1. An interesting question of Muhammadan Law arises in this writ petition. The question is whether a Muhammedan belonging to a particular sect has an absolute right to demand that the Imam of his sect would lead him to prayers and restrain others from preventing him from offering his prayers as desired by him. This leads to another basic question viz. is there any fundamental right in the matter of offering Namaz in a particular way?
2. It is well settled and admits of no doubt whatsoever that a Muslim of whatever sect and denomination he may be has a right to offer his Namaz in a mosque dedicated to God. He cannot be restrained from doing so. A Muhammedan has an absolute right of entry into any public mosque for the purpose of offering his Namaz. It does not matter at all as to who manages the mosque, nor the sect to which the founder of the mosque belonged; it also does not matter as to which particular sect or school of thought, the person seeking entrance, for offering Namaz, belongs. Thus so far there is no dispute at all. Article 25 of the Constitution of India guarantees all citizens the right to freely practise his religion.
3. Article 26 of the Constitution guarantees the freedom to manage religious affairs although it is subject to public order, morality and health. “Every religious denomination or section thereof shall have a right (a) to establish and maintain institutions of religious and charitable purposes and (b) manage its own affairs in the matter of religion, (c) to own and acquire movable and immovable property, and (d) to administer such property in accordance with law”. This Article entitles every religious denomination to establish or maintain an institution for religious purposes. Therefore, it is open to any sect or school of thought among the Muhomedans to establish and maintain an institution for religious purpose. This entitles a person to establish a mosque and dedicate it to Allah Talah and then make necessary arrangement for its maintenance for religious purposes. Such person or persons have the right to manage their affairs in the matter of religion and also to own and acquire and administer property dedicated to the mosque.
4. A question arises as to the meaning of the words “manage its own affairs in matters of religion”. What is the scope of this provision which is enshrined in Article 26(b)? Does it entitle the founder of the public mosque or any sect in particular, to lay down its own rules regarding the offering of Namaz or to offer Namaz led by a particular Pesh Imam.
5. In the celebrated book on “Principles of Mahomedan Law” by Mulla, 16th edition edited by Hon'ble M. Hidayatullah, Para, 218 defers to public mosques as follows:
“Public mosque:— Every Mahomedan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of any sect or school.
The right to offer prayers in a mosque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law.”
6. Reference is made to the decision in the case of Alaullah v. Azimullah (1890) ILR 12 All 494 (FB) wherein it was held that a mosque dedicated to God is for the use of all Mahomedans and cannot lawfully be appropriated for the use of any particular sect. The view was followed by the High Court of Lahore in the case of Maula Baksh v. Amir-ud-Din (1920) ILR 1 Lah 317 : (AIR 1920 Lah 384). The Lahore High Court further held that there is no such thing as a Shia mosque or a Sunni mosque; See Mt. Iqbal Begum v. Mt. Syed Begum (AIR 1933 Lah 80).
7. In the case of Haji Mohd. Sayeed v. Abdul Gafoor (AIR 1955 All 688) a question came up Before this Court in regard to the grant of injunction to restrain the members of one sect of Mohammedans from interfering with the rights of other sect to offer prayers in the mosque which was controlled and managed by the former sect. The Division Bench held that the fact that every Mohammedan possesses a right to offer prayers in a mosque as an individual does not lead to the conclusion that every separate sect has a right to hold congregational prayers in a mosque. Reference was made to the case of Sifat Ali Khan v. Ali Mian (AIR 1933 All 284). In that case it was laid down:
“Mohammedans of the Ahmadia sect are entitled to enter into a Sunni mosque if they please and to offer up prayers with the regular congregation behind the Imam chosen by the members of the congregation, but they are entitled to pray in a separate congregation behind an Imam of their own in a mosque which has always been used by orthodox Mohammedans.”
8. A reference was also made to the case of Amir Hussain Shah v. Hafiz Ghulam Rasul (AIR 1936 Peshawar 65) where it was laid down:
“Every Mohammedan has right to say his prayers in any mosque and behind the regular Imam provided he does not disturb or interrupt other worshippers. A particular sect is not however, entitled to a separate call of prayer made or to hold a separate congregation behind an Imam of their own, as it would lead to in surmountable difficulties and continual friction.”
