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Faiyaz HusaIn and ors. Vs. Municipal Board and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtAllahabad
Decided On
Reported inAIR1939All280
AppellantFaiyaz HusaIn and ors.
RespondentMunicipal Board and ors.
Excerpt:
- - shirreff added in the letter that he acted in the best way possible in order to carry out the intention of the government and in order to secure the interest of the public. muhammad zaman .17. it is however urged by the respondents' counsel that the act complained of was done by defendant 4 in the exercise of its statutory powers and that everything that it has done is authorized by the electricity act. it is well settled that when according to the true construction of a statute the legislature has authorized certain act and the authority given is merely permissive' and not imperative the legislature must; 600 is reported to have observed that the ruin i take to be clearly this :if a plaintiff applied for an injunction to restrain a violation of a common law right, if either the.....iqbal ahmad, j.1. this appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that the plaintiffs, and other shia mahomedans of amroha have a right to take out in procession during the ashrae moharram, i.e. on 10th moharram, tazias 'which are up to 27 feet in height' in the public streets of amroha by certain fixed routes and for a perpetual injunction ordering the defendants to raise the electric wires to such a height as not to cause interference or obstruction in the exercise of that right. the facts that led to the suit are as follows:2. in the year 1929 the local government, in exercise of the powers vested in it by section 3, electricity act (act 9 of 1910), granted to martin & co., defendant 3, a license for the supply of electric energy -within the.....
Judgment:

Iqbal Ahmad, J.

1. This appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that the plaintiffs, and other Shia Mahomedans of Amroha have a right to take out in procession during the Ashrae Moharram, i.e. on 10th Moharram, tazias 'which are up to 27 feet in height' in the public streets of Amroha by certain fixed routes and for a perpetual injunction ordering the defendants to raise the electric wires to such a height as not to cause interference or obstruction in the exercise of that right. The facts that led to the suit are as follows:

2. In the year 1929 the Local Government, in exercise of the powers vested in it by Section 3, Electricity Act (Act 9 of 1910), granted to Martin & Co., defendant 3, a license for the supply of electric energy -within the districts of Bijnor and Moradabad. The area within which the supply of electric energy by the licensee was to be compulsory was specified in the license, and the licensee was inter alia bound to lay down distribution lines in the municipal limits of Amroha to a length of 5 miles. Martin & Co., with the previous consent in meeting of the Local Government, assigned the license to the Upper Ganges Valley Electric Supply Co. Ltd., Moradabad, hereinafter referred to as defendant 4. Defendant 4 appointed Martin & Co., its managing agents.

3. The exercise of the powers conferred by the license involved the fixing of poles in and the placing of electric supply lines over, along or across the streets of Amroha and accordingly in view of the provisions of Sections 18 and 18, Electricity Act, Messrs. Martin & Co., defendant 3, the managing agents of defendant 4, prepared a scheme of the methods of construction proposed to be adopted and submitted the same for approval to the Municipal Board of Amroha, defendant 1, and to the Local Government. The proposal embodied in the scheme was to carry electric supply lines over the streets of Amroha at a minimum height of 20 feet from the ground. The Municipal Hoard of Amroha does not appear to have expressly communicated either its approval or disapproval of the proposed scheme, but the Local Government approved of the methods of construction proposed to be adopted by defendant 4.

4. It appears that from the very outset the plaintiffs and other Shia Mahomedans of Amroha made representations to the Local (Government, the District Magistrate and tho Municipal Board of Amroha emphasizing the desirability of placing electric supply lines, mains, etc., at such a height as to allow free passage to the tazias on 10th of Moharram. No heed was however paid to those representations and defendant 4, with the approval of Mr. Shirreff, the then District Magistrate of Moradabad, proceeded to place transmission lines along and across the streets of Amroha in accordance with the original proposed methods of construction. These facts are evidenced by a letter dated 25th January 1930 written by Mr. Shirreff to Mr. Gulick, the Resident Engineer of defendant 3. The letter is printed at p. 55 of the record and makes specific mention of 'the question of tazia routes.' In the letter it is stated that Mr. Shirreff was consulted throughout as to the position of the lines in Amroha and that he had used his influence to get the approval of the Municipal Board of Amroha as to the position of the lines 'in spite of tazia difficulties.' The letter goes on to say that

