GULAM ABBAS & ORS. v. STATE OF U.P. & ORS (2)

Citation: [1982] 1 S.C.R. 1077

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, D.A. DESAI, A.P. SEN

Judgment text

GULAM ABBAS & ORS. v. STATE OF U. P. & ORS. November 3, 1981 [V. D. TULZAPURKAR, D. A. DESAI AND A. P. SEN, JJ. ] Constitution ofIndia, 1950, Articles 25 and 26-Right to enjoy the religious faith and performance of religious rites, practices and observances on ctrtainplots - 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 petilion under Article 32 of the Constitution-Scope of Article 32. ResJudicata, bar of-Civil Procedure Code, section 11, explained. Uttar Pradtsh Muslim Wakf Act, 1960 (Act XVI of1960) repealing Uttar • Pradesh Muslim Wakf Act, 1936 (Act XIII of1936-Lega/ position as to the finality of Survey Reports and effect ofregiJtration of Wakfs already made under the earlier A. ct long before it was repealed-Words and phrases--"Every other Wakf" in section 29 ofthe 1960 Act, meaning of. 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 ofan executive power in performance ofexecutive function amenable to writ jurisdiction· under Article 32 of the Constitution-Nature and power under the section and what it authorises the executive magistracy to do and in what circumstances, explained. In MohaUa Doshipura of Varanasi city, there are two sects of Mohamedans-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, \ during the Moharram but in a different manner. Nine plots bearing Nos. 245, 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 Mohalla Doshipura.

Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practised by the men. folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowbas, Marsia, doing 1078 slJPREME COURT REPORTS (1982J 1 s. c. 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, observances 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 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 competent 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 structures for performance of these practices and functions under sections 5 and 38 of the Uttar Pradesh Muslim Wakfs Act, 1936, which had become final as no suit 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 religious ceremonies and functions and instead of being exercised in aid of such lawful exercise it is exercised in favour of those who unlawfully and illegally interfere 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 inasmuch as the basic purpose of a petition under Article 32 is to enforce existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto; (ii) that no :mandamus under Article 32 is competent inasmuch as orders under s. 1~4 Cr. P. C.

these are judicial or quasijudicial; alternatively even if it were assumed that these orders are administrative or executive orders passed by the 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 I re. s judicata or principles analogous to re. s judicata by reason of the Supreme Court's decisions in (a) Civil Appeal 941/1976. (b) Review Petition 36 of 1977 and ' (c) Order permitting withdrawal ofS. L. P. 6226of1978 on 4-12-1978. Allowing the petition, the Court 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 -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 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] 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 establishing 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 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 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 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 incidental. (1097 A-CJ 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 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 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 judicata as enacted in section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, + namely, that there must be a finality to litigation and that indivirluals should not 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 3 : 2.

In the instant case; (a) it was not disputed that the Munsif's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata; (b) not only were the Sunnis' customary rights over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslims) has sought an injunction restraining the Shias from exercising their customary rights.

Therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis' customary rights claimed by then1 over the plots and structures but adjudicated, determined and declared the Shias' entitlement to their customary rjghts to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura; (c} there is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures; and (d) a clear case has been made out of an existing or established { entitlement to the C'!

Stomary rights in favour of the Shias' community to perform 't· 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. Guiab Bai v. Manphool Bai, [1962) 3 SCR 483; Daryao and others v. Stale of ff 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, referred to. 4 : 1.

Broadly speaking, while repealing the 1936 Act, the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and submitted by the Wakfs Commissioners under the former Act and the registration of Wakfs under the 1936 Act has been kept alive and effective as 8 if such registration has taken place under the latter Act and registration of Wakfs 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 words any Survey Report submitted under the 1960 Act and any registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner's Report under the 1936 Act has become final and registration has been effected under the 1936 Act. [1108H, 1109A, 1110 F-G] 4 : 2. In the instant case; (a) having regard to the six properties being 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 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 challenging the decision recorded in his Report by the Chief or Provincial Commissioner for Wakfs within the time prescribed under section 5(2) of the Act and.

therefore, the Chief Commissioner's Report together with the appendices X and XI thereto dated 28th/31st October, 1938, on the basis of which the Notification dated 15th January, 1954 was issued and published in Official Gazette on 23rd January, 1954, must be held to have become final and conclusive as between 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 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 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. that the mosque on Plot No.

