GULAM ABBAS Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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 respondents 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 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 Moballa 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 appropriate writ, direction or order in the nature of mandamus commanding respondents 1 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, R. 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, Shia 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 Wakfs Act, 1960, which has been done and both the Waqf Boards have also been heard through their counsel in the matter.

(2.) In Mohalla Doshipura of Varanasi City there are two sects of Mahomedans - the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grandsons 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 practised by the men-folk and the women-folk of the Shia community by holding Mailises (religious discourses) Recitations, Nowhas, Marsia, doing Matam (wailing) and taking out processions with Tabut Tazia, Alams, Zuljinha, etc. For performing these religious rites, practices and observances the Shia community has been customarily using from time immemorial the nine plots in Moballa Doshipura and the structures on some of them, particulars whereof are as under:-

(3.) The petitioners and through them the Shia community of Mohalla Doshipura are basing their customary rights to perform the aforesaid religious rites, practices, observances and functions on the said nine plots and the structures thereon on two foundations: (i) Decisions of competent civil courts adjudicating these rights in their favour in earlier litigations and (ii) 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 which has 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. In other words previous decisions of Civil Courts and registration of their Shia Wakfs under the U. P. Muslim Wakfs Act, 1936 have concluded the said rights in their favour and therefore Counsel for the petitioners pointed out that that the prayer for declaration in the Writ Petition was really incidental, the rights in favour of the Shia community having been already determined and the real grievance was regarding the infringement of their said rights and their enforcement and hence the substantial prayer was for mandamus commanding the respondents not to prohibit or restrain the Shias from performing their religious rites, practices, observances and functions on the plots and the structures standing thereon.