Holding

The Court held that the Shia community has established customary rights to perform their religious rites on the nine plots, that Section 144 orders are executive and amenable to writ jurisdiction, and that the petition is not barred by res judicata, thereby granting mandamus to restrain interference.

Summary

The Supreme Court examined a writ petition filed under Article 32 by the Shia community of Mohalla Doshipura, Varanasi, seeking enforcement of their customary rights to perform religious rites on nine specific plots and structures, rights previously affirmed by civil courts and Wakf registrations. The petition challenged repeated orders under Section 144 of the Criminal Procedure Code that prohibited these rites, alleging that the orders were perverse and infringed fundamental rights under Articles 25 and 26. The Court held that the Shia community's customary rights were established and enforceable, that Section 144 orders are executive in nature and therefore amenable to writ jurisdiction, and that the petition was not barred by res judicata. It also clarified the effect of the Uttar Pradesh Muslim Wakf Acts of 1936 and 1960, confirming the finality of earlier Wakf registrations. Consequently, the Court issued a mandamus restraining the respondents and executive magistrates from interfering with the Shias' religious practices and provided guidelines for the proper exercise of Section 144.

Issues considered

The enforceability of the Shia community's customary religious rights under Article 32 of the Constitution.
Whether orders issued under Section 144 of the Criminal Procedure Code are judicial/quasi‑judicial or executive and thus subject to writ jurisdiction.
The applicability of the doctrine of res judicata to the present writ petition.
The effect of the Uttar Pradesh Muslim Wakf Acts (1936 & 1960) on the finality of Wakf registrations and titles.
The propriety of granting mandamus to restrain interference with religious rites.

Legislation cited

Code of Civil Procedure, 1908s. Section 11
Code of Criminal Procedure, 1973s. Section 144, s. Section 397
Constitution of Indias. Article 25, s. Article 26, s. Article 32
Uttar Pradesh Muslim Wakf Act, 1936s. Section 38, s. Section 5, s. Section 5(2), s. Section 5(3)
Uttar Pradesh Muslim Wakf Act, 1960s. Section 28, s. Section 29, s. Section 6, s. Section 9

Subjects

religious freedomcustomary rightsWakfSection 144res judicatamandamusArticle 32Uttar PradeshShiaSunniMoharrampublic order

Judgment

1011 A

GULAM ABBAS & ORS.

v.
STATE OF U.P. & ORS.
B
November 3, 1981

[V. D. TULZAPURKAR, D. A. DESAI AND A.P. SEN, JJ.]

c
- Constitution of India, 1950, Articles 25 and 26-Right to enjoy the religious
faith and performance of religious rites, practices and observances on ctrtain plots
and properties belonging to Shia community, which have already been adjudicated,
determined and declared in their earlier /itigalion-Whtther such a right is
enforceable through a peti lion under Article 32 of the Constitution-Scope of
Article 32.
D
Res Judicata, bar of-Civil Procedure Code, section 11, explained.

Uttar Pradtsh Muslim Wakf Act, 1960 (Act XVI of 1960) repealing Uttar
• Pradesh Muslim Wakf Act, 1936 (Act XIII of 1936-Lega/ position as to the fina-
lity of Survey Reports and effect of regiJtration of Wakfs already made under the
earlier A.ct long before it was repealed-Words and phrases--" Every other Wakf"
in section 29 of the 1960 Act, meaning of. E
Criminal Procedure Code. 1973, section 144-Whtlher an order made under
section 144 Criminal Procednre 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. F

In MohaUa Doshipura of Varanasi city, there are two sects of Mohame-
dans-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,
f 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 G
Mohalla Doshipura. Shias of that Mohalla numbering about 4000 constitute a reli-
gious denomination having a common faith and they observe Moharram for two
months and eight days in a year in memory of Hazrat Imam Hussain who along
with his 72 followers attained martyrdom at Karbala in Iraq. The said religious
belief is practised by the men.folk and the women-folk of the Shia community
by holding Majlises (religious discourses), Recitations, Nowbas, Marsia, doing
H
1078 slJPREME COURT REPORTS (1982J 1 s.c.a..

A Matam (wailing) and taking out processions witb Tabut Tazia, Alams, Zulzinba,
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 pur~
pose 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, obser-
vances and functions, including those relating to the Tazia, they will never be
delivered and till these are performed the whole comn1unity 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
c rites, practices, observances and functions on the said nine plots and the structu·
res thereon having been already determined in their favour by decisions of com-
petent civil courts ending with the Review Petition 36/77 in Civil Appeal 941/76
in the Supreme Court, the respondents must be con1manded by a mandamus not
to prohibit or restrain the $bias from performing their religious rites etc. on the
said plots; (ii) that the registration of Shia Waqfs concerning the plots and struc-
tures 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
0 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 ex:ercised perversely and in
uiter disregard of the lawful exercise of Shias' legal rights to perform their reli-
gious ceremonies and functions and instead of being exercised in aid of such law-
ful exercise it is exercised in favour of those who unlawfully and illegally interfere
l!l with such lawful ex:ercise under the facile ground of apprehension of imminent
danger to peace and tranquility of the locality.

The respondents contested and contendc:d as follows : (i) that a Writ
Petition under Article 32. for such a relief of declaration is not maintainable in-
asmuch 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
F of such rights or entitlement thereto; (ii) that no :mandamus under Article 32 is
competent inasmuch as orders under s. 1 ~4 Cr. P.C. these are judicial or quasi-
judicial; alternatively even if it were assumed that these orders are administrative
or executive orders passed by the Ex:ecutive Magistrates, they cannot be challen·
ged 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
re.s judicata or principles analogous to re.s judicata by reason of the Supreme I
G Court's decisions in (a) Civil Appeal 941/1976. (b) Review Petition 36 of 1977 and '
(c) Order permitting withdrawal ofS.L.P. 6226of1978 on 4-12-1978.

Allowing the petition, the Court

H HELD : 1 : 1. The petitioners and through them the Shia community of
Mahalia Doshipura, Varanasi, have established their customary rights to perform

I
GULAM ABBAS v. U.P. STATE 1079

their religious rites, practices, observances, ceremonies and functions minus the A
-recitation and utterance ofTabura over the plots in question. [1136 B-C]

I : 2. The litigation arising out of Suit No. 849 of 1878 (Sheik Sahib and
Ors. v. Rahmatu 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 1he Shias' right to keep their Te.zia in the apartment attached to the
n1osquc and repair it in the verandah thereof and to hold their majlises on 9th B
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 alJeged customary rights of Sunnis in the matter of burial of their dead
on the plot No. 602/1133 was decided against them, in the Suit No. 424/1931 filed
by the then Maharaja of Banaras in 1he Court of Addi. Muosiff, Banaras.
[ 1099 A-B, G] c
.. The third and most important Suit No. 232/ 1934 filed in the court of City
Munsiff, Banaras (Fathty Ullah and Ors. lSllnllis) v. Nazir Hussain and Ors .
(Shias) in respect of all the plots in Khasra Nos 245, 246, 247, 248/23172, 602,
603, 602/1133, 246/1134 and 247/1130 which were claimed to be Sunni Wakfs by
long user, also \\.-ent against the Sunnis and in favour of the Shias, clearly esta-
blishing the title or ownership of Shias over at least two main structures Zanana
lmambara on plot No. 245 and Baradari on plot No. 247/1130 and to the land D
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-defendants and all the formalities under
Order I rule 8 of the Civil Procedure Code had been complied with and as such E
the 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
enlertaincd by the Supreme Court for enforcement of existing or established
title or 1ights for preventing infringement or encroachment thereof by
granting appropriate n:licfs 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 1he concerned nine
plots and structure~ thereon \Nhich have already been adjudicated, determined
and declared in their favour by decisions of competent Civil Couris in the earlier
litigation" and that the decJ ... ration sought in the prayer clause is really inciden-
tal. (1097 A-CJ G
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 nlembers of the Shia
community to perform their religious ceremonies and functions on the plots and
the structures thereon. However, even if the petitioners and through them the H
Shia community are unable to prove their existing or established title either to
~h~ c9n~efne9 plpts or to the structures standing thereon but they are able to
1080 SUPREME COURT REPORTS (I 982] I s.C.R.

