1. This appeal is brought by the plaintiffs in the suit. They sued as representatives of the Lingayat community of the town of Athni, and the object of their suit was to obtain a declaration of their right to exhibit in public their religious emblem known as the Vyasantol.
2. The learned District Judge has decided against them because he has upheld the validity of a certain contested order of Government, viz. Government Resolution, Judicial Department, No. 2568 of the 6th May 1911.Resolution The Lingayats of Athni in the Belgaum District pray for permission, under Section 44 (1) of the District Police Act (Bombay Act IV of 1890), to parade the Vyasantol procession through, certain streets of the town of Athni on the occasion of the visit of their High Priest, the Swami of Chitaldurg. The procession is intended to do honour to him and to show the respect and reverence with which his followers regard him.2. The main points requiring consideration under Section 44 (1) of the District Police Act (Bombay Act IV of 1890) are:(a) whether any dispute or contention exists which is likely to lead to a grave disturbance of the peace; and(b) what order would be proper having regard to the apparent legal rights and the established practice of the parties.3. As to a) there can be no doubt, on the evidence produced and from the past history of nearly a century, that a dispute has always existed and does now exist about the right to parade the Vyasantol procession, both in Belgaum and in other districts. Similarly the same evidence shows that disturbances' of the peace have' in the past boon caused by this procession, which has been described as 'an obnoxious ceremony' and 'an unbecoming procession.' The element of disturbance is in the symbol of the great Vyasa's hands represented as cut off, and paraded in that manner. Though the Vaishnative Brahmans are the class who consider themselves most directly aggrieved, there is no doubt that Vyasa has been held in the highest respect and is considered to be a god by those Brahmans who are followers of Shiva, and by the non-Lingayat Hindus generally. These last though they may not voluntarily and actively lead any opposition, would certainly sympathise with an agitation against the processions. The Governor-in-Council is, therefore, convinced that the dispute that exists is such as to raise a reasonable apprehension of a grave disturbance of the peace. The fact that the District Magistrate, Belgaum ordered a special party of Police to attend at Athni shows that in his opinion the occurrence of a riot was not improbable.4. As regards (b) the Governor-in-Council is of opinion that there can be no legal right to parade through the streets with this symbol. He agrees with the Commissioner, S. D., that the Vyasantol is not a necessary part of religious worship. The objection of the Brahmans and others is not to the procession itself, but to the parading of the Vyamntol. On the question of the established practice, which after all is the most important one, it is admitted not only that there have been no processions of the kind in the Belgaum District within the memory of the present generation but that it has been prohibited whenever the Lingayats attempted to revive it.5. The Governor-in-Council for these reasons is pleased to direct that permission should not in future be given to hold Vyasantol processions in the Belgaum District. Upon that point only the plaintiffs failed in the Trial Court, and that point only is the subject for our decision in this appeal.
3. Now the proposition with which we start, in a consideration of this subject, is the well-known principle that all members of the public and every sect have a right to use the streets in adawful manner, and it lies on those who would restrain them in its exercise to show some law or custom having the force of law depriving them of the privilege see Sadagopachariar v. Rama Rao 26 M. 376 which was followed by a Bench of this Court in Baslingappa v. Dharmappa 7 Ind. Cas. 663 : 12 Bom. L.R. 586 : 34 B. 571.
