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PETITIONER: GULAM  ABBAS & ORS.

       Vs.

RESPONDENT: STATE Of U.P. & ORS.

DATE OF JUDGMENT03/11/1981

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. DESAI, D.A. SEN, A.P. (J)

CITATION:  1981 AIR 2198            1982 SCR  (1)1077  1982 SCC  (1)  71        1981 SCALE  (3)1707  CITATOR INFO :  R          1984 SC  51  (15)  R          1988 SC  93  (1)

ACT:      Constitution of  India, 1950,  Articles 25 and 26-Right in enjoy  the religious  faith and  performance of religious rites,  practices  and  observances  on  certain  plots  and properties belonging  to Shia  community, which have already been adjudicated,  determined and  declared in their earlier litigation-Whether such  a right  is enforceable  through  a petition under  Article  32  of  the  Constitution-Scope  of Article 32.      Res judicata,  bar of-Civil Procedure Code, section 11, explained.

HEADNOTE:      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of Survey Reports and effect of  registration of  Wakfs  already  made  under  the earlier Act  long before  it was  repealed-Words and phrases "Every other  Wakf "  in section 29 of the 1960 Act, meaning of.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, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 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

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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 s. 144 Cr. P.C. 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 941/1976. (b)  Review Petition  36 of  1977  and  (c)  order permitting withdrawal of S.L.P. 6226 of 1978 on 4-12-1978.

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    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. v.  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. 232/1934 filed in the court  of City  Munsiff, Banaras  (Fathey Ullah and Ors. (Sunnis) v. Nazir Hussain and Ors. (Shias) in respect of all the plots  in Khasra Nos 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134  and 247/1130  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. 247/1130 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  232/34   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,

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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 v. Musumut Lachoo Koer, XII I.

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A. 23:  Mst. Gulab  Bai v.  Manphool Bai,  [1962] 3 SCR 483; Daryao and  others v.  State  of  U.P.  [1962]  1  SCR  574; Gulabchand Chhotalal parikh v. State of Bombay (now 1081 Gujarat), [1965]  2 SCR  547 and  Union of  India  v.  Nanak Singh, [1968] 2 SCR 887, referred to.      4:1. 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  4(3), 4(5), 5(1), (2), (3) and 39 of the  1936   Act  clearly   show  that   the   finality   and conclusiveness accorded  to the  Commissioner’s report under section 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.[1108H, 1109A, 1110 F-G]      4:2. 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 5(1) 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   5(2)  of  the  Act  and, therefore, the Chief Commissioner’s Report together with the appendices X  and XI  thereto dated 28th/31st 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 5(1)  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

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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  thereon.[1113 B-G,  1115 A-B, 1116 E-A, 1117 A-B]      4:3. 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 U.P. Wakfs under the U.P. 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  20.4.1952 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]      5:1.  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]      5:2. 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 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

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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,  K.K. 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 19(1) 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 Constitution.[1125H, 1126-F]      5:3. 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]      5:4. 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

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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.[1127 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 health.[1128 E-H, 1129 A-D, 1138B]      Muthialu  Chetti  v.  Bapun  Sahib,  ILR  2  Mad.  140; Parthasaradi Ayyangar v. Chinna Krishna Ayyangar, ILR 5 Mad. 304 and  Sundram Chetti  and Ors.  v. The  Queen, ILR 6 Mad. 203, approved.      Hasan and  Ors. v.  Muhammad Zaman  and Ors. 52 I.A. 61

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and Haji  Mohammad Ismail  v. Munshi  Barkat Ali and Ors.,24 Cr. L.J. 154, applied.      Madhu Limaye’s case, [1971] 2 SCR 711, followed.      D.V. Belvi v. Emperor, AIR 1931 Bom. 325; Queen Empress v.  Tirunarasimha  Chari,  I.L.R.  19  Mad.  18;  Muthuswami Servaigram and  Anr. v.  Thangammal Ayiyar, AIR 30 Mad. 242; Bondalpati Thatayya  v. Gollapuri  Basavayya and  Ors.,  AIR 1953 Mad.  956; Babulal Parate’s case [1963] 3 SCR 432; K.K. Misra’s case. 1085 [1970] 3 SCR 181; Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors.  v. The  State of  Madhya Bharat and Ors., [1963] 3 SCR 18,  The Parbhani Transport Co-operative Society Ltd. v. The Regional  Transport Authority,  [1960] 3  SCR 177,  Smt. Ujjam Bai’s  case, [1963]  1 SCR 778, N. S. Mirajkar’s case, [1966] 3 SCR 744, explained and distinguished.      6:1. 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 measure.[1133F-H.1134A]      6:2. 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 (i.e. W.P. No.2397 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]

