 submitted to the State Government under sec
4 5 showing these plots and structures as Shia Wakfs followed by the Notification dated 15 1 1954 issued by the Shia Central Wakf Board under sec
5 1 of the Act and published in the U P Government Gazette on 23rd January 1954 had become final and conclusive under sec
53 of the Act since no suit challenging his decision had been filed either by the Sunni Board or any other Sunni Muslim interested in it within the period specified under sec
52 of the Act and b that plots and structures in question had been registered as Shia Wakfs for purposes of performing their religious ceremonies and functions thereon under sec
38 of the Act as early as in 1952 and therefore their case is that Shia Muslims cannot be deprived of the lawful exercise of their customary rights over the properties which have been recognised and registered as Shia Wakfs
As against this respondents 5 and 6 and through them the Sunni community are relying upon a notification dated 26th February 1944 issued by the Sunni Central Wakfs Board under sec
51 of the U P Muslim Wakf Act 1936 following upon the Report of the Chief or Provincial Commissioner of Wakfs in respect of Mosque in Doshipura showing the same as Sunni Wakfs and registration of some of these properties as Sunni Wakfs under sec
29 of the U P Muslims Wakfs Act 1960
Before going into the factual aspects it will be desirable to indicate briefly the legal position arising under the two enactments the UP Muslim Wakfs Act 1936 Act XVIII of 1936 and the UP Muslim Wakfs Act 1960 Act XVI of 1960 which repealed earlier Act in the matter of finality Survey Reports and effect of Registration of Wakfs belonging to the respective sects in the State of UP
Broadly speaking it could be stated that while repealing the 1936 Act the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the 1109 registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other than those which have already been registered under the former Act
Under the 1936 Act appointment of district wise Commissioners of Wakfs for the purpose of undertaking survey of all Wakfs in such districts and appointments of Provincial Commissioners of Wakfs having jurisdiction in all the districts of the State for the same purpose and with same duties and powers were contemplated by sec 4 and 4A respectively under sec
4 3 such Commissioners were required to make such inquiries as they considered necessary for ascertaining and determining the number of all Shia and Sunni Wakfs within the area of their jurisdiction the nature of each Wakf the gross income of property comprised in the Wakf etc
and under sec 4 5 on completion of inquiry they had to submit their Reports of Inquiries to the State Government under sec
5 1 a copy of the Commissioner s Report had to be sent to each of the Central Boards the Shia Central Wakfs Board and Sunni Central Wakfs Board whereupon each Central Board had to as soon as possible notify in the Official Gazette the Wakfs relating to the particular sect to which according to such report the provisions of this Act applied under sec
5 2 the Central Board or the Mutawali of a wakf of any other person interested in it if aggrieved by the decision recorded by the Commissioner in his Report had to bring a suit in a Civil Court competent jurisdiction for a declaration or appropriate relief and such a suit by the Central Board had to be filed within two years of the receipt of the Report by the Board and by the Mutawali or a person interested within one year of the Notification mentioned in sub sec
1 and sec
5 3 accorded subject to the final result of such suit finality and conclusiveness to the Commissioner s Report
Section 38 of the Act provided for registration of Wakfs pertaining to each sect by the concerned Central Board and the procedure to be followed and inquiry to be made by the concerned Board in that behalf was indicated in that section and under sec
39 it was made incumbent upon each Central Board to maintain a Register of Wakfs showing various particulars specified therein in respect of each Wakf
Under the 1960 Act appointments of Commissioner of Wakfs and Additional or Assistant Commissioner of Wakfs is contemplated by sec
4 while Survey of Wakfs to be undertaken by such Commissioners is contemplated by sec
6 and under sec
64 the Commissioner s Report of Inquiry is required to be forwarded to each of the Boards 1110 and to the State Government and the State Government has to as soon as possible notify in the Official Gazette the Wakfs relating to particular sect to which according to such Report the provisions of this Act apply sec 8 provides that if a dispute arises with regard the findings or decisions recorded by Commissioner in his Report the same shall be referred to Tribunal for adjudication which must be done within one year from the date of publication by the State Government of the list of Wakfs under sec
6 4 sec
9 is important and provides that proceedings of any survey of wakf properties started before the commencement of this Act shall continue and such survey shall be completed in accordance with provisions of the 1936 Act and under sub sec
2 it is provided that nothing in this chapter shall effect the finality of the decisions of the Chief State Commissioner of Wakfs or of any State Commissioner of Wakfs or Commissioner of Wakfs in cases in which prior to the commencement of this Act the report of such Commissioner has become final in other words the finality and conclusiveness accorded to the Wakf Commissioners  Report under sec
5 3 of the 1936 Act has been preserved
Registration of Wakfs under the 1960 Act has been provided by secs
28 and 29 under sec
28 it is provided that a Wakf registered before the commencement of this Act under the 1936 Act shall be deemed to have been registered under the provisions of this Act and sec 29 which follows sec
28 says Every other Wakf whether subject to this Act or not and whether created before or after the commencement of this Act shall be registered at the office of the Board of the sect to which the Wakf belongs the opening words every other Wakf occurring in sec
29 must mean that sec
29 provides for registration of all Wakfs other than those which have already been registered under the 1936 Act
As stated earlier a perusal of these provisions of the two enactments clearly show that the finality and conclusiveness accorded to the Commissioner s Report under sec
5 3 of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act notwithstanding the repeal of the former Act by the latter
In other words any Survey Report submitted under the 1960 Act and any Registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner s Report under the 1936 Act has become final and registration has been effected under the 1936 Act
It appears that the Government of Uttar Pradesh appointed Shri Munshi Azimuddin Khan a Deputy Collector as a Chief or 1111 Provincial Commissioner of Wakfs under sec
4A of the 1936 Act for the purpose of making a survey of all the Waqfs in all the districts of the State
During the survey proceedings one Imam Ali Mahto a Shia Muslim who was defendant No 2 in Suit No 232 of 1934 as the Mutawalli of Imambara and the Mosque of Mohalla Doshipura has filed an application on 25th June 1938 before the said Chief or Provincial Commissioner of Waqfs claiming six items of property namely 1 the Mosque on Municipal No J 1594 ie plot No 246 2 Imambara on Municipal No J 1595 i e Baradari on plot No 2471130 3 Zanana Imambara on Municipal No J 1596 ie Plot No 245 4 Imam Chowk with land i e on plot No 247 5 Chabutra Sabil Pucca i e on Plot No 2461134 and 6 one Sabil Stone on the land to the east of Imambara Baradari ie on plot No 6021133 to be Shia Waqfs having been used since time immemorial for the purposes of their religious ceremonies and functions Azadari Majlises Mourning in Moharram Tazia and Zulzana processions Taziadari Matam etc the constructions having been made by subscriptions and requesting the Commissioner to enter the same in the list of Shia Public Waqfs on the same day ie 25th June 1938 Imam Ali s statement on oath was also recorded before the Commissioner and an order was passed to the effect the waqf property be taken under the control of Waqfs Act
A copy of the application the statement of Imam Ali recorded on oath together with the endorsement of the order which formed part of Survey File No 55 before the Commissioner have been produced as Annexure P 15 colly to the affidavit in rejoinder dt
Nov 5 1979 of Shri Iqbal Hussain petitioner No 3 filed on behalf of the writ petitioners and also as an Annexure to the affidavit dated January 9 1980 of Dularey Mirza the Peshkar of the Shia Central Waqfs Board Lucknow
After making the necessary inquiries Shri Munshi Azimuddian Khan submitted to the State Government his Report dated 28th31st October 1938 and annexed several appendices to his Report Appendix VIII referred to Waqfs pertaining to Sunnis and declared as subject to the 1936 Act and Appendix IX mentioned waqfs pertaining to Sunni sect which were exempted from the Act Appendices X and XI contained corresponding information about the Shia waqfs which were respectively declared as subject to the Act or exempt from the Act
The original Report bearing the signature of Shri Munshi Azimmuddin Khan Chief Waqfs Commissioner was produced before us marked Exh
A for our inspection by Mr Rana counsel for the State of UP and the same was made available for inspection to the parties
There is a slip attached to 1112 the Report placed in between Annexure VII and Annexure XIII containing an endorsement to the effect Appendices VIII and IX sent to the Sunni Board and Appendices X and XI sent to the Shia Board with the signature of the Chief Commissioner of Waqfs below it
The aforesaid facts mentioned in connection with the original Report have been stated in the affidavit of Shri Sayed Shamshuddin Ahmed Secretary to the Government of Uttar Pradesh in the Waqfs and Appointment Department sworn on January 6 1980 filed before us by the counsel for the State of U P alongwith the Report
Presumably the aforesaid action of sending the relevant appendices alongwith a copy of the Commissioner s report to the respective Sunni Central Waqf Board and the Shia Central Waqf Board was taken as required by section 51 of the Act
