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Sangabasavaswami Mahantaswami Vs. Baburao Ganesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 262 of 1943
Judge
Reported inAIR1946Bom353; (1946)48BOMLR100
AppellantSangabasavaswami Mahantaswami
RespondentBaburao Ganesh
DispositionAppeal dismissed
Excerpt:
.....a religious character.;a civil suit lies to establish the right of members of the public to any a religious procession through public streets; but the right does not extend to processions which are not religious.;the carrying on an emblem of vyasantol by lingayats in procession through public streets is not a religious procession, and no suit can lie to establish such a right. - - on both points the plaintiffs failed in the trial court and in appeal. in discussing the rights of the parties to take out processions, their lordships were discussing clearly the question of religious processions. 577):-their lordships in leaving the case wish to emphasize that no question arises of ignoring or depreciating the respect due to the well established religious beliefs and observances of the..........that the plaintiffs had a right to take out a procession according to their religion, the public right was not limited to religious processions only. according to him, every member of the public, as a citizen, had a right to take out a procession, irrespective of the question whether it was a religious procession or not. in answer to court, mr. desai admitted that in no decided case he had found such a general right admitted or conceded or upheld, he, however, relied on certain observations in two judgments of the privy council. the first case was manzur hasan v. muhammad zamin (1924) 27 bom. l.r. 170.. that was a case in which certain members of the shiah community desired to take out the moharram procession with the ceremony called ' matam,' that meant that they stopped for a.....
Judgment:

Harilal Kania, Kt., Ag. C.J.

1. This is a second appeal from the judgment of the District Judge at Bijapur. The dispute between the parties relates to the claim of the appellants to take out a religious procession with what is described as vyasantol, which is equivalent to carrying the symbol of a cut arm of Vyas, the great Hindu mythological writer. It is alleged that he wrote verses in praise of God Vishnu. That enraged God Shiva, and thereupon the Nandi (bull) of Shiva attacked Vyas and the arm was cut off. Thereafter Vyas recognised the supremacy of Shiva over Vishnu. The plaintiffs now contend before us that under the circumstances this is a part of their religious belief.

2. The plaintiffs filed this suit claiming that they and the public have an inherent right, as citizens, to take out a procession with vyasantol according to their religion in the streets of Mangoli, in taluka Bagewadi, if Bijapur District. It is stated that they have got such right to take out a processiom on Bhadrapad Shud 5, at 9 a.m. every year, and they have been doing so for many years past over the route marked on the plan annexed to the plaint. The procession terminates at 3 p.m. at the end of the route shown on the map. The defendants are alleged to have wrongfully obstructed the taking out) of the procession with this symbol. The prayer is in these terms:

As the plaintiffs and their people have got a birthright to take out parading of vyasantol ... in a procession according to their religion along the public streets as shown in the map on Bhadrapad Sud 5 or any other festival, the defendants should be permanently restrained from obstructing the plaintiffs and their party people.

The defences are that this is not a part of the religious observance of the procession, and that the claim was barred by limitation. On the second question it was pointed out by the defendants that in 1931 the Sub-Divisional Magistrate, S. D., Bijapur, prohibited the taking out of a procession with vyasantol so long as the plaintiffs did not obtain a decree establishing their right in a civil Court or an order from the Magistrate giving such permission. That order was served on the plaintiffs on January 27, 1932. The plaintiffs took no steps thereafter till they filed this suit. On both points the plaintiffs failed in the trial Court and in appeal. They filed this second appeal in the High Court. When the appeal came before Mr. Justice Macklin he thought that the question of limitation may be determined first before going into the merits. He referred the appeal to a bench of Judges. Mr. Desai, who appears for the appellants, contends that the question of limitation is bound with the question of the inherent right as claimed by him, and therefore, the question whether the appellants have the inherent right should be decided first. We have heard the whole appeal.

3. Mr. Desai commenced his argument by contending that although in the plaint it was contended that the plaintiffs had a right to take out a procession according to their religion, the public right was not limited to religious processions only. According to him, every member of the public, as a citizen, had a right to take out a procession, irrespective of the question whether it was a religious procession or not. In answer to Court, Mr. Desai admitted that in no decided case he had found such a general right admitted or conceded or upheld, He, however, relied on certain observations in two judgments of the Privy Council. The first case was Manzur Hasan v. Muhammad Zamin (1924) 27 Bom. L.R. 170.. That was a case in which certain members of the Shiah community desired to take out the Moharram procession with the ceremony called ' matam,' That meant that they stopped for a little while at intervals and wailed. The procession used to pass along the mosque of the Sunnis. The Sunnis objected to the inclusion of this particular ceremony, and, therefore, the matter came to Court. Their Lordships of the Privy Council considered whether a civil suit lay for establishing such a right. In discussing the rights of the parties to take out processions, their Lordships were discussing clearly the question of religious processions. Having regard to the controversy between the parties, there was no occasion to discuss the rights of citizens at large to take out processions, irrespective of the same being religious. In the course of his judgment, Lord Dunedin, after noticing certain decisions of the Madras High Court which dealt with religious processions, observed as follows (p. 173):

Two other questions have, however, emerged. In steveral cases one set claimed the exclusive use of the highway for their worship. This has been consistently refuse. The other question, which goes deep into what ought to be done in the present case, is this:- Does a civil suit lie against those who would prevent a procession with its observances ?

