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PETITIONER: SK. PIRU BUX & ORS.

       Vs.

RESPONDENT: KALANDI PATI RAO & ORS.

DATE OF JUDGMENT: 29/10/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1970 AIR 1885            1969 SCR  (2) 563  CITATOR INFO :  E          1973 SC  87  (29)

ACT: Religious  procession--Right  to take out  and  restrictions thereon.

HEADNOTE:     The  respondents, who were Hindus filed a  suit  against the appellants who were Muslims, for a declaration that  the Hindu residents of their villages had the right to take  out religious  and non-religious processions.  with  appropriate music along the roads and public highways in the:  villages, including those by the side of two mosques in the  villages. The appellants contended that in 1931, in proceedings  under s.  107,  Criminal Procedure Code, there  was  a  compromise between  the  Hindus and  the Muslims of the  two  villages, whereby  it  was agreed  that Hindus would  not  play  music between  two  land marks near the mosques, and that  such  a restriction  was  necessary  to enable  them  to  say  their prayers   in  the.  mosques.   The  trial  court  held   the respondents  were  bound  by  the  compromise.   The   first appellate court also held that the respondents were bound by the  compromise,  but that the respondents  could  take  the processions between the landmarks with ’music in a low sound except drumbeating. Both parties appealed to the High Court. The High Court held, that the respondents were not bound  by the compromise, that no restriction could be imposed on  the right  of  the  respondents’  community (Hindus) to take out processions with appropriate music, and that the restrictive order of the first appellate court that only low sound music could be played should be set aside. In appeal to this Court.     HELD: (1) As the compromise was not arrived at in a suit fought. in a respresentative capacity, it did not debar  the parties from asserting, their legal rights in a civil court. [567 D] Babu  Ram  Singh  v. Subban Mochi,  A.I.R.  1929  All.  519, explained.     (2)  The  respondents have the right to  take  out  both religious and’ non-religious processions with  accompaniment of music on the roads and highways subject only to (a)  an.y order  of the local authorities regulating the traffic;  (b)

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any directions of the Magistrate  under any law fOE the time being in force; and (c) the rights of the public. [568 G] Manzur Hasan v. Muhammad Zaman, (1924) 52 I.A.61, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 25 1966. Appeal by special leave from the judgment and decree  dated’ January  2, 1963  of the Orissa High Court in Second  Appeal No. 365  of 1960. V.D. Misra, for the appellant. N.C. Chatterjee and Sukumar Ghose, for the respondents  Nos. 1 to 3 and 5 to 12. 564 The Judgment of the Court was delivered by     Sikri,  J.  This  appeal by special  leave  is  directed against  the judgment of the Orissa High Court in  a  second appeal whereby the High Court affirmed the decree and  order passed  by  the First Additional  Sub-Judge,  Cuttack,  with modifications.   The High Court held that  "the  restrictive order of the lower appellate court directing the  plaintiffs to  take  out  processions with a ’low  sound  music  except drumbeating, is not justified" and directed the deletion  of this portion from the order of the lower appellate court.     In order to appreciate the points raised before us it is necessary to give a few facts and the findings of the  court below.    The   plaintiffs,  respondents   before   us   and hereinafter referred to as the plaintiffs, brought this suit against    the   defendants,   appellants  before   us   and hereinafter  referred  to as the defendants, praying  for  a declaration that the Hindu villagers of the two villages had the   right   to  take  out  religious   and   non-religious processions with appropriate music along the District  Board and village roads and other public highways of the  locality including  those  by  the side of  the  defendants’  mosques without any interruption wherever the plaintiffs’  community chose   to  take  out  without  restriction  and  that   the defendants, viz., the Mohamedan villagers of villages Alkund and Nuagaon, be permanently restrained from interfering with the  plaintiffs’  lawful  procession  as  aforesaid  in  any manner.     The  case  of  the plaintiffs, in brief,  was  that  the villages  Nuagaon  and Alkund were contiguous  villages  and they  had a common social, cultural and religious life,  and they  were entitled to take out religious and  non-religious processions with appropriate music.  It was alleged that the Muslim  villagers  of the locality had two mosques,  one  in each village, abutting the highway.  It was further  alleged that till the Kartick Purnima day of 1952 the plaintiffs had taken  out  their  religious and  social  processions  with’ appropriate  music  without  any  interruption  before   the mosques in question; that the plaintiffs were prevented from exercising  their lawful rights by orders of the  Magistracy at the instance of the defendants; that the defendants  held out  threats to attack the plaintiffs’ peaceful  processions and accordingly it was necessary to clear the cloud  created by the Magistracy and  the conduct of the defendants.     We  may  mention that the District  Magistrate  and  the State Government were not made parties to this suit.’     The defendants’ main plea was that the right claimed  by the  plaintiffs could only be exercised as not to cause  any interference  with  the  exercise  of  the  rights  of   the defendants.  It was alleged that the Muslim community of the two mauzas also had inherent, natural and fundamental rights

