1. In my opinion the decree of the lower appellate Court is right and should be affirmed. The plaintiffs, trustees of a Hindu temple, have brought this suit for a declaration under Section 42 of the Specific Relief Act that they are entitled to go in procession playing music past a Mahomedan mosque. The Mahomedan defendants have never, as far as I can see, disputed their right to go in procession; but they very naturally resented the terrible noise which must have been caused by some 50 to 100 musicians playing all sorts of instruments close against their sacred edifice while they were offering their prayers. They had recourse, very properly I think, to the Police and they obtained protection under the Bombay District Police Act. The final order made by the District Magistrate under that Act, we are now told by Mr. Jinnah (counsel for the respondents), has been accepted by the majority of the Hindu inhabitants. This is evidently satisfactory. It is a great pity, I think, that the present plaintiffs should have persisted in litigation of this kind, asking the Courts to declare them entitled to a right, the exercise of which every one must know could only create and perpetuate ill-will between the Hindu and Mahomedan congregations of this small town. Had they, however, a legal right, I do admit that they would be entitled to enforce it and that it would be entirely out of place for me to approach the adjudication of that right in the light of sentimental considerations, however strong. I doubt very much, however, whether it can truly be said that any member or any body of members of the public has a right to play music in public streets. Public streets are intended for the convenience of the public in certain ways and their ordinary use certainly would not include playing music by individuals or large bands. Doubtless, so long as playing music in public streets offends no one, it is not likely that the authorities would interfere to prevent it. But as soon as it does give rise to any risk of bad feeling, as soon as it occasions the probability, as it always must in circumstances such as existed when this suit was brought, of actual disturbance, riot and possibly bloodshed, it is plain, I think', that no Court could be found to declare it as a right. A very little analysis of this notion will. I believe, reveal that in every case of the kind, it is rather in the nature of privilege or concession, always liable to be withdrawn in the interests of public peace, or indeed a much less important interest, the comfort and convenience of the neighbourhood.
2. If I am right in this view, then there would be no foundation whatever for the plaintiff's suit. The object of that suit is, I think, too plain. The plaintiffs were dissatisfied with the very reasonable and proper order made by the Magistrate, and it is pretty clear, I think, that they desire to obtain a decree, however ambiguously worded, which they might use under Section 44 of the Bombay District Police Act, when the Mahomedans have recourse to the Police for protection against this intolerable nuisance. I should be loath indeed to give colour to any such pretensions and would only do so if I were convinced that the plaintiffs had a strict legal right which the Courts, finding it proved, must enforce.
3. I have already said that playing music is not one of the natural uses to which public streets ought to be put, and, therefore, it does not follow from any of the reported judgments that merely because every member of the public, whether singly or collectively, has a right to use a public road, such member or members has or have likewise the right to play music over the whole of such public thoroughfare. I agree entirely, speaking generally, with the principle approved, as I understand it, by my learned brother in a decision Virupaxappa v. Sherif Sab (1009) 11 Bom. L.R. 372, to which he was a party.
4. I have no hesitation whatever in the facts laid before me here in holding that the decree of the lower appellate Court was not only sound from every point of view of sentiment and policy but also in law. In my opinion it ought to be affirmed, and this appeal dismissed with all costs.
5. In the judgment of my own to which my learned brother has referred, which appears at page 376 of 11 Bombay Law Reporter, I expressed a doubt as to whether playing music in a public street could properly be claimed and declared as a right. As the result of further reflection and the arguments which we have listened to to-day, I can say that I can go a good deal further than that and say that I feel pretty certain that it is not a right; I illustrate it in this way. A man has a right to use a street as a thoroughfare, that is for the purpose for which streets are made; and he may legitimately complain if he is prevented from using it as a thoroughfare. But if in addition he claims to pass along the street blowing a trumpet, he has no legitimate ground for complaint when he is prevented from blowing the trumpet provided he is not prevented from passing along the street. This illustrates what there is in my mind as a distinction between what is a right, such as a Court will declare, and what is a thing which a man may do, and will very often not be interfered with in doing, but which, he may on occasion properly be prevented from doing. I feel quite clearly in my own mind that the right to use a street as a thoroughfare is a right which a Court might properly declare; but the claim to pass along a street playing music is not a thing which the Courts ought to recognise as a right.
6. I think, therefore, that the order of the appellate Court is correct and this appeal should be dismissed with costs.