A 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 co'nsidered on merits and whatever relief they may be found
legally and properly entitled to may have to be granted to them. [1097 C-F]
8
3 : I. It is well settled that section 11 of the Civil Procedure Code is not
exhaustive of the general doctrine of rts judicata and though the rule of res judi-
cata 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 indivirluals should not

c be harassed twice over with the san1e 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-BJ
D
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
E 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 represen-
tative character not merely negatived the Sunnis' customary rights claimed
by then1 over the plots and structures but adjudicated, determined and declared
F the Shias' entitlement to their customary rjghts to perform their religious cere-
monies 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 C'!Stomary rights in favour of the Shias' community to perform 't·
G 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 ins·
tant Writ Petition has been filed. [1107 B-H, 1108 A]

Rajah Run Bahadoor Singh v. Musumut Lachoo Koer, XII I. A. 23: Mst.
ff Guiab Bai v. Manphool Bai, [1962) 3 SCR 483; Daryao and others v. Stale of
U.P. [1962] I SCR 574; Gulab~hand Chho/4/q/ Parikh v, srare of Bombay (now

I
CitJLAM ABilAS v. U.P. STATE JOSI

Gujarat), [1965] 2 SCR 547 and Union of India v. Nanak Singh, [1968) 2 SCR 887,
A
referred to.

4 : 1. Broadly speaking, while repealing the 1936 Act, the 1960 Act main-
tains 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
8
under the latter Act has been permiited 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 A.ct 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 c
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 pro-
perties 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
D
specificaJly 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 E
the properties notified as Shia Wakfs. Non-mentioning of those properties as
Sunni Wakfs in ~Appendices VIII and IX sent to the Sunni C.Cntral 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 challeng-
ing 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, F
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 thr 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 Commis·
sioner•s Report would be in violation of section 5(1) of the 1936 Act; (c) Notice G
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 ~x majori cautela;
and (d) even if it were assumed for the purposes of argument that entry at Serial
224 in the Notification dated 26th February, 1944 refers to the mosque in question
it cannot affect the customary rights of the petitioners and through them the Shia
community to perform their religious ceremonies and functions over the other H
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
108i SUPREME CO tlRT REPORTS [!98iJ I s.C.R.

A that the mosque on Plot No. 246 is a public mosque constructed by general subs-
criptions and is accessible to members of both the sects for offering praye-rs and
doing worship therein; (e) lhe registration under section· 38 of the 1936 Act
would be available to the petitioners and must prevail over the subsequent regis··
tration, 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 exis-
B ting or established entitlement to their customary rights to perform their religious
ceremonies and functions on the concerned plots and structures thereon.
[1113B-G, 1115 A-B,1!16E·A,1117A-B]
. ..

4 : 3. Shias are claiming the right to perform their re1igious ceremonies and
functions on the plots and structures in question not 50 much on the basis of any
title or ownership thereof but on the basis of customary exercise since time
c 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
notwith'ltanding such superior title in the Maharaja and if that be so they win
also enure for their benefit as against any derivative title claimed by anyon,1
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
D 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 prescrip-
tion 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
E 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 no1
a judicial order or quasi·judicial order, the function thereunder being essentially

F
an executive (police) function. [1125 E-G]

5 : 2. It is true that before passing the order the District Magistrate, SubM
-
Divisional Magistrate or the Executive Magistrate gives a hearing to parties
except in cases of emergency when ex parte order can be made under section
144(2) by him without notice to the person or persons against whom it is directed,
but in which cases on an application made by any aggrieved person he has to
give hearing to such person under section 144(5) and thereupon he may rescind
or alter his earlier order. It is also true that such an order made by the Exccu·
G tive Magistrate is revisable under section 397 of the Code because under the
Explanation to that section all Magistrates, whether executive or judicial or whe~
ther exercising appellate or original jurisdiction, are deemed to be inferior Courts
for purposes of the revisional power of the High Court or Court of Session<>.
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 oudi a/terenr I
H partem rule which are regarded as essential in the performance of any executive or
administrative function and the further fact that a revision Hes against the order
of the executive magistrate either to the Sessions Court or to the High Court
GULAM ABBAS v. !J.P. STATE 1083
removes the vice of arbitrariness, if any, pertaining to the section. In fact, in A
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 Mad!t11
Limaye's case where the const1tutionality of section 144 o( 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 chal-
lenge 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 B
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
c
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 tran-
quility 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 D
+. 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 perfor-
med under both being the same by parity of reasoning an order made under sec-
tion 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-BJ
E
5: 4. In urgent cases of nuisance or apprehended danger, where imme-
diate prevention or speedy remedy is desirable, a District Magistrate, a Sub-
Divisional Magistrate or any other Executive Magistrate special1y 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
F
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 empl.:;yed, or danger to human life, health or safety, or a distur-
bance of public tranquility, or a riot or an affray. Sub·section (2) authorises the
issuance of such an ord~r ex-parte in cases of emergency or in cases where cir-
cumstances do not admit of the serving in due time of a notice upon the person G
or persons against whom the order is directed but in such cases under sub-
section (5) the executive magistrate, either on his own motion or on the applica-
tion of the perion 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-EJ
H
ios4 SUPirnMil COURT kili>Okts (t9flij 1 S.C.l·

A 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 prevent-
ing 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 func~
tion effectively during emergent situations and as such it may become necessary
8 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 per-
fectly lawful in themselves, for, it is obvious that when there is a cOnflict between
the public interest and private rights tbe former must prevail. The section does
not confer any power on the Executive Magistrate to adjudicate or decide disputes JA
of Civil nature or questions of title to properties or entitlements to rights but at

c
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 pro-
..
nouncements 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 establi-
shed 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
D dispute over the other but in a fair manner ordinarily in defence of legal rights,
ff 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. Furlhermore, 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
E 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.
F [1126 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, !LR 6 Mad. 203, approved.

Hasan and Ors. v. Muhammad Zaman and Ors. 52 I.A. 61 and Haji Moham-
G mad Ismail v. Munshi Barkal Ali and Ors., 24 Cr. L,J, 154, applied.

Madhu Limaye's case, [1971) 2 SCR 711, followed.

D.V. Be/vi v. Emperor, AIR 1931 Born. 325; Queen Empress v. Tirunarasimha
H Chari, J.L.R. 19 Mad. 18; Muthuswami Servaigram and Anr. v. Thangammal
Ayiyar, AIR 30 Mad. 242; Bondalpati Thatayya v. Gol/apuri BaJavayya and Ors.,
1
AIR 1953 Mad. 956; Babula/ Parale's case [1963] 3 SCR 432; K.K. Misra's case.
GULAM ABBAS V. U.P. STATE 1085

[1970] 3 SCR 181; Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors. v. A
The State of Madhya Bharat and Ors., [1963] 3 SCR 18, The Parbhani Transport
Co-operative Society Ltd.. v. The &gional Transport Authority, [1960] 3 SCR 177,
Smt. Ujjam Bai'1 case, (1963] l 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 B
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
c
- 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 D
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)he petition who have filed their res·
pective 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 E
Court took the view that the parties should be relegated to a civil suit on the as·
sumption 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
F
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 judicafa would bar the present writ petition. [1134 G-H, 1135 A-D]
-\
r
G
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, H
Hasan Imam, Shanker Saran Lal ~llc;I Miss Kam/esh Qansa/ for ~h~
Petitioners.
1086 SUPREME COURT REPORTS [ 1982] I s.c.R.
A O.P. Rana and S. Markandeya for Respondents Nos. 1·4.

Anil B. Dewan, K.L. H'1thi, P. Parmeswaran, P.C. Kapoor and
M.A. Quadeer for Respondents Nos. 5·6.

Haider Abbas and Miss Kamini Jaiswal for Respondent No. 8
8 (Shia Waqf Board, U.P.)

F.S. Nariman, M. Qamaruddin, Mrs. M. Qamaruddin, z.
Ji/ani
and Mrs. Sahkil Ahmed for Respondent No. 7 (U.P. Sunni Central
Board of Waqf)

C 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 respon·
dents 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
E. 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,
F 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 appro·
priate writ, direction or order in the nature of mandamus com-
G manding respondents I 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
H 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, Sbia l
GUlAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1087

A
Central Waqf Board and Sunni Central Waqf Board be impleaded
as parties to the petition as their presence was felt necessary for com-
plete 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. B
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 c
... 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 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 D
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 E
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 cons-
tructed out of general subscription from members of both
'he sects and every Mohammedan is entitled to go in and F
Jerform his devotions according to the ritual of his own sect
or school.