246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering 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 existing 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 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 the U. P.

Muslims Wakfs Act 1936 by the Shia Board and Sanads or Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a lease on 20. 4. 1952 did not raise any objection to such registration. The Shias' customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title. [1119 C·G] 5 : 1. Having regard to such implementation of the concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrate and the later to the Executive Magistrates under the Code of 1973, the order passed by a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate under the present section 144 is no1 a judicial order or quasi·judicial order, the function thereunder being essentially an executive (police) function. [1125 E-G] - 5 : 2.

It is true that before passing the order the District Magistrate, 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· 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 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 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 challenge was repelled by relying upon these aspects to be found in the provision.

However, these aspects cannot make the order a judicial or quasi-judicial order and such an order issued under section 144 of the present code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between rival parties is adjudicated but • merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 of the Constitution. [1125H, 1126-F] 5 ! 3.

The power conferred under section 144 Criminal Procedure Code 1973 is comparable to the power conferred on the Bombay Police under section 37 of the Bombay Police Act, 1951-both the provisions having been put on the statute book to achieve the objective of preservation of public peace and tranquility and prevention of disorder and it has never been disputed that any order passed under section 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution on the ground that it +. has the effect of violating or infringing a fundamental right of a citizen. The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made under section 144 Criminal Procedure Code, 1973 is amenable to writ jurisdiction either under Article 32 or under 226 of the Constitution if it violates or infringes any fundamental right. [1126 F-H, 1127 A-BJ 5: 4.

In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub- Divisional Magistrate or any other Executive Magistrate 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 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 disturbance 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 circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under subsection (5) the executive magistrate, either on his own motion or on the application of the 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 ios4 SUPirnMil COURT kili>Okts (t9flij 1S. C.

l· The entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that func~ tion effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given 8 situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a cOnflict between the public interest and private rights 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 the same time in cases where such disputes or titles or entitlement to rights have ..

already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then :in the exercise of his power under section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, 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 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. [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 Mohammad 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 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. , 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. The State ofMadhya 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 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising, their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community, namely, Sunni Muslims and as such a positive approach is called • for on the part of the local authorities. It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure. [1133F-H. 1134A] - 6 : 2.

In the instant case, the earlier litigations which was fought right up to the Supreme Court cannot be regarded as between the same parties, in as much as the same was not fought in representative character while the present writ petition is litigated between the petitioners and the respondents representing their respective sects; further, it was felt by the Supreme Court that proper adjudication would not be possible without impleading the two Boards (Shia Central Wakf Board and Sunni Central Wakf Board) notices were issued to them and they were also impleaded as parties to)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 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 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 ORIGINAL JURISDICTION : Writ Petition No. 4675 of 1978. (Under article 32 of the Constitution of India) M. C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, Hasan Imam, Shanker Saran Lal ~llc;I Miss Kam/esh Qansa/ for ~h~ Petitioners. [1982] I s. c. R. 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) 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, 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 commanding 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 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 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for complete adjudication of the controversy and even otherwise under the U. P. Muslim Waqf Act, 1960, which has been done and both the Waqf Boards have also been heard through their counsel in the matter. In Mohalla Doshipura of Varanasi City there are two seats of mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand· sons of Prophet Mohammed, during the MOHARRAM but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect ... numbering about 4000 constitute a religious denomination having a common faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers attained martyrdom at Karbala in Iraq.