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JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 4675 of 1978.      (Under article 32 of the Constitution of India)      M.C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam,  Shanker Saran  Lal and  Miss Kamlesh Bansal for the Petitioners. 1086      O.P. Rana and S. Markandeya for Respondents Nos. 1-4.      Anil B.  Dewan, K.L. Hathi, P. Parmeswaran, P.C. Kapoor and M.A. Quadeer for Respondents Nos. 5-6.      Haider Abbas and Miss Kamini Jaiswal for Respondent No. 8 (Shia Waqf Board, U.P.)      F.S. Nariman,  M. Qamaruddin,  Mrs. M.  Qamaruddin,  Z. Jilani and  Mrs. Sahkil  Ahmed for  Respondent No.  7  (U.P. Sunni Central Board of Waqf)      M.C. Dhingra  for Intervenor-Institute  for  Re-writing History.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  By this writ petition filed under Art. 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 and/or  infringement of  their fundamental rights guaranteed to them under Arts. 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, 248/23/72, 602,  603, 602/1133, 246/1134 and 247/1130 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 C.P.C.  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 U.P. 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  U.P. 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

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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.  247/1130: 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.  248/23/72:  a  plot  belonging  to  one      Asadullah, a  Shia  Muslim,  with  his  house  standing      thereon.           Plot  No.   246/1134:  on  which  stands  a  Sabil      Chabutra (platform  for  distributing  drinking  water)      belonging to one Nazir Hussain, a Shia Muslim.           Plots Nos.  602/1133, 602  and 603:  being  vacant      plots appurtenant  to the Baradari in plot No. 247/1130      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. 247/1130 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.

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    (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 s/o 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 i.e. 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 i.e. 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

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Arts. 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 U.P. 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 U.P. 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. P.C..  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. P.C. 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 u./sec. 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

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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.  602/1133   by  reciting Qurankhani, Milad  and Fathiha  on 16th  April, 1963  from 9 A.M. 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  u./sec.  144 Cr.P.C.) 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  u./sec. 144 Cr.P.C. 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

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Crl. As.  Nos. 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 sec.144  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  No.941  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 Cr.P.C.......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 P.C. 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. P.C. 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

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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 22.9.1978 principally relying  on the earlier judgment dated 6.12.1976 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

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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.  v. 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 Art.  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 4.12.1978. 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 U.P. Muslim Wakfs Act, 1936 and U.P. 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 Art.  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

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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 and/or  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 U.P.  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

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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.  602/1133, 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 C.P.C.  (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. 602/1133 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. 1/4/- 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. 602/1133  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

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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 O.1,  R.8 P.  C.) the  customary rights  of  Shias  to perform their religious ceremonies and functions on plot No. 62/1133 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, 248/23/72, 602, 603,  602/1133, 246/1134  and  247/1130  (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

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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 No.247/1130) 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. 248/23/72.  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 A.D.) 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  A.D. (1311 Hizri) on plot No.247/1130  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 Nos.246/1134,(containing Sabil  Chabutra) and  247/1130 (the Baradari i.e.  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. 248/23/72 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

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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. 247/1130 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 C.P.C. 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 C.P.C.  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

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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 C.P.C. 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 s.  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  v.  Mussumut Lachoo Koer  and Mst.  Gulab Bai  v. Manphool Bai. It is not possible to  accept this contention for the reasons which we shall presently  indicate. It  is well settled that s. 11 of

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the C.L.C.  is not exhaustive of the general doctrine of res judicata and  though the  rule of res judicata as enacted in s. 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 v. The  State of  U.P. this  Court at  page 582 has observed thus:           "Now the  rule of  res judicata as indicated in s.      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’s(4) case. Halsbury’s laws 1106 of England and Corpus Juris. In Gulab Chand Chhotalal Parikh v. 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 Art. 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 s.  11 C.P.C.  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  Arts.   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 v. Nanak Singh. It is thus 1107 clear that  technical aspects  of s.  11 of C. P. C., as for

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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 s. 11 of C. P. C. Even  under  s.  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 28th/31st 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,

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1954, had become final and conclusive under sec. 5(3) 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. 5(2) 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. 5(1)  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 U.P.  Muslim Wakfs Act, 1936 (Act XVIII of 1936) and the U.P. 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  U.P. 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

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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. 6(4) 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

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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-15/94 (i.e. plot  No. 246)  (2) Imambara on Municipal No. J. 15/95 (i. e.  Baradari on  plot No. 247/1130), (3) Zanana Imambara on Municipal No. J-15/96 (i.e. Plot No. 245), (4) Imam Chowk with land  (i. e. on plot No. 247), (5) Chabutra Sabil Pucca (i. e.  on Plot No. 246/1134) and (6) one Sabil Stone on the land to  the east  of Imambara-Baradari  (i.e. on  plot  No. 602/1133) 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 i.e. 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 28th/31st 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  U.P. 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 s. 5(1) 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

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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 U.P. 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 s. 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 s. 5(1) 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  s. 5(2)  of the  Act, and,  therefore, the Chief Commissioner’s  Report together  with the appendices X and XI  thereto dated  28th/31st October, 1938, on the basis