-
-t
Plot No 247/ I 130 : on which stands the Baradari
(Mardana IJTambara - structure of white stone having 12
G
pillars) constructed by Shias in 1893 used for holding
Majlises, Recitations, Marsia and doing other perfor-
mances.

Plot No. 245 : on which there is a Zanana Imambara H
used by Shias ladies for mourning purposes and holding
Majlises etc,
1088 SUPREME COURT REPORTS [1982J I S.C.R.

A 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 peodency of the instant pro-
ceeding).

Plot No. 248/23/72 : a plot belonging to one
B Asadullah, a Shia Muslim, with his house standing
thereon.

Plot No. 246/ JJ 34 : on which stands a Sabi! 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.
D
Particulars of the religious rites, practices and functions per-
formed by the members of the Shia community on the occasion of
the observance of MOHARRAM RE:

E (a) the Tazia (representing and signifying the dead body
of Hazrat Imam Hussain) is kept in the Baradari on
plot No. 247 / l I 30 and for the first I 2 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/
F 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 proces-
sion (a procession of the replica of the horse of Pro-
phet Mohammed, which was also killed at the Karbala
G 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
H 36 hours and terminates at the place of its origin.
Offerings to the horse are made not only by the Shias
GULAM AbBAS v. U<P. STATE (Tu/zapurkar, J,) 1089

but also by persons of other communities during the A
procession under the religious belief that such offerings
bring in good fortune.

(c) On the 10th day of MOHARRAM, the Tazia bede-
cked with flowers is taken out in huge procession to
B
Karbala situated near Lord Bharon, 3 miles from
Doshipura (the place signifying the Karbala in Iraq
where martyrdom occutred), where the flowers of the
Tazia are buried and then Majlis is held at that place.

- (d) On the I Ith and 12th day of MOHARRAM Majlis
(religious discourse) is held and the Qurankhani and
Tajia are performed in the Baradari and the adjoining
c
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,
D
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 E
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
F
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 matyrdom of Hazrat Imam Hussain Pachesa is G
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, H
1090 SUPREME couar RllPOlttS (1982] 1 S.C.R.

A 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
B day again on the Baradari, adjoining plots and
Zanana Imambara Majlis is held which is accompanied
by Qurankhani, Nawhaz and Marsias in which men-
folk and women-folk participate.

c
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 lakbs.
-
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
D 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 mourn··
ing and in none of their families any marriage or other happy
function can take place. The aforesaid religious faith and the per·
E formance of the rites, practices, observances and functions detailed
above constitue their fundamenlal 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 nine plots and in or about the structures standing

F
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:
(I) Decisions of competent civil courts adjudicting these rights in
G 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
H within two years by any member of Sunni community or the Sunni -
r'
Central Wakf Board. In other words previous decisions of Civil
Courts and registration of their Shia Wakfs under the U.P. Muslim
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1091

Wakfs Act. 1936 have concluded the said rights in their favour and A
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 Sbia 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 B
the Shias from performing their religious rites, practices, obser·
vances and functions on the plots and the structures Handing
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 c
rejection of the false claims of the Sunnis the position in Mohalla
Dosbipura remained satisfactory for nearly two decades and
the Sbias could perform their religious functions and ceremonies
without any let or hinderaoce but from the year 1960 onwards the
Sunnis, who were in majority and were able to muster support of
D
local politicians and the police, started creating trouble and interfe·
rence by indulging in violence with a result that the Executive Autho-
rities 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 religions func-
tions and ceremonies. Thus during the period 1960-66 the Executive
E
power under sec. 144 Cr. P.C. came to be used each year to curtail
the rights of the Shias to perforn their religious practices and func-
tions at the Baradari, other structures and the appurtenant plots on
the occassion of the Barawafat; sometimes restraints were al so
placed on the Sunnis. During the years 1967 to 1969 similar orders
depriving the Shias of their legitimate rights on the occasion of
F
MOHARRAM, Cbehulam, 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 observan·
.
-\ ces on terms and conditions during the stated hours. More often
than not under the pretext of imminent danger to peace and tranqui-
G
lity both the communities were completely prohibited from carrying
out their religious functions and ceremonies under such orders but
since members of the Sunni community bad very little to lose in rela-
tion to the plots and structures in question it was the Shia commu·
nity that suffered most. According to the Petitioners the aggrieved ff
party-and mostly Sbias were aggrieved-was required to approach
-
>\
1092 SUPREME COURT REPORTS [1982] I s.c.R.

A the superior Courts by way of appeal or revision but usually before
the matter could be decided on merits the impugned orders exhaus-
ted themselves by influx of time and the remedy by way of appeal or
revision was rendered infructnous and the controversy remained un.-
decided. However, when in the year 1973 on the occasion of Bara-
wafat the City Magistrate, Varanasi by his order dated 12th April,
B 1973 prohibited the Shias from performing Barawafat on the Bara-
dari 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
c 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 ad-
joining plots appurtenant to it and also prohibiting them from
permitting the Sunnis to make use of the Baradari and its adjoin-
ing plots. This Writ Petition and the connected criminal cases (being
D 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 Angust 8, 1975. Notwith-
standing the fact that the various impugned orders had exhausted
themselves by efllux of time the High Court fe It that where a situation
arose year after year making it necessary to take action u./sec. 144
E 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 repe-
tition of successive orders under sec. 144 resulted in a permanent
interference with private legal rights it had to be deprecated and
F
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
G or not it was possible to afford protection to those who seek only
the lawful exercise of the legal and natural rights, that the autho·
rity of a Magistrate under this section should ordinarily be exercised
in defence of legal rights and lawful performance of duties rather
H than in suppressing them and that this power is not to be used
in a manner that would either give material advantage to one
I'
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1093

party to the dispute over the other or interdict the doing of an A
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 B
functions on thei occasion of Barawafat on the Baradari and the
adjoining plots in question in Mohalla Doshipura and also passed
appropraite 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 Cr!. 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 impugened orders unders sec.144
c

when those orders had ceased to be oprative 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 D

. 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 deci- E
ded 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 01 the
Petitioners ( Gulam Abbas and others) that in a representative suit
between Shia and Sunni sects of Muslims question of title to pro-
perties or places to which the Magistrates' orders under sec. 144
F
Cr P.C. related has already been decided. If that be so, we have
no doubt that the Magistrate will respect that decision m 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 bad passed an order
G
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
H
in the Review Petition modified his earlier order on 19-12-1977
1094 SUPREMB COURT REPORTS [ 1982] I S.C.R.

A 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
B 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
c 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 pro-
D nouncements 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 cha-
.
llenged by way of revision in the High Court but the Revisional
application was dismissed on 13-2-1978 on the ground that the im-
E pugned order had ceased to be operative by then and Revision had
become iufructuous. Subsequent to this on several occasions requests
were made by Shias of Mohalla Doshipura seeking permission for
doing ceremonies and taking out Tazia Procession but on every
occasion the City Magistrate refused permission. In the circumstances
a Writ Petition No. 3906 of 1978 was filed by Gulam Abbas and
F other Shia Muslims in the Allahabad High Court praying for manda-
mus against the State of U. P. and its Magisterial officers, Varanasi,
directing them to grant permission for perforeming 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 judg-
ment dated 6.12.1976 of this Court in Civil Appeal No. 941of1976;
G 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
H November, 1979 under sec. 144 Cr. P. C. prohibiting both Shia and
Sunni communities from holding their Majlises and imposing other
GULAM ABBAS v. u.~. STATE (Tulzapurkar, J.) 1095

restrictions (the restriction on Recitation of Tabarra by Shias is not A
challenged) on the occasion of celebration of Moharram
Festival at the Baradari ard 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 B
contended that the exercise of the power under sec. 144 Cr. P. C.
bas 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 immi-
c
nent 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
D
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,
E
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 owner-
ship of the structures on those plots and the rights excercisable by
the Shia community over the concerned plots and structures thereon
and there are considerable gaps and inadequacies in the documents
F
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 G
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 dec-
laration of such rights or entitlement thereto. In this behalf respon-
dents 5 and 6 have doubted and disputed the effect and binding H
nature of the earlier court decisions, particularly of the judgments
rendered by.the Munsif's Court, Vanarasi in Suit No. 232 of 1934
1096 SUPREME COURT REPORTS (1982] J S.C.R.

