Allahabad High Court
Shah Abdul Bagi And Ors. vs The State Of Uttar Pradesh And Ors. on 21 April, 1987
Equivalent citations: AIR1988ALL1, AIR 1988 ALLAHABAD 1, (1987) 13 ALL LR 582, (1987) ALL WC 1033, (1987) 2 CURCC 480
JUDGMENT K.C. Agrawal, J.
1. For deciding the controversy referred by the learned single Judge about maintainability of the suit, it is necessary to state the relevant facts. These facts are : --
Shah Abdul Bagi and four others, who were members of the Muslim community, have filed the present suit under Order 1 Rule 8 of the Civil PC for injunction restraining the State of Uttar Pradesh, Senior Superintendent of Police, Allahabad and others from causing any interference or restraining the plaintiffs from entering into the mosque and offering their prayers through the main gate shown by letter 'M' in the map annexed to the plaint. This right of offering prayers was claimed by the plaintiffs in respect of a public mosque popularly known as "Masjid-E-Azam", situated in new Attarsuiya, Allahabad.
2. The plaintiffs claim that the public mosque exists since times immemorial and that the plaintiffs and other Muslims were offering prayers in the same, but by an unauthorised action, defendant 1, Sri J.M. Saxena, who was Deputy Superintendent of Police, had illegally closed the iron door by putting the lock resulting in restraining the plaintiffs and other Muslims from offering their prayers and as their fundamental right to worship had been infringed, they were entitled to the injunction in the terms mentioned above.
3. The suit was contested by defendants 1 to 3. They stated that as the plaintiffs had raised a wall 'adjacent to the 20' wide lane and tried to open a gate therein which was resented by the residents of the locality, therefore, the plaintiffs closed the walls themselves. There was no gate, according to the defendants, at place 'M'.
4. On the pleadings of the parties, the trial court framed a number of issues, out of which we are concerned with the following two : --
7. Whether the plaintiffs have right to sue?
8. Whether the plaintiffs 6 and 7 have no right to sue?
5. These issues were taken up together by the court below and were decided against the plaintiffs on the ground that the administration of the mosque was being conducted by a society registered under the Societies Registration Act in the name of Masjid-e-Azam and as the suit had not been filed by or on behalf of the Society, the same was liable to be dismissed. While deciding this controversy, the court below also held that since the plaintiffs did not prove that they were Sunnis, they had no right to maintain the suit.
6. Before the learned single Judge, the argument was that the Society Masjid was not entitled to be registered on account of prohibition contained in Section 20 of Societies Registration Act, therefore, the Society was incapacitated from filing the suit and, as such, the suit could not be dismissed on the ground of having not been filed by it.
7. In this case, what was being claimed by the plaintiffs was that illegal hindrance had been created by the defendants in their right to enter into the mosque through the gate which has been closed by the police.
8. In Jawahara v. Akbar Husain, (1885) ILR 7 All 178, (FB) a suit was filed by Akbar Husain for declaration of his right to repair the old dilapidated mosque by removal of defendants' interference, the demolition of compound, removal of the mill, thatches and mud and the straw stored in the mosque. The plaint concluded with these words; "Suit brought according to the doctrines of the Mohammadan religion and on written and oral evidence." The suit was contested upon the grounds amongst other, that the suit was not maintainable, as the plaintiffs had no right to get any relief in that respest. The appeal filed by the defendants was dismissed by a learned single Judge. The Division Bench referred the second appeal before the Full Bench for answering the following question:
"Can any Muhammadan or Muham-madans maintain a suit like the present, irrespective of the provisions of Sections 30 and 539 of the Civil PC?"
9. The Full Bench held that if an individual right had been violated, an action would lie. Mahmood, J., observed:
"A mosque is an endowment of this kind, and the Muhammadan community, or any member of it, has a right to enter the mosque and to pray there.........The right of a Muhammadan to use a mosque is, as the Chief Justice has said, like the right to use a private road; any one who has the right may maintain a suit in respect of it."
