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PETITIONER:

ALL INDIA IMAM ORGANISATION AND ORS.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT13/05/1993

BENCH:

SAHAI, R.M. (J)

BENCH:

SAHAI, R.M. (J)

RAMASWAMY, K.

CITATION:

1993 AIR 2086 1993 SCR (3) 742

1993 SCC (3) 584 JT 1993 Supl. 536

1993 SCALE (2)955

ACT:

Wakf Act 1954: Ss 15,36-Payment of wages to Imams in

mosques-Held, it is the responsibility of the Wakf Board-

Directions to Union of India and the Central Wakf Board to

prepare a scheme within six months for different types of

mosques-Constitution of India, Articles 21, 14 and 23.

HEADNOTE:

A petition was filed in this court by Imams for enforcing

their fundamental right against exploitation by Wakf Boards.

Their claim was based on the glaring disparity between the

nature of work and the amount of remuneration. The

petitioners sought a direction to the Central and State Wakf

Boards to pay them basic wages. A higher pay scale was

claimed for degree holders.

The Union of India and various State Wakf Boards disputed

the manner of their appointment, their right to receive any

payment, and absence of any relationship of master and

servant. It was variously contended that they were

appointed by Mutwallis, or in some cases by the people of

the locality where the mosques were situated, and not by the

Wakf Boards; that under Islamic religious practice it is

voluntary service and there is no entitlement to emoluments;

that a certificate from a registered institution is not a

necessary requirement for leading in prayer. It was further

contended that the Wakf Boards faced financial difficulties.

The Punjab Wakf Board stated that Imams of mosques in

Punjab, Haryana and Himachal Pradesh were paid on the basis

of their qualification. A pay scale was indicated, and the

Imams were paid regularly and treated as regular employees.

Allowing the petition, this Court,

HELD:(1) By Section 15 of the Wakf Act, the Wakf Board is

vested not only with supervisory and administrative powers

over the Wakfs but even the financial power vests in it.

One of the primary duties is to ensure that the income from

the Wakf is spent on carrying out the purposes for which the

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Wakf was created. Mosques are Wakfs and are required to be

registered under the Act, over which the Board exercises

control. Purpose of their creation is community worship.

The principal functionary to undertake it is the Imam. It

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is the responsibility of the Wakf Board to ensure proper

maintenance of religious service in a mosque. To say,

therefore, that the Board has no control over the mosque or

Imam is not correct. (747-G-H, 748A)

(2) In a series of decisions rendered by this Court it has

been held that right to life enshrined in Article 21 means

right to live with human dignity. It is too late in the day

to urge that since Imams perform religious duties, they are

not entitled to emoluments. (748-E)

(3) Financial difficulties of the institution cannot be

above fundamental right of a citizen. If the Boards have

been entrusted with the responsibility of supervising and

administering the Wakf then, it is their duty to harness

resources to pay those persons who perform the most

important duty namely of leading community prayer in a

mosque, the very purpose for which it is created. (748-H)

(4) The Union of India and the Central Wakf Board are to

prepare a scheme within a period of six months in respect of

different types of mosques: (7497-H)

The scheme shall take guidance from the scale

of pay prevalent in the State Punjab and

Haryana. (749-D)

Mosques under control of the government will

not he governed by this order except if their

Imams are not paid any remuneration and have

no independent means of income. The

Government may then fix their emoluments on

the basis as the Central Wakf Board may do for

other mosques. (749-C)

The State Boards shall ascertain the income of each mosque

and the number and nature of Imams required-full time or

part time-and their payment is directed. (749-E)

The scheme shall take account of mosques which are small, or

in the rural area, or which have no source of income and

find

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ways to raise income. (749-G)

The order for payment to Imams shall come into operation

from 1 December 1993. Every State Board shall implement the

scheme. (749-H, 750-A)

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (c) No. 715 of 1990.

Under Article 32 of the Constitution of India.

Gobinda Mukhoty, R.K. Jain, Yusuf H. Machhale, Ms. K.

Amreswari, (N.P) R.N. Sachthey, N.N. Goswamy, Ashwani kumar,

Mukesh K.Giri, A.K. Sharma, B.K. Prasad, (N.P) Ms. Anil

Katiyar, Ms. Niranjana Singh, S. Wasim A. Qadri, B.K.

