1. This is a defendants' Second appeal against the reversing judgment dated 14-4-1960 of the Additional Subordinate Judge of Cuttack, modifying the decree of the Additional Munsif of Jajpur.
2. Alakandu and Nuagon are two adjoining villages within Binjharpur police Station in the District of Cuttack. A District Board Road passes by the side of the village road and the Hindu community of both the villages live on both sides of the road. The Muslim residents of these two villages have two mosques one situate in village Alakunda to the north of the District Board Road and the other is situated in village Nuagaon to the north of the village road both the mosques standing by the side of the aforesaid road.
The plaintiffs' case is that the Hindus of the two villages used to take out religious processions accompanied by appropriate music on occasions like Dolejatra, Shivratn, Kartik Purnima etc. and Astaprahari Kirtans also used to pass on the said route. They also used to take other non-religious processions accompanied by music on the said route. This, they have been doing since time immemorial without any interruption until 1952 when on the Kartik Purnima day while the plain-tiffs' community took out their procession on the said route, the defendants obstructed them and succeeded in obtaining a prohibitory order under Section 144, Cri. P. C. against the plaintiffs' community and also started security proceedings under Section 107, Cri. P. C. thus depriving the plaintiffs' community of their fundamental right to use the highway in the manner they had hitherto been doing.
The plaintiffs thus were constrained to file the present representative suit for declaration of the right of the Hindu Community to take all religions and social processions with appropriate music along the District Board Road, village road, and other public highways of the locality including those by the side of the defendants' mosques, Without any interruption whatsoever and prayed also for permanently restraining the defendants' community from interfering with such rights a the plaintiffs.
3. The defendants, amongst other objections, contended that on account of similar disputes 'between the two communities in the year 1931 a proceeding under Section 107, Cri. P. C. was started and a compromise (Ext. H) was effected between the leading members of the two communities on 18-1-31 as a result of which the proceedings were dropped, and subsequently with the approval and tacit consent of both the communities brick pillars on both sides of Alkunda mosque with the inscription 'Bajabajaiba Nishedha' were erected to indicate to the processionists to stop music within specified limits near the mosque. In accordance with the said compromise the plaintiffs' community used to stop music within the limits thus specifies whenever they used to take out processions. This was done until the year 1952 when the plaintiffs community sought the co-operation of the defendants' community to prevent cow-slaughter and on the refusal of the defendants' community to do so, the plaintiffs' community out of vengeance Violated the terms of the compromise and created disturbance at the time of offering of prayers in the said mosques by the defendants' community. It was the further case of the defendants that the plaintiffs' community being bound by the previous compromise under Ex. H were estopped from re-agitating the matter in the present suit, and in any case the suit is not otherwise maintainable.
4. The learned Munsif held the suit to be maintainable. He found 'that the plaintiffs were bound by the previous compromise and though they have a right to take out processions accompanied with music on the aforesaid public road they have no right to play music near the mosque at the time of congregational prayers of the defendants' community. He accordingly passed an order to the following effect:
'The suit be decreed modifiedly as follows:
The plaintiffs have a right to take out both religious and non-religious processions with accompaniment of proper music for the occasions on highways of Alkunda and Nuagon villages subject to the under-mentioned restrictions :
(i) That they do not play music in between the space of brick pillars situated on both sides of Alkunda mosque and between the space indicated by two stones on either side of Nuagaon mosque, so as not to disturb the defendants or their community in offering their prayers; and
(ii) That the right also is subject to any lawful order or direction by the Magistrate or the Police for preventing breach of peace or obstructing the highway such other orders under any other statutory provisions for regulating traffic.'