A (Fathey Ullah & Ors. v. Nazir Hussain and Ors.) and by the Appe-
llate 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
B 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-judi-
cial orders passed by a Court under sec. 144 Cr. P. C. and no funda-
mental right can be said to be infringed by any judicial or quasi judicial
c orders; alternatively are administrative even if it were assumed that
these orders are administrative or executive orders passed by Execu-
tive 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 sub-
sequent to this Court's decision dated 16-12-1977 in Review Peti-
D tion 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-judicat a or principles
E analongous 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 Beneh 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
F 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
G cases of each community respresented by the Petitioners on the one
hand and respondents 5 and 6 O'l the other respectively and each
one has placed such additional material before the court as was in
its possession toucbmg the registration of Shia Wakfs and Sunni
Wakfs under the two enactments U.P. Muslim Wakfs Act, 1936 and
H U.P. Muslim Wakfs Act, 1960.
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1097

It cannot be disputed that ordinarily adjudication of questions A
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 enter-
tained 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, B
counsel for the Petitioners contended before us and in our view
rightly that all that the Shia community is seeking by this Petition is

. • '
enforcement of their customary rights to perform their religious
rites, practices, observances and functions on the concerned nine
plots and structures thereon which have already been adjudicated,
... 'determined and declared in their favour by decisions of competent c
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
distint from the customary rights claimed by the members of the
Shia community to perform their religious ceremonies and functions D
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 exsiting or established title either to the con-
cerned 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 E
the structures thereon simultaneously complaining of illegal depri-
vation 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 F
• 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 struc-
tures 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
G
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
H
for performance of these practices and functions under secs. 5 and
1098 SUPREME COURT REPORTS [1982] I S.C.R.

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
·8 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 •
c the Munsif's Court at Benaras the dispute pertained to the mosque
in Plot No. 246 and the Plaintiffs' rights to bold 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 sub-
D scription, that it belonged to members of both the sects and that
every Mohammedan bad 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
M OHARRAM were held by them on or close to the platfrom on
E 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 (Varandab)
of the mosque and the defendants were restrained from interfering
with plaintiff's rights in respect of the above matte<; the rest of the
the plaintiffs' claim was dismissed. Civil Appeal No. 73 of
F 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 dis- •
missed by Shri Ram Kali Choudhary, Subordinate Judge, Banaras
on 16th December, 1879 and the trial court's decree was confirmed.
G Jn 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 bold their Majlises on 9th and 12 of
H MOHAR RAM on or near the platform on the surrounding ground
of the mosque as early as on 29th March, 1879.
GULAM ABBAS v. U.P. STATE (Tulzopurkar, J.) 1099

It appears that the Sunni Muslims of Mohalla Doshipura, A
Varanasi repeatedly tried to put forward their false claims and
rights over some of the Plots in question and in particular attemp-
t~d 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 8
of 1931 in the Court of Additional Munsif, Banaras against
Shamshuddin and Ors. representing all Muslims residing in Banaras
under 0. 1, R. 8 C.P.C. (though the nominee defendants were
'. Sunni Muslims) praying for a declaration of his rights as owner and
•
- Zaniindar 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
c

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 D
that since a portion of the plot No. 602/ l l 33 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 E
construct a house over that portion because of defendants' interfere-
nce, 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 ques- F
tion 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 G
plaintiffs Nos. 2 to 5 retired leaving plaintiff No. I (the Maharaja)
alone to fight out the case. Shri Kanhaiya Lal Nagar the learned
Sudordinate 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 be made a reference to the fact that H
' \
I JOO SUPREME COURT REPORTS (1982] I S.C.R.

A 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
B places in order to wound the former's religious feeliugs but one had
to look to the proprietory title and possessoin of His Highness the
Mabaraja. 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
c 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 be res-
trained the defendents 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
D of graves he took the view that it would be a hit 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
E 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 0.1, R.8 C. P. C.) the custo-
F mary 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
G 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 bind-
ding on the entire Sunni community not only of Doshipura but all
those residing in the city of Banaras, albeit as against the
Maharaja.
H -'
Then comes the third and the most important litigation which
was between the two rival sects of Muslims of Moballa Doshipura,
GULAM ABBAS v. U.P. s TA!E (Tulzqwkar, J.) 1101

Varanasi and that is Suit No. 232 of 1934 filed in the Court of City A
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 B
the said plots and structures thereon. It was alleged that the defen-
dants' 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 c
in Civil Appeal No. 73 of 1879) but they had made unauthorised
constructions on some of the plots. The plaintiffs prayed that the
defendants be directed to remove their unauthorised constructions
and that a perpetual injunction be issued against them restraining
.them from holding their majlises near the mosque or Imam Chowk.
or on any other plot in suit except on 9th and 12th of MOHARRAM. D
The defendants contested the suit and denied that the plots were
Sunni Wakfs and further denied that the planitiffs 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 E
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 construc-
tion on plot No. 245 (being Zanana lmambara) and issued a perpetu-
al injunction restraining the defendants from holding their Majlises in
F
- 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 Cbabutra (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
G
on 18th September, 1935 allowed the defendants' appeal, set aside the
decree of the trial Court and dismis~ed 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
H
His Highness the Maharaja of Banaras was the Zamidar of the plots
I '
1102 SUPRBME COURT RBPORTS [1982] I S.C.R.

A 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 Pokllta 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 (b) that the plaintiffs had failed to prove that the other plots were
wakfs in their favour; (c) that the planitiffs 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 r1mam Sahib (Zanana Imambara) had been *
c 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 ;t was a Wakf;
(f) that the defendants and the Shia Muslims were entitled to use
D plots Nos. 246/1134, (containing Sabi! Chabutra) and 247/1130 (the
Baradari i.e. Mardana Jmambara) 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
E (Cbabutra) that appertained to the house had been rightly directed
not to be demolished. As regards the two plots namely plot No. 602
(Two Biswas and ten Dhoors) which was taken on lease by one
Sheikh Fazil, a Sunni barber from the Maharaja of Banaras under a
Patta dated 26th June, l 927 and plot No. 603 (Two Biswas Three
Dhoors) which was taken on lease by one Mahomad Niamat-Ullah
F a Sunni weaver from the Maharaja under a Patta dated 15th Septem-
ber, 1930 the appellate Court observed that these did not appear
to have reamained in the possession of the plaintiffs (Sunni Muslims),
-
The deeision 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
G structures and what is more substantially the customary rights claim-
ed 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
H but tbe same was dismissed by the High Court by its judgment
',
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1103

dated 9th December, 1938. Dealing with the question of the Shias' A
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 pur-
pose 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 Sbias have built. This
appears to us to be a very strange proposition. Where a community B
has made a building for the purpose of its own religious services it
appears to ns contrary to law that any one can question the right of
• 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
c
'
- 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 Mahalia D~shipura, Banaras by the
result thereof and in that behalf counsel pointed out that neither the D
title of the plaint showed that the suit bad 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 represen-
tative capacity produced and there was no statement in any of the
judgments indicating the representative character of the suit. It is E
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 Mahalia Doshipura of Banaras City, in para 11
there was an express averment that the suit was filed under Order I
r. 8 C.P.C. and that a proclamation be issued by the Court in the F
interest of justice so that those from Sunni sect and Shia sect of
Muslims who desired to contest the suit may get themselves implead-
ed to the suit, secondly a public notice under Order l 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 transla-
tion whereof has been anne<.e<l as Annexure VI to the Writ Petition
G
and the original issue of Oudh Panch, Lucknow dated 19th August
J934 was produced during the hearing) setting out in brief the aver-
ments and the reliefs contained in the plaint and inviting members of
both Sunni and Shia sects to get them impleaded as party to the
H
suit if they so desired; thirdly the expenses of such publication of the
I, notice amounting to Rs. 7 have been shown as an item of costs
1104 SUPREME COURT REPORTS [1982] I S.<;.R

A 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
B 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 I r. 8 of the C.P.C. had been complied with.
c A crude attempt was made at a belated stage of hearing by respon-
dents 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 repre-
sentative character. To say the least the document is of a spurious
D 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
E 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 0. I r. 8 came to be passed
on 24th August, 1934-5 days after the publication of the public
notice in the issue of Outh Panch 0"1 I 9th Aug. 1934; and if the
order dt. 24th August, I 934 was genuine how could expenses of such
publication be shown as an item of plaintiffs costs in the preliminary
decree passed on 2nd Feb. I935 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
G
three or four circumstances which we have indicated above conclu-
sively establish that the suit was filed by the plaintiffs as repre-
senting entire Sunni community of Mohalla Doshipura, Varanasi
against the defendants who represented the Shia c0mmunity and as
H such the final decision in that litigation is binding on members of
both the communties.