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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 v.  Radha Krishna  and Ors. where one of us (Sen, J.)  has analysed  the scheme of the Waqfs Act,1954 (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 s. 5(1) of the U.P. 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  28th/31st 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 s. 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

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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 s. 5(1) 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  s. 5  (1) of the 1936 Act is also at Sl. No.  224 which  reads: "Masjid Dhoshipura-Hayatullah r/o 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 (i.e. Municipal No. J- 15/94); 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 r/o H. No.  J-15/125, 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. 232/1934 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 r/o  Mohalla Doshipura  as the "present Mutawali" (i.e. 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 r/o H. No J-15/8 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-18/108  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-15/94  (i.e. 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-18/108 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

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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-15/94) in  Mohalla Doshipura  and as such the Notification will have  no probative  value. In  this  state  of  affairs Notice dated  11.4.1945 issued  by Shia Board under s. 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 s. 5(1) 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  28th/31st   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 s.38  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. 247/1130, 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. 602/1133  being appurtenant to the Baradari and the  last relating to Sabil Chabutra Mardana on Plot No. 246/1134 (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

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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 U.P. Shia Central  Waqfs Rules,  1944 enlisting the Shia Waqfs in question and published in the U.P. Government Gazette on 1st December, 1956.  It may  be stated  that the  Shia Board had framed rules  called the  U.P. Shia Central Waqfs Rules 1944 in exercise of powers conferred on it by sec.-61 of the 1936 Act and  under Rule 54(vii) 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 54(vii);  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 No.160  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 s.  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 20.4.1952  in respect  of portions of  three plots,  namely, 602/1133,247  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  20.4.52 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 1952=1357,  1358 and 1359 Fasli), being Annexures 3 and 4 to  the  Counter  Affidavit  of  Respondent  No.  5  dated 17.4.1979. At  the  outset  we  would  observe  that  it  is

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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. 424/1931 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 U.P.  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 20.4.1952 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 s. 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 Art. 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-s. (2) of s. 144)  and since  no fundamental  right can  be said to be infringed by  any judicial or quasi-judicial order a Writ of mandamus under  Art. 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 v.  Emperor a Division Bench of the Bombay High Court has held that the orders under s. 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  v. Tirunarasimha  Chari the Madras High Court has taken  the view  that  the  Magistrate,  making  inquiry before the  issue of  an order  under s.  144 is acting in a stage   of   judicial   proceeding   and   has,   therefore, jurisdiction to  take action  under s.  476, if he is of the opinion that  false evidence  has  been  given  before  him; similarly in  Muthuswami Servaigram  and Anr.  v. Thangammal Ayyiar as also in Bondalpati Thatayya v. Gollapuri Basavayya

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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 s. 144 Cr. P.C. 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 s. 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 Art.  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.  v. The  State  of  Madhya  Bharat  and  Ors.,  The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority,  Smt. Ujjam Bai’ case (subject to three exceptions mentioned  therein) and N.S. 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  19(1).  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 Art. 19(1)."      The question  whether an  order under  s. 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 s. 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

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order passed by a Magistrate under s. 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  G.O. 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 s. 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  s. 144 were kept with both  judicial and  executive Magistrates  but Judicial

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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 s. 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;  ss. 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 ss. 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  ss.  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 s.  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

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exclusively entrusted to a Judicial Magistrate whereas under s. 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  s.  107  is  now assigned exclusively  to the  Executive Magistrate under the present s.  107; Chapter  X of  the new  Code deals with the topic of  maintenance of public order and tranquility and in that Chapter  ss. 129  to 132  deal with unlawful assemblies and dispersal  thereof, ss.  133 to  143  deal  with  public nuisance and abatement or removal thereof, s. 144 deals with urgent cases  of nuisance  and apprehended  danger to public tranquility and  ss. 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  s. 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 s. 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  s. 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 s. 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 s.  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  s. 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

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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 Art. 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 Art. 32 of  the Constitution.  We would  like to  mention in this context that  the power conferred upon sec. 144 Cr.P.C. 1973 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 Art. 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. 144 Cr.P.C. 1973 must be held to be amenable to  writ jurisdiction either under Art. 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. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Art. 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

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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 s. 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

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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  s.  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 v.  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  G.O. 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

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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 v.  Chinna  Krishna  Ayyangar Turner C.J.  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. v. 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 C.J. 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

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    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. v.  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 v. 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  s.  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 s. 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 s. 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

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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  s. 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 C.J. 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 4.12.1978 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 6.12.1976 in  Civil Appeal No. 941 of 1976 and reiterated in its order  dated 16.12.1976  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

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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 No.3906 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 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  (in  W.P.No.2397)  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 No.2397/1973 by this Court in Civil  Appeal   No.941  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.  232/1934.  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 28th/31st  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

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1st of December, 1956 under Rule 54 1136 (vii) was  the Notification under s.5 (1) of the U.P. 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 s. 144 Cr. P.C.  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. S.R.                                       Petition allowed. 1137