I (Mr. Shirrefi) had first, of course, considered whether tazia routes could be left clear of wires or whether the wires could be taken underground or at a sufficient height to satisfy all the taziadars and I had decided that none of these things could be done, and that the tazias would inevitably have to conform to the wires and be of a reasonable height if not more than 20 feet,

5. Mr. Shirreff added in the letter that he acted in the best way possible in order to carry out the intention of the Government and in order to secure the interest of the public. As was to be anticipated trouble arose with the advent of Moharram in the year 1930. The plaintiffs and some other Shias filed a suit (Suit No. 177 of 1930) praying for an injunction restraining interference with their right to take tazias in procession 'according to the old practice.' By that time electric energy was not supplied to Amroha though the installation was complete and wires had been fixed to the poles. An amicable settlement of the dispute was arrived at through the intervention of the joint Magistrate. During the Moharram of 1930 electric wires were temporarily removed to enable the tazia processions to pass. This arrangement was however only with respect to the Moharram of 1930 and was not calculated to remove the grievance of the Shias with respect to tazia processions in the Moharrams to come.

6. It is admitted that some of the tazias in Amroha have a permanent structure of wood and the height of one of them is 22 feet 6 inches. These tazias are taken out in procession on 10th Moharram. They are carried by kahars on their shoulders and the height of one of the tazias when so carried is 27 feet from the ground. It is not denied that the fixing of electric wires at a height of 20 feet from the ground interferes with the passage of some of the tazias in Amroha.

7. The plaintiffs accordingly filed the suit giving rise to the present appeal and they based their right to the reliefs mentioned at the inception of this judgment on a 'general custom and practice' to take out in procession on 10th Moharam tazias of varying heights in the streets of Amroha and alleged that the action of the defendants in fixing electric wires at a height of 20 foot from the ground interfered with the passage of some of the tazias. Apart from the defendants mentioned above, the plaintiffs also impleaded the Secretary of State for India in Council as defendant 2 in the suit. All the defendants contested the suit. They denied the existence of a custom entitling the Shia Mahomedans to take out in procession tazias up to the maximum height of 27 feet and contended that the right to take out in procession a tazia of a fixed height is not enforceable at law. They maintained that the taking out of tazias in procession was not obligatory on the Shias and it was even permissible under the Shia religion to reduce the height of the tazias. On these grounds they urged that the plaintiffs were not entitled to a decree directing the defendants to raise the height of the electric wires so as to allow free passage to the tazias.

8. The Municipal Board of Amroha, defendant 1, admitted in the written statement that wooden tazias are taken out in procession in Amroha by fixed routes and

that if necessity arises the Government gets the branches of the trees cut and the telegraphic wires raised.

9. It however asserted that it never gave permission 'for fitting the wires at a particular height' and accordingly urged that the plaintiffs had no right of suit as against it. Defendant 4 inter alia pleaded that the executive authorities have the right to fix the routes as also the height of the tazias and relied on the license granted by the Local Government in justification of its action in placing the wires at a height of 20 feet. It contended that it was under no obligation to remove the wires or to raise their height and submitted that the plaintiffs had no cause of action for the suit. The other pleas raised in defence need not be noticed as they have not been pressed before us. The learned Munsif, who tried the suit, observed that

plaintiffs have not produced any evidence to prove that there is a custom in the Shia community to make a tazia of a particular height

and 'the alleged custom is not supported by any religious book or any document.' He held that

there is no fixed standard height of a tazia and that among Shias the height of a taziais arbitrarily fixed according to the sweet will of the taziadar.

