Tulzapurkar, J. - (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:- Plot No. 246:on which stands a Mosque which, it is common ground, belongs to both the sects as it was constructed out of general subscription from members of both the sects and every Mohammadan is entitled to go in and perform his devotions according to the ritual of his own sect or school. Plot No. 247/1130:on which stands the Baradari (Mardana Imambara. - a structure of white stone having 12 pillars) constructed by Shias in 1893 used for holding Majlises, Recitations, Marsia and doing other performances. Plot No. 245:on which there is a Zanana Imambara used by Shia ladies for mourning purposes and holding Majlises etc. Plot No. 247:on which there is Imam Chowk used for placing the Tazia thereon (said to have been demolished by the Sunnis during the pendency of the instant proceeding) Plot No. 248/23/72:a plot belonging to one Asadullah, a Shia Muslim, with his house standing thereon. Plot No. 246/1134:on which stands a Sabil Chabutra (platform for distributing drinking water) belonging to one Nazir Hussain, a Shia Muslim. Plots Nos. 602/1133, 602 and 603:being vacant plots appurtenant to the Baradari in plot No. 247/1130 used for accommodating the congregation assembled for Majlises etc. when it over-flows the Baradari. Particulars of the religious rites, practices and functions performed by the members of the Shia community on the occasion of the observance of Moharram are: (a) the Tazia (representing and signifying the dead body of Hazrat Imam Hussain) is kept in the Baradari on Plot No. 247/1130 and for the first 12 days of Moharram Majlises (religious discourses) of men-folk and women-folk is held daily- by the men-folk in the Baradari and on the adjoining plot Nos. 602/ 1133, 603 and 602 and by the women-folk in the Zanana Imambara on Plot No. 245. (b) On the 6th day of Moharram the Zuljana procession (a procession of the replica of the horse of Prophet Mohammed, which was also killed at the Karbala at the time of martyrdom of Hazarat Imam Hussain) of not less than 5000 Shias from all over Banaras City is brought to the Baradari in which the Tazia is placed and after visiting the Tazia there the horse procession moves in the whole city of Varanasi non-stop for another 36 hours and terminates at the place of its origin. Offerings to the horse are made not only by the Shias but also by persons of other communities during the procession under the religious belief that such offerings bring in good fortune. (c) On the 10th day of Moharram the Tazia bedecked with flowers is taken out in huge procession to Karbala situated near Lord Bhairon. 3 miles from Doshipura (the place signifying the Karbala in Iraq where martyrdom occurred), where the flowers of the Tazia are buried and then Majlis is held at that place. (d) on the 11th and 12th day of Moharram Majlis (religious discourse) is held and the Qurankhani and Tija are performed in the Baradari and the adjoining plots which consist of offering of prayers, recitations of Quran Sharif, Nowhaz (short melancholic poems) and Marsias (poems of grief and sorrow) these being performed both by men-folk and women-folk, the latter at Zanana Imam Bara. (e) On the 25th day of Moharram, being the death anniversary of Hazarat Zanulabadin s/o Hazrat Imam Hussain, again Majlis, Matam (wailing accompanied by breast-beating), Nawhaz and Marsias are held and performed in the Baradari and the adjoining plots by men and in Zanana Imambara by women. (f) On the 40th day of the Moharram, Chehalum ceremony of Hazrat Imam Hussain is performed when Majlis Matam, Nawhaz and Marsia are held; the Tazia bedecked with flowers is taken out in procession up to Karbala near Lord Bhairon where again the flowers are buried with religious ceremonies and the Tazia is brought back to the Baradari in Doshipura. (g) On the 50th day of the Moharram i. e. 50th day of the martyrdom of Hazrat Imam Hussain Pachesa is performed by taking out the Tazia again in procession to the Karbala and after burial of flowers it is brought back to the Baradari. On both these days i. e. Chehalum and Pachesa, Majlis, Qurankhani, Nawhaz, Marsias and Matam are performed on the Baradari, adjoining plots and the Zanana Imambara in Doshipura. (h) Four days after the Moharrain period the Shias observed the Barawafat which according to them is the death anniversary of Prophet Mohammad and on this day again on the Baradari, adjoining plots and Zanana Iniambara Majlis is held which is accompanied by Kurankhani Nawhaz and Marsias in which men-folk and women-folk participate. It is the case of petitioners that the Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five storeys, 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.
(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.;