' .
GULAM ABBAS v. U.P. SfATE (Tulzapurkar, J.) 1105

Counsel for respondents 5 and 6 next contended that the A
decision in this litigation (Suit N~. 242 of 1934) would not ope-
rate res judicata against them or the Sunni community of Mahalia
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
8
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
I •
members of the Sunni community to agitate quetion of title either
to the plots or to the sturctures theron or even the Shias' entitlement
... to their customary rights over them. In support of this contention
c
counsel relied on two decisions namery, Rajah Run Bahadoor Singh
v. MussumutLachoo Koer(') and Mst. Guiab 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 the
C P. C. is not exhaustive of the general doctrine of res judicata
and though the rule of res judicata as enacted in s. II has some D
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.( 3) this Court at page 582 has observed
thus: E
"Now the rule of res judirata as indicated in s. 11 of
the Code of Civil Procedure has no duobt 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
F
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."'
G
Reference in this connection was made by the Court to the famous
decision in the leading Duchess of Kingsto'1's(') case. Halsbury's laws

0) XII I.A. 23,
r, (2) [1962] 3 S.C.R. 483. H
(3) (1962) I S.C.R. 574.
(4) 2 Smith Lead. Cas. 13th Edu. 644-645.
1106 SUPREME COURT REPORTS ( 1982] I S.C.R.

A of England(') and Corpus Juris.(') In Guiab Chand Chhotalal Parikh
v. State of Bombay (iow Gujc101) (3) 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 rai-
sing the same plea claiming discharge from the liability on the same
ground was entertainable or not and this Court held that on gene-
B ral principles of res judirnta 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:- •

c
"As a result of the above discussion, we are of opi-
nion 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 reg,ilar suit and that on the general princi-
D ple of res judicata, any previous decision on a matter in
controvesy, 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 Courr
deciding the matta formaly be competent to decide the
E subsequent suit or thal the former proceeding and the sub-
sequent suit have the same subject matter. The nature of the
former proceeding is immolerial.

We do not see any good reason to preclude such deci-
sions 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 limi-
ted effect to the principle of the finality of decisions after
full contest." (Emphasis suppliedj.

G 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

(1) 3rd Edition Vol. 15 para 357 at p. 185.
H (2) Vol. 34 p, 743.
(3) [1965] 2 SCR 547.
(4) [1968] 2 S.C.R. 887.
ll
I

GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1107

clear that technical aspects of s. 11 of C. P. C., as for instance,
pecuniary or subject-wise competence of the earlier forum to adjudi-
cate 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 8
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 deci-
sion of such competent Court on the concerned issues must ope-
rate as a bar to any subsequent agitation of the same issues bet•veen
• the same parties on general principles of res judicata. The conten-
tion 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 Shi.a community who
were party defendants to the suit. The contention is merely requi-
red to be stated to be rejected. Not only were the Sunnis' custo-
mary 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 al;o
directly and substantially put in issue inasmuch as the plaintiffs
(Sunni Muslim)had sought an injunction restraining tb.e Shias from
exercising their customary rights. Therefore, the decision in this
litigation which bore a representative character not mere! y
negatived the Sunnis' customary rights claimed by them over tb.e
plots and structures but adjudicated, determined and declared the
Shias' entitlement to their customary rights to perform their reli-
F
gious 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
G
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 custo-
mary rights in favour of the Shias' coll!munity to perform their
H
religious ceremonies and functions over the plots and structures
1108 SUPREME COURT REPORTS (1982) J S.C.R

A 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 peti-
tioners are claiming their customary rights for performing their
religious ceremonies and functions on the plots and constructions
B 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
c as Shia Wakfs followed by the Notification dated 15-1-1954 issued
by the Shia Central Wakf Board under sec. 5 (I) of the Act and
published in the U. P. Govenrment 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
Sunni Board or any other Sunni Muslim interested in it within
D the period specified under sec. 5(2) ofthe Act, and (b) that plots
and structures in que>tion had been registered as Shia Wakfs for
purposes of performing their religious ceremonies and functions there-
on 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 recog-
E nised 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
F 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 enact·
ments, the U.P. Muslim Wakfs Act, 1936 (Act XVIII of 1936) and
G 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
H conclusiveness accorded to the Survey Reports completed and sub·
mitted by the Wakfs Commissioners under the former Act and the
GULAM ABBAS V. U.P. STATE (Tulzapurkar, J.) 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 under·
taking survey of all Wakfs in such districts and appointments of 8
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 inqui-
ries as they considered necessary for ascertaining and determining
... the number of all Shia and Sunni Wakfs within the area of their c
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. S (I) a copy of the Commissioner's Report
bad to be sent to each of the Central Boards (the Shia Central
Wakfs Board and Sunni Central Wakfs Board) whereupon each D
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 E
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. (I); and sec. 5 (3) accorded, subject to the final result of
- such suit, finality and conclusiveness to the Commissioner's Report.
Section 38 of the Act provided for registration of Wakfs pertaining
to each sect by the concerned Central Board and the procedure to be
F

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. G
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 Commissio·
ners is contemplated by sec. 6 and under sec. 6(41 the Commissioner's
H
,., Report of Inquiry is required to be forwarded to each of the Boards
r,
1110 SUPREME COURT REPORTS [1982) I s.c.a

A
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 find;n~s or decisions recorded by Commissioner in his Report
the same shall be referred to Tribunal for adjudication, which must
8 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 impor-
tant and provides that proceedings of any survey of wakf proper-
ties started before the commecement 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
c chapter shall effect the finality of the decisions of the Chief State
Ccrrmis>ioner of Wakfs or of any State Commissioner of Wakfs or
-
Commisskner of\\ akfs in cases in which, prior to the commnce-
ment of this Act, the report of such Commissioner has become final;
in other words the finality and conclusiveness accorded to the
D Wakf Commissioners' RepJrt 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 pro-
visions 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.
F As stated earlier a perusal of these provisions of the two enact-
ments 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 nnder the 1936 Act has
been maintained under the 1960 Act notwithstanding the repeal of
the former Act by the latter. Tn other words any Survey Report
..'
G submitted under the I 960 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.

H It appears that the Government of Uttar Pradesh appointed
Shri Munshi Azimuddin Khan, a Deputy Collector, as a Chief or
.
''"'
GULAM ABBAS •. U.P. STATE (Tulzapurkar, J.) 111 l

Provincial Commissioner of Wakfs under sec. 4A of the 1936 Act A
for the purpose of making a survey of all the Waqfs in all the dis-
tricts 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 lmamhara 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
B
of property, namely, (I) 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 Imamhara on
Municipal No. J-15/96 (i.e. Plot No. 245), (4) Imam Chowk with

. land (i.e. on plot No. 247), (5) Chahutra Sabi! 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
c
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.), tte constructions having been made by subscriptions and
D
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 state-
ment of Imam Ali recorded on oath, together with the endorsement
E
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, peti-
tioner 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 F
making the necessary inquiries Shri Munshi Azimuddian Khan sub-
mitted to the State Government his Report dated 28th/31st Octo-
ber, 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 G
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 CC'mmissioner was
produced before us (marked Exh A) for our inspection by H
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 SUPREME COURT REPORTS [1982] I S.C.R

A 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
B Sbamshuddin Ahmed, Secretary to the Government of Uttar Pradesh
in the Waqfs and Appointment Department sworn on 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 rele·
vant appendices alongwith a copy of the Commissioner's report to < '

the respective Sunni Central Waqf Board and the Shia Central Waqf
c Board was taken as required bys. 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 Commis,ioner's Report together with Appen·
dices X and XI and through an affidavit dated 9th January, 1980
of their Peshkar Dularey Mirza, the Shia Board offered to produce
the said Appendices stating that the copy of the Report itself was
D not traceable as the same appeared to have been produced in some
court proceedings. It further appears that after receiving the afore-
said 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 Lin the Official Gazette all the Waqfs
relating to their sect on the basis of the Appendices annexed to the
E Report; the relevant Notification under sec. 5 (I) was issued on 15th
January, 1954 and published in the Government Gazette on 23rd
January, 1954. According to the petitioners the Sbia Waqfs in
question appear at SI. No. 55 (entry against the name of Imam Ali,
Dbosbipura, Banaras) on page 157 of Appendix Xand at SI. No. 431
(entry being 'Imambara and Masjid against the name of Imam Ali
F Mahato in the Gazette Notification dated 15th January, 1954).
Photostat copy of Entry at SI.No. 55 on page 157 of Appendix X has
been annexed to Dularey Mirza's Affidavit dated. 9th January, 1980 l
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 (I) of the 1936 Act bas been separately produced by the
G 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 obvi·
ously a mistake for he never claimed himself to be the settlor or
Waqif but only a Mutawalli of the Waqfs as is clear from
H
the application made by him and the statement on oath given by
him before the Commissioner and in fact the properties were claimed
OULAM ABBAS •• U.P. STATE (Tulzapurkar, J.) 1113

to be Shia public Waqfs by long user. It is also true that in the A
column 'Name of Waqf's the entry reads 'lmambara and Masjid'
suggesting as if only two properties were declared to be Shia Waqfs
but at the foot of the Notification under s. 5 (I) there is a nota bena
to the following effect :

