# GULAM ABBAS & ORS v. STATE OF U.P. & ORS - **Citation:** [1982] 1 S.C.R. 1077 - **Court:** Supreme Court of India - **Decided:** 1981-11-03 - **Case number:** Writ Petition No. 4675 of 1978 - **Bench:** V. D. Tulzapurkar, D. A. Desai, A.P. Sen - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gulam-abbas-ors-v-state-of-u-p-ors-8261 - **Pages:** 60 ## Headnote 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. 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 finality of Survey Reports and effect of regiJtration of Wakfs already made under the earlier A.ct long before it was repealed-Words and phrases--" Every other Wakf" B c D in section 29 of the 1960 Act, meaning of.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 Mohamedans-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. Nine plots bearing Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura. Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two 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 G H A c 0 l!l F G 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 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 ## Text _Characters 0–39,978 of 164,275. This is a partial read: ask again with offset=39978 for what follows._ - \ f 1011 A GULAM ABBAS & ORS. v. STATE OF U.P. & ORS. November 3, 1981 [V. D. TULZAPURKAR, D. A. DESAI AND A.P. SEN, JJ.] 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. 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 finality 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" B c D 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 Mohamedans-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. Nine plots bearing Nos. 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130 in the said Mohalla and buildings and structures thereon belong to the Shia Waqf of Mohalla Doshipura. Shias of that Mohalla numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two 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 G H A c 0 l!l F G 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 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 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 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 H HELD : 1 : 1. The petitioners and through them the Shia community of Mahalia Doshipura, Varanasi, have established their customary rights to perform I ' 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 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 B c D 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 incidental. (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 c D E F G ff 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 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 U.P. [1962] I SCR 574; Gulab~hand Chho/4/q/ Parikh v, srare of Bombay (now ... + { 't· 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 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 A 8 c D E F G H A B c D E F G H 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 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 .. - I - ' 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 A B c 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 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 SubDivisional 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 E F G H A 8 c D E F G H ios4 SUPirnMil COURT kili>Okts (t9flij 1 S.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 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. .. 1 - -\ r GULAM ABBAS V. U.P. STATE 1085 [1970] 3 SCR 181; Sahibzada Saiyed Muhammed Amirabbas Abbasi and Ors. v. The State of Madhya Bharat and Ors., [1963] 3 SCR 18, The Parbhani Transport Co-operative Society Ltd .. v. The &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] ORIGINAL JURISDICTION : Writ Petition No. 4675 of 1978. (Under article 32 of the Constitution of India) A B c D E F G M.C. Bhandare, Mrs. Urmila Kapoor, Mrs. Shobha Dikshit, H Hasan Imam, Shanker Saran Lal ~llc;I Miss Kam/esh Qansa/ for ~h~ Petitioners. A 8 1086 SUPREME COURT REPORTS [ 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 (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 comG 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 - ... - -t GUlAM ABBAS v. U.P. STATE (Tulzapurkar, J.) 1087 Central Waqf Board and Sunni Central Waqf Board be impleaded as parties to the petition as their presence was felt necessary for complete adjudication of the controversy and even otherwise under the U.P. Muslim Waqf Act, 1960, which has been done and both the Waqf Boards have also been heard through their counsel in the matter. In Mohalla Doshipura of Varanasi City there are two seats of mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand· sons of Prophet Mohammed, during the MOHARRAM but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe MOHARRAM for two months and eight days in a year in memory of Hazrat Imam Hussain who alongwith his 72 followers 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 (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, A B c D E F G H A B D E F G H 1088 SUPREME COURT REPORTS [1982J I S.C.R. 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/ 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. 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 / l I 30 and for the first I 2 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