It may be stated that the Shia Central Waqfs Board has accepted the position that it did receive a copy of Commissioner s Report together with Appendices X and XI and through an affidavit dated 9th January 1980 of their Pashkar Dularey Mirza the Shia Board offered to produce the said Appendices stating that the copy of the Report itself was not traceable as the same appeared to have been produced in some court proceedings
It further appears that after receiving the aforesaid documents Report together with the Appendices X and XI the Shia Central Waqf Board as required by sec
5 1 of the Act took steps to notify in the Official Gazette all the Waqfs relating to their sect on the basis of the Appendices annexed to the Report the relevant Notification under sec
5 1 was issued on 15th January 1954 and published in the Government Gazette on 23rd January 1954
According to the petitioners the Shia Waqfs in question appear at Sl
No 55 entry against the name of Imam Ali Dhoshipura Banaras on page 157 of Appendix X and at Sl
No 431 entry being Imambara and Masjid against the name of Imam Ali Mahato in the Gazette Notification dated 15th January 1954
Photostat copy of Entry at Sl
No 55 on page 157 of Appendix X has been annexed to Dularey Mirza s Affidavit dated
9th January 1980 and a copy of the Gazette Notification dated 15th January 1954 published in the UP Government Gazette on 23rd January 1954 under sec
5 1 of the 1936 Act has been separately produced by the petitioners on the record
It is true that entry at Sl
No 431 in the Gazette Notification dated 15th January 1954 shows the name of Imam Ali Mahato as the Waqif which is obviously a mistake for he never claimed himself to be the settlor or Waqif but only a Mutawalli of the Waqfs as is clear from the application made by him and the statement on oath given by him before the Commissioner and in fact the properties were claimed 1113 to be Shia public Waqfs by long user
It is also true that in the column Name of Waqf s the entry reads Imambara and Masjid  suggesting as if only two properties were declared to be Shia Waqfs but at the foot of the Notification under section 5 1 there is a nota bena to the following effect the details regarding property and other matters relating to the Wakfs are kept in the Board s office and can be inspected by any person who is interested in the matter
 It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under section 51 related to all those properties as having been notified to be Shia Waqfs particulars whereof were stated to be available in the Board s office
The Nota Bena at the foot of the Notification in our view amounted to sufficient particularisation of the properties notified as Shia Waqfs
Non mentioning of those properties as Sunni Waqfs in Appendices VIII and IX sent to the Sunni Central Waqfs Board must amount to a notice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Waqfs
Admittedly no suit was filed either by the Sunni Central Board or any other person interested in those waqfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Waqfs within the time prescribed under section 52 of the Act and therefore the Chief Commissioner s Report together with the appendices X and XI thereto dated 28th31st October 1938 on the basis of which the Notification dated 15th January 1954 was issued and published in Official Gazette on 23rd January 1954 must be held to have become final and conclusive as between the members of the two communities
In this behalf we would like to refer to the decision of the Court in Board of Muslim Waqfs vs Radha Krishna and Ors
where one of us Sen J has analysed the scheme of the Waqfs Act1954 a Central enactment which is substantially the same as the scheme of the 1936 Act and we are in respectful agreement with the ratio of that case but here we are not concerned with any paramount title of any stranger like the 1114 Maharaja to any property declared as waqf and hence that part of the ratio of that decision will be inapplicable
As against the aforesaid material respondents 5 and 6 and through them the Sunni community have relied upon a Notification dated 26th February 1944 issued by the Sunni Central Waqfs Boards under section 51 of the UP Muslim Waqfs Act 1936 following upon the receipt of the Report of the Chief or Provincial Commissioner of Waqfs in respect of mosque in Doshipura showing the same as Sunni Waqf copy whereof has been annexed as Annexure S 2 to the affidavit dated 6th February 1980 of Mohd Bashir Khan filed on behalf of the Sunni Central Waqfs Board as its Pairokar 
This Notification on which reliance has been placed by the Sunnis appears to us of doubtful validity and probative value for the reasons which we shall presently indicate
Though issued and published earlier in point of time than the Notification of Shia Central Waqfs Board it is admittedly not based on Appendices VIII and IX annexed to the Chief Commissioner s Report dated October 28th31st October 1938 but on the basis of some Registers of Waqfs meaning lists of Waqfs said to have been received by the Sunni Board from the Commissioner of Waqfs
Curiously enough the Sunni Central Waqfs Board had stated through two affidavits dated 6th January 1980 and 9th January 1980 of their Pairokor Shri Mohd Bashir Khan that along with the copy of the Commissioner s Report Registers of Waqfs were received but no appendices like Appendices VIII and IX were received from the Commissioner that according to the Registers of Waqfs there were 245 charitable Sunni Waqfs in the District of Banaras which were covered by the 1936 Act and all such Waqfs were accordingly notified by the Sunni Board in the Government Gazette by issuing the Notification dated 26th February 1944 under sec
5 1 of the Act
The Original Report of the Commissioner does not refer to anything like Registers of Waqfs but as stated earlier it refers to Appendices Nos
VIII IX X and XI and the endorsement on the slip under the signature of the Chief Commissioner shows that the former two appendices were sent to the Sunni Board and the latter two to the Shia Board
In face of this endorsement and having regard to the fact that the Shia Board had received Appendices X and XI alongwith the Commissioner s Report which that Board offered to produce it is difficult to accept the statement of the Pairokar of the Sunni Board that no appendices were received by the Board along with a copy of the Commissioner s Report
It seems the relevant appendices though received are being withheld as their production would be adverse to the Sunnis
Apart form that aspect it is clear on their own 1115 admission that the Notification under section 5 1 of the 1936 Act was issued by the Sunni Central Waqfs Board not on the basis of Appendices VIII and IX which formed part of the Commissioner s Report but on the basis of some Registers of Waqfs said to have been received by it
The Notification regarding the Sunni Waqfs issued on the basis of material which did not form part of the Chief Commissioner s Report would be in violation of section 51 of the Act which required issuance of a Notification thereunder according to  the Commissioner s Report and as such the Notification dated February 26 1944 relied upon by respondents 5 and 6 and members of the Sunni community would be of doubtful validity
Secondly the relevant entry in the Register of Waqfs is at Serial No 224 and it pertains to one quita mosque and land of which the present Mutawali is shown as Hayatullah resident of Dhosipura Banaras and correspondingly the entry in the Notification dated February 26 1944 issued under section 5 1 of the 1936 Act is also at Sl
No 224 which reads Masjid Dhoshipura Hayatullah ro Doshipura Banaras one quita mosque but the petitioners have produced documentary and other material throwing doubt on the genuineness of the entry as being in relation to the mosque in question on plot No 246 ie Municipal No J 1594 according to the affidavits of Dularey Misra the Peshkar of Shia Central Waqfs Board dated 12th August 1980 and 1st October 1980 there were two Hayatullahs in Mohalla Dhoshipura Varanasi one was Hayatullah alias Hayatoo ro H No J 15125 Mohalla Doshipura who had died in 1926 long prior to Survey of Waqfs under the 1936 Act that his son Abdul Shakoor who was plaintiff No 2 in suit No 2321934 admitted in his evidence in that suit that his father Hayatullah had expired 8 years before the filing of the suit and as such entry at serial No 224 which describes Hayatullah ro Mohalla Doshipura as the present Mutawali ie in 1944 when the Notification was issued obviously could not refer to this Hayatullah father of Abdul Shakoor while the other Hayatullah who was known by the name of Moulavi Hayatullah ro H No J 158 in Mohalla Dhosipura was the father of Hakim Mahmood and Ali Ahmed who are the present Mutawalis of a mosque in Mohalla Salarpura standing on Municipal No J 18108 and therefore if the name in entry at serial No 224 refers to this Hayatullah who could be its present Mutawali in 1944 then the mosque would be the mosque in Mohalla Salarpur and not the mosque in question standing on Municipal No J 1594 ie Plot No 246 in Mohalla Doshipura and while making the entry by mistake Mo 1116 halla Doshipura was wrongly mentioned instead of Mohalla Salarpura as the two Mohallas are quite adjacent to each other in other words according to the petitioners if the entry at serial No 224 in the Registers of Waqfs or in the Notification dated 26th February 1944 refers to Hayatullah father of Abdul Shakoor the entry is obviously wrong as it would be mentioning a dead person as the present Mutawali of the mosque and in case the entry at serial No 224 is referable to Maulvi Hayatullah then the reference to the mosque being in Mohalla Doshipura would be erroneous
It is the petitioners  case that it was Maulavi Hayatullah who had as early as in 1944 submitted an application for registration of the mosque in Mohalla Salarpura standing on Municipal No J 18108 to the Sunni Central Waqfs Board but by mistake it was stated therein that the mosque was for the benefit of people of Doshipura and it was registered under his name under serial No 224 in the Register of Waqfs maintained by the Sunni Board and by mistake that mosque was wrongly entered as being in Mohalla Doshipura and in support of this reliance has been placed upon a Report dated 14th February 1961 submitted by Inspector Ashraf Ali to the Sunni Board in which he had noticed and placed on record such mistake having taken place copy whereof has been annexed as Annexure I to the affidavit of Dularey Mirza Peskhar of Shia Board dated 13th February 1980 in other words the aforesaid material casts a serious doubt on the aspect whether the mosque mentioned in entry No 224 in the Notification dated February 26 1944 really pertains to the mosque in question standing on Plot No 246 Municipal No J 1594 in Mohalla Doshipura and as such the Notification will have no probative value