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to  offer  their prayers in complete  calmness  without  any interference  whatsoever and  they  were entitled to  oppose music being played near about the mosque in 565 order  to  maintain the calmness inasmuch as  the  music  or Sankirtan really disturbed the calmness which was absolutely necessary   for  concentration  of  mind  in  prayer.    The defendants also. relied on a compromise alleged to have been arrived  at  between the  two communities in 1931.   It  was alleged that in pursuance of the compromise two pillars  had been  put up by the defendants on both sides of the  mosques to indicate to the music players of the processionists where to  stop the music, and  the  pillars  bore   the  following engraved inscriptions:               "Baja bajaiba nishdha"                   The  following issues, among others,  were               framed by the Trial Judge:                     (5)  Is  the  right  of  the   plaintiff               villagers to take religious and  non-religious               processions with appropriate music by the side               of  the   mosques   of   Nuagaon   and  Alkund               likely to infringe the rights of the defendant               moslem  villagers  to offer  their  prayer  in               calmness ?                     (6)  Are  the  plaintiffs  entitled  to.               enforce their fight in wanton disregard of the               fundamental rights of the defendants ?                     (7) Are the plaintiff villagers estopped               to re-agitate their lost fundamental right  to               play music in front of the mosques ?                     (8)  Are  the plaintiffs  bound  by  the               compromise  entered into between the  properly               represented  leaders of both the  communities.               dated 2-3-31 and had the compromise been acted               upon ? The  Trial Court held that the  rights of the plaintiffs  to take out the processions with the accompaniment of music was not absolute and the plaintiffs could only exercise the same on  all  occasions except near the mosques at  the  time  of congregational  prayer of the defendant community  according to  Islamic religion and subject to other lawful  orders  or directions    given   by   the  Magistrate  or  Police   for preventing breach of peace or regulating traffic.  The Court further held that a compromise was effected in 1931 and  the Hindu  community had been acting according to the  terms  of the compromise so as not to disturb the religious sentiments of  the  Muslim  community by  playing  music  before  their mosques  while going in processions.  The Court  accordingly held that the plaintiffs were estopped from re-agitating the matter  which  they  had  agreed  not  to  do.   The   Court accordingly   decreed  the  suit  and  gave  the   following declaration:                      "That  the plaintiffs have a  right  to               take  out both religious   and   non-religious               processions  with  the 566               accompaniment of proper music for the occasion               on the highways of Alkund and Nuagaon villages               subject to the undermentioned restrictions (a)               that they do not play music between the  space               of  brick  pillars situated on both  sides  of               Alkund mosque and between the space  indicated               by  two stones on either side of  the  Nuagaon               mosques so as not to disturb the defendants or               their   community  in  their  offering   their

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             prayers and (2) that the right also subject to               any   lawful   order  or  direction   by   the               Magistrate   or  the  Police  for   preventing               breaches   of public peace or obstructing  the               highway and such other orders under any  other               statutory  provisions for regulating  traffic.               The parties will bear their own costs."     On  appeal by the plaintiffs, the First Additional  Sub- Judge  also  held  that the compromise was  binding  on  the plaintiffs.   He further held that it was manifest from  the inscription  on the two pillars (Baja bajaiba nishdha)  that the leaders of the Hindu community agreed to stop only drum- beating  near  the  said  two  mosques.   In  view  of  this conclusion he gave the following modified declaration:                  "That   the   plaintiffs  both   in   their               individual  capacities and as members  of  the               Hindu  Community  have  a fight  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  Alkund               mosque and the two stones fixed on either side               of  Nuagaon 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 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 recognised by law."     The  defendants  appealed  to the  High  Court  and  the plaintiffs  filed a cross appeal.   R.K. Das, J., held  that no restriction order of the lower appellate court  directing the  plaintiffs  to take out  processions  with  appropriate music  and  that the  restrictive could be  imposed  on  the right  of the plaintiffs’ community to take  out  procession with "low sound music except drum-beating" was not justified and was liable to be set aside.  He, however, maintained the rest  of the declaration given by the First Additional  Sub- Judge.  The High Court further held that the  compromise did not create an estoppel against the plaintiffs.  He  observed that   "there  is  nothing  on  record  to  show  that   the signatories  to  the  said  compromise  had  any   authority whatsoever to bind the com- 567 munity  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."     The learned counsel for the defendants contends that  (1 )  the  High  Court had no jurisdiction  to  set  aside  the finding that the compromise was effected in a representative capacity;  (2) that Babu Ram Singh v. Subhan  Mochi(1)  lays down  good  law and should have been followed  by  the  High Court;  and  (3) that both the Hindus and the  Muslims  have fundamental  rights  and  in  case  of  conflict  reasonable restrictions  on playing of music before the mosques  should be imposed by this Court.     In our opinion the High Court was right in coming to the conclusion that the compromise was not binding on the  Hindu community.  The learned Additional Sub-Judge had misdirected