"the details regarding property and other matters B
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
c
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, D
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
VIJI and IX sent to the Sunni Central Waqfs Board must amount to
a notice to the Sunni Board and the Sunni Muslims that these E
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 pres-
cribed under s. 5(2) of the Act, and, therefore, the Chief Commis-

- sioner'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
F

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.(1) where one of us (Sen, J.) has ana- G
lysed 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
H
l
' (I) (1979] 2 S.C.R. 148
I 114 SUPREME COURT REPORTS [ 1982) 1 S.C.R.

A 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, I944 issued by the Sunni Central Waqfs Boards
under s. 5(1) of the U.P. Muslim Waqfs Act, 1936 following upon
B the receipt of the Report of the Chief or Provincial Commissioner of
Waqfs in respect of mosque in Dos iipura 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
' .
c 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)
D
(said to have been received by the Sunni Board from the Commis·
sioner of Waqfs. Curiously enough the Sunni Central Waqfs Board
had stated through two affidavits dated 6th January, l9l0 and 9th
January, 1980 of their Pairokor Shri Mohd. Bashir Khan that along.
with the copy of t\ie Commissioner's Report Registers of Waqfs
E were received Lut no appendices like Appendices 'VIII and IX were
I
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 Q.,vernment
F Gazette by issuing the Notification dated 26th February, 1944 under
sec. 5 (I) of the Act. The Original Report of the Commissioner
does not refer to aaything like Registers of Waqfs but. as stated
earlier, it refers to Appendices Nos. vm, IX, X and X[ and the
endorsement on the slip under the s·gnature of the Cl1ief Commis- r
sioner shows that the former two appendices were sent to the Sunni 1:
G
Board and the latter two to the Shia Board. In face of this endorse-
ment 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
H 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. i\part from that aspect it is clear on their own
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1115

admission that the Notification under s. 5 (I} of the 1936 Act was A
issued by the Sunni Central Waqfs Board not on the basis of Appen-
dices VIII and IX which formed part of the Commissioner's Report
but on the basis of some Registers of Waqfs said to have been
received by it. The Notification regarding the Sunni Waqfs issued
on the basis of material which did not form part of the Chief Com-
missioner's Report would be in violation of s. 5(1) of the Act which B
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
I relevant entry in the Register of Waqfs is at Serial No. 224 and it
c
-
pertains to "one quita mosque and land" of which the "present
Mutawali" is shown as "Hayatullah resident ofDhosipura, Banaras"
and correspondingly the entry in the Notification dated February 26,
1944 issued under s. 5 (I) of the 1936 Act is also at SI. 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 D
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 Dosbipura, who had died in 1926 long E
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
bis 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 Moballa Doshipura as
the "present Mutawali" (i.e. in 1944 when the Notification was F
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
Dbosipura was the father of Hakim Mahmood and Ali Ahmed,
who are the present Mutawalis of a mosque in Mohalla
' )' G
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 Moballa 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- H
1116 SUPREME COURT REPORTS [l 982] I S.C.R.

A halla Doshipura was wrongly mentioned instead of Moh~la
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 obviosly wrong as it would be mentioning a dead person
B as the "present Mutawali" of the mosque and in case the entry
at serial No. 224 is referable to Maulvi Hayatullah then the refe-
rence to the mosque being in Mohalla Doshipura would be erro-
neous. It is the petitioners case that it was Maulavi Hayatullah
who had as early as in 1944 submitted an application for registra-
tion of the mosque in Mahalia Salarpura standing on Municipal
-.
c
-
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 Mahalia Doshipura; and in support of this reliance has
D been placed upon a Report dated 14th February, 1961 submitted
by Inspector Ashraf Ali to the Sunni Board in which he bad
noticed and placed on record such mistake having taken place
copy whereof has been annexed as Annexure-1 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
E 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
F about this entry at SI. No. 224 relied upon by counsel for respon-
dents 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
G
the Shia community to perform their religious ceremonies and func-
tions over the other 8 plots and structures thereon which had been
listed as Shia Wakfs under the Notification dated 15th January,
I 954, especially when it is now common ground that the mosque
on Plot No. 246 is a public mosque constructed by general sub-
H
scriptions and is accessible to members of both the sects for offering
'

GULAM ABBAS v. U.P. 51A1E (Tulupwkar, J.) 1117

prayers and doing worship therein. Admittedly the Notification A
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( I) 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 B
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 c
as Shia Waqfs for performanace 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 Boatd had
issued the requisite Sanads in that behalf. Reliance in this regard
has been placed on five certificates issued by Shia Central Waqfs
D
Board, Lucknow, bearing Certificate Nos. 209, 210, 211, 214 and
21 all dated 22nd December, 1952~first relating to Mardana
Imambar a (th'\ Baradari) on Plot No. 247j1130, 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 appuT-
E
tenant to the Baradari and the last relating to Sabi! Chabutra
Mardana on Plot No. 246/1134 (Annexures VIII & VIII-A to VI!I-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 regis-
F
tration 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 ex-
' , \
cept those conferred on them under the decree in Suit No. 849 of
1878 by Shri Pramoda Charan Banarjee. The registration in res-
pect of the five properties mentioned above under sec. 38 of the G
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.
H
Apart from the Certificates of Registration issued by the Shia
Central Waqfs Board on 22nd December, 1952 the petitioners are
1118 SUPREME COURT REPORTS [1982] I S.C.R.

A also relying upon yet another Notification issued by the Shia
Central Waqfs Board under Ru! e 54 (vii) of the U.P. Shia Central
Waqfs Rules, 1944 enlisting the Sbia Waqfs in question and publish-
ed in the U.P. Government Gazette on !st December, 1956. It may
be stated that the Sbia Board had framed rules called the U.P.
Shia Central Waqfs Rules 1944 in exercise of powers conferred on
8 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 • I
Waqfs which were registered during the period 28th July, 1942 to

c
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 Sbia Board under the Notification dated !st
-
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, Dosbipura at
Serial No. 153, Mardana Imambara-Baradari at Serial No. 155,
D Purani Masjid, Doshipura at Serial No. 157, Zanana Imambara,
Dosbipura at Serial No. 159, Imam Chowk, Dhoshipura at Serial
No. 160 and Chabutra Mardana Sabi! at Serial No. 161 as Shia
Waqfs. This Notification issued by the Sbia Board on 1st December,
1956 also supports the petitioners' case that the concerned properties
bad been registered a; Shia Waqfs under s. 38 of the Act. It is thus
E 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
F 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
G 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 subse·
quent title could not be affected by the decisions in earlier litigations.
H
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
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1119

documents (i) Extract of Register of Agreements (Agreement to
A
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 Respon-
dent No. 5 dated 17.4.1979. At the outset we would observe that it
B
is difficult to accept the claim that the three plots had been dedi-
cated by the two Sunni Muslims to their community for use as gra-
veyard, for, the Commissioners appointed by this Court for survey
and spot inspection in December 1979 did not find any such nse

- being made of plots No. 24 7 and 245 and merely noticed two graves
and one in damaged condition on plot NJ. 6n/1133 only-sam' plot
with graves which was the subject matter of Maharaja's Suit
a
No. 424/1931 in which a permanent injunction was issued restraining
all Muslims (virtually all Sunnis) from using the said plot as a1y
graveyard in future. Dealing with the aspect of derivative title put
forward by counsel on b'half of the respondents No. 5 and 6, we
have already made the position clear in the earlier part of our judg- D
t ment that the Shias' are claiming the right to perform their religioJs
ceremonies and functions on the plots and structures in question not
so much on the basis of any title or ownership thereof bJt on the
basis of customary exercise sin:e tirn' im n'm)rial ani tluy h iv'
been claiming customary rights by prescription over the plots belong-
ing to the Maharaja of Banaras as Zamindar and superior title-holder E
and the prescriptive rights have enured for the benefit of all the
Shias notwithstanding such superior title in the Maharaj a 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 regis-
tered as Shia Waqfi under the U.P. Muslim Waqfs Act J936 by the F
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 preicription over these plots can:iot thus be defeated by
such derivative title. G
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 execu-
tive power in performance of executive function amenable to writ H
jurisdiction under Art. 32 of the Constitution? Counsel for resp)n-
ll20 SUPREME COURT REPORTS [1982] 1 S.C.R.

