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Abdul Baqi and ors. Vs. Chaitanya Swarup and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3485 of 1958
Judge
Reported inAIR1971All328
ActsMahomedan Law
AppellantAbdul Baqi and ors.
RespondentChaitanya Swarup and ors.
Appellant AdvocateS.J. Hyder, ;S. Saddiq Ali and ;P.C. Gupta, Advs.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
trust & societies - mosque - mosque constructed by government for the inmates of police lives - dedicated to all muslim except certain government servants and lawyers - not a public mosque - performance of friday prayers do not make private mosque to public mosque. - - 9. oh ye who believe when the call is proclaimedto prayer on friday(the day of assembly),hasten earnestly to the remembranceof god, and leave offbusiness (and traffic);that is best for youif ye but knew?.....holding annual milad in the mosque in dispute which is situate within the enclosed compound of the police lines, azamgarh. the appellants have contended that the mosque is a public mosque and since its construction the muslims in general have been offering their prayers and performing their religious rites therein and the mosque is a waqf property and the muslim public has a legal right to go to the mosque for performing their religious rites. the appellants further contended that the respondents have obstructed the muslim public from entering the mosque and hence the suit in appeal. 2. it was contended, inter alia, on behalf of the respondents that the mosque exists on government land inside the compound of the police lines and it is exclusively meant for the muslim personnel residing.....
Judgment:

S.N. Katju, J.

1. This is a plaintiffs' appeal arising out of a suit for perpetual injunction restraining the respondents from obstructing the appellants in offering their daily prayers, Juma prayers, reading Taraveeh, Janaza prayers and holding annual Milad in the mosque in dispute which is situate within the enclosed compound of the police lines, Azamgarh. The appellants have contended that the mosque is a public mosque and since its construction the Muslims in general have been offering their prayers and performing their religious rites therein and the mosque is a waqf property and the Muslim public has a legal right to go to the mosque for performing their religious rites. The appellants further contended that the respondents have obstructed the Muslim public from entering the mosque and hence the suit in appeal.

2. It was contended, inter alia, on behalf of the respondents that the mosque exists on Government land inside the compound of the Police lines and it is exclusively meant for the Muslim personnel residing in the police lines and the mosque is not a public mosque, that it was never built by the Muslim public nor it was meant for the use of the general Muslim public nor any permission was granted to the Muslim public to enter in it and offer their prayers, that no Mutawalli was ever appointed nor possession of the mosque was ever delivered to any Mutawalli and that the mosque was not a dedicated property.

3. The trial Court dismissed the suit and its decision was affirmed in appeal by the lower appellate court. The court below has held, inter alia that-

(1) The Muslim law recognised a public mosque.

(2) The Mosque in dispute is part of the compound of the Police lines of Azamgarh.

(3) The mosque was never intended to be dedicated and it has not become a public mosque by reason of its user.

(4) Congregational prayers used to be offered in the mosque in dispute by the Muslim members or the Police personnel and by some Government servants and Muslim lawyers by special leave of the inmates of the Police Lines and not as of right.

(5) It was not proved that the prayer in the mosque was attended with aazan and ikamat.

4. The appellants have not challenged the findings of the court below that the mosque was built by the Government within the premises of the Police Lines, Azamgarh and all its affairs were conducted by the inmates of the Police Lines and not by any outsider. Furthermore, the findings of the Court below that there was no Mutwalli nor the upkeep of the mosque was the responsibility of any outside agency Other than the members of the Police Lines, Azamgarh were also not challenged.

5. Learned counsel for the appellants contended that since Friday prayers were held in the mosque in suit it must be held that it had ceased to be a private mosque and has acquired the character of a public mosque in which every Muslim had a right to go and perform his religious rites without any obstruction. It was contended that the very notion of Friday prayers, according to the injunction of Sheriat implies that the mosque is a public mosque and no limitation can be imposed on the right of any Muslim to enter the mosque and discharge his religious duties therein.

6. Learned counsel referred to Sura 52, Section 2 of the Quran which says:

9. Oh ye who believe when the call is proclaimedTo prayer on Friday(The Day of Assembly),Hasten earnestly to the Remembranceof God, and leave offBusiness (and traffic);That is best for youif ye but knew?10. And when the prayer is finished,then may ye disperse through the land,And seek of the Bounty of God, And celebrate the praises of God Often (and without stint);That ye may prosper. He also referred to Shareh we wikaya which lays down the conditions for Friday prayers.