4. These general or common law rights may be restricted by Statute: in this instance by the Bombay District Police Act. But the restrictions imposed must, it is manifest, be justified by the Act The question, therefore, is whether the Government Resolution, which 1 have quoted, is justified under the District Police Act. For, it is admitted by the learned Advocate-General that the Resolution is not to be saved by reference to Section 144 of the Criminal Procedure Code read with Section 38 of the District Police Act. The learned District Judge, commenting upon the terms of the Resolution, observes that the-order is not drafted with legal precision and does not suggest that legal advice was taken The want of precision to which the Judge here alluded adds some difficulty to our task. But the question is, whether, without pressing technicalities, the substantial requirements of the District Police Act have been complied with. In my opinion, the answer is in the negative. The authority issuing the order ascribes it to Section 44, sub-Section 1. That ascription, however, is, I think I may say, obviously a mistake. For whereas the Resolution under notice purports to prohibit this Vyasantol procession, Section 44 (1) deals not with the prohibition of religious ceremonials, but with the maintaining of public order at religious ceremonials which are not prohibited. That notwithstanding, the Resolution may, of course, still be valid if it can be attributed to powers vested in the Government by any other Sections of the Act, and the only Section to which recourse has been had for this purpose is Section 42. That Section also, in my opinion, fails to serve the turn of the respondents, Fur, in the first place, the authority empowered under Section 42 is not the Government, but the local Magistrate of the District, and the words 'whenever and for such time as it shall appear necessary' appear to me in the context to mean 'appear necessary to that Magistrate.' It was suggested that the powers thus vested in the District Magistrate might be capable of legal exercise by the Government by reason of the provisions of Section 50 read with Section 13, sub-Section 2, of the Act. It is not at present necessary to pronounce upon this argument, and I will only say that I am doubtful whether it should be conceded. Assuming, however, that the argument is sound, it goes no further than this that the present orders, though issued by Government, have the same validity as if they had been issued by the District Magistrate. The question, therefore, is whether these orders, if issued by the District Magistrate, would be lawful orders under Section 42. I think they would not. For Section 42 enables the Magistrate to issue these orders only whenever and for such time as it shall appear necessary and the orders are to operate only in such town or village or the vicinity thereof as may be directed; in other words, the powers of prohibition conferred upon the Magistrate are by the Statute expressly limited both in time and in place, the limitation of place being to a particular town or village or the vicinity thereof. This particular order, as I understand it, is to operate for all time, and instead of being limited to any town or village or the vicinity thereof is to prevail throughout the whole of the Belgaum District.
5. On these grounds, therefore, I think that the Resolution in question 13 beyond the powers conferred by the Act.
6. The learned Advocate-General, as a last effort to sustan the Resolution, suggested that it might be upheld if it were regarded as being nugatory. I am unable, however, to read it in that sense. From what I have already said, it is manifest that we must attend not so much to the words as to the plain meaning of this Resolution, and of the meaning of it I have not been able to entertain any doubt. As I read the Resolution, its meaning and effect is, and was intended to be, the prohibition of the Vyasantol procession throughout the Belgaum District for all time.
7. For the reasons which I have given I am of opinion that no such orders could lawfully be issued under the Bombay District Police Act Therefore, the point upon which the judgment of the Court below has gone against the appellants must now be decided in their favour; the decree of the District Judge must be reversed and the suit must be remanded to his Court to be heard and decided on the other issues.
8. Costs to be costs in the suit.
9. This appeal arises out of a suit brought by the Lingayat plaintiffs in the District Court of Belgaum for a declaration that the Lingayats have a right to exhibit Vyasantol, their religious symbol, in procession on religious and other occasions, and that the Government Resolution No. 2658 (Judicial Department) of the 6th May 1911 is illegal and ultra vires in so far as it forbids the exhibition of the symbol entirely for all, time and throughout the District. Among other things, it was urged by way of defence that the validity of the Government Resolution could not be questioned in a Civil Court. The material issues were decided by the lower Court against the plaintiffs, principally on the ground that the Government Resolution was within the powers conferred by the District Police Act (Bom. Act IV of 1890) on the Government, and that its validity could not be questioned in a Civil Court except so far a Section 81 of the Act permitted it. The result was that the plaintiffs' suit was dismissed with costs.
10. In this appeal against the decree of the District Court, the only paint argued is whether the Government Resolution of the 6th May 1911 is illegal and ultra vires.
11. At the outset it will be convenient to deal with the point, which has been raised by the learned Advocate-General, that the Resolution does not prohibit anything and is merely a direction to the District Magistrate that permission should not be given in future to hold Vyasantol processions in the Belgaum District. Taking the Resolution as a whole, I have no doubt that it was intended to prohibit, and has clearly the effect of prohibiting, Vyasantol processions in the District of Belgaum without any limitation as to time, so far as the Government are concerned. The Resolution cannot, therefore, be treated as merely nugatory as suggested by the Advocate-General.
