LexGULAM ABBAS & ORS. versus STATE OF U.P. & ORS.
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- \ 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 fina- lity of Survey Reports and effect of regiJtration of Wakfs already made under the earlier A.ct long before it was repealed-Words and phrases--" Every other Wakf" B c D in section 29 of the 1960 Act, meaning of.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 Mohame- dans-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. Nine plots bearing Nos. 245, 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 reli- gious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practised by the men.folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowbas, Marsia, doing 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, obser- vances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole comn1unity will be in mourning and in none of their families any marriage or other happy function can take place. The petitioners, in the writ petition, and through them the Shia community, contended as follows : (i) that their customary rights to perform several religious rites, practices, observances and functions on the said nine plots and the structu· res thereon having been already determined in their favour by decisions of com- petent civil courts ending with the Review Petition 36/77 in Civil Appeal 941/76 in the Supreme Court, the respondents must be con1manded by a mandamus not to prohibit or restrain the $bias from performing their religious rites etc. on the said plots; (ii) that the registration of Shia Waqfs concerning the plots and struc- tures for performance of these practices and functions under sections 5 and 38 of the Uttar Pradesh Muslim Wakfs Act, 1936, which had become final as no suit challenging the Commissioner's report and registration was filed within two years by any member of Sunni Community or the Sunni Central Wakf Board, also concluded the said rights .in their favour; and (iii) that the power under section 144 Criminal Procedure Code is being invariably ex:ercised perversely and in uiter disregard of the lawful exercise of Shias' legal rights to perform their reli- gious ceremonies and functions and instead of being exe
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