The said religious belief is practised by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marsia, doing Matam (wailing) and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them, particulars whereof are as under :- Plot No. 246 : on which stands a Mosque which, it is common ground, belongs to both the sects as it was constructed out of general subscription from members of both 'he sects and every Mohammedan is entitled to go in and Jerform his devotions according to the ritual of his own sect or school.

Plot No 247/I 130 : on which stands the Baradari --t (Mardana IJTambara - structure of white stone having 12 pillars) constructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances. Plot No. 245 : on which there is a Zanana Imambara used by Shias ladies for mourning purposes and holding Majlises etc, 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 proceeding). Plot No. 248/23/72 : a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon. Plot No. 246/JJ34 : 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.

Particulars of the religious rites, practices and functions performed by the members of the Shia community on the occasion of the observance of MOHARRAM RE: (a) the Tazia (representing and signifying the dead body of Hazrat Imam Hussain) is kept in the Baradari on plot No. 247/lI30 and for the first I2 days of MOHARRAM Majlises (religious discourses) of menfolk and women-folk is held daily-by the men folk in the Baradari and on the adjoining plot Nos 602/ 1133, 603 and 602 and by the women-folk in the Zanana Imam Bara on Plot No. 245.

(b) On the 6th day of MOHARRAM the Zuljana procession (a procession of the replica of the horse of Prophet Mohammed, which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain) of not less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi non-stop for another 36 hours and terminates at the place of its origin. Offerings to the horse are made not only by the Shias GULAM AbBAS v. U \ the superior Courts by way of appeal or revision but usually before the matter could be decided on merits the impugned orders exhausted themselves by influx of time and the remedy by way of appeal or revision was rendered infructnous and the controversy remained un. decided.

However, when in the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April, 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots and Sunnis were illegally permitted to ' observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April, 1963 from 9 A. M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the - Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u. /sec. 144 Cr. P. C.

) were heard and disposed of by the High Court by a common judgment delivered on Angust 8, 1975. Notwithstanding 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 Cr. P. C. it would be proper exercise of its discretion to interfere with the impugned order, if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec.

144 by observing that though the section does not empower a Magistrate to decide a dispute of a civil nature between the private individuals, he must, before passing his order, take into consideration the nature of the claims set-up by the rival parties in order to judge whether or not it was possible to afford protection to those who seek only the lawful exercise of the legal and natural rights, that the autho· rity of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of duties rather than in suppressing them and that this power is not to be used in a manner that would either give material advantage to one I' party to the dispute over the other or interdict the doing of an act by a party in the exercise of its right or power declared or sanctioned under the decree of a competent Court.

On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court's decision in earlier litigation and quashed the City Magistrate's order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on 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 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 judgment and findings of the High Court were set aside and parties .. were relegated to have their rights agitated or settled in a civil suit. Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No. 941 of 1976 which was dismissed by this Court on 16th December, 1977 after making some observations: "Questions of title cannot be decided here (under sec. 144) but previous judgment on them may have a bearing on the question whether and if so, what order could be passed under sec. 144 Cr. P. C...... It was asserted on behalf 01 the Petitioners (Gulam Abbas and others) that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which the Magistrates' orders under sec. 144 Cr P.

C. related has already been decided. If that be so, we have no doubt that the Magistrate will respect that decision 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 on 15-12-1977 under sec. 144 directing both the communities of Mohalla Doshipura to follow the terms and conditions laid down in this said order, on the representation being made by the Shias on 17-12-1977 bringing to his notice this Court's order dated 16-12-1977 in the Review Petition modified his earlier order on 19-12-1977 1094 SUPREMB COURT REPORTS [1982] I S. C. R.

permitting holding of Majlis only at the house of Shamsher Ali but in respect of other properties postponed the passing of his order till 21-1-1978 but on that day he merely passed an order stating that his initial prohibitory order dated 15th December, 1977 as modified on 19th December, 1977 has exhausted itself as Moharram had passed off and further observed that while passing orders on the occasion of Moharram, Chehalum and Pachesa etc. in the coming years due regard will be given to the judgment of this Court dated 16-12-1977 in Review Petition along with the decisions rendered in earlier civil litigation in representative character between the parties including -. the Allahabad High Court's decision in second Appeal No. 1726 of 1935. But one week later the same City Magistrate passed another order under sec. 144 Cr. P. C.

