K. Murugappa Mudaliar and Others vs Kuppuswani Mudaliar and Others

Yahya Ali J.

This is an application to revise an order u/s 144, Criminal P. C., made by the Stationary Sub. Magistrate, Conjeevaram in respect of the

performance of Soorasamharam festival before the Mohambariamman temple in Ayyampet, a suburb of Conjeevaram. 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. 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 u/s 144, Criminal P. C,

fixing two different periods of time on 18th November 1947 when either party should per-form 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.

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 Mohambariarnman 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 Soorasamhratn 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 Munsif''s

Court, Madurantakam, 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 Munsif on 4th February 1931. The learned District Munsif 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 Munsif made this

observations:

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 Surasambaram festival for their idol in the publics highway in front of Mohambariamman temple and

that the defendants be restrained by a permanent injunction interfering with plaintiffs'' performing the-utaavam.

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, Civil P. C, 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 Munsif 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:

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 interefere with the

ordinary use of the street and subject to lawful directions by the Magistrate.

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 regulate 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.

Following this observation, however, the learn, ed 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 Munsif 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 Munsif 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 al- ready 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.

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 AIR 1925 36 (Privy Council) 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 Pull Bench of five

Judges of this Court in Viswanadha Rao in re 51 Mad. 1006 : AIR 1928 Mad. 1049: (1928) Cri. L. J. 31 with reference to the scope and extent

of orders u/s 144, Criminal P. C. 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 Mohammad Jalil Khan and Others Vs. Ram Nath Katua and Others 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.

Mr. Ramachandra Aiyar has raised a further contention that while all the cases bearing on the question as to the right to take out proceedings on

the public highway arose on the assertion of that right by one party and it 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.

Finally Mr. Ramachandra Aiyar complains that continuously since 1989 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 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.