Citation: 1981 AIR 2198
Case Type: Writ Petition
Case No: 4675/1978
Petitioner: Gulam Abbas & Ors
Respondents: State Of U.P. & Ors
Decided On: 03-11-1981
Statues Referred: Constitution of India, Criminal Procedure Code, 1973.
Case Referred:
- Daryao and others v. The State of U.P.
- Union of India v. Nanak Singh.
Bench: Tulzapurkar, V.D. Desai, D.A. Sen, A.P. (J)
Facts:
The Writ Petiton was U/A 32 of the Constitution of India, where the petitioner complains about the various action taken by the respondent and which resultantly caused breach of their fundamental rights guaranteed U/A 25 and 26 of the Constitution, to enjoy their religious practices on certain plots.
Both Shia and Sunnis in the Mohalla Doshipur of Varanasi City have different manner of revering the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the MOHARRAM.
For performing various rites, practices and observances the Shia Community for time immemorial hold nine plots in Doshipur.
Shia were performing their rites without hindrances until 1960, whereafter the Sunnis who became majority and due to their political influence and police support, started creating hindrances by stimulating violence. Resultantly Executive Authorities of Varanasi invoked sec. 144 Cr. P.C.
And from 1960-66 the Executive power U/S 144 CrPc came to be used each year to restrict the rights of the shia by using sec. 144 .
Many a times under the pretext of peace and tranquillity threat, both shia and sunni were restricted from carrying out their religious rights due to imposition of sec144.
The City Magistrate refused the request of Shias of Mohalla Doshipur for carrying out their ceremonies and taking out Tazia Procession. For which writ petition was filed in Allahabad High Court for allowing Shias to carry out their due rites and ceremony. But the same was dismissed whereafter this petition was filed in the Supreme Court.
Issue:
Whether writ petition U/A 32 for a relief of declaration is maintainable or not.
Whether an order U/S 144 CrPc is judicial or quasi judicial and whether it can be challenged via writ under Article 32 of the Constitution.
Whether present writ petition was barred by res judicata.
Obiter dicta:
The rule of res judicata is technical in nature and is based upon the public policy. It is in the interest of the public at large that when a competent court had adjudicated upon a matter, then a final touch should be accorded to it and should be binding upon the parties.
It is against public policies to vex individuals twice for the same cause.
Ratio decedendi:
The judicial pronouncement by lower court and registration of the Shia Waqfs 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.
The customary rights claimed by the shia community is distinct from the title and ownership of the plots and the structure thereon. Although the existing title of the impugned plot could not be proved the petitioner has successfully established their customary rights to perform their religious rights and ceremony.
The provision of Section 11 C.P.C is not exhaustive in nature and it is not necessary that the principle of res judicata be applicable at all time where a matter has been adjudicated between the same parties.
No question of inadequacy arises for the proof of the shia’s entitlement to the customary rights over the plot and the structure in question.
The mosque in plot no- 246 was a public mosque where any mohammedan is entitled to worship and that the shia had the right to keep their tazia in the apartment attached. Registration dated 3rd July,1973 under 1960 Act, qualifies the contention of the petitioner.
Six out of nine properties where clearly asked to be entered in the list of shia waqfs by Imam Ali Mahto and the order was made thereon by a notification of 15th Jan 1954.
The shia’s right over the plot is not derived by the title or ownership but upon customary existence since time immemorial and therefore derivative title cannot hinder such rights of Shia.
The order U/S 144 of the CrPc should be regarded as an executive order in pursuance of executive function for preserving public peace and tranquillity. However such order are susceptible to violating or infringing a fundamental right of a citizen therefore they are amenable to writ jurisdiction either U/A 32 or U/A 226 of the Constitution.
The extent of authorities possessed by the magistrate is to suspend the exercise of religious rites to a prescribed period and not to absolutely prohibit it. Such action shall be contrary to public policy and shall be ultra vires.
Persons of all class or religion has the freedom of exercising their respective rites and ceremony upon the consideration that it should not hamper the social harmony and peace in public. Any religious practice should be allowed upto a particular point with limitation to keep the prejudice of the others safe.
With regard to previous decision of the court to take course of res judicata, the Court held that such case was not recorded on merits but was transferred to the civil courts and hence there was no adjudication on the matters to operate as res judicata.
Also when parties before the court are different and when some new material are produced, the concept of res judicata is non-applicable.
Judgment
The Apex Court’s bench comprising of Tulzapurkar, V.D. Desai, D.A. Sen, A.P. held the following:
Section 144 of CrPc cannot be held to be judicial or quasi-judicial in nature. An order passed by the executive magistrate to preserve public peace and tranquillity with social order should be regarded as executive order. Such order shall always be subject to the jurisdiction of the Court.
The Court rejected the contention of the respondent that the case is barred by the principle of res judicata. Not only new parties but also fresh document requiring due observance was produced so the respondent contention was held by the court as failing and therefore rejected.
The Court held that the shia community had customary right 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.
The respondent and the sunni community were permanently restrained from hindering with the rights of the petitioner in any manner.
To issue order U/S 144 of CrPc then the guidelines and principle for issuing such order must be given due regard.
Hence the petition was allowed and parties were told to bear their own costs.
Conclusion:
Freedom and limitation are the two sides of the same constitution. It is the same constitution of India which provides Indian citizen with various rights and freedom but also safeguards against their misuse by providing reasonable restriction to keep public peace in order.
And when the executive itself misuses the power granted to it then the onus is upon the Courts to keep them within the bounds of authority lawfully prescribed.
Kaushal Agarwal.