on 28th January, 1978 on the occasion of Chehalum and Pachesa to be observed on the Baradari and the adjoining plots which was quite contrary to his earlier order dated 21-1-1978 and in utter disregard of the judgment of this Court in Review Petition No. 36 of 1977 and all other earlier judicial pronouncements in favour of the Shias; in fact by that order the City Magistrate completely prohibited every person from holding any Majlis either on the Baradari or on any portion of the adjoining .. plots in Mohalla Doshipura. This order dated 28-1-1978 was challenged by way of revision in the High Court but the Revisional application was dismissed on 13-2-1978 on the ground that the impugned order had ceased to be operative by then and Revision had become 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 Writ Petition No. 3906 of 1978 was filed by Gulam Abbas and other Shia Muslims in the Allahabad High Court praying for mandamus against the State of U. P. and its Magisterial officers, Varanasi, directing them to grant permission for 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 judgment dated 6. 12. 1976 of this Court in Civil Appeal No. 941of1976; Special Leave Petition No. 6226 of 1978 against the same was filed by Gulam Abbas and others but it was withdrawn on 4-12-1978 as they were advised to file the present Writ Petition. During the hearing the Petitioners have amended their Petition by challenging the latest order passed by the City Magistrate, Varanasi on 24th November, 1979 under sec. 144 Cr. P. C. prohibiting both Shia and Sunni communities from holding their Majlises and imposing other GULAM ABBAS v. u. ~. STATE (Tulzapurkar, J.

) 1095 restrictions (the restriction on Recitation of Tabarra by Shias is not 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 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 imminent danger to peace and tranquility of the locality.

By their counter-affidavit filed in reply Respondents 5 and 6 on behalf of themselves and the Sunni community have resisted the reliefs claimed by the Petitioners in the Writ Petition principally on three or four grounds. On merits they have denied that there is clear on decisive material on record either in the form of judicial pronouncements or the registration of the Shia Wakfs of Mohalla Doshipura under the U. P.

Muslim Wakfs Act, 1936 concluding in favour of Shias' title to the concerned plots or structures thereon or their entitlement to the performance of the religious rites, practices, observances and functions on the property in question as claimed; it is contended that a clear and sharp distinction must be made between title and ownership of the concerned plots of land, title and ownership of the structures on those plots and the rights excercisable by the Shia community over the concerned plots and structures thereon and there are considerable gaps and inadequacies in the documents and the material before the Court in that behalf which can only be filled in by trial and by recording evidence and in the absence of adequate material no declaration as to the title to the plots or the structures or even as to the rights in or over the plots and structures thereon could be granted in favour of the Shia community.

In other words the contention is that a Writ Petition under Article 32 for such a relief of declaration is not maintainable in as much as the basic purpose of a Petition under Article 32 is to enforce -existing or established fundamental rights and not to adjudicate and seek a declaration of such rights or entitlement thereto. In this behalf respondents 5 and 6 have doubted and disputed the effect and binding nature of the earlier court decisions, particularly of the judgments rendered by. the Munsif's Court, Vanarasi in Suit No. 232 of 1934 (Fathey Ullah & Ors. v. Nazir Hussain and Ors. ) and by the Appellate Courts in appeals therefrom, on the entire Sunni community and as regards registration of the Shia Wakfs they have contended that the position arising out of the U. P. Muslim Wakfs Act, 1936 and the U. P. Muslim Wakfs Act, 1960 in the context of the Sunni Wakfs in regard to the properties in dispute under the latter Act requires serious consideration.

