Skip to content


Mohammad Jalil Khan and ors. Vs. Ram Nath Katua and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All341
AppellantMohammad Jalil Khan and ors.
RespondentRam Nath Katua and ors.
Cases ReferredMansur Hasan v. Muhammad Zaminan
Excerpt:
.....previous compromises have not been adhered to, it is perhaps best that a clear declaration of the civil rights should be made. 5. the principles which govern the rights of the parties appear to be well settled by the authorities, and may be summarized as follows. 12. every man is entitled to enjoy his own civil right provided in doing so he does not infringe the legal rights of another. but all music however bad cannot amount either to a public nuisance or a private nuisance, even though it may annoy occupiers of a dwelling-house situated on the road. 23. it was thought that no civil court can possibly declare the right to block a road and prevent the public from using it and it was held teat 'the suit as brought must fail,'24. in appeal their lordships of the privy council pointed out..........previous compromises have not been adhered to, it is perhaps best that a clear declaration of the civil rights should be made.5. the principles which govern the rights of the parties appear to be well settled by the authorities, and may be summarized as follows.6. there is right in every community to take out a religious procession, with its appropriate observances, along a highway. this is an inherent right and does not depend on the proof of any custom or a long established practice. even if such a procession be an. innovation it would be in the exercise of legal rights. the right is independent of any long standing tradition and is not lost 'by mere abstention or non-exercise of it for a number of years. an enquiry as to the existence or non-existence of an old custom is therefore.....
Judgment:

Sulaiman, J.

1. This is a defendants' appeal arising out of a suit for a declaration that the plaintiffs along with the other Hindus of Bahadurganj are entitled to conduct their processions, both social and religious, on all the streets and thoroughfares, playing music with other religious ceremonies according to their natural rights as well as customs of their community in the usual manner, past the sites occupied by the Juma Mosque and other mosques of the village as freely as they do at any other place, and that the defendants have no right to offer obstruction or to prevent them from doing so at any place therein. The plaintiffs allege that they have been celebrating their festivals from time immemorial and have been conducting processions accompanied with music and other religious observances, that the defendants in 1924 stopped the plaintiffs from playing music in their processions near their mosques and moved the Sub-divisional Magistrate who issued a notice under Section 144, Criminal P.C., that there were some compromises and several orders issued by the Sub-divisional Magistrate restricting the plaintiffs' right to take out their processions, that the cause of action accrued when the defendants applied to the District Magistrate for action and on subsequent dates when proceedings under the Criminal Procedure Code were taken. Several written statements were filed, but their purport is the same that the suit for the declaration was not maintainable and the plaintiffs had no cause of action, that the Magistrate's orders were administrative to avoid breach of the peace and the plaintiffs could not question them without impleading the Secretary of State, that the plaintiffs were estopped from going behind the terms of three previous compromises, that the processions are innovations and that the customary religious ceremonies are not what are alleged by the plaintiffs but are those stated in para. 13 of the written statement that no music was in the past played before mosques and that the noisy demonstration of the processionists is a. public nuisance as recognized by law and a declaration of an unlawful act cannot be granted by the Court.

2. The learned Subordinate Judge held that the plaintiffs have a right to conduct their civil and religious processions through the public streets of Bahadurganj. past the various mosques, without interfering with the ordinary use of such streets by the public and subject to such-directions as the Magistrate may lawfully give to prevent obstruction or breach of the public peace, and that accordingly he was not called upon to decide whether these festivals were an innovation or otherwise. He further held that as the defendants had offered obstruction it was not necessary for the plaintiffs to implead the Secretary of' State; that the three compromises relied upon by the defendants had really not-been acted upon and some of the defendants themselves had resiled from them. He also found that the last compromise-was entered into during the pendency of criminal proceedings under Section 107, Criminal P. C, and was not of a binding nature and that these compromises were not entered into in a representative character and Schedule 2, para. 18, Civil P.C., was not applicable. Lastly he held that the plaintiff's festivals did not interfere with the civil fights of the defendants and they cannot prevent the former from conducting their processions subject to such directions as the Magistrate may lawfully give. He accordingly gave the plaintiffs a declaration in the following form:

The plaintiffs along with other Hindus, the inhabitants of Qasba Bahadurganj do take out their religious and social processions along the thoroughfare and the public street passing the Jama Masjid and other mosques in Qasba Bahadurganj in this way that the public be not in any way disturbed in using the thoroughfare and the public street and also subject to those orders which may be passed by the Magistrate in accordance with the regulation of traffic on the thoroughfares for preventing obstructions and breach of peace.

3. The defendants have come up in appeal and on their behalf it has been urged by Mr. O'Conor that: (1) the plaintiffs cannot be allowed to conduct their processions with music at the time of prayers so as to disturb the Muslim prayers in the mosque, (2) that they are not entitled to the declaration which has been given; and (3) that they are bound by the previous compromises.

