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K. Murugappa Mudaliar and ors. Vs. Kuppuswami Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1948)2MLJ458
AppellantK. Murugappa Mudaliar and ors.
RespondentKuppuswami Mudaliar and ors.
Cases ReferredMd. Jalil Khan v. Ram Math Katua I.L.R.
Excerpt:
- - it was clearly pointed out by sulaiman, j......public road near mohambariamman temple although they were not entitled to do so within the counter-petitioners' temple or in the vacant site in front thereof. as regards the right that was specifically claimed in that suit by the petitioners to have their soorasamharam festival performed prior to that of the counter-petitioners, the learned district munsiff made this observation:it appears to me, considering the fact that the plaint idol has been having the utsavam for a much longer time than that of the defendants' idol and that the defendants' idol came into existence only very recently, the preference ought to have been given to the plaintiffs' idol to have the surasamharam done first. but no such right can be declared and it is for the magistracy and the police who will have to.....
Judgment:
ORDER

Yahya Ali, J.

1. This is an application to revise an order under Section 144, Criminal Procedure Code, made by the Stationary Sub-Magistrate, Conjeeveram in respect of the performance of Soorasamharam festival before the Mohambariamman Temple in Ayyampet, a suburb of Conjeeveram. The festival comes off on the 18th of this month and in view of the fact that the petitioners had been restrained by similar orders in the preceding years from performing the festival, they applied sufficiently early with a view to get orders from the Magistrate and if the orders went against them to obtain remedy by way of revision from this Court. The application was disposed of by the Magistrate on 9th October, 1947. He found on the basis of a report from the Circle Inspector of Police that if the petitioners are permitted to perform the festival first before the counter-petitioners, there may be breach of the peace. Consequently, the Magistrate passed orders under Section 144, Criminal Procedure Code, fixing two different periods of time on 18th November, 1947, when either party should perform the festival at that place. The counter-petitioners' party was to perform it first between 5-30 p.m. and 7 p.m. on that day and during that time the petitioners' party was restrained from interfering with the celebration of the festival by the counter-petitioners. Likewise the petitioners were permitted to hold the festival between 7-15 p.m and 9 p.m. and during that time the counter-petitioners were to be restrained by interfering with the performance of the ceremony by the petitioners.

2. It would appear that the petitioners are interested in Kandappan temple situated in Kadapparkoil Street where the deity Subramaniam is worshipped The idol seems to have been installed and worshipped in that temple from time immemorial. In Mohambariamman temple which is situate in Palli Street there was no Subramania idol. Hence Soorasamharam festival used to be performed by the petitioners bringing their idol from Kandappan temple near Mohambariamman temple and performing Soorasamharam there. In or about 1906 the counter-petitioners installed Sri Balasubramaniaswami in the Mohambariamman temple and consecrated it. Thereafter, they commenced to perform Soorasamharam festival themselves. Disputes started between the two parties as to who was entitled to prior performance of the festival. For some time, the performance of the festival by either party was stopped by the authorities with the result the petitioners filed O.S. No. 290 of 1930 in the District Munsiff's Court, Maduranthakam for a declaration of their right and for an injunction restraining the counter-petitioners from interfering with the exercise of those rights. That suit was decided by the District Munsiff on 4th February, 1931. The learned District Munsiff found that the petitioners were entitled to perform Soorasamharam festival for their idol on the public road near Mohambariamman temple although they were not entitled to do so within the counter-petitioners' temple or in the vacant site in front thereof. As regards the right that was specifically claimed in that suit by the petitioners to have their Soorasamharam festival performed prior to that of the counter-petitioners, the learned District Munsiff made this observation:

It appears to me, considering the fact that the plaint idol has been having the utsavam for a much longer time than that of the defendants' idol and that the defendants' idol came into existence only very recently, the preference ought to have been given to the plaintiffs' idol to have the Surasamharam done first. But no such right can be declared and it is for the Magistracy and the police who will have to regulate the performance of the festival to pass suitable orders. Their right to regulate these is undisputed.

Following upon these findings, the declaration was granted in these terms:

That the plaintiffs are entitled to perform their Surasamharam festival for their idol in the public highway in front of Mohambariamman temple and that the defendants be restrained by a permanent injunction interfering with the plaintiffs' performing the utsavam.

3. It has to be noted that though a declaration and injunction were asked for in respect of the prior or preferential right of the petitioners, no declaration whatever was made in that behalf in the operative part of the judgment or decree. It is on the other hand clear from the extracts from the judgment quoted above and from the effect of Section 11 of the Code of Civil Procedure that that claim was definitely negatived by the trial Court. Against this judgment, the defendants appealed and the plaintiffs (petitioners herein) also filed a memorandum of cross-objections. The Subordinate Judge who heard the appeal allowed it in an erroneous view of the law. Dealing with the memorandum of cross-objections which related to the question of the plaintiffs' right to first performance of the festival at that place, the learned Subordinate Judge dismissed the memorandum of objections also in the view that he had taken on the main question. But all that is material to observe is that the petitioners themselves understood the decree of the District Munsiff to amount to negativing their claim that they were entitled to first performance of the festival in preference to the counter-petitioners. It is in that view that the memorandum of cross-objections was filed. Against this judgment, there was an appeal brought to this Court by the petitioners. In the memorandum of second appeal, inter alia the following ground was taken:

17. The Court below having held that the plaintiffs were entitled to perform their festival in priority to the defendants ought to have granted the declaration and injunction on that footing.