In this state of affairs Notice dated 1141945 issued by Shia Board under section 53 of the 1936 Act complaining about this entry at Sl
No 224 relied upon by counsel for respondents 5 and 6 must be regarded as having been issued ex majori cautela
Thirdly even if it were assumed for the purposes of argument that entry at Serial No 224 in the Notification dated 26th February 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January 1954 especially when it is now common ground that the mosque on Plot No 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering 1117 prayers and doing worship therein
Admittedly the Notification dated 26th February 1944 does not refer to any other plots or the structures thereon at all
We are therefore clearly of the view that the Notification dated 26th February 1944 issued under section 51 of the 1936 Act by the Sunni Board is of no avail to the Sunnis for the purpose of defeating the customary rights of the Shias to perform their religious ceremonies and functions on the other plots and structures thereon
Apart from the finality attaching to the Chief Commissioner s Report together with the Appendices X and XI annexed thereto dated 28th31st October 1938 the petitioners have also claimed that the aforesaid plots and structures thereon had been registered as Shia Waqfs for performance of their religious ceremonies and functions under s38 of the 1936 Act by the Shia Central Waqfs Board after making full inquiry and following the procedure prescribed by that section as early as in 1952 and the Board had issued the requisite Sanads in that behalf
Reliance in this regard has been placed on five certificates issued by Shia Central Waqfs Board Lucknow bearing Certificate Nos 209 210 211 214 and 21 all dated 22nd December 1952 first relating to Mardana Imambara the Baradari on Plot No 2471130 the second relating to Zanana Imambara on Plot No 245 the third relating to Imam Chowk on Plot No 247 being appurtenant to Baradari the fourth relating to the entire Plot No 6021133 being appurtenant to the Baradari and the last relating to Sabil Chabutra Mardana on Plot No 2461134 Annexures VIII  VIII A to VIII D to the Writ Petition
It may be stated that the petitioners have also produced a certificate of registration in respect of Purani Masjid of Doshipura as a Shia Waqf dated 3rd July 1973 the registration being under the 1960 Act but counsel for the petitioners fairly conceded that the mosque in question belongs to both the sects and no special rights are claimed by the Shias over it except those conferred on them under the decree in Suit No 849 of 1878 by Shri Pramoda Charan Banarjee
The registration in respect of the five properties mentioned above under sec
38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration if any obtained by the Sunnis in respect of some of the properties under the 1960 Act really speaking such latter registration would be non est in the eye of law
Apart from the Certificates of Registration issued by the Shia Central Waqfs Board on 22nd December 1952 the petitioners are 1118 also relying upon yet another Notification issued by the Shia Central Waqfs Board under Rule 54 vii of the UP Shia Central Waqfs Rules 1944 enlisting the Shia Waqfs in question and published in the UP Government Gazette on 1st December 1956
It may be stated that the Shia Board had framed rules called the UP Shia Central Waqfs Rules 1944 in exercise of powers conferred on it by sec 61 of the 1936 Act and under Rule 54vii the Board was required to notify a list of Waqfs which had been registered during the year under report
It appears that a consolidated list of Shia Waqfs which were registered during the period 28th July 1942 to 31st March 1956 subsequent to the submission of the Report of the Chief Commissioner for Waqfs under sec
5 of the Act was published for the first time by the Shia Board under the Notification dated 1st December 1956 issued under Rule 54vii a copy of the relevant portion of that Notification is annexed as Annexure VII to the writ petition showing registration of Imambara Baradari Doshipura at Serial No 152 Imambara Mutalik Purani Masjid Doshipura at Serial No 153 Mardana Imambara Baradari at Serial No 155 Purani Masjid Doshipura at Serial No 157 Zanana Imambara Doshipura at Serial No 159 Imam Chowk Dhoshipura at Serial No160 and Chabutra Mardana Sabil at Serial No 161 as Shia Waqfs
This Notification issued by the Shia Board on 1st December 1956 also supports the petitioners  case that the concerned properties had been registered as Shia Waqfs under section 38 of the Act
It is thus clear that even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon
Much was made by Counsel for respondents 5 and 6 of certain documents on record showing derivative title of Sunni Muslims to a couple of plots in question and Counsel contended that whatever be the position with regard to three earlier documents Pattas of 1907 1927 and 1930 about which the Courts have made observations in earlier litigations there was yet one more lease of 2041952 in respect of portions of three plots namely 6021133247 and 245 in favour of Hafiz Mohd Yusuf and Akram ul Haq two Sunni Muslims from the Maharaja whereunder they had acquired lessee s interest over the plots at an yearly rent of Rs 3 and they had dedicated the same to the Sunni community for use as graveyard and such subsequent title could not be affected by the decisions in earlier litigations
It must be stated that in support of this lease of 1952 no lease deed nor any Patta has been produced but reliance is placed on two 1119 documents i Extract of Register of Agreements Agreement to Lease dated 20452 and ii Receipt for payment of rent curiously enough relating to three prior years July 1949 to June 1950 July 1950 to June 1951 and July 1951 to June 19521357 1358 and 1359 Fasli being Annexures 3 and 4 to the Counter Affidavit of Respondent No 5 dated 1741979
At the outset we would observe that it is difficult to accept the claim that the three plots had been dedicated by the two Sunni Muslims to their community for use as graveyard for the Commissioners appointed by this Court for survey and spot inspection in December 1979 did not find any such use being made of plots No 247 and 245 and merely noticed two graves and one in damaged condition on plot No 602 1133 only same plot with graves which was the subject matter of Maharaja s Suit No 4241931 in which a permanent injunction was issued restraining all Muslims virtually all Sunnis from using the said plot as any graveyard in future
Dealing with the aspect of derivative title put forward by counsel on behalf of the respondents No 5 and 6 we have already made the position clear in the earlier part of our judgment that the Shias  are claiming the right to perform their religious ceremonies and functions on the plots and structures in question not so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title holder and the prescriptive rights have enured for the benefit of all the Shias notwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja
Moreover when these plots and structures particularly these three plots were being registered as Shia Waqfs under the UP Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952 the two Sunni Lessees who are said to have obtained a Lease on 2041952 did not raise any objection to such registration
The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title
The next question that arises for consideration is whether an Order made under section 144 Criminal Procedure Code is judicial or quasi judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under article 32 of the Constitution  Counsel for respon 1120 dents 5 and 6 and through them the Sunni community contended that such an order is a judicial or quasi judicial order passed by a Magistrate s Court after hearing parties except in cases of emergency when it is passed ex parte without notice to the person or persons affected under sub section
2 of section 144 and since no fundamental right can be said to be infringed by any judicial or quasi judicial order a Writ of mandamus under article 32 would not lie but the order may be and is revisable by a superior Court like the Sessions Court or the High Court
In support of this contention reliance was placed upon one decision of the Bombay High Court and three of the Madras High Court
It was pointed out that in D V Belvi vs Emperor a Division Bench of the Bombay High Court has held that the orders under section 144 are judicial and not administrative and that this question had been set at rest by several earlier decisions cited in the judgment in Queen Empress vs Tirunarasimha Chari the Madras High Court has taken the view that the Magistrate making inquiry before the issue of an order under section 144 is acting in a stage of judicial proceeding and has therefore jurisdiction to take action under section 476 if he is of the opinion that false evidence has been given before him similarly in Muthuswami Servaigram and Anr
vs Thangammal Ayyiar as also in Bondalpati Thatayya vs Gollapuri Basavayya and Ors
the same view is taken
Counsel also invited our attention to three cases of this Court namely Babulal Parate s case K K Mishra s case and Madhu Limaye s case in each one of which the constitutional validity of section 144 Cr
PC or part thereof was challenged and while upholding the constitutional validity of the section or of the concerned part this Court has touched upon certain aspects of the section and the procedure thereunder hearing the parties order being of temporary character and revisable which suggest that the proceeding before the Magistrate is judicial or quasi judicial proceeding
Counsel therefore urged that if the order under section 144 Cr P C is a judicial or quasi judicial order then this Court has taken the view that such an order will not attract writ jurisdiction of this Court under article 32 since such an order cannot affect or infringe any fundamental right and in that behalf reliance 1121 was placed upon Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors
vs The State of Madhya Bharat and Ors The Parbhani Transport Co operative Society Ltd vs The Regional Transport Authority Smt