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himself  in law in coming to the contrary  conclusion.   The compromise  was  not  arrived  at in a  suit  fought  in   a representative capacity but was filed in a proceeding  under s.  107, Criminal Procedure Code.  The signatories  declared inter alia that "neither we, the Musalmans nor we the Hindus can  at any time in future create any  disturbance  towards. each other’s religion and will deal with each other  amongst ourselves   ......   There is no apprehension of  breach  of peace  as  we the  Hindus and the  Musalmans  have  amicably settled the matter nor will there occur any breach of  peace in  future.   So we both parties having settled  the  matter amicably hereby submit this petition and pray that the  case be disposed of in terms of this compromise petition." It  is signed  by  a number of persons but there is  no  indication that  they  represented the two communities. It may be  that these  persons,  who signed the compromise,  were  important persons  in  the  communities and it may be  that  both  the communities should act according to the compromise  effected by  the so-called important persons. But in law it does  not debar  the  parties from asserting their legal rights  in  a civil court.  We need not decide what the compromise  means, and particularly whether the words inscribed on the  pillars were part of the compromise effected by the leaders.     The  facts in Babu Ram Singh v. Subhan  Mochi(1),  which was.  relied on by the learned counsel for  the  defendants, were  different.  There  the  Court  was  satisfied  from  a consideration  of the circumstances that the  agreement  was binding on the parties.  The Court observed: (1) A.I.R. 1932 All. 519. 568                     "It  is  manifest that the  parties  did               summon the leaders of the various  communities               and that they were summoned as representatives               of their various communities  ....  We find it               quite    impossible   to   believe   in    the               circumstances  of  the  case  that  the  other               Mahomedans  of Rasra were not fully  aware  of               the  meeting to which their leaders  had  been               summoned, and their subsequent conduct in  the               ensuing  years shows that during those  years,               at any rate, they accepted the  representative               capacity  of  the leaders who had  signed  the               agreement.   It is manifest that for at  least               three  years  no  single  Mahomedan  made  any               endeavor  to repudiate the authority of  those               leaders  ....  That it is right and proper  to               infer  the  representative  character  of  the               signatories   to   the  agreement   from   the               surrounding  circumstances is amply  supported               by a reference to s. 187, Contract Act."     We  are not called upon to decide  whether   that   case was  rightly decided or not as the facts in that  case  were quite  different.  As we have said, this  was  a  proceeding under s. 107 against particular parties and we are unable to appreciate  how  any  party in a proceeding  under  s.  107, Criminal Procedure Code, could represent the whole community to which he belongs.     The law on the subject of rights of persons to take  out religious  processions was settled by the Privy  Council  in Manzur Hasan  v. Muhammad Zaman(1).  The learned counsel has not  challenged  that  decision,  but  appeals  to  us   to. incorporate   more  reasonable restrictions so as  to  fully preserve  the  rights of the  appellants-defendants  to  say their prayers in peace in the mosques. In our opinion  there is  no reason why we should not follow the decision  of  the

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Privy  Council in Manzur Hasan  v. Muhammad Zaman  (1),  and the  form  of declaration given  therein.   The  declaration given by the Privy Council paid due regard to the rights  of both communities.  We accordingly substitute the   following declaration:                     "That  the  plaintiffs have a  right  to               take  out  both  religious  and  non-religious               processions with the accompaniment of music on               the  highways of Alkund and  Nuagaon  villages               (1)   subject  to  the  order  of  the   local               authorities  regulating  the traffic  and  (2)               subject to. the Magistrate’s directions  under               any  law for the time being in force  and  the               rights of the public."     The  appeal accordingly fails and is  dismissed.   There will be no order as to costs. V.P.S.                                   Appeal dismissed. (1) [1924] 52 I.A. 61. 569