c No 715 of 1990
Under Article 32 of the Constitution of India
Gobinda Mukhoty RK Jain Yusuf H Machhale Ms K Amreswari NP RN Sachthey NN Goswamy Ashwani kumar Mukesh KGiri AK Sharma BK Prasad NP Ms Anil Katiyar Ms Niranjana Singh section Wasim A Qadri BK PrasadNafis Ahmad SiddiquiAsoar Ali KhanAS Bhasme EMS Anam Sakil Ahmed Syed Anil K Jha Raj Kumar Mehta SK Agnihotri BR Jad Anip Sachthey Syed Ali Ahmed Syed Tanweer Ahmad Mohan Pandey M Veerappa KH Nobin Singh section K Mehta Dhruv Mehta Aman Vachher P K Manohar B B Singh Aruneshwar Gupta and RMohan for the appearing parties
The Judgment of the Court was delivered by RM SAHAI J
Imamsincharge 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 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 745 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
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 gradeare 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 Rs30 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 747 servant preachers and readers of the Koran
Mosques in non Muslim countries are subsidised by individuals
They 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 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
8 The Encyclopedia of Religion Vol
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 thatthey may be required to be present in the mosque nearly 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
Primafacie 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 section 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 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 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
UR Petition allowed


Summary:
By Notification No ST 11 333X 1012 1971 dated 15 November 1971 entry 2a copper tin nickel zinc or any other alloy containing any of these metals only were made exigible at a reduced rate of sales tax of I The Judge Revisions Sales Tax UP Lucknow held that phosphorous bronze falls within this notification
The Single Judge of the Allahabad High Court took a contrary view and held that it was taxable as an unclassified commodity at 35
Before this court it was contended that phosphorous bronze is made of tin and copper only that a small quantity of phosphorous is used to deoxidize the metal and that it is not an essential substance of the phosphorous bronze
It was however admitted that without the use of phosphorous phosphorous bronze cannot he produced and a certain quantity remains in the phosphorous bronze
Dismissing the appeal this Court HELD 1 The emphasis in the entry is that it must contain even if an alloy only copper tin nickel or zinc
The expression only is very material for understanding the meaning of the entry
Since the alloy in dispute contains phosphorous may he in a very small quantity it cannot fall within entry 2a of the notification
721 G Commissioner of Sales Tax vs Hindustan Metal Works 1964 15 STC 97 720 referred to