9. Reference may also be made to the decision of a Special Bench of the Court in the case of Mohd. Wasi v. Bachchan Sahib (AIR 1955 All 68). In this case there was a dispute between the Shias and Sunnis regarding certain practice from a mosque situated in Qasba Mahmudabad in the district of Sitapur. It was stated there that the Shia Musalmans had no right to have a Tataut or a Gahwara decorated inside the mosque or take it out in a procession from there after doing Matam. A prayer for a permanent injunction was made in a suit. This question involved the offering of congregational prayer in a mosque. After reviewing a large number of reported decisions their Lordships observed that it was well-settled that:—
“1. a mosque is dedicated for the purpose that any Muslim belonging to any sect can go and say prayers therein;
2. it cannot be reserved for Muslims of any particular denomination or sect:
3. no one can claim to have the form of congregational prayer usually said in a mosque altered to suit him;
4. even though the congregational prayers are said in a mosque in a particular form any Mulsim belonging to any other sect can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything ‘mala fide’ to disturb the others;
5. the object of the dedication can neither be altered nor the beneficiaries limited or changed; and
6. a muslim will have a cause of action if he is deprived of his right to say prayers in a mosque or is prevented from doing so”.
10. A series of cases had come up before this Court about a hundred years ago where a question was raised whether a sect of Mahomedans saying ‘Amin’ in a loud voice after the conclusion of their prayers could be restrained by an injunction. The first case was for prosecution in a criminal Court of the persons saying ‘Amin’ in a loud voice and disturbing the congregation. In a series of decisions by Mohamood, J., it was laid down that although every Mohamedan has a right to offer his prayers in a mosque regardless of the sect to which he may belong he has no right to disturb the congregation by loudly uttering the word ‘Amin’ after the conclusion of the prayer. See Jangu v. Ahmadullah (1891) ILR 13 All 419 (FB).
11. It is clear from the above that a public mosque is a place of workship for the Mahomedans and regardless of their sect or denomination or as to who had founded the mosque, they are entitled to offer their prayers in the mosque. It is a fundamental right of every Mahomedan to offer his Namaz in a public mosque. He cannot be denied this right on the ground of not belonging to a particular sect or denomination who have founded the mosque or were managing the said mosque.
12. There is no allegation in the pleadings that there is any restriction imposed by the other side preventing the plaintiffs from offering their Namaz in the mosque concerned. The real cause of grievance as outlined earlier is in regard to the leading of the congregation in the prayer by an Imam of their choice.
13. In the case of Haji Mohd. Sayeed v. Abdul Ghafoor (AIR 1955 All 688) (supra) a similar question came up before the Division Bench. Their Lordships observed (at p. 690):—
“Moreover, in view of the bitter relations that have existed between the two sects for a long time, and which during the last fifty years have led to a crop of civil as well as criminal litigation, the result of the grant of the above relief in the present case would be to create a situation that would be explosive and fraught with danger. It is bound to lead to a position in which a violent clash between the parties might take place any moment with the result that no sect would be able to perform any prayer at all.”
14. In the above case the Court further observed:
“Further we are also of the opinion that the exercise of the exclusive congregational right claimed by them is neither lawful nor bona fide.”
15. The prayer for injunction was refused. In the present case also there is a considerable tension between the two sects. It is undisputed that the concerned mosque, which is situate in Moradabad, attracts Mahomedans owing allegiance to two different schools of thought viz., the Barelvi School of thought and the Deobandi School of thought. It is undisputed that the mosque was founded by those who followed the Barelvi school of thought. The plaintiffs who are the respondents in the writ petition, claimed that they have a right to be led in their prayer by Imam of their choice i.e an Imam professing the Deobandi school of thought, This was contested by the defendant-petitioners and in order to restrain the petitioners they brought a suit and prayed for injunction and also prayed for a temporary injunction to restrain them from appointing their own Imam to lead them in offering Namaz. The suit was dismissed by the trial court. Meanwhile due to interference by the officials of the Government a compromise had been arrived at between the two sects in which each sect would have its own Pesh Imam for a month. The decision of the trial court was set aside on appeal and held that there was a breach of fundamental right guaranteed under the Constitution in the matter of exercise of religious rites and this could not be waived. A writ petition was filed against this order and Hon'ble A.N Verma, J. allowed the writ petition and sent back the case to the appellate court for a fresh decision keeping in view the observations made in the judgment. Verma, J. had observed that there was no allegation anywhere that there was any breach of fundamental right. After remand the same learned Additional District Judge decided the matter once again and allowed the appeal, set aside the judgment of the trial court and held that the plaintiffs were entitled to the injunction prayed for in restraining the defendants from having their own Imam to lead them in their prayers in the mosque concerned. Aggrieved the petitioners have come up in this court. I have heard learned counsel for the parties at some length.