Ujjam Bai  case subject to three exceptions mentioned therein and NS Mirajkar s case the principle in the last mentioned case having been stated at p 760 of the Report thus When a Judge deals with matters brought before him for adjudication he first deals with questions of facts on which the parties are at issue and then applies the relevant law to the said facts
Whether the findings of fact recorded by the Judge are right or wrong and whether the conclusions of law drawn by him suffers from any infirmity can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the Appellate Court
But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art 191
What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more
If this basic and essential aspect of the judicial process is borne in mind it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect that fundamental rights of citizens under article 191
 The question whether an order under section 144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code 1973 and not by reference to the old Criminal Procedure Code 1898
We would like to point out that the position under the 1898 Code wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquility under section 144 1122 of the Code had been conferred on District Magistrates Chief Presidency Magistrates Sub Divisional Magistrates or other Magistrates specially empowered by the State Government and it was in those circumstances that the view prevailed in the decisions of several High Courts that the order passed by a Magistrate under section 144 of that Code was a judicial order and it must be pointed out that all the decisions including those of this Court that have been relied upon by counsel for respondents 5 and 6 are in relation to the said section under that Code while the position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates as recommended by the Law Commission has been implemented to a great extent
The Law Commission in its 37th Report on the Code of Criminal Procedure 1898 made several recommendations in this behalf to which we might usefully refer At page 15 of the Report the Law Commission in para 41 has observed thus 41
The usual way of classifying the functions of Magistrates under the Code of Criminal Procedure and various other statutes is to divide them into three broad categories namely a Functions which are police  in their nature as for instance the handling of unlawful assemblies b functions of an administrative character as for instance the issue of licences for fire arms etc etc
 and c functions which are essentially judicial as for instance the trial of criminal cases
The essential features of the scheme for separation it is stated would be that purely judicial functions coming under category c above are transferred from the Collector and Magistrates subordinate to him to a new set of officers who will be under the control not of the Collector but of the High Court
Functions under a and b above will continue to be discharged by the Collector and the Revenue Officers subordinate to him
 Again in para 43 the Law Commission observed thus 1123 43
It is in this background that the concept of separation has to be understood
In its essence separations means separation of judicial and executive functions in such manner that the judicial functions are exercised by the judiciary which is not controlled by the executive
This would ensure that influence of the executive does not pollute the administration of criminal justice
 On the question of allocation of functions between judicial and executive Magistrates it appears that there were before it three main patterns of separation 1 the Bombay pattern suggested in the Report of the Committee on the separation of judiciary from the executive 1947 appointed by the Government of Bombay 2 the Madras pattern Government of Madras Public Separation Department GO Ms No 2304 dated 24th September 1952 and 3 the Punjab pattern introduced by Punjab Separation etc
Act 25 of 1964 and according to the Law Commission the allocation under the Bombay and Punjab schemes proceeded on the basis that powers other than those of trial of offences should be left to the Executive Magistrates even where recording and sifting of evidence and a decision thereon were required and this was brought about by making the requisite amendments in certain sections of the Code including section 144 while under the Madras scheme matters involve the recording and sifting of evidence were strictly within the purview of the Judicial Magistrates but concurrent jurisdiction was provided in some cases and powers in those cases particularly under section 144 were kept with both judicial and executive Magistrates but Judicial Magistrate were to exercise them in emergency and until an executive Magistrate was available
After considering all the patterns of allocation as also patterns of Magistracy under the Bombay Punjab and Madras schemes in paragraphs 94 to 98 of the Report the Law Commission came to the conclusion that the combination of Bombay and Punjab scheme was the best for being adopted as a model
In Paragraph 113 of its Report while dealing with the aspect of appointment of Magistrates the Law Commission recommended that executive Magistrates should be continued to be appointed by the State Government and their area should be defined by the State Government or by the District Magistrate subject to the control of the State Government while judicial Magistrates should to appointed by the High Court and if separation was to be introduced effectively the conferment of magisterial powers should belong to the High Court
As regards section 144 1 of the old Code in para 353 of its Report the Law Commission in terms recommended that before 1124 the words other magistrate  the word executive  be added and the recommendation has been accepted while drafting that section in the new Code
Turning to the 1973 Code itself the scheme of separating judicial Magistrates from executive Magistrates with allocation of judicial functions to the former and the executive or administrative functions to the latter as we shall presently indicate has been implemented in the Code to a great extent
Section 6 provides that there shall be in every State four classes of Criminal Courts namely 1 Courts of Session ii Judicial Magistrates of the First Class and in any Metropolitan area Metropolitan Magistrates iii Judicial Magistrates of the Second Class and iv Executive Magistrates sections 8 to 19 provide inter alia for declaration of metropolitan area establishment of Courts of Session Courts of Judicial Magistrates Courts of Metropolitan Magistrates and appointments of Sessions Judges Additional Sessions Judges Assistant Sessions Judges Chief Judicial Magistrates Judicial Magistrates Chief Metropolitan Magistrates and Metropolitan Magistrates together with inter subordination but all appointments being required to be made by the High Court while sections 20 21 22 and 23 deal with appointment of District Magistrates Additional District Magistrates Executive Magistrates Sub Divisional Magistrates and Special Executive Magistrates and their respective jurisdictions in every district and metropolitan area together with inter se subordination but appointments being made by the State Government Chapter III comprising sections 26 to 35 clearly shows that Executive Magistrates are totally excluded from conferment of powers to punish which are conferred on Judicial Magistrates this shows that if any one were to commit a breach of any order passed by an Executive Magistrate in exercise of his administrative or executive function he will have to be challaned or prosecuted before a Judicial Magistrate to receive punishment on conviction
Further if certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates
For example the power under section 106 to release a person on conviction of certain types of offences by obtaining from him security by way of execution of bond for keeping peace and good behaviour for a period not exceeding three years a judicial function is now exclusively entrusted to a Judicial Magistrate whereas under section 106 of the old 1125 Code such power could be exercised by a Presidency Magistrate a District Magistrate or Sub Divisional Magistrate but the power to direct the execution of a similar bond by way of security for keeping peace in other cases where such a person is likely to commit breach of peace or disturb the public tranquility an executive function of police to maintain law and order and public peace which was conferred on a Presidency Magistrate District Magistrate etc
under the old section 107 is now assigned exclusively to the Executive Magistrate under the present section 107 Chapter X of the new Code deals with the topic of maintenance of public order and tranquility and in that Chapter sections 129 to 132 deal with unlawful assemblies and dispersal thereof sections 133 to 143 deal with public nuisance and abatement or removal thereof section 144 deals with urgent cases of nuisance and apprehended danger to public tranquility and sections 145 to 148 deal with disputes as to immovable properties likely to cause breach of peace all being in the nature of executive  police  functions powers in that behalf have been vested exclusively in executive Magistrate whereas under equivalent provisions under the old Code such powers were conferred indiscriminately on any Magistrate whether Judicial or Executive
In particular it may be stated that whereas under the old section 144 the power to take action in urgent cases of nuisance or apprehended danger to public tranquility had been conferred on a District Magistrate a Chief Presidency Magistrate a sub Divisional Magistrate or any other Magistrate specially empowered by the State Government under the present section 144 the power has been conferred on a District Magistrate Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in that behalf Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrates and the latter to the Executive Magistrates under the Code of 1973 it will be difficult to accept the contention of the counsel for respondents 5 and 6 that the order passed by a District Magistrate Sub Divisional Magistrate or any other Executive Magistrate under the present section 144 is a judicial order or quasi judicial order the function thereunder being essential an executive police function
Under the new Code the designation of District Magistrate of Sub Divisional Magistrate has been statutorily used in relation to officers performing executive functions only in recognition of the concept of separating Executive Magistrates from Judicial Magistrates