12. As regards the validity of the Resolution, it is conceded, and, in my opinion, rightly conceded, by the Advocate-General that Section 38 of the District Police Act has no application to the present case. No reliance was placed on behalf of the defendants on Section 81 of the Act in the course of the argument; and it is clear that the Section can have no application, unless the order contained in the Resolution is made by the Government under an authority conferred by the Act.
13. The question, therefore, arises, whether the order in dispute can be referred to any authority conferred by the District Police Act on the Government. It is argued that the requisite authority is conferred by Section 50 read with Section 13, clause 2, Under Section 50 orders made by the Magistrate of the District under Chapter IV are subject to the provisions of Section 13(2) : and Section 13, clause (2), provides that in exercising authority under the preceding sub-section the Magistrate of the District shall be governed by such orders as Government may from time to time make in this behalf. Assuming, without deciding, that the Government have the power under Section 13 (2) of making such discretionary orders, as the District Magistrate is empowered to make under Sections 42 and 44, so as to make them binding on the District Magistrate under Section 50, it is clear that the orders to be made must be justified under Sections 42 and 44. If they transgress the provisions of Sections 42 and 44, they would be ultra vires to that extent. Section 13, clause (2), does not confer any unlimited power on the Government to prohibit processions.
14. Having regard to the decisions in Baslingappa v. Dharmappa (2) and Sadagopa-chariar v. Rama Rao (1), it is clear that the plaintiffs have a right to use the public streets in a lawful manner and it, lies on those who would restrain them to show some law or custom abrogating the privilege, and that subject to the lawful orders that may be passed under any provisions of law such as Section 144 of the Code of Criminal Procedure or Sections 42 and 44 of the District Police Act, they would be entitled to hold the Vyasantol processions in any public street. As I have already pointed out, the Government by their Resolution prohibit the Vyasantol processions in the whole District of Belgaum, without any limit as to time. The prohibition, that Section 42 of the District Police Act contemplates) is limited as to time and space. It provides that the Magistrate of the District may, whenever and for such time as it shall appear necessary, prohibit in a town or village or the vicinity thereof the exhibition of symbols, which, in the opinion of the Magistrate, may probably inflame religious animosity between different classes. The order of the Government is not confined to any town or village but extends to the whole District, and it is not limited in any manner as to time. I feel clear that it is outside the ambit of Section 42. Under Section 44, it is still more difficult to justify the order of the Government. Under that Section, when it appears to the District Magistrate that a dispute exists which is likely to lead to grave disturbance of the peace, he can give such orders, with reference to any religious exhibition or procession, as to the conduct of the persons concerned towards each other and towards the public as he shall deem necessary and reasonable under the circumstances. Such orders apparently are to have operation in a particular town or place. The present order of the Government does not appear to me to fall within the scope of Section 44, as it involves an unqualified prohibition of the Vyasantol processions in the whole District, and pays no regard to the apparent legal rights of the persons interested. Further, under Section 44 (2), any order made under Section 44 (1) is subject to a decree of a competent Court' and is liable to be recalled or altered if it is inconsistent with a decree that may be passed in a suit, filed by an interested person, as to the rights and duties of the persons affected by the order. This Sub-section would save the present suit even if the order of the Government were within the scope of Section 44 (1), because no order made under the first paragraph is to be inconsistent with the legal rights of the parties as determined by a Court of competent jurisdiction. But, in my opinion, the order of the Government is clearly outside the scope of Sections 42 and 44; and it is' not possible to treat it as having been made: under an authority conferred by the Act.
15. I am unable to agree with the learned District Judge in his opinion that it is within the competence of Government in the exercise of their power of control to give a general direction to the District Magistrate.' No authority has bean cited in. support of this view; and on the proper construction of the Sections of the Act, I cannot hold that the Act confers upon the Government an unlimited power of prohibiting religious processions in the whole, of any District. On these grounds I am of opinion that the Government Resolution is illegal and ultra vires in so far as it prohibits the Vyasantol processions in the whole District without any limit as to time, and that it is no bar to the plaintiffs' suit.
16. I, therefore, concur in the order proposed by my learned brother.