4. It is unfortunate that communal dissensions have stood in the way of an amicable settlement and there has had to be recourse to the Courts of law. If both the communities were reasonable, a suitable arrangement which would satisfy every one could easily be made, by either postponing the hours of prayer, when possible, or regulating the time of the procession. But as previous compromises have not been adhered to, it is perhaps best that a clear declaration of the civil rights should be made.

5. The principles which govern the rights of the parties appear to be well settled by the authorities, and may be summarized as follows.

6. There is right in every community to take out a religious procession, with its appropriate observances, along a highway. This is an inherent right and does not depend on the proof of any custom or a long established practice. Even if such a procession be an. innovation it would be in the exercise of legal rights. The right is independent of any long standing tradition and is not lost 'by mere abstention or non-exercise of it for a number of years. An enquiry as to the existence or non-existence of an old custom is therefore unnecessary and irrelevant.

7. A public highway is primarily for purposes of traffic and every individual is entitled to use it in a reasonable way. But he cannot claim it exclusively for purposes of worship. Persons of every sect are entitled to take out religious processions through public streets provided that they do not interfere with the ordinary use of such streets by the other members of the public.

8. No right can be claimed to block a public thoroughfare completely so as to prevent other person's from exercising their right of way. The police authorities are responsible for a proper regulation of traffic and can issue necessary orders for that purpose. Magistrates are competent to issue directions to prevent obstructions of public thorough-fares.

9. The civil Courts have no concern with the power of a Magistrate to issue whatever orders he considers necessary, even if it restricts the ordinary right of using a public thoroughfare, when he apprehends a danger or in urgent cases of nuisance under Section 144 and other sections of the Criminal Procedure Code. No civil suit lies in a civil Court to question the propriety of any such order. The right of way over a public road must always be subject to such orders of the Magistrate.

10. The taking out of a procession accompanied with music, whether as a part of religious worship or not, is within the civil rights of a community, but not an exclusive use of the highway for worship.

11. Worshippers in a mosque or temple which abuts on a highway have no right to compel the processionists to stop their music completely while passing a mosque or temple on the ground that there was continuous worship inside it. Even if music, whether religious or 'not, offends against the religious sentiments of another community, it cannot be objected to on that ground. The stopping of the music would offend the religious sentiments of the processionists just as much as its continuance may offend the religious sentiment of the other. There can therefore be no right to insist on its complete stoppage.

12. Every man is entitled to enjoy his own civil right provided in doing so he does not infringe the legal rights of another. In the case of Nanbahar Singh v. Kadir Bux : AIR1930All753 , Sen, J., and one of us held that although there was a right to slaughter cows, no right can be claimed for a riotous demonstration actuated by or creating animosities, and that even if the slaughter is on land in one's own possession it must not be done in such an exposed way as to amount to a public nuisance.

13. The right to use a thoroughfare should in the same way be exercised in a reasonable manner without any wanton disregard of the legal rights of others or a riotous demonstration to provoke animosities. No Court will grant a declaration to a plaintiff as to a right to do an act on a public highway which infringes a public right or a private right of the defendant.

14. If the parties are bound by a contract inter se a declaration in breach of such contract will not be granted by a civil Court.

15. There is no right to commit a public nuisance on a highway, nor is there any absolute right to commit a private nuisance against a particular defendant. But all music however bad cannot amount either to a public nuisance or a private nuisance, even though it may annoy occupiers of a dwelling-house situated on the road.

16. But a noise may become a nuisance, public or private. There is no definite legal measure for a noise becoming a nuisance. It is purely a question 'depending on the facts of each case, including the degree of its intensity, its place, the time, the mode of committing it, its duration and all the surrounding circumstances. The standard of judging it is according to that of men of ordinary habits, and not of men of fastidious tastes or of over-sensitive nature, whether due to religious sentiment or not.

17. On the authority of Manzur Hasan v. Muhammad Zaman it is contended before us that there is an absolute unrestricted right to take out processions accompanied with music along a public road. This is not so.

18. In that case the Shias had sued for a declaration that they were entitled to take out a procession during the Muharrum with a right to stop and perform the matam in a circle on the public thoroughfare without obstruction. The Sunnis whose mosque lay on a narrow lane objected to it. The first Court decreed the claim

subject to the orders of the local authorities regulating the traffic.

19. The appeal to the High Court was disposed of by Tudball, J., in whose judgment one of us concurred; Muhammad Zaman v. Manzur Hasan A.I.R. 1921 All. 146. The learned Judge after pointing out that the decisions in India were conflicting remarked:

Be that as it may, we are not now concerned in this case with a right to play music or a right to pass in procession.

20. He again remarked:

We repeat again that the plaintiffs' right of passage along this road in procession is not in dispute.

