PETITIONER:
SK. PIRU BUX & ORS.
Vs.
RESPONDENT:
KALANDI PATI RAO & ORS.
DATE OF JUDGMENT:
29/10/1968
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
BACHAWAT, R.S.
CITATION:
1970 AIR 1885 1969 SCR (2) 563
CITATOR INFO :
E 1973 SC 87 (29)
ACT:
Religious procession--Right to take out and restrictions
thereon.
HEADNOTE:
The respondents, who were Hindus filed a suit against
the appellants who were Muslims, for a declaration that the
Hindu residents of their villages had the right to take out
religious and non-religious processions. with appropriate
music along the roads and public highways in the: villages,
including those by the side of two mosques in the villages.
The appellants contended that in 1931, in proceedings under
s. 107, Criminal Procedure Code, there was a compromise
between the Hindus and the Muslims of the two villages,
whereby it was agreed that Hindus would not play music
between two land marks near the mosques, and that such a
restriction was necessary to enable them to say their
prayers in the. mosques. The trial court held the
respondents were bound by the compromise. The first
appellate court also held that the respondents were bound by
the compromise, but that the respondents could take the
processions between the landmarks with 'music in a low sound
except drumbeating. Both parties appealed to the High Court.
The High Court held, that the respondents were not bound by
the compromise, that no restriction could be imposed on the
right of the respondents' community (Hindus) to take out
processions with appropriate music, and that the restrictive
order of the first appellate court that only low sound music
could be played should be set aside.
In appeal to this Court.
HELD: (1) As the compromise was not arrived at in a suit
fought. in a respresentative capacity, it did not debar the
parties from asserting, their legal rights in a civil court.
[567 D]
Babu Ram Singh v. Subban Mochi, A.I.R. 1929 All. 519,
explained.
(2) The respondents have the right to take out both
religious and' non-religious processions with accompaniment
of music on the roads and highways subject only to (a) an.y
order of the local authorities regulating the traffic; (b)
any directions of the Magistrate under any law fOE the time
being in force; and (c) the rights of the public. [568 G]
Manzur Hasan v. Muhammad Zaman, (1924) 52 I.A.61, applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 25 1966.
Appeal by special leave from the judgment and decree dated’
January 2, 1963 of the Orissa High Court in Second Appeal
No. 365 of 1960.
V.D. Misra, for the appellant.
N.C. Chatterjee and Sukumar Ghose, for the respondents Nos.
1 to 3 and 5 to 12.
564
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed
against the judgment of the Orissa High Court in a second
appeal whereby the High Court affirmed the decree and order
passed by the First Additional Sub-Judge, Cuttack, with
modifications. The High Court held that “the restrictive
order of the lower appellate court directing the plaintiffs
to take out processions with a ‘low sound music except
drumbeating, is not justified” and directed the deletion of
this portion from the order of the lower appellate court.
In order to appreciate the points raised before us it is
necessary to give a few facts and the findings of the court
below. The plaintiffs, respondents before us and
hereinafter referred to as the plaintiffs, brought this suit
against the defendants, appellants before us and
hereinafter referred to as the defendants, praying for a
declaration that the Hindu villagers of the two villages had
the right to take out religious and non-religious
processions with appropriate music along the District Board
and village roads and other public highways of the locality
including those by the side of the defendants’ mosques
without any interruption wherever the plaintiffs’ community
chose to take out without restriction and that the
defendants, viz., the Mohamedan villagers of villages Alkund
and Nuagaon, be permanently restrained from interfering with
the plaintiffs’ lawful procession as aforesaid in any
manner.
The case of the plaintiffs, in brief, was that the
villages Nuagaon and Alkund were contiguous villages and
they had a common social, cultural and religious life, and
they were entitled to take out religious and non-religious
processions with appropriate music. It was alleged that the
Muslim villagers of the locality had two mosques, one in
each village, abutting the highway. It was further alleged
that till the Kartick Purnima day of 1952 the plaintiffs had
taken out their religious and social processions with’
appropriate music without any interruption before the
mosques in question; that the plaintiffs were prevented from
exercising their lawful rights by orders of the Magistracy
at the instance of the defendants; that the defendants held
out threats to attack the plaintiffs’ peaceful processions
and accordingly it was necessary to clear the cloud created
by the Magistracy and the conduct of the defendants.
