Topic: Shaik Piru Bux v Kalandi Pati - 144 Crpc - Private rights may be temporarily overridden - conflict between public interest and private right

Shaik Piru Bux v Kalandi Pati
Equivalent citations: 1970 AIR 1885, 1969 SCR (2) 563 - BENCH:SIKRI, S.M., BACHAWAT, R.S. - CITATION:1970 AIR 1885 1969 SCR (2) 563 - CITATOR INFO: E 1973 SC 87 (29)  - DATE OF JUDGMENT: 29/10/1968

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

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) 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.

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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 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

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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 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-

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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 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.

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"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 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.