5th Condition -- Jamaat hove aur Imam ke siva tin mard hon.

(There should be congregation. The minimum extent of congregation is that there should be three male persons other than the Imam).

6th Condition -- Chhathi short yeh hai ki izn aani ho yam tamam logon ka Masjid men iane ka hukm ho.

(The sixth condition is that there should be general permission i.e., the people in general should have the order to enter the mosque).

7. Learned counsel also referred to Fatawa Almgiri, Vol. I, page 84 which says:

'Farze Namaaz bagair aazan wa ikamat ke masjid men parhna makrooh hai (Fatewa Kazi Khan).

(Offering Namaz in a Masjid is vitiated without aazan and Ikamat. It is so written in Fatewa Kazi Khan).

Fatawa Alaragiri further says: min jumla iske izne aam ho -- Masjid ke darwaze khol diye jahy aur sab logon ko aane ki Ijazat ho. (Among others there should be general permission. The doors of the Masjid should be thrown open and every one should have the right or entrance).

8. Learned counsel contended that special sanctity and importance is attached to Friday prayers and in such a prayer every Muslim has a right to offer his prayer without any restriction. According to him, the very concept of Friday prayer implies that there must be general right (izne aam) for every Muslim to entry in the mosque and participate in the Friday prayer without any obstruction. According to him, since the Friday prayers were performed in the mosque in suit, it must follow that the mere performance of such prayers in the mosque has altered its character and from the time when the first Friday congregational prayer was performed in the mosque it ceased to be a private mosque, if in the beginning it was so, and acquired the character of a public mosque in which every Muslim had a right of entrance without any restriction imposed on him. The right of entrance, as indicated in the above quoted injunctions, may not necessarily mean a general right for all Muslims without any restriction whatsoever in going inside the mosque and participating in the Friday prayers being held therein. The general permission may be confined in the circumstances of the present case to every inmate of the Police Lines regardless of the fact whether he may be a member of the Police force or may be attached to the staff of the Police Lines and may be living within the premises of the Police Lines without any distinction of rank or office that he may be holding. There may be mosque within the restricted area of a defence establishment which has security regulations and where admission may be restricted to all the members living within the premises of the area. In such a case it may be said that the general permissionis the permission accorded to every person residing within the particular area for entering the mosque and participating in the functions held therein. But a Muslim who does not reside in such area could not claim to enter the restricted area and claim the right of entrance in the mosque.

In the present case the mosque is situate within the Police Lines and all the entrances leading to it pass through the Police Lines area. The gate of the mosque may remain open but only such people can go in the mosque who may be permitted to enter in the Police Lines Compound. If the police authorities choose to impose restriction on persons entering into the compound of the Police Lines, then it would necessarily follow that the inmates of the Police Lines only would have the right to go to the mosque. Every Muslim inmate of the Police Lines has an unfettered right to enter the mosque and it could be said that the Muslims residing within the premises of the Police Lines have an unrestricted right to enter in the mosque and perform their religious duties and therefore, it could not be said that any mandatory rule of Muslim Law has been broken in not throwing open the mosque to the general muslim public particularly at the time of the performance of Friday prayers.

Learned counsel was unable to cite any authority to substantiate his contention that a Friday prayer, according to the canons of Muslim Law, can never be performed unless all Muslims in general have an unfettered right of entering the mosque and participating in the prayer. If there is such a rule then it would necessarily follow that persons living in restricted areas where right of entry is regulated for security reasons will never be in a position to hold congregational Friday prayers for the simple reasons that because of the restrictions imposed on the entry of Muslims in general Friday prayers could not be performed at all.

9. Learned counsel conceded that in certain cases congregational Friday prayers may not be a proper prayer at all. Such congregational Friday prayers cannot be held in private mosque or in a private residence. The only exception made is in favour of a King who could hold Friday congregational prayers within his Palace provided the gates of the Palace are thrown open to Muslims in General. Thus if Friday prayer is performed inside the residence of an individual it will not be a proper Friday prayer.

10. Again, for purposes of Friday prayers, it is necessary that there should be azzan and ikamat. In the present case it has been found that the prayers are not preceded by aazan and ikamat. Aazan means a general call to the Muslims for coming to the mosque for performing their prayers. Ikamat indicates the order in whichthe persons performing the prayers ought to stand.