We may mention that the District Magistrate and the
State Government were not made parties to this suit.’
The defendants’ main plea was that the right claimed by
the plaintiffs could only be exercised as not to cause any
interference with the exercise of the rights of the
defendants. It was alleged that the Muslim community of the
two mauzas also had inherent, natural and fundamental rights
to offer their prayers in complete calmness without any
interference whatsoever and they were entitled to oppose
music being played near about the mosque in
565
order to maintain the calmness inasmuch as the music or
Sankirtan really disturbed the calmness which was absolutely
necessary for concentration of mind in prayer. The
defendants also. relied on a compromise alleged to have been
arrived at between the two communities in 1931. It was
alleged that in pursuance of the compromise two pillars had
been put up by the defendants on both sides of the mosques
to indicate to the music players of the processionists where
to stop the music, and the pillars bore the following
engraved inscriptions:
“Baja bajaiba nishdha”
The following issues, among others, were
framed by the Trial Judge:
(5) Is the right of the plaintiff
villagers to take religious and non-religious
processions with appropriate music by the side
of the mosques of Nuagaon and Alkund
likely to infringe the rights of the defendant
moslem villagers to offer their prayer in
calmness ?
(6) Are the plaintiffs entitled to.
enforce their fight in wanton disregard of the
fundamental rights of the defendants ?
(7) Are the plaintiff villagers estopped
to re-agitate their lost fundamental right to
play music in front of the mosques ?
(8) Are the plaintiffs bound by the
compromise entered into between the properly
represented leaders of both the communities.
dated 2-3-31 and had the compromise been acted
upon ?
The Trial Court held that the rights of the plaintiffs to
take out the processions with the accompaniment of music was
not absolute and the plaintiffs could only exercise the same
on all occasions except near the mosques at the time of
congregational prayer of the defendant community according
to Islamic religion and subject to other lawful orders or
directions given by the Magistrate or Police for
preventing breach of peace or regulating traffic. The Court
further held that a compromise was effected in 1931 and the
Hindu community had been acting according to the terms of
the compromise so as not to disturb the religious sentiments
of the Muslim community by playing music before their
mosques while going in processions. The Court accordingly
held that the plaintiffs were estopped from re-agitating the
matter which they had agreed not to do. The Court
accordingly decreed the suit and gave the following
declaration:
“That the plaintiffs have a right to
take out both religious and non-religious
processions with the
566
accompaniment of proper music for the occasion
on the highways of Alkund and Nuagaon villages
subject to the undermentioned restrictions (a)
that they do not play music between the space
of brick pillars situated on both sides of
Alkund mosque and between the space indicated
by two stones on either side of the Nuagaon
mosques so as not to disturb the defendants or
their community in their offering their
prayers and (2) that the right also subject to
any lawful order or direction by the
Magistrate or the Police for preventing
breaches of public peace or obstructing the
highway and such other orders under any other
statutory provisions for regulating traffic.
The parties will bear their own costs.”
On appeal by the plaintiffs, the First Additional Sub-
Judge also held that the compromise was binding on the
plaintiffs. He further held that it was manifest from the
inscription on the two pillars (Baja bajaiba nishdha) that
the leaders of the Hindu community agreed to stop only drum-
beating near the said two mosques. In view of this
conclusion he gave the following modified declaration:
“That the plaintiffs both in their
individual capacities and as members of the
Hindu Community have a fight to take out
religious and social processions accompanied
by music in a low sound except drum-beating
along public roads while passing the two brick
pillars situated on either side of Alkund
mosque and the two stones fixed on either side
of Nuagaon Mosque, subject to any orders or
directions issued by the magistrate or police
for preventing breaches of public peace or
obstructions of the thoroughfares or for other
matters mentioned in section 144 Criminal P.C.
or under other statutory provisions or for
regulation of traffic, provided that the
exercise of such right does not amount to a
nuisance recognised by law.”