As regards reliefs sought against the orders passed by a City Magistrate or Sub-Divisional Magistrate under sec. 144 Cr. P. C. it is contended that no mandamus under Art. 32 is competent in as much as these are judicial or quasi-judicial orders passed by a Court under sec. 144 Cr. P. C. and no fundamental right can be said to be infringed by any judicial or quasi judicial orders; alternatively are administrative even if it were assumed that these orders are administrative or executive orders passed by Executive Magistrates these cannot be challenged unless the Magistrate has exceeded his powers or acted in disregard to the provisions of the law or perversely and in the instant case the impugned orders subsequent to this Court's decision dated 16-12-1977 in Review Petition No. 36 of 1977 have been passed by keeping in mind the observations or the guide lines contained in that decision and in light of the emergent situation then obtaining in the locality.

In the • circumstances, the Petitioners are not entitled to any of the reliefs sought by them in the Writ Petition: Lastly, it has been contended that the present Writ Petition is barred by res-judicata or principles 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 may appear to be, should not be disturbed.

The two Boards, Shia Central Wakfs Board and Sunni Central Wakfs Boards impleaded as parties to the Writ Petition under this Court's Order dated 28th March, 1980 have supported the respective cases of each community 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 U. P. Muslim Wakfs Act, 1960. It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a Writ Petition under Art. 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof complained by granting appropriate reliefs in that behalf.

But as stated earlier, counsel for the Petitioners contended before us and in our view rightly that all that the Shia community is seeking by this Petition is enforcement of their customary rights to perform their religious . ' rites, practices, observances and functions on the concerned nine • plots and structures thereon which have already been adjudicated, .. 'determined and declared in their favour by decisions of competent Civil Courts in the earlier litigations and that the declaration sought in the prayer clause is really incidental. It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distint from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and the structures thereon.

However, it is clear that even if the Petitioners and through them the Shia community are unable to prove their exsiting or established title either to the concerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them.

This is not to suggest that the petitioners or the • Shia community have failed to prove that they have existing or established title and ownership over the plots and/or over the structures thereon-an aspect which will have to be considered on merits though secondarily, the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them. In this behalf, as stated earlier, they are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favour and registration of Shia Wakfs concerning the plots and structures for performance of these practices and functions under secs. 5 and 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 • 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 subscription, 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 MOHARRAM were held by them on or close to the platfrom on the surrounding ground and (c) that the plaintiffs had acquired by a long user a right to keep their Tazia in the Hujra (apartment) of the mosque and to repair the same in the tiled Saeban (Varandab) of the mosque and the defendants were restrained from interfering with plaintiff's rights in respect of the above matte tion had been registered as Shia Wakfs for purposes of performing their religious ceremonies and functions thereon under sec.

38 of the Act as early as in 1952 and therefore their case is that Shia Muslims cannot be deprived of the lawful exercise of their customary rights over the properties which have been recognised and registered as Shia Wakfs. As against this, respondents 5 and 6 and through them the Sunni community are relying upon a notification dated 26th February, 1944 issued by the Sunni Central Wakfs Board under sec. 5(1) of the U. P. Muslim Wakf Act, 1936 following upon the Report of the Chief or Provincial Commissioner of Wakfs in respect of Mosque in Doshipura showing the same as Sunni Wakfs and registration of some of these properties as Sunni - Wakfs under sec. 29 of the U. P. Muslims Wakfs Act, 1960. Before going into the factual aspects it will be desirable to indicate briefly the legal position arising under the two enact· ments, the U. P. Muslim Wakfs Act, 1936 (Act XVIII of 1936) and the U. P.