10. He remarked that a taziadar is at liberty to reduce the height of the tazia and that any modification in the structure of the tazia does not interfere with the observance of the religious ceremony connected with the 10th of Moharram. He appears to have accepted the contention of defendant 4 that the license granted by the Local Government afforded a complete answer to the suit as also the contention of the Municipal Board that it was not responsible for fixing the minimum height of the electric wires and that the plaintiffs had no right of suit as against it. On these grounds he held that the suit was not maintainable and accordingly passed a decree dismissing the suit.

11. The plaintiffs filed an appeal in the Court of the District Judge against the decree of the Munsif, but, having regard to the importance of the questions raised, the appeal was, by an order of this Court, transferred from the file of the District Judge to this Court. A number of witnesses were called by the plaintiffs who testified to the fact that on the 10th of Moharram tazias were taken out in procession and that some of those tazias when carried by the Kahars were more than 20 feet in height. The evidence of these witnesses has not been assailed and the arguments in this Court have proceeded on the assumption that the practice of taking out tazias in procession in the manner alleged by the plaintiffs has been in vogue in Amroha for a long number of years and that the tazia of Shafaatpota when carried by Kahars is 27 feet high from the ground. The defendants' witnesses deposed that the height of Shafaatpota tazia was reduced from time to time. This evidence, in my judgment, is of questionable value. No such case was foreshadowed in the written statement and the statement made by the defendants' witnesses in cross-examination on the point is most indefinite. Sharif Ahmad, defendants' witness, stated, that:

So far as I remember, probably two of its stories have been reduced, perhaps one from the bottom and the other from the middle or from above, I cannot say correctly which.

12. Maulvi Ale Ahmad, another witness of the defendants, was not sure whether the height of the tazia of mohalla Danishmandan or of mohalla Majjapota or of mohalla Shafaatpota was reduced. Mohammad Husain admitted in cross-examination that he did not have the chance of seeing the tazia of Shafaatpota since he attained the ago of discretion. Saiyid Tamiz Ali stated in. cross-examination that I say approximately that one or two stories might have boon reduced,' Similarly, Chaudhri Anwarul Haq stated that 'while the tazia was hoi rig taken up, I made an estimate of the height, which I have given above.'

13. It is not disputed that the height of Shafaatpota tazia has not undergone any change during the last 15 or 20 years and that it is not possible to take out that tazia and some other tazias in procession on the 10th of Moharram without raising the height of the electric wires. The question then arises whether the plaintiffs are in the circumstances entitled to the reliefs prayed for by them. It is settled law that in this country there is a right to conduct a religious procession with its 'appropriate observances' through a public street provided it does not interfere with the ordinary use of the street by the public, and a civil suit for the enforcement of the right is maintain, able against those who interfere with the religious procession or its 'appropriate observances.' This right is however subject to lawful directions issued by executive authorities for the maintenance of peace and for the regulation of traffic : vide Manzur Hasan v. Muhammad Zaman . In that case it was proved that Shia Mahomedana in a certain town conducted during the Moharram a procession bearing religious emblems and pausing from time to time for the performance of matam (wailing). From time immemorial the procession had passed along a public street immediately behind a Sunni Mahomedans' mosque. The Sunnis interfered to prevent matam near the mosque on the ground that it disturbed their devotions. The Shias then brought a suit for a declaration of their right to make short pauses behind the mosque for the performance of the matam and for an injunction restraining the Sunnis from interfering or obstructing them while they were performing the matam. The declaration prayed for by the Shias was granted to them but subject to orders of the local authorities regulating the traffic, the Magistrates' directions and the rights of the public to the ordinary use of the street.

14. To the same effect is the decision of this Court in Mohammad Jalil v. Ram Nath : AIR1931All341 . It was held in that case that every community has the right to take out a religious procession, with its appropriate observances, along a highway and that this is an inherent right and does not depend on the proof of any-custom or long established practice. In view of these decisions it must be held that the plaintiffs and other Shia Mahomedans of Amroha have the right to take out tazias in procession on the 10th of Moharram irrespective of the question as to whether they have exercised this right for sufficiently long time to warrant the inference' that a custom or usage to that effect has been established. I may however observe in passing that the evidence in the case points to the conclusion that procession of tazias has been taken out in Amroha in, the manner alleged by the plaintiffs from a time beyond living memory and that in, order to allow free passage to tazias the telegraphic wires were removed at the time when the tazias used to pass under the same.