On appeal by the plaintiffs, the appellate Court held that Ext. H the petition of compromise is entirety silent about the terms of the agreement arrived at between the leaders of these two communities, but on the basis of the inscription 'Bajabajaiba Nishedh' on two brick pillars, came to the conclusion that the leaders of the Hindu community agreed to stop only the drum-beating near the said mosques. According to him the par-ties intended not to stop each and every kind of music if carried in a low sound near the mosque, but it was only the drum-beating that was prohibited at the time of conventional prayers in the mosque. In other words in his opinion 'Baja-bajaiba Nishedha' meant only prohibition of drum-beating. He, thus modified the order of the trial Court in the following terms :
'That the plaintiffs both in their individual capacity and as members of the Hindu Community have a right to take out religious and social processions accompanied by music in a low sound except drum beating along public roads while passing the two brick-pillars situated on either side of the Alakunda Mosque and the two stones fixed on either side of Nuagon Mosque, subject to any orders or directions issued by the Magistrate or police for preventing breaches of public peace or obstructions of the thoroughfares or for other matters mentioned in Section 144, Cri. P. C. or under other statutory provisions or for regulation of traffic, provided, that the exercise of such a right does not amount to a nuisance recognised by law.'
It is against this order of the learned Subordinate Judge the defendants have come up in appeal. The plaintiffs have also filed a cross-appeal against the above order contending that the compromise was not binding on them as it was not effected in a representative capacity and that if being one of the fundamental rights of the plaintiffs to use the public highway to take out processions with necessary music, the restriction imposed by the appellate Court to carry the pro-cession with music 'in a low sound except drum beating' amounts to an illegal restriction.
5. That such a suit is maintainable cannot be disputed. The next question that arises for consideration is whether the parties are bound by theirprevious agreement (Ext. H) so as to stop the plaintiffs from bringing forward the present claim and whether the plaintiffs have unrestricted rights to take out processions accompanied by music before the mosque even at the time of conventional prayers of the defendants' community.
6. Ext. H shows nothing more than that it was a compromise effected between the parties in a proceeding under Section 107, Cri P. C. where the parties agreed that both the communities would live peacefully without interference with each others religious affairs. None of the plaintiffs, excepting plaintiff-12 and none of the defendants was a signatory to that agreement. There is nothing therein to show that it was entered into in a representative capacity by the concerned parties. According to the appellate Court the compromise was entirely silent about the terms of the agreement arrived at between the leaders of the two communities, but as stated above, he has relied more upon 'the aforesaid inscription to come to his conclusion that the Hindu Community agreed to stop only drum beating near the mosque. It was contended by the learned Counsel for the respondents that the terms of the compromise were of a temporary character and had no other object beyond settling and closing the proceedings under Section 107, Cri. P. C. and in any case, the parties had no authority to bind their respective communities.
This contention is not without any force. There is nothing on record to show that the signatories to the said compromise had any authority whatsoever to bind the community as a whole. It is well settled that a few self-constituted leaders or even leaders chosen by the officials do not legally represent the entire community which includes minors also and without proof of valid authority such leaders cannot bind the other members of the community. The question whether any valid authority was given or not is a question of fact in each case. In that view of the matter, it must be said that the previous agreement, does not operate as an estoppel against the plaintiffs.
7. Mr. Dasgupta learned counsel for the respondents contended that even if the plaintiffs would have agreed to a compromise in the manner alleged by the defendants, such an agreement has no binding effect in law inasmuch as processions on the highways are always subject to the jurisdiction of the authority like the Magistracy and the Police.
In support of this view, he relied upon a decision reported in Kesava Mudaliar v. Govind Charier, AIR 1926 PC 64 where their Lordships have held that since all religious processions are under the control of the Police and are subject to such control, equally lawful, the agreement between two temples restricting and regulating each other's right to take procession cannot take away from any party any right that it may have generally subject to Police control. Thus, it cannot be disputed that whatever might be the terms of a compromise between the parties relating to procession on the public roads, its movement and regulation is always under the control of the Magistrate and the Police. This is so even though a party had an absolute right of taking processions in a street.
