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TMI Blog1981 (11) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arsias 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 ₹ 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 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 nin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 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 Petitioners the aggrieved party-and mostly Shias were aggrieved-was required to approach the superior Courts by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a competent Court. On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court s decision in earlier litigation and quashed the City Magistrate s order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases. Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation in representative character between the parties including the Allahabad High Court s decision in second Appeal No. 1726 of 1935. But one week later the same City Magistrate passed another order under sec. 144 Cr. P. C. on 28th January, 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite contrary to his earlier order dated 21-1-1978 and in utter disregard of the judgment of this Court in Review Petition No. 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias; in fact by that order the City Magistrate completely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining plots in Mohalla Doshipura. This order dated 28-1-1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13-2-1978 on the ground that the impugned order had ceased to be operative by then and Revision had become infructuous. Subsequent to this on several occasions requests were made by Shias of Mohalla Doshipura seeking permission for doing ceremonies and taking out Tazia Procession but on every occasion the City Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures 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 doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective 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. 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 in their favour by de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atu and Ors. (Sunni Muslims) in the Munsif s Court at Benaras the dispute pertained to the mosque in Plot No. 246 and the Plaintiffs rights to hold their Majlises on 9th and 12th of MOHARRAM inside the mosque and to keep and repair their Tazia in that mosque, and the learned Munsif Shri Pramode Charan Banerji by his judgment dated 29th March, 1879 held : (a) that the disputed mosque was built by general subscription, that it belonged to members of both the sects and that every Mohammedan had a right to worship in it; (b) that the plaintiffs failed to establish their claims about the holding of the Majlises and the cooking and distribution of food in the mosque but the probabilities were that the Majlises of 9th and 12th MOHARRAM were held by them on or close to the platform on the surrounding ground and (c) that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra (apartment) of the mosque and to repair the same in the tiled Saeban (Varandah) of the mosque and the defendants were restrained from interfering with plaintiff s rights in respect of the above matter; the rest of the plaintiffs claim was dismissed. Civil Appeal No. 73 of 1879 was preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the plot in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clear that technical aspects of s. 11 of C. P. C., as for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and determining the number of all Shia and Sunni Wakfs within the area of their jurisdiction, the nature of each Wakf, the gross-income of property comprised in the Wakf etc. and under sec. 4 (5) on completion of inquiry they had to submit their Reports of Inquiries to the State Government; under sec. 5 (1) a copy of the Commissioner s Report had to be sent to each of the Central Boards (the Shia Central Wakfs Board and Sunni Central Wakfs Board) whereupon each Central Board had to, as soon as possible, notify in the Official Gazette the Wakfs relating to the particular sect to which, according to such report, the provisions of this Act applied: under sec. 5 (2) the Central Board or the Mutawali of a wakf of any other person interested in it, if aggrieved by the decision recorded by the Commissioner in his Report had to bring a suit in a Civil Court competent jurisdiction for a declaration or appropriate relief and such a suit by the Central Board had to be filed within two years of the receipt of the Report by the Board and by the Mutawali or a person interested within one year of the Notification mentioned in sub-sec. (1); and sec. 5 (3) accorded, subject to the final result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provincial Commissioner of Wakfs under sec. 4A of the 1936 Act for the purpose of making a survey of all the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Report together with Appendices X and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of which the Notification dated 15th J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and while making the entry by mistake Mohalla 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 Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ₹ 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 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 17.4.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 of the Code had been conferred on District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government and it was in those circumstances that the view prevailed in the decisions of several High Courts that the order passed by a Magistrate under s. 144 of that Code was a judicial ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y), (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive 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 exclusively entrusted to a Judicial Magistrate whereas under s. 106 of the old Code such power could be exercised by a Presidency Magistrate, a District Magistrate or Sub-Divisional Magistrate, but the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of executive power in performance of executive function the next question that we have to deal with is whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November, 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of celebration of MOHARRAM festival at the Baradari in Mohalla Doshipura. As already stated the challenge to this order was incorporated in the writ petition by way of an amendment which had been allowed by the Court. Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity. Since however, occasions or situations arise even during a year as well as year after year making it necessary for the executive magistracy of Varanasi to take action under sec. 144 and since it has been the contention of the petitioners,-though stoutly disputed by all the respondentsthat the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject- matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrates should make it an invariable condition that music shall cease playing while the procession is passing any recognised place of worship, to whatever denomination belonging, except of course the places of worship appertaining to the processionaries themselves. Some leading Hindus of Sevvaipett filed a suit in Munsif s Court against Mohammedans for a declaration of their right to conduct their processions with music past the site occupied by the mosque and challenged the validity of the District Magistrate s order that the music of their processions should stop whilst passing or repassing the mosque. The Munsif s Court granted a decree in favour of the plaintiffs which was reversed by the District Court but was restored with some qualification by the High Court in second appeal. The High Court laid down that whilst the law recognised the right of an assembly, lawfully engaged in religious worship or religious ceremonies, not to be disturbed, it also recognised the right of persons for a lawful purpose, whether civil or religious, to use a common highway in parading it attended by music, so that they do not obstruct use of it by other persons; that whenever a conflict of righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded rights. Again at page 220 he has observed thus: I must nevertheless observe that this power (to suspend the exercise of legal rights on being satisfied about the existence of an emergency) is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the per- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt to prevent the exercise of legal rights by others or imperil the public safety and health. The instant case, as we have held above, is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject matter of a judicial pronouncement and decree of Civil Court of competent jurisdiction as also by reason of these properties having been registered as Shia Waqfs for performance of their religious ceremonies and functions and their complaint has been that the power under 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has been explained, namely, that it is founded on considerations of high public policy to achieve two objectives, namely, (a) that there must be a finality to litigation and (b) that the individuals should not be harassed twice over with the same kind of litigation and in our view neither of these aspects is present here so as to bar the present petition by res judicata or principle analogous to res judicata. We would like to point out that the present litigation has been fought in a representative character both as regards the petitioners who are representing the Shia community and as regards the respondents 5 and 6 who are representing the Sunni community whereas the earlier writ petitions Nos. 2397 of 1973 (out of which arose the Civil Appeal No. 941 of 1976) and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier litigation either before the Allahabad High Court, or before this Court was produced before us during the hearing on the basis of which the members of the Shia community sought to prove their existing and established entitlement to their customary rights. In fact it was one of the contentions of the respondents 5 and 6 that before the Allahabad High Court in the earlier litigation the then petitioners had misled the Court into believing that the Notification issued by the Shia Board on 1st of December, 1956 under Rule 54 (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, observance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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