Prasad,Nafis Ahmad Siddiqui,Asoar Ali Khan,A.S. Bhasme,

E.M.S. Anam, Sakil Ahmed Syed, Anil K. Jha, Raj Kumar Mehta,

S.K. Agnihotri, B.R. Jad, Anip Sachthey, Syed Ali Ahmed,

Syed Tanweer Ahmad, Mohan Pandey, M. Veerappa, K.H. Nobin

Singh S. K. Mehta, Dhruv Mehta, Aman Vachher, P. K. Manohar,

B. B. Singh, Aruneshwar Gupta and R.Mohan for the appearing

parties.

The Judgment of the Court was delivered by

R.M. SAHAI, J. Imams,incharge of religious activities of the

mosque'(1) have approached this court by way of this,

representative, petition under Article 32 of the

Constitution for enforcement of fundamental right against

their exploitation by Wakf Boards. Relief sought is

direction to Central and State Wakf Boards to treat the

petitioner as employees of the Board and to pay them basic

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wages to enable them to survive. Basis of claim is glaring

disparity between the nature of work and amount of

remuneration. Higher pay scale is claimed for degree

holders.

Imams perform the duty of offering prayer (Namaz) for

congregation in mosques. 'Essentially the mosque is a

centre of community worship where Muslims perform ritual

prayers and where historically they have also gathered for

political, social and cultural functions'. (2) The functions

of the mosque is summarised by the 13th Century jurist Ibn

Taymiyah 'as a. place of fathering where prayer was

celebrated and when public affairs were conducted'. (3) 'All

mosques are where Muslim men on an equalitarian basis rich

or poor, noble or humble, stand in rows to perform their

prayers behind the imam (4) Imams are expected to look after

the cleanliness of mosque, call azans from the balcony of

the minarets to the whole religious meetings and propagate

the Islamic faith. They are expected to be

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well versed in the Shariat, the holy Quran, the Hadiths,

ethics, philosophy, social, economic and religious aspects.

"Imam or prayer leader is the most important appointee. In

the early days the ruler himself filled this role; he was

leader (imam) of the government of war, and of the common

salat ("ritual prayer"). Under the Abbasids, when the

caliph no longer conducted prayers on a regular basis, a

paid imam was appointed. While any prominent or learned

Muslim can have the honor of leading prayers, each mosque

specifically appoints a man well versed in theological

matters to act as its imam. He is in charge of the

religious activities of the mosque, and it is his duty to

conduct prayers five times a day in front of Mihyab'. (5) On

nature of the duties performed by the imams there is no

dispute. But both the Union of India and various State Wakf

Boards of different States which have put in appearance in

response to the notice issued by this Court have seriously

disputed the manner of their appointment, right to receive

any payment and absence of any relationship of master and

servant. It is stated that the imams or muazzins are

appointed by the Mutwallis. According to them the Wakf

Boards have nothing to do either with their, appointment or

working. It is claimed that under lslamic religious

practice they are not entitled to any emoluments as a matter

of right as the Islamic law ordains the imams to offer

voluntary service. They are said to be paid some money out

of the donations received in mosques or by the Mutwallis of

the Boards. Their job is stated to be honorary and not

paid. Nature of duty under Islamic Sharjat is stated to

lead prayers which is performed voluntarily by any suitable

Muslim without any monetary benefit. Some of the affidavits

claim that they are appointed by people of the locality.

The Union Government has specifically stated that the Islam

does not recognise the concept of priesthood as in other

religions and the selection of imams is the sole prerogative

of the members of the local community or the managing

committee, if any, of the mosque. According to Karnataka

Wakf Board Imamate in the mosque is not considered to be

employment. The allegation of the petitioners that due to

meagre payment they are humiliated or insulted in the

society, is denied and it is claimed that they are

respectable persons who carry on the duty of Imamate as a

part of religious activity and not for earning bread and

butter. The Delhi Wakf Board pointed out that the

honorarium is paid to an imam as a consideration for his

five time presence in the mosque regularly and punctually.

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The Board has denied any right to exercise an authority over

the mosque where imams and muazzins are appointed by the

mutwallis or by the managing committees. It is stated that

holding of a certificate from a registered institution to

enable a person to lead the prayer is not necessary as the

only requirement for being an imam under the Sharjat is to

(1) to (5) The Encyclopedia of Religion Vol. 10 p- 121-122

746

have a thorough knowledge of the holy Quaran and the rites,

rules and obligations required for offering prayers

according to the principles laid down by the Kuran and

Sunnah. The affidavit filed on behalf of Wakf Board has

pointed out that mosque can be categorised in five

categories, one, which are under direct control or

management of the Government such as Mecca Masjid or the

mosque situated in public garden which are not governed or

regulated by the Muslim Wakf Board', second, mosques which

are under the direct management of Wakf Board-, third,

mosques which are under the control of mutwallis under

various Wakfs according to the wishes of the Wakf as the

creator of the Wakf, fourth, mosques which are not

registered with the Wakf Board and are managed by local

inhabitants and are under the management of the public who

offer prayers regularly in a particular mosque-, and fifth,

mosques which are not managed by mutwallis or the Muslin-is

of the locality. It is claimed that imams of fourth and

fifth category are not regular and any Muslim can lead the

prayers, whereas under the third category mosques are having

regular imams. Financial difficulty of the Wakf Board to

meet the demand has also been pointed out. The Pondicherry

Wakf Board has pointed that there is not even one employee

except a peon working therein and, therefore, it is not

possible to meet the demand of the imam. It is also claimed

that the Board has no control over the pesh-imams as they

are considered to be well dignified personality of the

society and they are given due respect by the Muslim

community as a whole. In the counter-affidavit filed by the

Punjab Wakf Board it has been stated that imams of mosques

in Punjab were being paid on basis of their qualification.

Imam: Nazara (Muntaii grade) are in the scale of Rs. 380-20-

58O25-830-30-980, whereas Imams Hafiz (Wasti grade),are paid

Rs. 445-20-645-25895-30-1045, and Imam Alim (Muntaii grade)

are paid Rs. 520-20-720-25-97030-1120. They are also paid

Rs.30 per month medical allowance and muazzins are paid Rs.

310 per month. These scales were revised in 1992.

According to them imams of all the mosques in Punjab,

Haryana and Himachal Pradesh which come under the Punjab

Wakf Board are being paid regularly and they are treated as

regular employees. The Sunni Central Wakf Board of 'Uttar

Pradesh filed only a Written submission stating that all the

sunni mosques were managed by mutwallis of the concerned

managing committees and not by the Wakf Board.

The mosque differs from a church or a temple in many

respects.Ceremonies and service connected with marriages and

birth are never performed in mosques. Tile rites that are

important and integral functions of many churches such as

confessions, penitencies and confirmations do not exist in

the mosques. (6) Nor any offerings are made as is common in

Hindu temples. 'In Muslims countries mosques are subsidized

by the States, hence no collection of money from the

community is permitted. The Ministry of Wakf (Endowments)

appoints the

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servant, preachers and readers of the Koran. Mosques in

non-Muslim countries are subsidised by individuals. They

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are administered by their founder or by their special fund.

A caretaker is appointed to keep the place clean. The

muazzin cells to prayer five times a day from the minaret.

(7) In our country in 1954 Wakf Act was passed by the

Parliament for better administration and supervision of

Wakfs. To achieve the objective of the Act Section 9

provides for establishment of a Wakf Board the functions of

which are detailed in Section 15. Sub-section (1) of it

reads as under

"(1) Subject to any rules that may be made

under this Act, the (general superintendence

of all wakfs in State in relation to all

matters, except those which are expressly

required by this Act to be dealt with by the

Wakf Commissioner, shall vest) in the Boar

d

established for the State; and it shall be the

duty of the Board so to exercise its powers

under this Act as to ensure that the Wakfs

under its superintendence are properly

maintained controlled and administered and the

income thereof is duly applied to the objects

and for the purposes for the objects and for

the purposes for which such wakfs were created

or intended:

Provided that in exercising its powers under

this Act in respect of any wakf, the Board

shall act in conformity with the directions of

the Wakf, the purposes of the wakf and any

usage or custom of the wakf sanctioned by the

Muslim law".

Clause (b) of Sub-section (2) obliges the

board "to ensure that the income and other

property of a wakf are applied to the objects

and for the purposes for which that wakf was

created or intended".

The board is vested not only with supervisory and

administrative powers over the wakfs but even the financial

power vests in it. One of its primary duties is to ensure

that the income from the wakf is spent on carrying out the

purposes for which wakf was created.