It is true that before passing the order the District 1126 Magistrate Sub Divisional Magistrate or the Executive Magistrate gives a hearing parties except in cases of emergency when ex parte order can be made under section 144 2 by Him without notice to the person or persons against whom it is directed but in which cases on an application made by any aggrieved person he has to give hearing to such person under section 144 5 and thereupon he may rescind or alter his earlier order
It is also true that such an order made by the Executive Magistrate is revisable under section 397 of the Code because under the Explanation to that section all Magistrates whether executive or judicial or whether exercising appellate or original jurisdiction are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions
But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alteram partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court removes the vice of arbitrariness if any pertaining to the section
In fact in the three decisions of this Court which were relied upon by counsel for respondents 5 and 6 namely Babu Parate s case K K Mishra s case and Madhu Limaye s where the constitutionality of sec
144 of the old code was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under article 19 1 of the Constitution the challenge was repelled by relying upon these aspects to be found in the provision
In our view however these aspects cannot make the order a judicial or quasi judicial order and such an order issued under sec
144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under article 32 of the Constitution
We would like to mention in this context that the power conferred upon sec
is comparable to the power conferred on the Bombay Police under sec
37 of the Bombay Police Act 1951 both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under sec
37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under article 226 of the Constitution on the ground that it has the effect of violating or infringing 1127 a fundamental right of a citizen
The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under sec
must be held to be amenable to writ jurisdiction either under article 32 or under 226 of the Constitution if it violates or infringes any fundamental right
The contention raised by Counsel for respondents 5 and 6 therefore has to be rejected
Having come to the conclusion that the order under sec
is amenable to writ jurisdiction under article 32 the same being in exercise of executive power in performance of executive function the next question that we have to deal with is whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate Varanasi on 24th November 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of celebration of MOHARRAM festival at the Baradari in Mohalla Doshipura
As already stated the challenge to this order was incorporated in the writ petition by way of an amendment which had been allowed by the Court
Since however that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity
Since however occasions or situations arise even during a year as well as year after year making it necessary for the executive magistracy of Varanasi to take action under sec
144 and since it has been the contention of the petitioners though stoutly disputed by all the respondents that the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of their legal rights to perform their religious ceremonies and functions on the plots and structures in question it will be desirable to make general observations by way of providing to the local authorities requisite guidelines with a view to ensure a correct and proper exercise thereof with a brief reference to few decided cases on the point
Without setting out verbatim the provisions of sec
144 of the 1973 Code we might briefly indicate the nature of power thereunder and what it authorises the executive magistracy to do and in what circumstances
In urgent cases of nuisance or apprehended danger where immediate prevention or speedy remedy 1128 is desirable a District Magistrate a Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may by a written order stating the material facts of the case direct a particular individual or persons residing in a particular place or area or the public generally when frequenting or visiting a particular place or area i to abstain from a certain act or ii to take certain order with respect to certain property in his possession or under his management if he considers that such direction is likely to prevent or tends to prevent obstruction annoyance or injury to any other person lawfully employed or danger to human life health or safety or a disturbance of public tranquillity or a riot or an affray
As stated earlier sub sec
2 authorises the issuance of such an order ex parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under sub sec
5 the executive magistrate either on his own motion or on the application of the person aggrieved after giving him a hearing may rescind or alter his original order
Under sub section 4 no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months
The entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity
Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for it is obvious that when there is a conflict between the public interest and private rights the former must prevail
It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject 1129 matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights if there be such and the lawful exercise thereof rather than in suppressing them
In other words the Magistrate s action should be directed against the wrong doer rather than the wronged
Furthermore it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant
In Muthialu Chetti vs Bapun Sahib the facts were that in 1875 Mohammedans of Sevvaipett applied for permission to erect a mosque in that village on the site occupied by the previous mosque that had recently been destroyed but the Hindus objected and the application was refused the Mohammedans nevertheless occupied the site and in 1878 again applied for permission to build the mosque but the Hindus again opposed the application expressing their apprehension that the erection of mosque would lead to disturbances when they were conducting their processions with music or celebrating ceremonies in the temples adjoining the river
The Collector accorded sanction to the erection of the mosque on condition that the Mohammedans undertook to allow the free passage of processions but professing to act as the District Magistrate he at the same time ordered that all music should cease when any procession was passing or repassing the mosque and directed that the order be notified to the inhabitants of Sevvaipett and Gogoi
The restriction that music should cease when processions would be passing or repassing the mosque was imposed in accordance with GO dated 9th May 1874 which ran thus All Magistrates should 1130 make it an invariable condition that music shall cease playing while the procession is passing any recognised place of worship to whatever denomination belonging except of course the places of worship appertaining to the processionaries themselves
 Some leading Hindus of Sevvaipett filed a suit in Munsif s Court against Mohammedans for a declaration of their right to conduct their processions with music past the site occupied by the mosque and challenged the validity of the District Magistrate s order that the music of their processions should stop whilst passing or repassing the mosque
The Munsif s Court granted a decree in favour of the plaintiffs which was reversed by the District Court but was restored with some qualification by the High Court in second appeal
The High Court laid down that whilst the law recognised the right of an assembly lawfully engaged in religious worship or religious ceremonies not to be disturbed it also recognised the right of persons for a lawful purpose whether civil or religious to use a common highway in parading it attended by music so that they do not obstruct use of it by other persons that whenever a conflict of rights exists it is the duty of the Magistrate if he apprehends civil tumults to guard against it and if necessary to interdict a procession but that a general order interdicting all musical processions is ultra vires and illegal
The High Court pointed out that the extent of authority possessed by the Magistrate was to suspend the exercise of the right on particular occasions and not prohibit it absolutely and before the occasion arose which entitled him to act and it consequently held the District Magistrate s order to be ultra vires
In Parthasaradi Ayyangar vs Chinna Krishna Ayyangar Turner CJ laid down the law at page 309 of the report thus Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace In Sundram Chetti and Ors
vs The Queen before a Full Bench of the Madras High Court the aforesaid position was maintained and it was further laid down that the worshippers in the mosque or temple 1131 which abutted on a high road could not compel the processionists to intermit their processionists  worship while passing the mosque or temple on the ground that there was continuous worship there
Turner CJ who presided over the Full Bench observed at page 217 of the Report thus With regard to processions if they are of a religious character and the religious sentiment is to be considered it is not less a hardship on the adherents of a creed that they should be compelled to intermit their worship at a particular point than it is on the adherents of another creed that they should be compelled to allow the passage of such a procession past the temples they revere
But the prejudices of particular sects out not to influence the law
 At page 215 of the Report the learned Chief Justice observed thus The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognised by law when such exercises may conflict with other rights of the public or tend to endanger the public peace
But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is not destructive of the suspended rights
 Again at page 220 he has observed thus I must nevertheless observe that this power to suspend the exercise of legal rights on being satisfied about the existence of an emergency is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient
Where rights are threatened the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of
It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension in the repression of illegal rather than in interference with lawful acts