10. In Mulla's Principles of Mahomedan Law, this controversy has been dealt with at page 246(of ILR 7 All) and it was observed : --
"218. Public Mosques. -- Every Mahommadan 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."
11. In Syed Ahmad v. Hafiz Zahid Husain, AIR 1934 All 732, Niamatullah, J., observed as follows : --
"A mosque, from its very nature, is dedicated for worship and is open to all Muslims, local and others. It is dedicated for a specified purpose and not to the local Muslims for such benefit as they may choose to derive therefrom. They cannot of right claim to use it for any other purpose however meritorious or beneficial it may be to the members of the local Muslim Community."
12. In Mahomed Wasi v. Bachchan Sahib, AIR 1955 All 68; at p. 73 (FB), Malik, C. J. delivering the judgment observed :
"...................It is now 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."
13. In Pathanamthitta Majilissae Islamia v. Naqoor Meeran Sheik Muhammad, AIR 1963 Ker. 49, following the decision of Nar Hari Shastri v. Shri Badrinath Temple Committee, AIR 1952 SC 245, the same view has been taken. The view taken is that the right to offer prayer in a mosque is a legal right, for the disturbance of which a Mulsim is entitled to seek relief in a court of law.
14. It is settled by it that even a single member of the Muslim community is entitled to bring a suit in respect of his right to offer the prayer. The suit was filed by the plaintiffs claiming themselves to be the members of the Muslim community claiming that by illegal closer of the door, their right had been seriously prejudiced.
15. The next point that was mentioned by the learned single Judge in his judgment is whether the plaintiffs since had failed to establish that they as Sunnis could file a suit in respect of the mosque of Sunnis.
16. The defendants' counsel made a reference to the above finding and urged that the plaintiffs' suit was liable to be dismissed on that ground alone irrespective of the fact that it was not maintainable as filed. To counter this submission, the plaintiffs' counsel urged that a mosque could not be consecrated exclusively for the use of any particular sect or denomination and that as a mosque for all, all Muslims were entitled to go and perform the devotion according to their conscience.
17. Mahmood, J., in Ataullah V. Azimuullah, (1889) ILR 12 All 494(FB) held that the mosque does not belong to any particular sect, for once it is built people not belonging to that locality or sect are en titled to worship in it.
18. In Mahomed Wasi v. Bachchan Sahib (AIR 1955 All 68)(FB) (supra) Malik, C.J., also held that a mosque could not be reserved for a particular denomination or sect. Consequently, it is immaterial that the plaintiffs failed to establish that they were Sunnis. The suit could not be dismissed on that ground.
19. There is a conflict between the decisions given by the Allahabad High Court in AIR 1969 All 248 and the Patna H. C. in Anjuman Islamia v. Inspector General of Registration, AIR 1980 Pat 138. In the former case, the Allahabad High Court held that a religious purpose is a charitable purpose and a society for a religious purpose would ordinarily be a charitable purpose, whereas the view taken by the Patna Full (Division ?) Bench is:
"We are, therefore, of the view that the expression charitable purpose as used in the Societies Registration Act does not embrace purpose which are religious or predominantly religious. If that be the correct view of law there cannot be any doubt that the Inspector General of Registration had no jurisdiction to register the Society in question under Section 3 of the Act."
20. The question whether the expression 'charitable purpose' as used in the Societies Registration Act embraces purposes which are religious is not material for deciding the controversy of maintainability of the suit at the instance of the plaintiffs.
21. On the facts and the law, as mentioned above, the controversy whether the suit could be filed by the Society, the Society is not entitled to be registered under Section 20 of the Societies Registration Act does not arise for decision in this case. The suit, we have held above, was filed by the plaintiffs on the basis that they were members of Muslim community.
22. Let the papers of this case be laid before the Hon'ble Judge who referred the case.