Civil Miscellaneous Petition No. 4939 of 1983, in Writ Petition No. 4676 of 1978
1981 AIR 2198, 1982 SCR (1)1077, 1982 SCC (1) 71, 1981 SCALE (3) 1707
V.D. Tulzapurkar, D.A. Desai, A.P. Sen
Date of Judgment
3 November, 1981
Relevant Act/ Sections
The Wakf Act, 1995
Article 32 of the Constitution of India, 1949
Section 144 of the Code of Criminal Procedure, 1973
Section 5 of the Code of Criminal Procedure, 1973
Facts of the Case:
In Mohalla Doshipura of Varanasi City, there are two sects 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 along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practiced by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marcia, 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.
Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five floors, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs. According to the petitioners, the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances, and functions detailed above constitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.
From the year 1960 onwards the Sunnis, who were in majority and were able to muster the support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies. Thus, during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures, and the appurtenant plots on the occasion of the Barawafat; sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of Moharram, Chehulam, Pacha, and Barawafats under section 144 were issued by the district authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours. More often than not under the pretext of imminent danger to peace and tranquillity both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders.
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 August 8, 1975.
Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time, the High Court felt that where a situation arose year after year making it necessary to take action u./sec. 144 Cr.P.C. it would be a 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.
On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court’s decision in earlier litigation and quashed the City Magistrate’s order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases.
Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of 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 impugned orders under sec.144 when those orders had ceased to be operative 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.
Issues before the Court:
- Whether an Order made under Section 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution
- Whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of the celebration of Moharram festival at the Baradari in Mohalla Doshipura.
- Whether the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of the petitioners’ legal rights to perform their religious ceremonies and functions on the plots and structures in question
- Whether the petitioners have succeeded in proving their subsisting entitlement to the customary rights claimed by them.
Ratio of the Case
- The question of whether an order under Section144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898.
- The position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquillity under Section144 of the Code had been conferred on “District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government”
- The position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent.
- If certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates.
- The order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Article 32, the same being in the exercise of executive power in the performance of the executive function.
- The challenge to this order was incorporated in the writ petition by way of an amendment that had been allowed by the Court.
- Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity.
- Without setting out verbatim the provisions of sec. 144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorizes the executive magistracy to do, and in what circumstances.
- 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 specially 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 employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray.
- As stated earlier sub-sec. (2) authorizes the issuance of such an order 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 sub-sec. (5) the executive magistrate, either on his own motion or on the application of the person 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.
- 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 tranquillity.
- Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
- The Magistrate’s action should be directed against the wrong-doer rather than the wronged.
- Furthermore, 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 the consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.
- They are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favor and registration of Shia Wakfs concerning the plots and structures for the performance of these practices and functions under secs. 5 and 38 of the U.P. Muslim Wakfs Act, 1936
- This is a clear case of an existing or established entitlement to the customary rights in favor of the Shias’ community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
- It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under s. 5(1)
- When these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did not raise any objection to such registration. The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.
The Court held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi has established their existing customary rights to perform their religious rites, practices, observances, ceremonies, and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed if action under section 144 Cr. P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated on that behalf in this judgment. The writ petition is thus allowed but each party will bear its own costs.
This case law analysis is written by Prateek Chandgothia, a first-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab.
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