A 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 •ub-s. (2) of s. 144) and since no fundamental right
can be said to be infringed by any judicial or quasi-judicial order
B 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 ' l
High Court. It was pointed out that in D. V. Be/vi v. Emperor(') a
c Division Bench of the Bombay High Court has held that the orders
under s. 144 are judicial and not administrative and that this ques-
tion had been set at rest by several earlier decisions cited in the judg-
-
ment; 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
D s. 476, if he is of the opinion that false evidence has been given be-
fore him; similarly in Muthuswami Servaigram and Anr. v. Thanga- t
mmal Ayyiar(3 ) as also in Bondalpati Thatayya v. Go//apuri Basavayya
and Ors.(') the same view is taken. Counsel also invited our attention
to three cases of this Court, namely Babula/ Para/e'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 cer-
tain 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-
F
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
G
(1) AIR 1831; Born. 325.
(2) !LR 19 Mad. 18.
(3) AIR 30 Mad. 242.
(4) AIR 1953 Mad. 956.
(5) [1963] SCR 432.
H (6) [1970) 3 SCR 181.
(7) [1971] 2 SCR 711.
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1121

was placed upon Sahibzada Saiyed Muhammed Amirabbas Abbasi A
and Ors. v. The State of Madhya Bharat and Ors.,(') The Parbhani
Transport Co-operative Socidy Ltd. v. The Regionai Transport Autho-
rity,(') Smt. Ujjam Bai'(') case (subject to three exceptions mentioned
therein) and N.S .Mirajkar's( 4) case, the principle in the last mentio-
ned case having been stated at p. 76) of the Report thus :
B
"When a Judge deals with matters brought before him
fot 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 conclu-
c
--
sions of law drawn by him suffers from any infirmity, can be
considered and decided if the party aggrieved by the deci-
sion of the Judge takes the matter up before the Appellate
Court. But it is singularly inappropriate to assume that
a judicial decision pronoui,ced by a Judge of competent
jurisdiction in or in relation to a matter brought before him
for adjudicatLm can affect the fundamental rights of the D
citizens under Art 19( I). What the judicial decision pur-
ports 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 E
decision cannot be said to affect that fundamental rights
of citizens under Art. 19(1)."

The question whether an order under s. 144 Criminal Proce-
dur~ Cade is a judicial order or an order in exercise of the executive
power in performance of an executive function will have to be F
decided in the instant case by reference to the new Criminal Proce-
dure 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 G
nuisance and apprehended danger to public tranquility under s. 144

(1) (1960] 3 SCR 138
(2) (1960] 3 SCR 177.
(3) [1963] 1 SCR 778. H
(4) [1966] 3 SCR 744.
1122 SUPREME COURT REPORTS [1982] 1 s.c.R

A of the Code had been conferred on ''District Magistrates, Chief
Presidency Magistrates, Sub-Divisional Magistrates, or other Magis-
trates specially empowered by the State Government" and it was in
those circumstances that the view prevailed in the decisions of seve-
ral High Courts that the order passed by a Magistrate under s. 144
of that Code was a judicial order and it must be pointed out that
B 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
c 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 :
0 "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 ins-
E tance, 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 categocy (c) above are transferred from the Collector
and Magistrates subordinate to him, to a new set of
G 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."

H Again in para 43 the Law Commission observed thus :

--\,
'
GULAM ABBAS v. U.P. STATE (Tulzopurkar, J.) 1123

"43. It is in this background that the concept of A
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." B

On the question of allocation of functions between judicial and
> • executive Magistrates it appears that there were before it three
main patterns of separation (I) the Bombay pattern (suggested in
tbe Report of the Committee on the separation of judiciary from the
executive, 1947 appointed by the Government of Bombay), (2) the Cl
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 Separatiou etc. Act 25
of 1964) and according to the Law Commission the allocation
under the Bombay and Punjab schemes proceeded on the basis that
D
. powers other than those of trial of offences should he left to the
Executive Magistrates even where recording and sifting of evidence
and a decison 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 E
in some cases and powers in those cases particularly under s. 144
were kept with both judicial and executive Magistrates but Judicial
Magistrates were to exercise them in emergency and until an execu-
tive Magistrate was available. After considering all the parterns of
allocation as also patterns of Magistracy under the Bombay, Punjab,
and Madras schemes in paragraphs 94 to 98 of the Report the Law
F
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 G
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 H
Court. As regards s. 144 (1) of the old Code in para 353 of its
Report the Law Commission in terms r~commended that before
1124 SUPREME COURT REPORTS ( 1982] I s.c.•.
A 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
B 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
c 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 Session~ Judges,
Chief Judicial Magistrates Judicial Magistrates, Chief Metropolitan
D
Magistrates and Metropolitan Magistrates together with inter St
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 Execut1ve
E Magistrates and their respective jurisdictions in every district and
metropolitan area together with inter se subordination, but apiioint-
ments 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 con-
F ferred 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 pre-
sent 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
H 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
(lutAM AllBAS v. ti.I>. STATE (1'ulzapurkar, J.) 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 traoquility-an execu-
tive function of police to maintain law and order and public peace
B
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. I 07; 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 unlaw-
ful assemblies and dispersal thereof, ss. 133 to 143 deal with public
nuisance and abatement or removal therof, s. 144 deals with urgent
c
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 D
old Code such powers were conferred indiscriminately on any Magis-
trate, 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, E
specially empowered by the State Government", under the present
s. 144 the power has been conferred on "a District Magistrate,
Sub-Divisional Magistate or any other Executive Magistate specially
empowered by the State Government in that behalf." Having
regard to such implementation of the concept of separation

- ol 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 I 973,
F

it will be difficult to accept the contention of the counsel for respon-
dents 5 and 6 that the order passed by a District Magistrate, Sub-
Divisional Magistrate or any other Executive Magistate under
the present s. 144 is a judicial order or quasi judicial order, the G
function thereunder being essential an executive (police) function.
Under the new Code the designation of District Magistrale of Sub-
Divisional Magistrate has been statutorily used in relation to
officers performing executive functions only in recognition of the
concept of separating IExecutive Magistrates from Judicial Magis- H
/ trates. It is true that before passing the order the District
'
1126 SUPREME COURT REPORT~ [1982] 1 s.c.a..

A Magistrate, Sub-Divisional Magistrate or the Executive Magistrate
gives a bearing parties except in cases of emergency when ex-parte
order can be made under s. 144 (2) by I im without notice
to the person or persons against whom it is directed, but in which
cases on an application made by any aggrieved person be bas to
give hearing to such person under s. 144 (5) and thereupon be may
B rescind or alter his earliar 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 ori-
ginal jurisdiction, are deemed to be inferior Courts for purposes -'
of the revisional power of the High Court or Court of Sessions.
c 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 alterom 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
D 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 funda-
E mental right of a citizen under Art. 19 (I) 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 !is
F 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 l_ ----
on the Bombay Police under ~sec. 37 of the Bombay Police Act,
G 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 Constitu-
H tion on the ground that it bas the effect of violating or infringing
. GULAM ABBAS v. U.P. STATE (Tu/;apurkar, J.) 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 jurisdic-
tion 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 B
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 execu-
tive function the next question that we have to deal with is whether c
the petitioners could be said to have made out any ground for chal-
lenging the impugned order passed by the City Magistrate, Varanasi
on 24th November, 1979 prohibiting both Shia and Sunni commu-
nities 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 D
to this order was incorporated in the writ petition by way of an
amendent which had been allowed by the Court. Since however,
that impugned oder has by naw exhausted itself by effiux 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 E
validity. Since however,· occasions or situations arise even du-
ring a year as well as year after year making it neeessary 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 disre- F
gard 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. G