15. The question then arises whether the plaintiffs are entitled as heretofore to take in procession those tazias which are more than 20 feet high from the ground or that they must now reduce the height of the tazias so as to conform to the height of the electric wires. The answer to this question, must be in the affirmative if the taking out of tazias of more than 20 feet in height, can be held to be an 'appropriate observance' within the meaning of the decision of their Lordships of the Judicial Committee noted above. It is not disputed that the taking out of tazias in procession is an indispensable part of the religious ceremonies performed on 10th Moharram. The practice is not confined to Shias alone and even Sunni Mahomedans and Hindus take out tazias in procession on that date. But it is contended on behalf of the respondents that tazias of more than 20 feet in height are 'inappropriate' to the occasion and it is therefore urged that the-plaintiffs are not entitled to the reliefs prayed for by them. I am unable to agree with this contention.

16. What constitutes an 'appropriate observance' with reference to a particular religious procession is necessarily a question of fact and the answer to the question must depend on the proved facts and circum stances of each particular case. In deciding the question particular regard must be had to the practice prevailing in a particulars locality and it is impossible to lay down an inflexible rule of universal application as to the height of tazias. It has been established in the present case that the practice of carrying tazias of particular heights in the streets of Amroha has been in vogue for a long number of years and the practice has been acquiesced in by all concerned for a reasonably long period of time to warrant the inference that a usage to that effect exists in the town of Amroha. Apart from this, the practice is not confined to the town of Amroha alone. It is a matter of common knowledge that tazias of much greater height than 20 feet are taken out Jin procession in various towns in this province. There is thus no escape from the conclusion that the carrying of tazias of more than 20 feet in height is an 'appropriate observance' connected with the religious processions of Shias on 10th Moharram in the town of Amroha. It follows that subject to such rights as defendant 4 may have as a licensee, the plaintiffs are entitled to a decree in terms of the decree granted by their Lordships of the Judicial Committee in Manzur Hasan v. Muhammad Zaman .

17. It is however urged by the respondents' counsel that the act complained of was done by defendant 4 in the exercise of its statutory powers and that everything that it has done is authorized by the Electricity Act. In other words the placing of electric wires at a height of 20 feet is justified on the plea that it was done in the performance of statutory obligations. The argument is that by the license, duties of a public nature were assigned to defendant 4 and what was done was done under statutory authority. It is argued that the Legislature must be deemed to have contemplated the possibility of the infringement of private rights and to have authorized such infringement. In support of these contentions reliance has been placed on Sections 12,13,18 and 19, Electricity Act, and on the decisions in London, Brighton & South Coast Ry. Co. v. Truman and Co. (1886) 11 A.C. 45, Emsley v. N.E.Ry. Co. (1896) 1 Ch. D. 418, Harilal lallubhai v. B.B. & C.I. Ry. Co. (1920) 7 A.I.R. Bom. 155 and Muhammad Mohidin Sait v. Municipal Commissioners for the City of Madras (1902) 25 Mad. 118.

18. In my judgment there is no force in the argument advanced by the respondents' counsel. By Section 12 of the Act, a licensee is, subject to the terms and conditions of his license, inter alia permitted to place electric supply lines and other works over, along or across any street. Section 13 makes provision about cases in which the licensee has to give notice before exercising any of the 'powers' given to him by the license. By Section 18 the licensee is required to obtain general approval in writing of the Local Government before proceeding to place any aerial line along or across any street. Then the following provision is made by Section 19:

(1) A licensee shall in exercise of any of the powers conferred by or under this Act, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by anyone employed by him.