If the Magistrate is satisfied that the exercise of a right is likely to create a riot he can hardly be ignorant of the per 1132 sons from whom disturbance is to be apprehended and it is his duty to take from them security to keep the peace
Emphasis supplied
It may be stated that the aforesaid view of the Madras High Court was preferred by the Privy Council to the contrary view of the Bombay High Court
In Manzur Hasan and Ors
vs Muhammad Zaman and Ors
the facts were that Shia Mahomedans in the town of Aurangabad District Aligarh conducted Muharram a procession bearing religious emblems and pausing from time to time for the performance of matam wailing
From time immemorial the procession performing matam had passed along a public street immediately behind a Sunni Mahommedan mosque in and after 1916 the respondents Sunnis interfered to prevent matam near the mosque as they alleged that it disturbed their devotions
The appellants Shias brought a suit for declaration of their rights to make short pauses behind the mosque for the performance of matam and for a permanent injunction against the Sunnis from interfering with their rights
The Judicial Committee upholding the Madras view and rejecting the Bombay view held that in India there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public and subject to lawful directions by the Magistrates and that a civil suit for declaration lies against those who interfere with a religious procession or its appropriate observances
These decisions show that legal rights should be regulated and not prohibited altogether for avoiding breach of peace or disturbance or public tranquillity
In Haji Mohammed Ismail vs Munshi Barakat Ali and Ors
there was a dispute concerning the conduct of a prayer in a mosque and there being an apprehension of breach of peace the Magistrate under section 144 drew up a proceeding and eventually recorded an order that no man of either party will be allowed to read prayers in the mosque The Court held that the order was mis conceived that the effect of the order was that no Mohammedan would be allowed to say his prayers in the mosque it was not justified under section 144 and that the proper course was for the Magistrate to ascertain which party was in the wrong and was interfering unnecessarily with 1133 the legal exercise of the legal rights of the other party and to bind down that party restraining them from committing any act which may lead to a breach of peace
Emphasis supplied
In Madhu Limaye s case supra this Court has also expressed the view that the key note of the power in section 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health
The instant case as we have held above is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject matter of a judicial pronouncement and decree of Civil Court of competent jurisdiction as also by reason of these properties having been registered as Shia Waqfs for performance of their religious ceremonies and functions and their complaint has been that the power under section 144 is being exercised in utter disregard of the lawful exercise of their legal rights and every time instead of exercising the power in aid of their rights it is being exercised in suppressing their rights under the pretext of imminent danger to peace and tranquillity of the locality
Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the executive magistracy in defence of such established rights of the petitioners and the Shia community and instead of prohibiting or suspending the exercise of such rights on concerned occasions on the facile ground of imminent danger to public peace and tranquillity of the locality the authorities would make a positive approach to the situation and follow the dictum of Turner CJ that if they are satisfied that the exercise of the rights is likely to create a riot or breach of peace it would be their duty to take from those from whom disturbance is apprehended security to keep the place
After all the customary rights claimed by the petitioners part take of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi a religious minority who are desirous of freely practising their religious faith and perform their rites practices observances and functions without let or hindrance by members belonging to the majority sect of the community namely Sunni Muslims and as such a positive approach is called for on the part of the local authorities 1134 It is only in an extremely extraordinary situation when other measures are bound to fail that a total prohibition or suspension of their rights may be resorted to as a last measure
Lastly counsel for the respondents contended that the present writ petition was barred by res judicata or principle analogous to res judicata by reason of this Court s decision in a Civil Appeal No 941 of 1976 b Review Petition No 36 of 1977 and c order dated 4121978 permitting withdrawal of Special Leave Petition No 6226 of 1978 alternatively it was urged that the view taken by a Bench of 3 Judges of this Court in their Judgment dated 6121976 in Civil Appeal No 941 of 1976 and reiterated in its order dated 16121976 on Review Petition No 36 of 1977 however wrong should not be disturbed by another Bench of 3 Judges especially as the petitioners are seeking by the present petition to set at naught the earlier decision or get it revised on the same material which they should not be allowed to do
It is difficult to accept either of these contentions for reasons which we shall presently indicate
As regards res judicata or the bar based on the principle analogous to res judicata we have already referred in the earlier part of our judgment to the leading decision of this Court in Daryao s case supra where the basts on which the general doctrine of res judicata is founded has been explained namely that it is founded on considerations of high public policy to achieve two objectives namely a that there must be a finality to litigation and b that the individuals should not be harassed twice over with the same kind of litigation and in our view neither of these aspects is present here so as to bar the present petition by res judicata or principle analogous to res judicata
We would like to point out that the present litigation has been fought in a representative character both as regards the petitioners who are representing the Shia community and as regards the respondents 5 and 6 who are representing the Sunni community whereas the earlier writ petitions Nos
2397 of 1973 out of which arose the Civil Appeal No 941 of 1976 and No3906 of 1978 out of which arose Special Leave Petition No 6226 of 1978 were filed in the Allahabad High Court by the then petitioners in their individual capacity and as such these earlier litigations which were fought right up to this Court cannot be regarded as between the same parties who are before us further where it was felt by this Court that proper adjudication would not be possible without impleading the two Boards Shia Central Wakf Board and Sunni Central Wakf Board notices were issued to them and they were also im 1135 pleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel
Secondly the earlier decision of this Court in Civil Appeal No941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court in WPNo2397 had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition irrespective of whether the assumption made by this Court was right or wrong the fact remains that there was no adjudication or decision on the petitioners  rights on merits as a result of the final order passed by this Court in the appeal which was confirmed in the Review Petition all that could be said to have been decided by this Court in Civil Appeal No 941 of 1976 and Review Petition No 36 of 1977 was that parties should get their rights adjudicated in a Civil Court suit
For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition
We may point out that the setting aside of the Allahabad High Court judgment and its findings in writ Petition No23971973 by this Court in Civil Appeal No941 of 1976 cannot have effect of obliterating or effecting in any manner the findings recorded and adjudication done between the parties to the earlier litigations particularly Suit No 2321934
As regards the alternative submission made by counsel for the respondents we would like to point out that it is not correct to say that the petitioners are seeking to set at naught the earlier decision of this Court or to have the same revised by present petition on the same materials if that were so there would have been some force in the contention
Fresh material of substantial character in the form of the original Survey Report of the Chief Commissioner of Wakfs dated 28th31st October 1938 and the relevant Notification issued by the Shia Board on 15th of January 1954 published in the U P Government Gazette dated 23rd of January 1954 under sec
5 1 of the U P Muslim Wakfs Act 1936 not produced in the earlier litigation either before the Allahabad High Court or before this Court was produced before us during the hearing on the basis of which the members of the Shia community sought to prove their existing and established entitlement to their customary rights
In fact it was one of the contentions of the respondents 5 and 6 that before the Allahabad High Court in the earlier litigation the then petitioners had misled the Court into believing that the Notification issued by the Shia Board on 1st of December 1956 under Rule 54 1136 vii was the Notification under s5 1 of the UP Muslim Wakfs Act 1936
Moreover additional material has come before us through both the Boards affording considerable assistance to us in arriving at proper conclusions in the case
Thus where the parties before us are different and when fresh material has been produced before us which was not there in the earlier litigation the alternative contention loses all force and must be rejected
In the result we hold that the petitioners and through them the Shia community of Mohalla Doshipura Varanasi have established their existing customary rights to perform their religious rites practices observances ceremonies and functions minus the recitation and utterance of Tabarra detailed in the writ petition over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4 particularly the executive magistracy of Varanasi is directed if action under section 144 Cr
PC is required to be taken to issue their orders under the said provision having regard to the principles and the guidelines indicated in that behalf in this judgment
The writ petition is thus allowed but each party will bear its own costs
SR Petition allowed


Summary:
Uttar Pradesh Muslim Wakf Act 1960 Act XVI of 1960 repealing Uttar Pradesh Muslim Wakf Act 1936 Act XIII of 1936 Legal position as to the finality of Survey Reports and effect of registration of Wakfs already made under the earlier Act long before it was repealed Words and phrases Every other Wakf  in section 29 of the 1960 Act meaning of
Criminal Procedure Code 1973 section 144 Whether an order made under section 144 Criminal Procedure Code is judicial or quasi judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution Nature and power under the section and what it authorises the executive magistracy to do and in what circumstances explained
In Mohalla Doshipura of Varanasi city there are two sects of Mohamedans the Shias and the Sunnis
Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain grand sons of Prophet Mohammed during the Moharram but in a different manner
Nine plots bearing Nos 245 246 247 2482372 602 603 6021133 2461134 and 2471130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura
Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq
The said religious belief is practised by the men folk and the women folk of the Shia community by holding Majlises religious discourses Recitations Nowhas Marsia doing 1078 Matam wailing and taking out processions with Tabut Tazia Alams Zukinha etc
For performing these religious rites practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures thereon
The entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites practices observances and functions including those relating to the Tazia they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place
The petitioners in the writ petition and through them the Shia community contended as follows i that their customary rights to perform several religious rites practices observances and functions on the said nine plots and the structures thereon having been already determined in their favour by decisions of competent civil courts ending with the Review Petition 36177 in Civil Appeal 941176 in the Supreme Court the respondents must be commanded by a mandamus not to prohibit or restrain the Shias from performing their religious rites etc
On the said plots ii that the registration of Shia Waqfs concerning the plots and structures for performance of these practices and functions under sections 5 and 38 of the Uttar Pradesh Muslim Wakfs Act 1936 which had become final as no suit challenging the Commissioner s report and registration was filed within two years by any member of Sunni Community or the Sunni Central Wakf Board also concluded the said rights in their favour and iii that the power under section 144 Criminal Procedure Code is being invariably exercised perversely and in utter disregard of the lawful exercise of Shias  legal rights to perform their religious ceremonies and functions and instead of being exercised in aid of such lawful exercise it is exercised in favour of those who unlawfully and illegally interfere with such lawful exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality
The respondents contested and contended as follows i that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto ii that no mandamus under Article 32 is competent inasmuch as orders under section 144 Cr
PC these are judicial or quasijudicial alternatively even if it were assumed that these orders are administrative or executive orders passed by the Executive Magistrates they cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and iii that the writ petition was barred by res judicata or principles analogous to res judicata by reason of the Supreme Court s decisions in a Civil Appeal 9411976
b Review Petition 36 of 1977 and c order permitting withdrawal of SLP 6226 of 1978 on 4 12 1978
Allowing the petition the Court  HELD 1 1
The petitioners and through them the Shia community of Mohalla Doshipura Varanasi have established their customary rights to perform 1079 their religious rites practices observances ceremonies and functions minus the A recitation and utterance of Tabura over the plots in question
1136 B C 1 2
The litigation arising out of Suit No 849 of 1878 Sheik Sahib and ors
vs Rahtnatu and ors declared the mosque in plot No 246 to be a public mosque at which every mohammedan became entitled to worship and further declared the Shias  right to keep their Tazia in the apartment attached to the mosque and repair it in the verandah thereof and to hold their majlises on 9th and 12th of Moharram on or near the platform on the surrounding ground of the mosque as early as on 29th March 1879
1098 B G H The alleged customary rights of Sunnis in the matter of burial of their dead on the plot No 60211133 was decided against them in the Suit No 42411931 filed by the then Maharaja of Banaras in the Court of Addl
Munsiff Banaras
1099 A B G The third and most important Suit No 2321934 filed in the court of City Munsiff Banaras Fathey Ullah and Ors
Sunnis vs Nazir Hussain and Ors
Shias in respect of all the plots in Khasra Nos 245 246 247 2482372 602 603 6021133 2461134 and 2471130 which were claimed to be Sunni Wakfs by long user also went against the Sunnis and in favour of the Shias clearly establishing the title or ownership of Shias over at least two main structures Zanana Imambara on plot No 245 and Baradari on plot No 2471130 and to the land below the structures and what is more substantially the customary rights claimed by the Shia Muslims over the plots and structures were upheld
1100 H 1101 A B 1102 F G The said suit 23234 had been filed in the representative capacity both as regards the Sunni plaintiffs and Shia defeadants and all the formalities under order I rule 8 of the Civil Procedure Code had been complied with and as such he final decision in that litigation is binding on both the communities
1104 B C G H 2 1
Ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under Article 32 of the Constitution and such a petition is usually entertained by the Supreme Court for enforcement of existing or established title or lights for preventing infringement or encroachment thereof by granting appropriate reliefs in that behalf
Here what Shia community is seeking by the Writ Petition is enforcement of their customary rights to perform their religious rites practices observances and functions on the concerned nine plots and structures thereon which have already been adjudicated determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental
1097 A C 2 2
It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon
However even if the petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to 1080 prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of the respondents or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them
1097 C F 3 1
It is well settled that section 11 of the Civil Procedure Code is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives namely that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation
The technical aspects of section 11 of Civil Procedure Code as for instance pecuniary or subject wise competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked
Even under section 11 of the Civil Procedure Code the position has been clarified by inserting a new Explanation VIII in 1976 1105 C D 1107 A B 3 2
In the instant case a it was not disputed that the Munsif s Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and therefore the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata b not only were the Sunnis  customary rights over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs Sunni Muslims has sought an injunction restraining the Shias from exercising their customary rights
Therefore the decision in this litigation which bore a representative character not merely negatived the Sunnis  customary rights claimed by them over the plots and structures but adjudicated determined and declared the Shias  entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura c there is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias  entitlement to customary rights over the plots and structures in question whatever be the position as regards their title to the plots or structures and d a clear case has been made out of an existing or established entitlement to the customary rights in favour of the Shias  community to perform their religious ceremonies and functions over the plots and structures in question under the decrees of competent Civil Court for the enforcement of which the instant Writ Petition has been filed
1107 B H 1108 A Rajah Run Bahadoor Singh vs Musumut Lachoo Koer XII I A 23 Mst
Gulab Bai vs Manphool Bai   Daryao and others vs State of UP   Gulabchand Chhotalal parikh vs State of Bombay now 1081 Gujarat  and Union of India vs Nanak Singh   referred to
Broadly speaking while repealing the 1936 Act the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other then those which have already been registered under the former Act
A perusal of sections 6 9 28 and 29 of the 1960 Act and sections 43 45 51 2 3 and 39 of the 1936 Act clearly show that the finality and conclusiveness accorded to the Commissioner s report under section 53 of the 1936 Act has been preserved and the registration of Wakfs under the 1936 Act has been maintained under the 1960 Act notwithstanding the repeal of the former Act by the latter
In other words any Survey Report submitted under the 1960 Act and any registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner s Report under the 1936 Act has become final and registration has been effected under the 1936 Act1108H 1109A 1110 F G 42
In the instant case a having regard to the six properties being specifically asked to be entered in the list of Shia waqfs by Imam Ali Mahto in his application and the order made thereon all the properties mentioned in the application must be regarded as having been entered in the list of Shia wakfs by the Chief or Provincial Commissioner for Wakfs and the Notification under section 51 related to all those properties as having been notified to be Shia Wakfs particulars whereof were stated to be available in the Board s office
The Nota Bena at the foot of the Notification amounted to sufficient particularisation of the properties notified as Shia Wakfs
Non mentioning of those properties as Sunni Wakfs in Appendices VIII and IX sent to the Sunni Central Wakfs Board must amount to a notice to the Sunni Board and the Sunni Muslims that these had been enlisted as Shia Wakfs