Muslim Wakfs Act, 1960 (Act XVI of 1960), which repealed earlier Act, in the matter of finality Survey Reports and effect of Registration of Wakfs belonging to' the respective sects in the State of U. P. Broadly speaking it could be stated that while repealing the 1936 Act the 1960 Act maintains and preserves the finality and conclusiveness accorded to the Survey Reports completed and sub· mitted by the Wakfs Commissioners under the former Act and the registration of Wakfs under the 1936 Act has been kept alive and effective as if such registration has taken place under the latter Act and registration of Wakfs under the latter Act has been permitted only in respect of Wakfs other 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 inquiries as they considered necessary for ascertaining and determining the number of all Shia and Sunni Wakfs within the area of their ... jurisdiction, the nature of each ·wakf, the gross-income of property comprised in the Wakf etc. and under sec. 4 (5) on completion of inquiry they had to submit their Reports of Inquiries to the State Government; under sec.

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 Central Board had to, as soon as possible, notify in the Official Gazette the Wakfs relating to the particular sect to which, according to such report, the provisions of this Act applied: under sec. 5 (2) the Central Board or the Mutawali of a wakf of any other person interested in it, if aggrieved by the decision recorded by the Commissioner in his Report had to bring a suit in a Civil Court competent jurisdiction for a declaration or appropriate relief and such a suit by the Central Board had to be filed within two years of the receipt of the Report by the Board and by the Mutawali or a person interested within one year of the Notification mentioned in sub-sec. (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 followed and inquiry to be made by the concerned Board in that behalf was indicated in that section and under sec. 39 it was made incumbent upon each Central Board to maintain a Register of Wakfs showing various particulars specified therein in respect of each Wakf. Under the 1960 Act, appointments of Commissioner of Wakfs and Additional or Assistant Commissioner of Wakfs is contemplated by sec. 4 while Survey of Wakfs to be undertaken by such Commissio· ners is contemplated by sec. 6 and under sec. 6(41 the Commissioner's Report of Inquiry is required to be forwarded to each of the Boards ,. , r , 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 important and provides that proceedings of any survey of wakf properties 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 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 commncement of this Act, the report of such Commissioner has become final; in other words the finality and conclusiveness accorded to the 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 provisions of this Act; and sec. 29 which follows sec. 28: says: Every other Wakf, whether subject to this Act or not and whether created before or after the commencement of this Act shall be registered at the office of the Board of the sect to which the Wakf belongs"; the opening words "every other Wakf" occurring in sec. 29 must mean that sec. 29 provides for registration of all Wakfs other than those which have already been registered under the 1936 Act. As stated earlier a perusal of these provisions of the two enactments clearly show that the finality and conclusiveness accorded to the Commissioner's Report under sec.

5 (3) of the 1936 Act has been preserved and the registration of Wakfs 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 ' submitted under the I960 Act and any Registration made under the 1960 Act will be futile and of no avail in regard to Wakf properties respecting which the Commissioner's Report under the 1936 Act has become final and registration has been effected under the 1936 Act. It appears that the Government of Uttar Pradesh appointed Shri Munshi Azimuddin Khan, a Deputy Collector, as a Chief or ''"'. GULAM ABBAS •. U. P. STATE (Tulzapurkar, J. ) 111 l Provincial Commissioner of Wakfs under sec. 4A of the 1936 Act for the purpose of making a survey of all the Waqfs in all the districts of the State. During the survey proceedings one Imam Ali Mahto, a Shia Muslim, who was defendant No. 2 in Suit No.

232 of 1934 as the Mutawalli of 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 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 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 requesting the Commissioner to enter the same in the list of Shia Public Waqfs; on the same day i. e. 25th June, 1938 Imam Ali's statement on oath was also recorded before the Commissioner and an order was passed to the effect ''the waqf property be taken under the control of Waqfs Act". A copy of the application, the statement of Imam Ali recorded on oath, together with the endorsement of the order, which formed part of Survey File No. 55 before the Commissioner have been produced as Annexure P-15 (colly) to the affidavit in rejoinder dt. Nov. 5, 1979 of Shri Iqbal Hussain, petitioner No. 3 filed on behalf of the writ petitioners and also as an Annexure to the affidavit dated January 9, 1980 of Dularey Mirza, the Peshkar of the Shia Central Waqfs Board, Lucknow.