19. It is true that the Act speaks of the 'powers' of a licensee, but I consider that Section 19 of the Act imposes a double limitation on the exercise of those powers. In the first place there is a statutory obligation cast on the licensee to 'cause as little damage, detriment and inconvenience as may be' and in the second place the licensee is under an obligation to make full compensation for any damage, detriment or inconvenience caused by him. As I read Section 19, it appears to me that it is the primary duty of a licensee to avoid as far as possible causing, damage etc. to the public but if in carrying out the duties imposed on him by the license, it is impossible to avoid damage, etc. to others, the licensee is liable to make compensation. In other words the liability to make compensation is subject to the paramount obligation not to infringe the rights of others and it is only in cases of absolute necessity that a licensee can cause damage, etc., and in that event he is liable to make compensation. In short the liability to make compensation comes into play only where the causing of damage, detriment, etc. is indispensable. This liability however does not exonerate the licensee from the obligation to respect private rights so far as possible. It follows that Section 19 primarily prohibits the creation of a nuisance as far as possible by the licensee in the exercise of the powers given by the Act and by the license, and the infringement of private rights by a licensee can only be justified on proof of the fact that the licensee could not reasonably be ex mooted to execute the duties imposed by the license without infringing those rights. The powers given to defendant 4 by the license should therefore be construed to be conditional on being so exercised as not to interfere with the right of others. If defendant 4 could properly exercise the powers given and discharge the duties imposed by the license without infringing the rights of the plaintiff's, it 'was incumbent on it to do so. I do not overlook the fact that defendant 4 was engaged in carrying out work of public utility, but considerations of public welfare do not warrant the infringement of the rights of others, unless such infringement is expressly or by necessary implication authorized by statute. The Electricity Act far from giving such authority makes it imperative on the licensee to avoid causing damage, etc. to others and it is only on proof of the fact that it was not reasonably possible to avoid causing damage, etc. that a licensee in the position of defendant 4 can justify the infringement of the rights of others.

20. The cases relied upon by the learned Counsel for the respondents are distinguishable. The question for consideration in the two English cases was whether the Hallway Companies concerned had in the execution of the work that they were authorized to do statutory powers to infringe other persons' rights on terms of compensating them. It was observed in those cases that a statutory power is a power conferred by statute to do something which could not be lawfully done without it and it was hold that the infringement of the rights of the plaintiffs in the two cases was within the statutory power of the Railway Companies concerned. The action for injunction brought by the plaintiffs in those cases was therefore dismissed. In Harilal lallubhai v. B.B. & C.I. Ry. Co. (1920) 7 A.I.R. Bom. 155 it was held that a Railway Company has under the statute very wide powers in order to carry on its business for public purposes and on that ground the plaintiff's unit for an injunction directing the Company to have an old gateway at a level. crossing re-opened was dismissed.

21. The question for consideration in Muhammad Mohidin Sait v. Municipal Commissioners for the City of Madras (1902) 25 Mad. 118 was whether by virtue of Section 392, City of Madras Municipal Act, 1894, the Municipal Commissioners for the City of Madras had statutory power to commit an actionable nuisance and the question was answered in the affirmative. The question whether defendant 4 was authorized by statute to infringe the rights of the plaintiffs must be determined by reference to the provisions of the Electricity Act and the decisions just referred to, which turned on the interpretation of other statutes, are of little assistance in deciding the present case. It is well settled that when according to the true construction of a statute the Legislature has authorized certain act and the authority given is merely permissive' and not imperative the Legislature must; be held to have intended that the execution of the work permitted must be done in such a way as not to prejudice the common law right of others : vide Canadian Pacific Ry. Co. v. Parke (1899) A.C. 535. In Metropolitan Asylun District v. Frederick Hill (1881) 6 A.C. 193 it was held that the burden lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to show that by express words or by necessary implication such an intention appears. It was observed by Lord Watson in that case that:

If the order of the Legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also, able to show that the Legislature has directed it to be done.