Lakshmana Rao, J., who heard the second appeal set aside the judgment and decree of the Subordinate Judge finding that:

there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street and subject to lawful directions by the Magistrate.

4. He held that a religious festival does not stand on a different footing and discountenanced the view of the Subordinate Judge that such a right is not recognised by law. There is, however, one observation in the judgment on which considerable reliance is placed by Mr. K.V. Ramachandra Aiyar for the petitioners which runs thus:

The right is of course subject to the directions of the Magistrate to regular the order and manner of performance of the festival though it is found by the Courts below that the festival of Subramaniaswami of Kandappar Koil used to be celebrated before the festival of Balasubramaniaswami of the temple of the defendants.

5. Following this observation, however, the learned Judge did not deem it necessary or proper in spite of Ground No. 17 taken by the appellants to modify the decree of the first Court by inserting therein a declaration as to the preferential right of the petitioners to hold the Soorasamharam festival in front of Mohambariamman temple. On the contrary, the learned Judge restored the decree of the District Munsiff as it was with the only modification that the right of the petitioners to perform the festival will be subject to the directions of the Magistrate and the rights of the public. The grievance, as it appears now in the revision petition filed by the petitioners here, is that the decree of the Civil Court was flouted by the Magistrate in passing the orders under revision and that under the guise of regulating the festival, the Magistrate has no right to pass orders directly contrary to the decree. As shown above, there is no decree either of the first Court or of this Court recognising the right of the petitioners to perform the Soorasamharam festival in front of Mohambariamman Temple prior to its performance by the counter-petitioners. The observations referred to above by the learned District Munsiff and Lakshmana Rao, J., do not amount to a declaration granted in their favour in the decree of the Civil Court since expressly the first Court whose decree was restored by this Court (with the modification already mentioned) refused to make any declaration with regard to this matter and this Court refused to incorporate it in the judgment in spite of a specific ground having been taken in that behalf.

6. The next question is whether the observations of the trial Court and this Court with regard to the performance of the festival by the two parties, even if they do not amount to a decree, should not be respected and enforced by the Magistracy and the police. I have no doubt that in exercising their powers, the authorities will pay due respect to those observations, but in doing so, there can be no question that the paramount consideration should be that of maintenance of law and order. What has been said about decrees in the numerous decisions in regard to these matters applies a fortiori with regard to obiter dicta of this kind. In Manzur Hasan v. Muhammad Zaman the Privy Council, while laying down that in India there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public and subject to lawful directions by the Magistrate and that a civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observances, considered it necessary to direct that a declaration of that right will be subject to the orders of the local authorities regulating the traffic, the Magistrates' directions and the rights of the public. The question arose before a Full Bench of five Judges of this Court Viswanadha Rao, In re : (1928)55MLJ442 with reference to the scope and extent of orders under Section 144, Criminal Procedure Code. It was then conceded that it is not the duty of the authorities who are responsible for the preservation of the public peace to enforce a Civil Court decree in all circumstances and at all costs. It was also pointed out that the preservation of the public peace is the function of the authorities and the magistracy and in the performance of that function it may be necessary for them to override temporarily private rights and that where there is a conflict between the public interest and a private right, the former must prevail. The authorities are the proper judges on the question whether civil rights can be allowed to be exercised without danger to public peace. I may also refer in this connection to a decision of the Allahabad High Court in Md. Jalil Khan v. Ram Math Katua I.L.R.(1930) All. 484 where the Privy Council case referred to above was considered. It was clearly pointed out by Sulaiman, J., in that case that 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 and that the right of way over a public road must always be subject to such orders of the Magistrate.

7. Mr. Ramachandra Aiyar has raised a further contention that while all the cases bearing on the question as to the right to take out processions on the public highway arose on the assertion of that right by one party and its denial by another party, there was no case where the competing and rival claims of two parties to the exercise of that right at the identical place and at the same time were considered and that adjudication of such competing claims with reference to a highway vesting in the State is outside the province of the Civil Courts, at all events when the State is not impleaded as a party to the suit. This aspect of the matter was not raised in any of the three Courts before whom the civil rights were agitated by the petitioners and it is too late in the day to raise any distinction on that basis. The real effect of this contention would be to affect the maintainability of the plaintiffs' own suit and the validity of the decree passed therein which they require the magistrates or police to enforce against the defendants.

8. Finally Mr. Ramachandra Aiyar complains that continuously since 1939' the petitioners have been prevented from holding the festival prior to the others on the ground that there would be apprehension of breach of peace without a bona fide attempt being made by the authorities to take the necessary steps to guard against it. That, as I have already stated, is a matter for the authorities to consider or decide on each occasion in the light of the findings of the Civil Court and the conditions that may prevail in the locality. I decline to interfere and the petition is dismissed.


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