S.P. Mohapatra, J.
1. Plaintiffs who have been unsuccessful in both the Courts below have brought this second appeal arising out of a suit claiming for an order of perpetual injunction restraining the defendants from hanging tarpulin and other clothings and performing Jatra thereunder on the Sarbasadharan Road in the town of Bhadrak while the plaintiffs would be carrying on their religious procession for immersion ceremony of the deity 'Durga' on the dasahara days.
Plaintiffs' case is that they belong to very ancient family, known in the locality as Laha Family, of Bhadrak, and from time immemorial they have been celebrating the Durga Puja festival by worshipping and offering bhog to the Durga image during the Dasahara days; they have been carrying on religious procession for the immersion ceremony on the public street of the town of Bhadrak to perform the, immersion ceremony in the river Salandi.
While the procession would be carried on through the public highway on the road there are the houses of the defendants on both side of the public highway where also they celebrate the Durga Puja by installing the deity 'Hara-gouri' on plot No. 58/1033, the house of the defendants on the other side of the public highway being situate on plot No. 840. The defendants perform Jatra on these festive occasions by hanging tarpulin, other Palas and clothings.
The plaintiffs' grievance is that the defendants have no such right, and as such they pray for a permanent injunction restraining the defendants from performing their Jatra and hanging tarpulin and other clothings as they are impure and they would obstruct the procession. The plaintiffs based their case on pure easementary rights which prima facie is misconceived. The defence is to the effect that there has been absolutely no obstruction to the religious procession led by the plaintiffs for the purpose of celebrating the immersion ceremony of Durga installed in the house of the plaintiffs on the Dashara days.
The defendants also assert that they have been performing their Puja ceremonies in their houses for a very long time and while celebrating the iestive occasions on the Dashara days they enjoy the appropriate observances of the puja festivities by giving Jatra performances on the public highway, having previously obtained the permission of the appropriate authorities and without in the least disturbing or causing inconvenience to the traffic of the public.
It may be noted, the admitted feature is that on both sides of the public highway are situate the houses of the defendants and the front doors of the defendants only open to the public highway. On the aforesaid pleadings, quite a number of issues were framed by the trial court, and the trial court having considered and fully discussed each of the issues, dismissed the plaintiffs' suit. The judgment of the trial court having been confirmed by the first appellate court, the present Second Appeal has been brought.
2. On a perusal of the judgments of the courts below, I find there has been an unnecessary lengthy controversy regarding the easementary rights and the customary rights. To my mind, in cases of this nature, introduction of questions like easementary rights and customary rights is completely misconceived. The real controversy between the parties is fully settled by the principles laid down by their Lordships of the Privy Council in Manzur Hassan v. Muhammad Zaman, AIR 1925 PC 36. Their Lordships enunciated in very clear and unequivocal terms:
'There is a right to conduct a religious procession with its appropriate observances along a highway. 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 directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace; and a suit lies for the declaration of such right. But claim by one sect, for the exclusive use of the highway for their worship is untenable.'
This decision sets at rest once for all the position that any section of the public have got right to lead a religious procession with its appropriate observances along a highway, subject to particular limitations, that is to say, that they do not interfere with the other fundamental rights of the public and also this right is subject to the control by the appropriate authorities to regulate the traffic. This is not based upon an easementary right or a customary right.
This is a fundamental right as the ordinary user by an individual of the public street. This right includes in itself a right to have some religious or appropriate performances while observing some religious festivities by individuals or certain sections of the public. The defendants also can claim on the principles enunciated by their Lordships of the Privy Council the same rights as the plaintiffs.
While the plaintiffs can lead their procession through the public street as a matter of right without interfering with the fundamental rights of the citizens, the defendants also can claim the right to have their own religious performances with other appropriate observances like Jatras etc. if they do not interfere with the rights of the plaintiffs or any other member of the public after obtaining permission of the appropriate authorities who are in charge of regulating the traffic. The position has been further clarified by the same Board in a subsequent decision in Martin and Co. v. Faiyas, Hussain, AIR 1944 PC 33. Their Lordships observed:
'The members of the public have a right to take part in religious processions in the streets; subject of course to the rights of other members of the public to pass and re-pass 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. The rights of the Shia Mahomedans to take out in procession tazias through the public streets 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 is 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 o any height.'
Mr. B.N. Das appearing on behalf of the appellants, however, on the basis of this decision, contends that the plaintiffs have got the right to carry their procession and the defendants therefore are not entitled to put any tarpulin at any height whatsoever that would be obstructing the rights of the plaintiffs. As I have indicated, the rights are equally to be enjoyed by the defendants themselves and that the rights of both parties have to be respected by the Courts and the rights of the parties have to be respected by each other.
The defendants, as it appears from the evidence, enjoy their Jatra performances on the Dashara days putting the tarpulin and other clothings at a considerable height. Thereby they do not in the least interfere with the rights of any other public and there is no suggestion whatsoever within iour corners of the pleadings of the plaintiffs or in their evidence that there was any obstruction to the carrying of the procession of the plaintiffs, because of the hanging of the tarpulin at a particular height.
In my view, therefore, the apprehension of the plaintiffs seems to be more imaginary and too premature to be recognised by this Court. The other contention raised by Mr. Das is that the hanging of the tarpulin and other thick clothings which are impure will offend the religious sentiments and feelings of the plaintiffs. The admitted position remains that the hanging of tarpulin or other coverings is only made in course of religious performances during the Dashara days of offering worship to the defendants' deity 'Haragouri'.
By no stretch of imagination it can be said that the coverings would be in any way impure. The Courts below have categorically found that there was no impure covering hung over the public streetwhich would in the least offend the religioussentiments or feelings of the plaintiffs. On thesefindings, therefore, even though on different reasons,I would accept the conclusions reached by theCourts below and dismiss the plaintiffs' suit. Thedefendant-respondents are entitled to the coststhroughout