Mosques are wakfs and are required to be registered under

the Act over which the board exercises control. Purpose of

their creation is community, worship. Namaz or Salat is the

mandatory practice observed in every mosque.. "(Among the

Five Pillars (arkan; so., rukn) of Islam, it holds the

second most import, position, immediately after the

declaration of faith (shahadah) (8). The'

(6) & (7) Encyclopedia, Britannica Vol. 18 P. 883

(8) The Encyclopedia of Religion Vol. 13 P. 20-21

748

principal functionary to undertake it is the Imam. The

objective and purpose of every mosque being community

worship and it being the obligation of board under the Act

to ensure that the objective of the wakf is carried on the

Board cannot escape from its responsibility for proper

maintenance of religious service in a mosque. To say,

therefore, that the Board has no control over the mosque or

Imam is not correct. Absence of any provision in the Act or

the rules providing for appointment of Imam or laying down

condition of their service is probably because they are not

considered as employees. At the same time it cannot be

disputed that due to change in social and economic set-up

they too need sustenance. Nature of their job is such

that,they may be required to be present in the mosque nearly

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for the whole day. There may be some who may perform the

duty as part of their religious observance. Still others

may be ordained by the community to do so. But there are

large number of such persons who have no other occupation or

profession or service for their livelihood except doing duty

as Imam. What should be their fate? Should they be paid

any remuneration and if so how much and by whom? According

to the Board they are appointed by the mutwallis and,

therefore, any payment by the board was out of question.

Prima.facie it is not correct as the letter of appointments

issued in some states are from the Board. But assuming that

they are appointed by the Mutwallis the Board cannot escape

from its responsibility as the mutwallis too u/s. 36 of the

Act are under the supervision and control of the Board. In

series of decisions rendered by this Court it has been held

that right to life enshrined in Article 21 means right to

live with human dignity. It is too late in the day,

therefore, to claim or urge that since Imams perform

religious duties they are not entitled to any emoluments.

Whatever may leave been the ancient concept but it has

undergone change and even in Muslim countries mosques are

subsidised and the Imams are paid their remuneration. We

are, therefore, not willing to accept the submission that in

our set up or in absence of any statutory provision in the

Wakf Act the imams who look after the religious activities

of mosques are not entitled to any remuneration. Much was

argued on behalf of Union and the Wakf Boards that their

financial position was not such that they can meet the

obligations of paying the imams as they are being paid in

the State of Punjab. It was also urged that the number of

mosques is so large that it would entail heavy expenditure

which the boards of different States would not be able to

bear. We do not find any co-relation between the two.

Financial difficulties of the institution cannot be above

fundamental right of a citizen. If the boards have been

entrusted with the responsibility of supervision and

administering the wakf then it is their duty to harness

resources to pay those persons who perform the most

important duty namely of leading community prayer in a

mosque the very purpose or which it is created.

749

In the circumstances we allow this petitions and issue

following directions

(i) The Union of India and the Central Wakf Board will

prepare a scheme within a period of six months in respect of

different types of mosques some detail of which has been

furnished in the counter affidavit filed by the Delhi Wakf

Board.

(ii) Mosques which are under control of the Government shall

not be governed by this order. But if their imams are not

paid any remuneration and they have no independent income.

The Government may fix their emoluments on the basis as the

Central Wakf Board may do for other mosques in pursuance of

our order.

(iii) For other mosques, except those which are

nonregistered with the Board of their respective States or

which are not manned by members of Islamic faith the scheme

shall provide for payment of remuneration to such Imams

taking guidance from the scale of pay prevalent in the State

of Punjab and Haryana.

(iv) The State Board shall ascertain income of each mosque

the number and nature of Imams required by it namely full

time or part time.

(v) For the full time Punjab Wakf Board may be treated as a

guideline. That shall also furnish guideline for payment to

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part time imam,

(vi) In all those mosques where full time Imams are working

they shall be paid the remuneration determined in pursuance

of this order.

(vii) Part time and honorary Imam shall be paid such

remuneration and allowance as is determined under the

scheme.

(viii) The scheme shall also take into account those mosques

which are small or are in the rural area or are such as

mentioned in the affidavit of Pondichery Board and have no

source of income and find out ways and means to raise its

income.

(ix) The exercise should be completed and the scheme be

enforced within six months.

(x) Our order for payment to Imams shall come into operation

from 1st Dec.,

750

1993. In case the scheme it not prepared within the time

allowed then it shall operate retrospectively from 1st

December, 1993.

(xi) The scheme framed by the Central Wakf Board shall be

implemented by every State Board.

The Writ Petition is decided accordingly. Parties shall

bear their own costs.

U.R.

Petition allowed.

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