Constitution of India, 1950, Articles 25 and 26-Right to enjoy the religious faith and performance of religious rites, practices and observances on certain plots and properties belonging to Shia community, which have already been adjudicated, determined and declared in their earlier litigation-Whether such a right is enforceable through a petition under Article 32 of the Constitution-Scope of Article 32.

Res judicata, bar of Civil Procedure Code, section 11, explained.

Uttar Pradesh Muslim Wakf Act, 1960 (Act XVI of 19601 repealing Uttar Pradesh Muslim Wakf Act, 1936 (Act XIII of 1936-Legal position as to the fina- lity of Survey Reports and effect of registration of Wakfs already made under the earlier Act long before it was repealed-Words and phrases "Every other Wakf" in section 29 of the 1960 Act, meaning of.

Criminal Procedure Code, 1973, section 144-Whether an order made under section 144 Criminal Procedure 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.

In Mohalla 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, Nowhas, Marsia, doing Matam (wailing) and taking out processions with Tabut Tazia, Alams, Zulzinha, 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 community 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 structures 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 commanded by a mandamus not to prohibit or restrain the Shias 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 Wakſs 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 exercised perversely and in utter 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 exercise under the facile ground of apprehension of imminent danger to peace and tranquility of the locality.

The respondents contested and contended 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. 144 Cr. P.C. these are judicial or quasi- judicial; alternatively even if it were assumed that these orders are administrative or executive orders passed by the Executive Magistrates, they cannot be challenged 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 res judicata or principles analogous to res 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 of S.L.P. 6226 of 1978 on 4-12-1978.