After making the necessary inquiries Shri Munshi Azimuddian Khan submitted to the State Government his Report dated 28th/31st October, 1938 and annexed several appendices to his Report; Appendix VIII referred to Waqfs pertaining to Sunnis and declared as subject to the 1936 Act and Appendix IX mentioned waqfs pertaining to Sunni sect which were exempted from the Act; Appendices X and XI contained corresponding information about the Shia waqfs which were respectively declared as subject to the Act or exempt from the Act. The original Report bearing the signature of Shri Munshi Azimmuddin Khan, Chief Waqfs CC'mmissioner was produced before us (marked Exh A) for our inspection by Mr. Rana, counsel for the State of U. P. and the same was made available for inspection to the parties.

There is a slip attached to the Report placed in between Annexure VII and Annexure XIII containing an endorsement to the effect "Appendices VIII and IX sent to the Sunni Board" and Appendices X and XI sent to the Shia Board" with the signature of the Chief Commissioner of Waqfs below it. The aforesaid facts mentioned in connection with the original Report have been stated in the affidavit of Shri Sayed 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 would like to refer to the decision of the Court in Board of Muslim 1 Waqfs v. Radha Krishna and Ors. ( ) where one of us (Sen, J.

) has analysed the scheme of the Waqfs Act,1954 (a Central enactment) which is substantially the same as the scheme of the 1936 Act and we are in respectful agreement with the ratio of that case but here we are not concerned with any paramount title of any stranger (like the l ' (I) (1979] 2 S. C. R. 148 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 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 to us of doubtful validity and probative value for the reasons which -we shall presently indicate. Though issued and published earlier in point of time than the Notification of Shia Central Waqfs Board, it is admittedly not based on Appendices VIII and IX annexed to the Chief Commissioner's Report dated October 28th/31st October, 1938 but on the basis of some Registers of Waqfs (meaning lists of Waqfs) (said to have been received by the Sunni Board from the 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 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 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 Commisr 1: sioner shows that the former two appendices were sent to the Sunni Board and the latter two to the Shia Board.

In face of this endorsement and having regard to the fact that the Shia Board had received Appendices X and XI alongwith the Commissioner's Report which that Board offered to produce, it is difficult to accept the statement of the Pairokar of the Sunni Board that no appendices were received by the Board along with a copy of the Commissioner's Report. It seems the relevant appendices, though received, are being withheld as their production would be adverse to the Sunnis. i\part from that aspect it is clear on their own admission that the Notification under s. 5 (I} of the 1936 Act was issued by the Sunni Central Waqfs Board not on the basis of Appendices VIII and IX which formed part of the Commissioner's Report but on the basis of some Registers of Waqfs said to have been received by it. The Notification regarding the Sunni Waqfs issued on the basis of material which did not form part of the Chief Commissioner's Report would be in violation of s.

5(1) of the Act which required issuance of a Notification thereunder 'according to' the Commissioner's Report and as such the Notification dated February 26, 1944 relied upon by respondents 5 and 6 and members of the Sunni community would be of doubtful validity. Secondly, the relevant entry in the Register of Waqfs is at Serial No. 224 and it I 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 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 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 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 ' )' 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- 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 as the "present Mutawali" of the mosque and in case the entry at serial No.

224 is referable to Maulvi Hayatullah then the reference to the mosque being in Mohalla Doshipura would be erroneous. It is the petitioners case that it was Maulavi Hayatullah who had as early as in 1944 submitted an application for registra- - . tion of the mosque in Mahalia Salarpura standing on Municipal No. J-18/108 to the Sunni Central Waqfs Board but by mistake it was stated therein that the mosque was for the benefit of people of Doshipura and it was registered under his name under serial No.