8. Mr. Murthy, learned Counsel for the appellant contended that the defendants had a funda-mental right to offer prayers in mosque without any sort of disturbance whatsoever and that theplaying of the music, near the mosque at the time of such prayers amounts 'to an illegal interference with such rights. Similarly Mr. Dasgupta, learned counsel for the plaintiffs respondents contended that the plaintiffs had also a fundamental right to take ou't religious processions on public roads with any music appropriate to the occasion and that the action of defendants amounted to an obstruction in the exercise of such rights. That both the rights are recognised by law cannot be disputed, but the question is whether one of the parties can enforce such a right even if it affects the right of the other and to what extent both the rights can co-exist and co-ordinate harmoniously. It is well settled that no sect or community is entitled to deprive any other sect or community of ihe right to use the public streets for procession, on the plea of the sanctity of their peaces of worship or on the plea that worship is going on therein day and night. The law on the subject has been laid down in a Full Bench decision of the Madras High Court reported in Sundaram Cheety v. The Queen, ILR 6 Mad 203 where in a dispute of the present nature their Lordships held :
'When regard to processions, if they are of religious character and the religious sentiments are to be considered, it is not a less hardship to the adherents of the creed that they should be compelled to intermit their worship at a particular point than it is on the adherents of another creed that they should be compelled to allow the passage of such processions to pass the temple they deserve.'
This view was accepted by the Privy Council in a case reported in Manzur Hassan v. Md. Zaman, AIR 1925 PC 36 where their Lordships had held that there is a right to religious processions on its appropriate observances along Ihe highways. Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public, and subject to such direction as the Magistrate lawfully gives to prevent obstructions of the thoroughfares or breaches of the public peace and a suit lies for the declaration of such a right. They also held that the claim by one particular sect for the exclusive use of the highway for their worship is untenable.
9. Another case similar to the present one came up for consideration before the Allahabad High Court in Md. Jalil Khan v. Ramnath Katua reported in AIR 1931 All 341. There the Hindu public filed a suit for a declaration that they had a right to conduct their procession both social and religious on all the streets and thoroughfares playing music according to the natural right and the custom of their community in the usual manner and pass by the side of Juma Masjid and other mosques of the village and that the defendants had no right to offer obstruction or to prevention from doing so at any place. In that case at the instance of the defendants they were prohibited by the Sub-divisional Magistrate by an order under Section 144, Cri P. C. from doing so. The defendant contended that such a suit was not maintainable as the Magistrate's orders were merely administrative. They also alleged that the plaintiffs were bound by a previous compromise effected between the parties. Their Lordships held that there is an inherent right in every community to take out religious processions with its appropriate, observance along the highways, and such a right is not dependent on the proof of any custom or long standing practice and the taking out processionsaccompanied by music whether as part of religious worship or not, is within the civil rights of a community and that all worshippers in a mosque or temple which abuts highway have no right to compel the processionists to stop their music completely while passing near the mosque or temple on the ground that there was continuous prayer in it. Even if such music offends against the religious sentiments of another community, it cannot be objected to on that ground. It was, however, held that the Magistrate have powers to put restrictions under Section 144, Cri. P. C. on the ordinary right of using public thoroughfares when there is an apprehension of danger or nuisance.
10. The facts of the present case are fully covered by the aforesaid decision of the Allahabad High Court. There is nothing in the Constitution to show that the right to take any procession as such has been guaranteed as a fundamental right. What is guaranteed is a right to assemble peacefully but without arms and the said right is also subject to such restrictions as may be imposed in the interest of the public order. It is open to the Magistrate to give any order that may be necessary to prevent obstructions of public thoroughfares or breach of the peace. In the larger interest of the public such restrictions are bound to be imposed. Thus, the right of a party to take out processions is subject to the aforesaid limitation. Subject Jo the aforesaid restrictions, the plaintiffs have an absolute right to take but processions with music in all the public thoroughfares and the defendants cannot insist upon their complete stoppage of the music or to carry the same in a low sound. The learned appellate Court was not justified in putting the restrictions as to the nature of music or musical instruments such as drums etc. on the plaintiffs while taking out processions before the mosque, at the time of prayers. It is always open to an aggrieved party to approach the authority for necessary redress to avoid any breach of the peace.
11. In, view of the above legal position, it must be held that no restrictions can be imposed on the right of the plaintiffs' community to take out processions with appropriate music. Thus, the restrictive order of the lower appellate Court directing the plaintiffs to take out processions with a 'low sound music except drum-beating' is not justified, and is set aside. Thus while deleting the said portion as underlined, from the order of the lower appellate Court, I would allow the rest of his order to stand.
In the result, both the appeal and the cross-appeal are disposed of in terms of the above order. In view, however, of the nature of the controversy and the success in the case, the parties are to bear their own costs throughout.