Without setting out verbatim the prov1s10ns 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 H
apprehended danger, where immediate prevention or speedy remedy
1128 SUPREM~ coUkT ltBPOlTS [I 982] I s.c.l

A is desirable, a District Magistrate, a Sub-Divisional Magistrate or
any other Executive Magistrate specially empowered by the Stato
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
B a certain act or (ii) to take certain order with respect to certain
property in bis possession or under his management, if be considers
that such direction is likely to prevent or tends to prevent obstruc-
tion, annoyance or injury to any other person lawfully employed, or
danger to human life, health or safety, or a disturbance of public - ..
c 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 emer-
gency 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 execu-
-
tive magistrate, either on his own motion or on the application of
the person aggrieved after giving him a hearing, may rescind or
D 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 Govern-
ment by Notification directs that such order shall remain in force
for a further period not exceeding six months.
I
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
F the primary function oi 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 tempora-
rily private rights and in a given situation the power must extend to
restraining individuals from doing acts perfectly lawful in themselves ....'
G 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 Execu-
tive Magistrate to adjudicate or decide disputes of Civil nature or
questions of title to properties or entitlements to rights but at the
H same time in cases where such disputes or titles or entitlements to
rights have already been adjudicated and have become the subject-
OULAM ABBAS •• U.P. STATE (Tulzapurkar, J.) 1129

matter of judicial pronouncements and decrees of Civil Courts of A
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 B
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 !hereof rather than in
.. suppressing them. In other words, the Magistrate's action should
l>e directed against the wrong-doer rather than the wronged. c
Furthermore, it would not be a proper exercise of discretion on the
part of the Executive Magistrate to interfere with the lawful exer-
cise of !he 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
D
larger section more vociferous and militant.

In Muthialu Chelli v. Bapun Sahib(') the facts were that in
1875 Mohammedans of Sevvaipett applied for permission to erect a
mosque in that villlage on the site occupied by the previous mosque
that had recently been destroyed but the Hindus objected and the E
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 celebra-
ting ceremonies in the temples adjoining the river. The Collector
accorded sanction to the erection of the mosque on condition
F

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 pro-
cession was passing or repassing the mosque anJ directed that the
order be notified to the inhabitants of Sevvaipett and Gogoi. The
G
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

(I) !LR 2 Mad. 140.
H
1130 SUPREME COURT REPORTS [ 1982] I s.c.R.

A 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 pro-
B cessions 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 M unsif'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
c High Court laid down that whilst the law recognised the right of an
assembly, lawfully engaged in religious worship or religious cer-
monies, not to he 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
D 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 autho-
rity possessed by the Magistrate was to suspend the exercise of the
right on particular occasions, and not prohibit it absolutely and
E before the occasion arose which entitled him to act; and it con-
sequently 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 :
F
"Persons of whatever sect are entitled to conduct reli-
gious 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 thorough-
G fare or breaches of the public peace."

In Sundram Chetri 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
H
(!) LIR 5 Mad. 304.
(2) !LR 6 Mad. 203,
GULAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1131

which abutted on a high road could not compel the processionists A
to intermit their (processionists') worship while passing the mosque
or temple on the ground that there was continuous worship there.
T11rner 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 8
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 p~rticular sects out not to influence the
law."
G

At page 215 of the Report the learned Chief Justice observed
thus :
D
"The Criminal Procedure Code declares the authority
of the Magistrate to suspend the exercise of rights recog-
nised 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 1t was designed to E
-' 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 sus-
pend the exercise of legal rights on being satisfied about
F
the existence of an emergency) is extraordinary and that the
Magistrate should resort to it only when he is satisfied ti.at
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
G
and circumstances admit of. It needs no argument to prove
that th.e authority of the Magistrate should be exerted in the
defence of rights rather than in their suspension; in the repre-
ssion 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 ignora.n.t of'the !!er-
B
1132 ~UPlt.EM~ COURT RllPORTS (1982] 1 S.C.R.

sons from whom disturbance is to be apprehended, and it is
his duty to take ftom 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 (Sbias) 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 rieht 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 declara-
tion lies apinst those wbo interfere with a religious procession or
its appropriate observances. These decisions show that legal rights
should be regulated and not prohibited alltogether for avoiding
breach of peace or disturbance or public tranquillity.

In Haji Mohammed Ismail v. Munshi Barakat Ali and Ors.(2) -
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 tbe mosque." The Court held that the order was mis-conceived;
-. ~

G that the effect of the order was that no Mohammedan would be
allowed to say his prayersin the mosque it was not jmtified 11nder
s. 144 and that the proper course waa for the Magistrtlte to au-.rtain
which purty was in the wrong and was interfering unnece-rily with

II
(I) !2 I.A. 61.
(2) 24 Cr. L.J. 154.
GIJLAM ABBAS l'. u.I>. STATE (tu/zapurkar, J.) ll:H
the legal exercise of the legal rights of the olher party, and lo bind A
down that party restraining them from committing any act which may
/eac. 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 B
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 c
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 com-
D
plaint bas 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 iiuide the exercise of that power we hope
E
• > and trust that in future that power will be exercised by the executive
mqistracy 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 situa· F
tion and follow the dictum of Turner C,J. that if they are s.atisfied
that the exercise of the rights is likely to create a riot or breach of

r peace it would be their duty to take from those from whom distur·
bance is apprehended security to keep the place. After all the custo-
mary rights claimed by the petitioners parttake of the character of
the fundamental rights guaranteed under Articles 25 and 26 of the
Constitution to the religious denomination of Shia Muslims of
V~anas.i, .a religious minority, who are desirous of freely practising
G

their reli&tous faith and perform their rites, practices, observances
and functions without let or hindrance by members belonging to the
majority sect of the community namely, Su11ni Muslims, and as such H
a positive approach is called for on the part of the local authorities,
1134 stJl'ilEMll co\Jilt REPORtS [i982J 1 s.c.k.
A It is only in an extremely extraordinary situation, when other mea-
sures 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
c 16.12.1976 on Review Petition No. 36 of 1977, however wrong,
shonld 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
D regards res judicala or the bar based on the principle analogous to
res judicata, we have already referred in the earlier part of our judg-
ment to the leading decision of this Court in Daryao' s case (supra)
where the basis 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
E 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
F fought in a representative character both as regards the petitioners
who are representing the Shia community and as regards the res-
pondents 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
G
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
H
the two Boards (Shia Central Wakf Board and Sunni Central
Wakf Board) notices were issued to them and they were also im-
GdtAM ABBAS v. b.i>. STATE (Tulzapurkar, J.) 1035

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 peti-
tioners before the Allahabad High Court (in W.P.No.2397) had B
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 c
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 s11 ould 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 D
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
adjuidcation done between the parties to the earlier litigations, par-
ticularly Suit No. 232/1934. As regards the alternative submission
made by counsel for the respondents, we would like to point out that E
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 meterials; if that were so there would
have been some force in the contention. Fresh material of substan-
tial character in the form of the original Survey Report of the Chief
Commissioner of Wakfs dated 28th/31st October, 1938 and the
F
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

t the Allahabad High Court, or before this Court was produced
before us during the bearing on the basis of which the members
of the Shia community sought to prove their existing and estab-
lished entitlement to their customary rights. In fact it was one
G

of the contentions of the respondents 5 and 6 that before the
Allahabad High Court in the earliar litigation the then petitio-
H
ners had misled the Court into believing that the Notification issued
by the Shia Board on 1st of December, 1956 under Rule 54
(1982] I ~.c.l<.
(vii) wasthe Notification under s.S (I) of the U.P. Muslim Waltl's
Act, 1936. Moreover, additional material has come before us
through both the Boards affording considerable assistanc" to us in
arriving at proper conclusions in the case. Thus where the panics
before us are different and when fresh material has been produced
before us which was not there in the earlier litigation, the alterna-
B tive contention loses all force and must be rejected.

In the result we hold that the petitioners and through them
the Sbia community of Mohalla Doshipura, Varanasi have esta-
blished their existing customary rights to perform their religious
rites, practices, observances, ceremonies and functions minus the
c 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 Mohall& Doshipura are pennanently
restrained by an injunction from interfering with the exercise of said
rights in any manner by the petitioners or membrs of Shia commu-
nity and respondents l to 4, particularly the executive magistracy
D 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. htitiOll al./owed.