22. In my opinion the authority conferred on defendent 4 by the Electricity Act was merely permissive and not imperative and the present case falls within the principle laid down in the two cases last mentioned. Apart from this, as observed above, there was a duty cast on defendant 4 by Section 19 to avoid as far as possible causing damage to others. It cannot be contended that defendant 4 could not discharge the duties imposed by the license without avoiding the invasion of the plaintiff's rights. It is true that defendant 4 was permitted to place the supply lines at a minimum height of 20 feet, but that did not debar defendant 4 from laying the supply lines at a greater height so as to allow free passage to the tazias. It was merely a question of using higher poles. This would undoubtedly have increased the cost of installation but considerations of economy can be no justification for infringing the rights of the plaintiffs. It is not a case where it was not reasonably possible for defendant 4 to accomplish the work authorized by the license without interfering with the plaintiffs' rights. The latter portion of Section 19 that provides about the payment of compensation for damage done has therefore no application to the present case.

23. It has been argued on behalf of the respondents that as there is no provision in the Indian Electricity Act similar to Section 81 of the Schedule to the English Electric Lighting Clauses Act, 1899, the Legislature must be deemed to have licensed the licensee to commit acts of nuisance. I find it impossible to assent to this proposition. Section 19 is general its terms, and in my judgment the duty cast on the licensee by the first portion of that Section is enforceable at law. There is nothing in the Electricity Act to relieve the licensee from the liability to an action for an injunction restraining him from infringing the rights of others and, in my judgment, the plaintiffs are entitled to a decree for mandatory injunction prayed for by them. Lord Kingsdown in the House of Lords in Imperial Gas Light and Coke Co. v. Broadbent (1860) 7 H.L.C. 600 is reported to have observed that

the ruin I take to be clearly this : if a plaintiff applied for an injunction to restrain a violation of a Common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law but when he has established his right at law, I apprehend that unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation.

24. I have already given my reasons for holding that the plaintiffs have established their right to take out in procession tazias of more than 20 feet in height, and I have no hesitation in holding that in the present case the plaintiffs are entitled to an injunction of the nature prayed for by them. The plaintiffs from the very outset drew the attention of everybody concerned to the necessity of fixing the electric wires at such a height as not to interfere with the tazia procession on 10th Moharram. No regard was however paid to the protest made by the plaintiffs and, in utter disregard of their rights, defendant 4, having secured the permission of the District Magistrate, proceeded to and did fix the electric wires at a height of 20 feet. It was suggested in arguments that instead of a decree for an injunction a decree for damages may be passed in favour of the plaintiffs. Complete answer to this suggestion is furnished by the decision in Shelfer v. City of London Electric Lighting Co. (1895) 1 Ch. D. 287. It was held in that ease that it may be stated as a good working rule that damages may be given in substitution for an injunction in cases where there are found in combination the four following requirements, viz. where the injury to the plaintiff's legal rights is (1) small, (2) capable of being estimated in money, (3) can be adequately compensated by a small money payment, and (4) where the case is one in which it would be oppressive to the defendant to grant an injunction.

25. In my judgment none of the above requirements are fulfilled in the present case. The injury to the plaintiffs' right is a recurring injury and is not capable of being estimated in money, nor can be compensated by 'a small money payment.' Further, defendant 4 cannot be heard to say that the granting of an injunction would be oppressive to it for the simple reason that defendant 4 with full knowledge of the plaintiffs' rights deliberately infringed the same.

26. For the reasons given above, I would allow this appeal, set aside the decree of the Court below and grant a decree to the plaintiffs declaring that the plaintiffs and other Shias of Amroha have a right to take out in procession tazias up to 27 feet in height (inclusive of the height of carriers) on 10th Moharram by the old fixed routes, but this declaration will be subject to the orders of the local authorities regulating the traffic, the Magistrate's directions, and the rights of the public. Further, the plaintiffs are entitled to a decree for an injunction ordering defendants 3 and 4 to make such arrangements with the electric wires on the tazia routes as not to cause any interference or obstruction in taking out tazias in procession on 10th Moharram. It was argued on behalf of the Municipal Board of Amroha that it had not infringed the plaintiffs' rights and was therefore entitled to exemption from the suit and to the costs incurred by it. I am unable to agree with this contention. I find that the suit was contested by the Municipal Board and the plaintiffs' witnesses were cross-examined by its counsel. I shall therefore award costs to the plaintiffs as against all the defendants in both the Courts.