224 in the Register of Waqfs maintained by the Sunni Board and by· mistake that mosque was wrongly entered as being in Mahalia Doshipura; and in support of this reliance has been placed upon a Report dated 14th February, 1961 submitted by Inspector Ashraf Ali to the Sunni Board in which he 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 aspect whether the mosque mentioned in entry No. 224 in the Notification dated February 26, 1944 really pertains to the mosque in question standing on Plot No. 246 (Municipal No. J-15/94) in Mohalla Doshipura and as such the Notification will have no probative value. In this state of affairs Notice dated 11. 4. 1945 issued by Shia Board under s. 53 of the 1936 Act complaining about this entry at SI. No.

224 relied upon by counsel for respondents 5 and 6 must be regarded as having been issued ex majori cautela. Thirdly, even if it were assumed for the purposes of argument that entry at Serial No. 224 in the Notification dated 26th February, 1944 refers to the mosque in question it cannot affect the customary rights of the petitioners and through them the Shia community to perform their religious ceremonies and functions over the other 8 plots and structures thereon which had been listed as Shia Wakfs under the Notification dated 15th January, I 954, especially when it is now common ground that the mosque on Plot No. 246 is a public mosque constructed by general subscriptions and is accessible to members of both the sects for offering ' GULAM ABBAS v. U. P. 51A1E (Tulupwkar, J. ) 1117 prayers and doing worship therein. Admittedly the Notification dated 26th February, 1944, does not refer to any other plots or the structures thereon at all.

We are, therefore, clearly of the view that the Notification dated 26th February, 1944 issued under s. 5(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 other plots and structures thereon. ' Apart from the finality attaching to the Chief Commissioner's ' Report (together with the Appendices X and XI annexed thereto) dated 28th/31st October, 1938 the petitioners have also claimed that the aforesaid plots and structures thereon had been registered as Shia Waqfs for 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 Board, Lucknow, bearing Certificate Nos. 209, 210, 211, 214 and 21 all dated 22nd December, 1952~first relating to Mardana Imambara (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 appuTtenant 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 registration being under the 1960 Act, but counsel for the petitioners fairly conceded that the mosque in question belongs to both the sects and no special rights are claimed by the Shias over it except those conferred on them under the decree in Suit No. 849 of ' ,\ 1878 by Shri Pramoda Charan Banarjee. The registration in respect of the five properties mentioned above under sec. 38 of the 1936 Act would be available to the petitioners and must prevail over the subsequent registration, if any, obtained by the Sunnis in respect of some of the properties under the 1960 Act; really speaking such latter registration would be non est in the eye of law.

Apart from the Certificates of Registration issued by the Shia Central Waqfs Board on 22nd December, 1952 the petitioners are 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 published 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 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, 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 clear that even on the second foundational basis the Shias have proved their existing or established entitlement to their customary rights to perform their religious ceremonies and functions on the concerned plots and structures thereon.

Much was made by Counsel for respondents 5 and 6 of certain documents on record showing derivative title of Sunni Muslims to a couple of plots in question and Counsel contended that whatever be the position with regard to three earlier documents (Pattas of 1907, 1927 and 1930 about which the Courts have made observations in earlier litigations), there was yet one more lease of 20. 4. 1952 in respect of portions of three plots, namely, 602/1133, 247 and 245 in favour of Hafiz Mohd. Yusuf and Akram-ul-Haq, two Sunni Muslims from the Maharaja, whereunder they had acquired lessee's interest over the plots at an yearly rent of Rs. 3 and they had dedicated the same to the Sunni community for use as graveyard and such subse· quent title could not be affected by the decisions in earlier litigations. It must be stated that in support of this lease of 1952 no lease.

deed nor any Patta has been produced, but reliance is placed on two documents (i) Extract of Register of Agreements (Agreement to Lease) dated 20. 4. 52 and (ii) Receipt for payment of rent (curiously enough relating to three prior years July 1949 to June 1950, July 1950 to June 1951 and July 1951 to June 1952=1357, 1358 and 1359 Fasli), being Annexures 3 and 4 to the Counter Affidavit of Respondent No. 5 dated 17. 4. 1979. At the outset we would observe that it is difficult to accept the claim that the three plots had been dedicate