16. There is no dispute now that there is really no breach of fundamental right guaranteed under Article 26 of the Constitution in the matter of religious rites. It must be noticed that the rights which have been recognised under Art. 26 of the Constitution are subject not only to public order but to morality and health also. What is being claimed in this case is an exclusive right in respect of a religious rite. It is undisputed that every Mahomedan can offer his Namaz in a public mosque. It is not necessary for a Mahomedan while offering his Namaz to be led by an Imam. A practice has developed that the congregation is usually led by a person who is acceptable to the congregation and is a person of learning and merit and he leads the prayer. It is not mandatory for a Mahomedan to join in the offering of such prayer under a particular Imam. He may offer his prayers separately. Similarly, others may join him. A fundamental question which arises at this stage is whether even if they belong to a particular sect or denomination can they claim to offer their Namaz only when led by an Imam of their choice? I do not find any fundamental right involved in this. The only fundamental right of a Mahomedan in a public mosque is to offer his prayers unrestricted by any right or by any particular rule of restraint. The only judicially accepted restraint is that he shall, have no right to disturb any one else offering his prayer in the mosque. When the petitioners seek a right to offer their prayers in this mosque they cannot be restrained by any one from doing so. However when they claim a right to offer Namaz only under the Imam of their choice, that in my opinion, cannot he said to be a fundamental right. If the petitioners' group enters the mosque, and wishes to be led in the prayer by an Imam of their choice only they may do so provided they do not disturb others from offering their Namaz when led by an Imam of their choice. But in situations like this there is often a possibility of disturbance of public order or even a fracas. A question may arise as to which group would offer their Namaz first or which group would occupy the mosque during the relevant period for the offering of Namaz. These questions may pose a threat to public order. In cases like this the right which has been guaranteed under Articles 25 and 26 of the Constitution is subject also to the limitation of public order. It is open to the State and its authorities to intervene so as to prevent a breach of peace. The question, therefore is whether there could be an absolute right in any party to occupy the mosque for the purpose of offering Namaz only when led by an Imam of their choice. As indicated earlier, the fundamental right of a Muslim in a mosque is to offer his prayers. What particular rite will be followed and how it shall be done are matters of practice. This cannot be termed to be a fundamental right in the exercise of religious rites. In view of the above, the view taken by the Additional District Judge that the plaintiffs had an absolute right in offering prayers in the mosque led by an Imam of their choice and that the defendants have no right to do so under an Imam of the latter's choice is not correct interpretation of the law on the subject. In a matter like the present where there is considerable heat, tension and possibility of breach of peace the proper course would be to see that the decree or interim order does not accentuate the problem. Granting of relief of injunction is discretionary. The relief must be granted where it is absolutely necessary. It may be granted where it would help in the preservation of peace and public order. Where there is a possibility of breach of peace of public order, the Court ought (to) proceed with caution. In the present case the material on record shows that due to the intervention of the officials of the district administration a compromise had been arrived at between the members of the two sects, although not between the parties in the suit, it was just and proper that the arrangement formulated and accepted should have been upheld as that would have created an atmosphere of peace and amity.
17. The learned Appellate Court has held that the plaintiffs had a prima facie case to the grant of an injunction. As seen above, this finding is not in accordance with saw and being manifestly erroneous must be set aside. Once it is found that there is no prima facie case, the question of the balance of convenience and irreparable loss becomes irrelevant.
18. In this case I cannot subscribe to the view taken by the Appellate Court that the balance of convenience lay in favour of the plaintiffs and they would suffer an irreparable loss. For the reasons indicated above, this petition must succeed and the impugned order must be set aside.
19. The writ petition accordingly succeeds and the judgment of the Additional District Judge dated 3-3-1981 is set aside. The parties are directed to bear their own costs.
20. Writ petition allowed.
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