Sk. Piru Bux & Ors Vs. Kalandi
Pati Rao & Ors  INSC 260 (29 October 1968)
29/10/1968 SIKRI, S.M.
CITATION: 1970 AIR 1885 1969 SCR (2) 563
E 1973 SC 87 (29)
Religious procession--Right to take out and
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
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 representative 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) any order of the local
authorities regulating the traffic; (b) any directions of the Magistrate under
any law for 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.
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
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 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 affected 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
"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 under-mentioned 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- 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
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
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
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
(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 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)  52 I.A. 61.