- (1.) This Miscellaneous Petition for directions is an off-shoot of this Court's decision in the main Writ Petition No. 4675 of 1978, rendered on November 3, 1981: (reported in AIR 1981 SC 2198), in a dispute inter se between the members of the Shia and Sunni sects of Muslims of Varanasi, pertaining to the performance of religious rites, practices and observances by members of Shia sect on certain plots and properties situated in Mohalla Doshipura, Varanasi. The final result in that matter was expressed by this Court in these terms : "In the result we hold that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi, have established 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 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 in that behalf in this judgment." So far as the members of the Sunni community are concerned, in view of the ultimate decisions rendered in two earlier suits (Suit No. 424 of 1931 and Suit No. 232 of 1934), this Court found that all the rights which. the Sunnis had claimed in those representative litigations stood finally negatived except for one religious practice for which some liberty was reserved to them. To recapitulate the precise liberty reserved to them, it needs to be stated that in Suit No. 424 of 1931 there was a prayer for actual removal of graves, if any, found on plot No. 602/1133, that the evidence clearly showed that there was only one old grave of Maulana Hakim Badruddin situated on the southern side of the said plot existing since 1307 Hazri and-it was with regard to this grave that the Court had observed that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove the same and they (Sunni Muslims) were given liberty to read Fathia over that grave but what is significant is that the Court issued permanent injunction restraining the defendats and through them the Muslims of Varanasi (in fact the Sunni Muslims) from using the plot in future as burial ground. Even the liberty to read Fathia over the grave of Maulana Hakim Badruddin was to be exercised with due regard to the rights of the Maharaja. In other words, excepting this liberty to read Fathia over the grave of Maulana Hakim Badruddin the Sunni Muslims did not have any other rights over the plot in question. All other rights in regard to performance of religious rites, practices and observances over the other plots or structures thereon were negatived in Suit No. 232 of 1934. It is obvious that their rights cannot be enlarged or reduced in these proceedings. However, as regards the mosque standing on plot No. 246 is concerned this Court clarified the position that it belonged. to both the communities and members of both were entitled, to. perform their worship by offering prayers and namaz therein.
(2.) Notwithstanding the aforesaid clear and categorical decision of this Court it appears that during the two Moharram festivals that were to be celebrated in December 1981 and October 1982, grave apprehensions of breach of peace and break-down of public order were. entertained by members of the Shia community and, on each occasion directions were required to be given by this Court with a view to ensure that all the ceremonies at the festivals went off smoothly and peacefully and notwithstanding the directions issued by this Court on the occasion of the 1981 festival some ugly incidents of violence, stone-throwing, hurling of acid bulbs / bottles, etc., did occur in respect whereof contempt proceedings were required to be taken and criminal cases are pending. It may also be stated that on the occasion of Barawafat ceremony which was desired to be performed by the Shias on 9-1-1982, the Sunnis also wanted to have their. Chaddar function and reading of Fathia on the grave and, therefore, this. Court with a view to avoid any possible breach of peace had to direct that only Shias would be allowed to perform their ceremonies and the Sunnis were restrained from performing Chaddar ceremony and reading of Fathia at the graves on 9-1-1982 and it was made, clear that this arrangement was without prejudice to the contention of Sunnis with regard to their above function which would be decided later on. On the occasion of 1982 Moharram festival this Court was required to pass an order on 4th October, 1982 that Chaddar function and reading of Fathia at the graves will not be permitted to be done or performed by the Sunnis on those dates on which the Shias were going to have their functions with a view to avoid clash between the two communities; by way of further clarification this Court on November 16, 1982, gave a further direction that the grave of Maulana Hakim Badruddin on plot No. 602/1133 abutting on the road would be the venue for the Sunnis to perform on that grave the Chaddar function and reading of Fathia between stated hours (8 a. m. to 1 p.m.) on 19th, 20th and 21st November, 1982 and that the Sunnis will have access to that grave only from the public road and the District Magistrate was directed to cordon off the area and make necessary security arrangements during those functions on the aforesaid dates and time at the cost of Sunnis. We are referring to these events that have transpired since after the rendering of our main decision in Writ Petition No. 4675 of 1978 : (reported in AIR 1981 SC 2198) because they clearly suggest that some permanent solution of this perennial conflict between the two sects over the performance of their religious ceremonies and functions is desirable so that their religious ceremonies and functions could be performed in future without any violence, breach of peace and disturbance of public order.
(3.) With the aforesaid in view by our order dated 4th October, 1982 we appointed a Committee of seven persons consisting of three nominees of the Shias, three nominees of the Sunnis under the Chairmanship of the Divisional Commissioner of Varanasi (present incumbent Shri S. M. Mukherjee) for going into and submitting its report to us on two questions : "(1) Whether the two graves on plot No. 602/1133 could be shifted to some other convenient place; and (ii) if that is not possible whether the two graves could be cordoned off by a wall of sufficient height with an independent out let (for entry and exit) - It appears that the Committee held two Meetings to deliberate on the two issues and the representatives of both the communities expressed their views and after considering all the pros and cons the Chairman has submitted a report 9-12-1982 to this Court. The report states that Sunnis vehemently opposed the idea of shifting of any grave from its present site and even with regard to the proposal of the cordoning off the two graves by a wall they were not agreeable. The Chairman has, however, after undertaking a spot inspection of plot No. 992/1133 and the adjoining plots, opined that the suggestion to shift the two graves located on the northern side of plot No. 602/1133 to the south of the grave of Maulana Hakim Badruddin (situated in the same plot) is quite feasible as there is sufficient space in the suggested area and that such shifting of the two graves will totally separate the places of worship of Shias and Sunnis C. M. P. No. 1939 of 1983, has been filed by the petitioners (Shias) for issuance of directions to implement the suggestion made by the Chairman of the Committee.;