Learned counsel further contended that it is only when a prayer is performed in a mosque even if it is a private mosque, by giving aazan and ikamat that the mosque becomes a general mosque. He however argued that aazan and ikamat are the necessary ingredients of Friday prayers and since it has been found by the court below that Friday prayers were held in the mosque in suit therefore it must be held that such prayers were preceded by aazan and ikamat. The mere holding of Friday prayers does not necessarily mean that they were observed according to the rigidly prescribed manner of performing such prayers. If aazan and ikamat are the necessary ingredients of Friday prayers, then it must be held, as found by the court below, that since aazan and ikamat were not performed the Friday prayers held in the mosque in suit were not performed according to the prescribed manner. I am not prepared to hold merely from the fact that since Friday prayers were held in the mosque in suit therefore its character has been altered into that of a public mosque and it has ceased to be a private mosque. As mentioned above, there has been unrestricted entry for all the Muslim inmates of the Police Lines, Azamgarh, and no restriction has been put on any of them from entering in the mosque for performing their prayers and discharging other religious rites therein. I therefore hold that it may be that the Friday prayers held in the mosque were to some extent defective on account of the non-performance of aazan and ikamat and even if they were rightly performed then too it did not follow that the character of the mosque in suit had been altered and that it is now a public mosque.

11. Learned counsel relied on the following passage in Amir Ali's Mohammedan Law, IV Edn. Vol. I, page 394:

'Accordingly, if a man were to build a mosque inside his house, it will not become a public mosque, subject to the rules governing a public religious institution unless permission has once been granted to outsiders to come and pray. It is not necessary that such permission should be given in express terms, but, without an actual or constructive permission, a mosque created within a private building will not become a public mosque so as to entitle the public or any section of the public to claim the use of it.'

Learned counsel contended that since permission had been granted by the Police Authorities to persons other than the inmates of the Police Lines for entering inside the mosque and participating in the daily and Friday prayers it follows that the mosque in suit had become a public mosque. There is evidence to indicate that apart from the inmates of the Police Lines, occasionally some Government officials andlawyers and person attached to the nearby district courts participated in the prayers held in the mosque, but the Government had never given any general permission to the Muslim public to come to the mosque and such outsiders who came to the mosquo came with the inmates of the Police Lines and by their leave.

The court below has observed:

'The oral evidence of the plaintiffs as discussed above only discloses that prayers were offered not by the Muslims in general in the mosque in question but by a few particular personalities of the locality such as Judges, Deputy Collectors or any other Government servants and a few lawyers along with Police personnel. So far as the question of the Government servants offering their prayers in the mosque in question is concerned, it can never be claimed that they offered their prayers as of right. They attended the mosque for that purpose in their capacity as officers and holding responsible posts. As such any member of the Police attending the mosque, would have thought it a matter of pride for himself to offer his prayers along with an officer of high status instead of asking that officer in a churlish manner to quit the premises of the mosque. Apart from that preventing a person from offering prayers, would have been hurting to the sentiments. For the same reason 2 or 3 lawyers that casually attended the mosque were also, if I may say so, tolerated by the Police personnel for offering their prayers in the mosque. These lawyers too thus attended the mosque by implied leave of the muslim members of the Police personnel and not as of right. The act of the Muslim personnel of the Police Force in allowing other Muslims to offer their prayers in the mosque in question, would not amount to an act of the owner of the building, viz. the Government to allow the general Muslim public to offer prayers.'

I fully agree with the aforesaid view of the Court below. There is nothing to indicate that the Government or the Police authorities ever gave out that Muslims in general could come and perform their prayers in the mosque in suit as of right.

The question was raised as far back as 1925 when some Muslims had made an application to the Superintendent of Police for making an extension in the mosque. The then District Magistrate by his order dated 21-6-1926 said:

'In that case I think it is meant to mean mainly for the use of Muslim Police personnel and its extension for the use of the Public can hardly be made.'

At no time did the Government or the police authorities either expressly or impliedly make an order allowing entry in the mosque to the general Muslim public. The conduct of some Muslim inmates of the Police Linesin allowing some Government officials or lawyers entry in the mosque for performing their prayers could not be stretched to mean that any general permission allowing the Muslim Public to enter the mosque had been given either by the police or by the Government authorities.

12. I have no hesitation in holding that the mosque is a private mosque which Was built by the Government and is meant only for the Muslim personnel of the Police Lines, Azamgarh and it has not acquired the character of a public mosque in which very Muslim in general can claim unrestricted entry. I agree with the decision of the court below.

13. The appeal fails and is dismissed with costs.


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