Admittedly no suit was filed either by the Sunni Central Board or any other person interested in those Wakfs challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Wakfs within the time prescribed under section 52 of the Act and therefore the Chief Commissioner s Report together with the appendices X and XI thereto dated 28th31st October 1938 on the basis of which the Notification dated 15th January 1954 was issued and published in Official Gazette on 23rd January 1954 must be held to have become final and conclusive as between the members of the two communities b the Notification dated 26 2 1944 issued by the Sunni Wakf Board on the basis of material which did not form part of the Chief Commissioner s Report would be in violation of section 51 of the 1936 Act c Notice issued by the Shia Board under section 53 of the 1936 Act complaining about the entry at Serial No 224 must be regarded as having been issued ex majori cautela and d even if it were assumed for the purposes of argument that entry at Serial 224 in the Notification dated 26th February 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January 1954 especially when it is now common ground 1082 that the mosque on Plot No 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering prayers and doing worship therein e the registration under section 38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration if any obtained by the Sunnis in respect of some of the properties under the 1960 Act really speaking such latter registration would be non est in the eye of law
Even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon1113 B G 1115 A B 1116 E A 1117 A B 43
Shias are claiming the right to perform their religious ceremonies and functions on the plots and structures in question not so much on the basis of any title or ownership thereof but on the basis of customary exercise since time immemorial and they have been claiming such customary rights by prescription over the plots belonging to the Maharaja of Banaras as Zamindar and superior title holder and the prescriptive rights have enured for the benefit of all the Shias notwithstanding such superior title in the Maharaja and if that be so they will also enure for their benefit as against any derivative title claimed by anyone under the Maharaja
Moreover when these plots and structures particularly these three plots were being registered as Shia Wakfs under the UP Wakfs under the UP Muslims Wakfs Act 1936 by the Shia Board and Sanads or Certificates of Registration in respect thereof were being issued in December 1952 the two Sunni Lessees who are said to have obtained a lease on 2041952 did not raise any objection to such registration
The Shias  customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title
1119 C G 51
Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrate and the later to the Executive Magistrates under the Code of 1973 the order passed by a District Magistrate Sub Divisional Magistrate or any other Executive Magistrate under the present section 144 is not a judicial order or quasi judicial order the function thereunder being essentially an executive police function
1125 E G 52
It is true that before passing the order the District Magistrate Sub Divisional Magistrate or the Executive Magistrate gives a hearing to parties except in cases of emergency when exparte order can be made under section 1442 by him without notice to the person or persons against whom it is directed but in which cases on an application made by any aggrieved person he has to give hearing to such person under section 1445 and thereupon he may rescind or alter his earlier order
It is also true that such an order made by the Executive Magistrate is revisable under section 397 of the Code because under the Explanation to that section all Magistrates whether executive or judicial or whether exercising appellate or original jurisdiction are deemed to be inferior Courts for purposes of the revisional power of the High Court or Court of Sessions
But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alterem partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court 1083 removes the vice of arbitrariness if any pertaining to the section
In fact in the three decisions of the Supreme Court which were relied upon by counsel for respondents 5 and 6 namely Babu Parate s case KK Mishra s case and Madhu Limaye s case where the constitutionality of section 144 of the old Code was challenged on the ground that it amounted to unreasonable restriction on the fundamental right of a citizen under Article 191 of the Constitution the challenge was repelled by relying upon these aspects to be found in the provision
However these aspects cannot make the order a judicial or quasi judicial order and such an order issued under section 144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 of the Constitution1125H 1126 F 53
The power conferred under section 144 Criminal Procedure Code 1973 is comparable to the power conferred on the Bombay Police under section 37 of the Bombay Police Act 1951 both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under section 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution on the ground that it has the effect of violating or infringing a fundamental right of a citizen
The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under section 144 Criminal Procedure Code 1973 is amenable to writ jurisdiction either under Article 32 or under 226 of the Constitution if it violates or infringes any fundamental right
1126 F H 1127 A B 54
In urgent cases of nuisance or apprehended danger where immediate prevention or speedy remedy is desirable a District Magistrate a Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may by a written order stating the material facts of the case direct a particular individual or persons residing in a particular place or area or the public generally when frequenting or visiting a particular place or area i to abstain from a certain act or ii to take certain order with respect to certain property in his possession or under his management if he considers that such direction is likely to prevent or tends to prevent obstruction annoyance or injury to any other person lawfully employed or danger to human life health or safety or a disturbance of public tranquility or a riot or an affray
Sub section 2 authorises the issuance of such an order ex parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under subsection 5 the executive magistrate either on his own motion or on the application of the person aggrieved after giving him a hearing may rescind or alter his original order
Under Sub section 4 no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months1127 H 1128 A E 1184 The entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility
Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for it is obvious that when there is a conflict between the public interest and private rights the former must prevail
The section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlement to rights have already been adjudicated and have become the subject matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights if there be such and the lawful exercise thereof rather than in suppressing them
In other words the Magistrate s action should be directed against the wrong doer rather than the wronged
Furthermore it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would effect only a minor section of the community rather than prevent a larger section more vociferous and militant
Legal rights should be regulated and not prohibited all together for avoiding breach of peace or disturbance or public tranquility
The key note of the power in section 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights or others or imperil the public safety and health1128 E H 1129 A D 1138B Muthialu Chetti vs Bapun Sahib ILR  Parthasaradi Ayyangar vs Chinna Krishna Ayyangar ILR 5 Mad
304 and Sundram Chetti and Ors
vs The Queen ILR 6 Mad 203 approved
Hasan and Ors
vs Muhammad Zaman and Ors
52 IA 61 and Haji Mohammad Ismail vs Munshi Barkat Ali and Ors  applied
Madhu Limaye s case   followed
DV Belvi vs Emperor AIR 1931 Bom
325 Queen Empress vs Tirunarasimha Chari ILR  Muthuswami Servaigram and Anr
vs Thangammal Ayiyar AIR 30 Mad 242 Bondalpati Thatayya vs Gollapuri Basavayya and Ors AIR 1953 Mad 956 Babulal Parate s case  KK Misra s case
1085   Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors
vs The State of Madhya Bharat and Ors  The Parbhani Transport Co operative Society Ltd vs The Regional Transport Authority   Smt
Ujjam Bai s case 1963 1 SCR 778 N section Mirajkar s case   explained and distinguished
After all the customary rights claimed by the petitioners partake of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi a religious minority who are desirous of freely practising their religious faith and perform their rites practices observances and functions without let or hindrance by members belonging to the majority sect of the community namely Sunni Muslims and as such a positive approach is called for on the part of the local authorities
It is only in an extremely extraordinary situation when other measures are bound to fail that a total prohibition or suspension of their rights may be resorted to as a last measure1133F H1134A 62
In the instant case the earlier litigations which was fought right up to the Supreme Court cannot be regarded as between the same parties in as much as the same was not fought in representative character while the present writ petition is litigated between the petitioners and the respondents representing their respective sects further it was felt by the Supreme Court that proper adjudication would not be possible without impleading the two Boards Shia Central Wakf Board and Sunni Central Wakf Board notices were issued to them and they were also impleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel
Moreover the earlier decision of the Supreme Court in Civil Appeal No 941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court ie WP No2397 of 1978 had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition irrespective of whether the assumption made by the Supreme Court was right or wrong the fact remains that there was no adjudication or decision on the petitioners  right on merits as a result of the final order passed by the Supreme Court in the appeal which was confirmed in the Review Petition all that could be said to have been decided by the Supreme Court in Civil Appeal No 941 of 1976 and Review Petition No 36 of 1977 was that parties should get their rights adjudicated in Civil Suit
For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition
1134 G H 1135 A D