Mr. Desai argued that the second question framed by the Court was not limited to religious processions, and, therefore, impliedly assumed the right of a citizen to take out a procession: for any purpose whatsoever. We are unable to read that passage in the judgment with the meaning given to it by Mr. Desai. The two questions formulated were these. One was the right claimed by certain persons to use certain streets exclusively. The Court held that such a right had been consistently, and rightly, refused. The other question, contrasted with the first, was, when such an exclusive right was not claimed, whether a civil suit lay for establishing a right to take out a religious procession with its observances. As has been repeatedly pointed out, the observations in a case must be read along with the facts of the case, and should not be, unless expressly so pronounced, read as laying down general propositions of law. In the case in question Lord Dunedin has not laid down any general proposition of law, but had formulated the; two questions which arose in the case before the Judicial Committee.

4. Mr. Desai further relied on the recent judgment of the 'Privy Council in Martin & Co. v. Faiyaz Husdn (1943) 47 Bom. L.R. 575.. In that case, the Shia community of Amroha claimed the right to take out tazias of a height greater than what could pass under the electric wires laid out by the local electric company. The company had put up its poles and fixed the wires according to the licence granted to it by the appropriate authority. In considering the right of the public to pass and repass along the street, the Board observed as follows (p. 577):-

The plaintiffs have the right as members of the public to take part in religious processions in the streets; subject of course to the rights of other members of the public to pass and repass along the same streets and subject to the powers of the appropriate authorities of controlling traffic and preventing disturbance. This' right as a normal user of the highway does not originate in custom. Whether a highway could be dedicated subject to such a custom need not be considered.. .The rights of the plaintiffs therefore are no more and no less than the rights of any member of the public, and subject to questions of danger or disorder there seems no reason why a member of the public should not convey along an open street as part of a normal use of the street articles of any height.

The Board then held that the Shia community had not the right claimed by it because the legislative authority had power to curtail the public right, and by the issue of the licence the public right, in fact, to that limited extent, had been curtailed. Later on in the same judgment it was observed as follows (p. 577):-

Their Lordships in leaving the case wish to emphasize that no question arises of ignoring or depreciating the respect due to the well established religious beliefs and observances of the plaintiffs. Like any other religious or secular body or any other member of the public their rights over the streets are subject to the present law which may abridge them.

From these observations we are unable to accept the argument of Mr. Desai that the Board recognised the general right of public to take out a procession which was not religious.

5. We should point out that such a larger claim has not been found in the plaint. The plaint is limited to the right to take out the procession as a religious procession. That aspect of the claim is made dear by the prayer itself. We, therefore, think that the larger right claimed by the plaintiffs is not pleaded and is not supported by law.

6. The second aspect urged by Mr. Desai was that the carrying of the vyasantol in procession was the right to take out a religious procession. The question whether this particular procession was a religious procession, within the accepted description recognised by law, is a question of fact. The lower appellate Court has considered in detail the evidence given before the trial Court. It has considered the various texts which were cited before the Court and considered the expert opinion of witnesses who had been called on the point. In para. 15 of its judgment the lower appellate Court has stated as follows:

Nor is the parading of vyasantol done, as a matter of fact, out of any respect for Vyas. There is nothing in plaintiff No. 1's deposition to show that vyasantol is paraded as an object -of worship... Plaintiff No. 1 has stated that he stedss to parade it as a bintdavali of his math, in honour of himself as the Swami and of the puran, which are both seated in the palaki.

In para. 16 of his judgment, the learned Judge has recorded his conclusion in these words:--

The parading of vyasantol is thus not a religious observance, in the sense that it has been enjoined or even recommended by any shastra or work containing the tenets of the Lingayats or the Veershaiva faith. Nor can it be considered to be an appropriate observance, 'having regard to the purpose and motive that has prompted the parading of it.' Later on, in para. 17 he observed that there is no evidence in the case, that vyasantol was paraded in any of the other villages in Bijapur District. In second appeal we are bound by the findings of fact of the lower appellate Court.' The above mentioned conclusion of the learned District Judge, on this question, shows that the carrying of vyasantol in procession was not the taking out of a religious procession with ' appropriate observances,' as stated by the Privy Council in Mmwr Hasan v. Muhammad Zaman. Having regard to that conclusion the appeal must fail.

7. We do not consider it necessary to go into the question of limitation, particularly because the order made by the Sub-Divisional Magistrate of Bijapur in 1931 is not -before the Court. In the evidence of plaintiff No. 1 its effect is generally described. It is not found under what section of what Act of the legislature the order was made. We think it undesirable to come to a conclusion about the true effect of the) order on such summary made by a layman. The order may have been passed under Section 147 of the Criminal Procedure Code, or Section 145 of the Criminal Procedure Code, or Section 44 of the District Police Act. The: effect of the order passed under each of these sections is different and, therefore, we do not consider it necessary to decide the question of limitation.

8. The appeal fails and is, therefore, dismissed with costs.


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