The defendants appealed to the High Court and the
plaintiffs filed a cross appeal. R.K. Das, J., held that
no restriction order of the lower appellate court directing
the plaintiffs to take out processions with appropriate
music and that the restrictive could be imposed on the
right of the plaintiffs’ community to take out procession
with “low sound music except drum-beating” was not justified
and was liable to be set aside. He, however, maintained the
rest of the declaration given by the First Additional Sub-
Judge. The High Court further held that the compromise did
not create an estoppel against the plaintiffs. He observed
that “there is nothing on record to show that the
signatories to the said compromise had any authority
whatsoever to bind the com-
567
munity as a whole. It is well-settled that a few self-
constituted leaders or even leaders chosen by the officials
do not legally represent the entire community which includes
minors also and without proof of valid authority such
leaders cannot bind the other members of the community. The
question whether any valid authority was given or not is a
question of fact in each case.”
The learned counsel for the defendants contends that (1
) the High Court had no jurisdiction to set aside the
finding that the compromise was effected in a representative
capacity; (2) that Babu Ram Singh v. Subhan Mochi(1) lays
down good law and should have been followed by the High
Court; and (3) that both the Hindus and the Muslims have
fundamental rights and in case of conflict reasonable
restrictions on playing of music before the mosques should
be imposed by this Court.
In our opinion the High Court was right in coming to the
conclusion that the compromise was not binding on the Hindu
community. The learned Additional Sub-Judge had misdirected
himself in law in coming to the contrary conclusion. The
compromise was not arrived at in a suit fought in a
representative capacity but was filed in a proceeding under
s. 107, Criminal Procedure Code. The signatories declared
inter alia that “neither we, the Musalmans nor we the Hindus
can at any time in future create any disturbance towards.
each other’s religion and will deal with each other amongst
ourselves …… There is no apprehension of breach of
peace as we the Hindus and the Musalmans have amicably
settled the matter nor will there occur any breach of peace
in future. So we both parties having settled the matter
amicably hereby submit this petition and pray that the case
be disposed of in terms of this compromise petition.” It is
signed by a number of persons but there is no indication
that they represented the two communities. It may be that
these persons, who signed the compromise, were important
persons in the communities and it may be that both the
communities should act according to the compromise effected
by the so-called important persons. But in law it does not
debar the parties from asserting their legal rights in a
civil court. We need not decide what the compromise means,
and particularly whether the words inscribed on the pillars
were part of the compromise effected by the leaders.
The facts in Babu Ram Singh v. Subhan Mochi(1), which
was. relied on by the learned counsel for the defendants,
were different. There the Court was satisfied from a
consideration of the circumstances that the agreement was
binding on the parties. The Court observed:
(1) A.I.R. 1932 All. 519.
568
“It is manifest that the parties did
summon the leaders of the various communities
and that they were summoned as representatives
of their various communities …. We find it
quite impossible to believe in the
circumstances of the case that the other
Mahomedans of Rasra were not fully aware of
the meeting to which their leaders had been
summoned, and their subsequent conduct in the
ensuing years shows that during those years,
at any rate, they accepted the representative
capacity of the leaders who had signed the
agreement. It is manifest that for at least
three years no single Mahomedan made any
endeavor to repudiate the authority of those
leaders …. That it is right and proper to
infer the representative character of the
signatories to the agreement from the
surrounding circumstances is amply supported
by a reference to s. 187, Contract Act.”
We are not called upon to decide whether that case
was rightly decided or not as the facts in that case were
quite different. As we have said, this was a proceeding
under s. 107 against particular parties and we are unable to
appreciate how any party in a proceeding under s. 107,
Criminal Procedure Code, could represent the whole community
to which he belongs.
The law on the subject of rights of persons to take out
religious processions was settled by the Privy Council in
Manzur Hasan v. Muhammad Zaman(1). The learned counsel has
not challenged that decision, but appeals to us to.
incorporate more reasonable restrictions so as to fully
preserve the rights of the appellants-defendants to say
their prayers in peace in the mosques. In our opinion there
is no reason why we should not follow the decision of the
Privy Council in Manzur Hasan v. Muhammad Zaman (1), and
the form of declaration given therein. The declaration
given by the Privy Council paid due regard to the rights of
both communities. We accordingly substitute the following
declaration:
“That the plaintiffs have a right to
take out both religious and non-religious
processions with the accompaniment of music on
the highways of Alkund and Nuagaon villages
(1) subject to the order of the local
authorities regulating the traffic and (2)
subject to. the Magistrate’s directions under
any law for the time being in force and the
rights of the public.”
The appeal accordingly fails and is dismissed. There
will be no order as to costs.
V.P.S. Appeal dismissed.
(1) [1924] 52 I.A. 61.
569