Bajpai, J.

27. I agree with the order proposed. The facts of this case and the law discussed before us at the Bar have been stated at length in the judgment of my teamed brother Iqbal Ahmad, and it is not necessary for me to state them again. On the authority of their Lordships of the privy Council in Manzur Hasan v. Muhammad Zaman and of this Court in Mohammad Jalil v. Ram Nath : AIR1931All341 it is clear that any community in this country has the right to conduct a religious procession with it appropriate observances along a public highway and this right does not depend on the proof of any custom or long established practice. This right of course is subject to the three reservations mentioned in 1931 Mohammad Jalil v. Ram Nath : AIR1931All341 and mentioned also in the judgment of my learned brother.

28. If therefore the present case has to be approached from this point of view alone, then the only question that arises is whether the carrying of tazias 27 feet in height {including the height of the carriers) on the tenth day of Muharram through the streets of Amroha is an appropriate observance in connexion with the religious procession that is taken by the Shias on that day. This is a question of fact and a number of circumstances will afford an answer to the question, one of such circumstances being the length of time during which the particular observance has been adhered to, and another being if it is appropriate by reason of the advance of times necessitating amenities which were unknown before. If the observance in question in the form in which it is attempted to be enforced is an integral and essential part of the religious procession, the answer would be that the observance is an appropriate one; if how-over it is not an integral part or a necessary part of the religious procession, then other considerations, such as I have mentioned before, would arise. In the present case the evidence is that from time immemorial tazias 27 feet in height have been carried with the religious procession by the Shias of Amroha on 10th of Muharram and in spite of the evidence to the effect that taziadari is not enjoined compulsorily by the tonete of Islam and in spite of the evidence that some of the tazias have been reduced in height from time to time, I would hold that the right claimed by the plaintiffs in the present case is in the nature of an appropriate observance. On some Much evidence in another case if these very plaintiffs had claimed the right to carry tazias 60 feet in height on the ground that they had been carrying tazias of such height from time immemorial, I would have held that the observance was not a proper observance.

29. One other question, and indeed the most important question, that was argued by the defendants was that they were protected by the statute, namely the Electricity Act, and that in fixing electric wires at the height of 20 feet, which is a minimum height prescribed under the rules, the defendants were within their rights and an action such as the present one was not maintainable. The cases that were discussed before us and of which reference has been made in the judgment of my learned brother make it clear that a distinction is to be drawn between acts which are merely permissive under the statute and acts such as are enjoined by the statute. In the former case, the person seeking the protection of the statute cannot interfere with the rights of others; in the latter case he may, if such interference is unavoidable, although even then he would be liable to compensate the aggrieved party. If the detriment or damage to another is avoidable, an action for nuisance and for injunction would lie in spite of the fact, that the Indian Electricity Act, unlike the English Electricity Act on which it is based, does not contain a provision for not exonerating the licensee from an action for nuisance. In the case before us, the plaintiffs and the other Shias of Amroha protested from the very start in all quarters and said that the fixing of electric wires at the height of 20 feet was an interference with their inherent right of carrying a 27 feet high tazia, and it is conceded that the height of the electric wires could be raised without any difficulty except that it would cost a little more money. The branches of trees were cut and the telegraph wires were removed in Amroha from time to time when occasion arose. This is clear on the evidence of a number of witnesses produced in the present case, and the evidence of the same witnesses shows that at Sambhal and at Bachrawan underground tube wires were fixed on account of tazia procession, and in Aligarh the wires were fixed with due regard to the height of tazias that were carried through. Mr. Gupta, the District Engineer of the Upper Ganges Valley Electric Supply Co., admits that generally the electric wiring in Amroha is 20 feet above the ground level, and there is nothing on the record of the present case from which it could be argued that the fixing of wires at a height of 27 feet was an impossibility or that some other arrangements could not have boon made so that the inherent right of the plaintiffs was not to be interfered with.


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