21. In conformity with the view expressed by the 'Madras High Court in Vijiaraghva Charia v. Emperor [1903] 26 Mad. 554 he stated the law to be that:

A community has a right to go in procession through a public street subject to the control of the Magistrate and to use the public thoroughfare in a reasonable and usual way.

22. The Bench however thought that as the road was a narrow passage, only 12 feet wide, a procession of 400 to 500 men or more with stoppage every 5 to 7 minutes covering a distance of 25 yards would take more than 35 minutes, during which time the road way would be completely blocked. It considered that

the right which the plaintiffs claim is practically a right to stop a procession a large number of times to block the roadway completely and prevent its user by other members of the, public.

23. It was thought that no civil Court can possibly declare

the right to block a road and prevent the public from using it

and it was held teat 'the suit as brought must fail,'

24. In appeal their Lordships of the Privy Council pointed out that

the High Court had treated the suit as a prayer to be allowed to block absolutely the highway, which their Lordships considered, cannot be allowed: Mansur Hasan v. Muhammad Zaminan,

25. Their Lordships of the Privy Council examined the conflict of opinion between the Madras High Court and the Bombay High Court and affirmed the views of the Madras High Court and overruled the Bombay views. As to the appeal before their Lordships they remarked:

If their Lordships were simply to dismiss the appeal the effect would be misunderstood in India. Every different sect of religion when places of worship are upon the routes where the processions of those with whom they do not agree pass, would appeal to the judgment as settling that the functions of the procession should cease as it passed them.

26. Their Lordships accordingly allowed the appeal and granted a restricted declaration. They maintained the restriction

subject to the order of the local authorities regulating the traffic.

which had been laid down by the trial Court and in addition to it imposed two more restrictions:

subject to the Magistrate's direction and the rights of the public.

27. The first of these additional restrictions affirmed the remark of Tudball, J., quoted above and the second gave effect to his point that no declaration of right can be granted which infringed other people's rights for instance when the road is completely blocked. In order to prevent their judgment from being misunderstood in India their Lordships did not simply dismiss the appeal but granted a declaration with three reservations.

28. The effect of the first reservation is that the local authorities, whether Magistrates 'or police, have power to issue directions for the regulation of traffic on public thoroughfares and preventing obstruction even though they may involve a restriction of the use of such thorough fares.

29. The second reservation preserves the authority of the Magistrates to issue orders under Section 144, Criminal P. C, for the purpose of preventing obstruction, annoyance or injury, danger to human life, health or safety or a disturbance of the public tranquillty, as well as orders under other statutory provisions. The propriety of such orders cannot be questioned in a civil suit.

30. The third reservation ensures that the exercise of the right to take out religious processions should not infringe the rights of other members of the public. It is therefore made 'subject to the rights of the public.'

31. It may be noted that in that case there was no question as to the right to play music, nor was there any suggestion that such music amounted to a nuisance. When such a question arises, it would obviously be covered by the reservation 'subject to the rights of the public.'

32. It cannot be suggested that no suit for a declaration lies. When objection is taken to the taking out of a procession or of playing music in the vicinity of mosque or temple, a civil suit lies for a declaration of the right to do so. Such a suit can be brought either by individual plaintiffs against individual defendants who object, or it may be of a representative character, the result of which will bind both the communities which are represented.

33. If it were established that there is any binding contract between the parties to the suit the plaintiffs would not be entitled to a declaration of right which amounts to its breach. No doubt three previous compromises between the leaders of the two communities ware entered into and signed in the presence of the Magistrates, But it is not established that any one of the plaintiffs was signatory to any of those compromises. Ganesh Prasad son of Ram Narain admitted in the witness-box that he had entered into the compromise. In the plaint plaintiff 4 was at first put down as Ganesh Prasad son of Ram Narain, but the parentage was subsequently altered to son of Sheo Narain Ram. This was presumably done before the plaint was filed, There is therefore nothing to suggest that any of the plaintiffs personally entered into any of the previous compromises.

34. It is suggested that the compromises by the leaders of the two communities may be in their representative capacities and would bind both the communities. We fail to see how a few self-constituted leaders or even the leaders chosen by the officials can legally represent an entire community, which must include many minors. Without proof of valid authority, express or implied, it would not be possible to bind the other members of the communities, who were no parties to the written compromises or could not validly give consent. It also seems that these compromises have not been strictly adhered to by the two communities. We therefore do not think that the plaintiffs are estopped from claiming a declaration of their legal rights.

35. In view of all the circumstances mentioned above we think that the proper course is to grant to the plaintiffs a declaration in the following form:

That the plaintiffs both in their individual capacities and as members of the Hindu community have a right to take out religious and social processions accompanied by music along public roads even while passing mosques, subject to any orders or directions issued by the Magistrate or the police, for preventing breaches of the 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 recognized by law.

36. We accordingly modify the decree of the Court below by substituting therefore a decree in the above form. The parties are to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //