Kambham Kaveri Rangiah Chetty and Others vs Khaji Syed Hassumiah and Others

Pandrang Row, J.—This appeal arises out of a dispute between the Muhammadans and the Hindus of Muddanur in the Cuddappah District,

the Hindus being the plaintiffs who sued fora declaration of their right to carry in procession their idols with the usual accompaniments through the

public streets of the village attended with music and also their right to go in'' procession on occasions of marriage, etc., with music. The suit was

one of the usual type that comes to Courts now and then when the two rival communities claim protection from each other and cannot bring

themselves to respect each other''s feelings. The law is fairly well-settled as regards the rights of the different communities in this matter and the

rights which the law will recognise and declare have been clearly laid down from Muthialu Chetti v. Bapun Saib ILR (1880) Mad. 140 onwards. It

is enough to refer to the decision of the Judicial Committee in Manzur Hasan v. Muhammad Zaman (1924) 45 M.L.J. 23 : L.R. 52 IndAp 61 : ILR

47 All. 151 (P.C.) and the discussion of the general principles contained in a later Allahabad case Muhammad Jalil Khan v. Ram Nath Katua ILR

(1930) All. 484. Generally speaking, the law laid down by this High Court was accepted by the Privy Council as correct.

There is really no dispute about the facts in this case and the rights of the parties are equally not in dispute, for the law is well-settled. Any

community can use a public street for processions attended with music provided that they do not thereby cause a disturbance to any other

community when assembled for prayer or worship. In this connection, reference may be made to Sections 296 and 298 of the Indian Penal Code.

The decree given by the Court below, that is, the District Judge of Cuddappah is to the following effect:

(1) That the plaintiffs are entitled to carry in procession the idols of their Gods and sudibandies and panyaram, carts, etc., through all the public

streets of Muddanur, attended with music of all kinds on all lawful and customary occasions of feasts or festivals, whether synchronising with the

Mohurram or not, and are entitled also to go in procession on occasions of marriage and other events in the public streets attended with music of

all kinds, except during the hours of public congregational worship in the mosque according to the Islamic religion, and subject to any lawful orders

or directions by the Magistrates or the police for preventing breaches of the public peace or obstructions of the thoroughfares or for other matters

mentioned in Section 144 of the Criminal Procedure Code or under other statutory provisions for regulation of traffic;

(2) That the defendants and other Muhammadans of Muddanur are hereby restrained by means of a permanent injunction from objecting and

obstructing or otherwise interfering with the exercise of the abovesaid rights by the plaintiffs and other Hindus of Muddanur.

The appellants who are the Hindu plaintiffs object to the inclusion of the words in the decree, namely,

Except during the hours of public congregational worship in the mosque according to the Islamic religion.

They further contend that the exception should be confined only to music in front of the mosque and not anywhere else in any public street.

There is a Memorandum of Cross-objections filed by the Muhammadan respondents and their complaint is that congregational worship goes on

throughout all hours of the day and night, and that music should be stopped in the front of the mosque at all times and not merely during particular

hours. Apparently both parties would prefer the times of the congregational worship to be prescribed in the decree if music is to be prohibited only

during the hours of public congregational worship, but there is no evidence in the record of the case which would permit the determination of these

hours nor can the parties agree before us as to what the hours are or should be. It is therefore not possible for us to be more particular than the

Court below has been in fixing the intervals during which music should not be permitted in the neighbourhood of the mosque.

So far as the objection of the appellants is concerned to the exception introduced in, the decree, we are of opinion that the objection taken is

not sound, for, it is clear that to play music when public congregational worship is going on in the mosque would practically amount to an offence

u/s 296 of the Indian Penal Code and would certainly be a serious infraction of the Muhammadans'', right to engage in public congregational prayer

without disturbance. We therefore think that the learned District Judge was right in introducing the exception, though he should have limited that

exception to the neighbourhood of the mosque prescribing a certain radius with the mosque as the centre inside which area there should be no

music during the hours of public congregational worship in the mosque. As the decree stands, the exception reads as if while public congregational

worship is going on in the mosque, no procession with music could go along any public street anywhere. This was obviously not meant by the

learned District Judge, and even if he did mean it, there is no justification for prohibiting music everywhere in the village. The complaint of the

Muhammadan respondents has no doubt a certain amount of practical common sense behind it in view of the fact that it would not be easy in a

village like Muddanur to know exactly when public congregational worship is going on and there might be some difficulty in the way of the police

protecting the rights of the one community from attacks by the other community. Nevertheless, though there is something to be said in support of

the suggestion of the respondents, namely, to prohibit music in front of the mosque at all times, as a practical solution of the ever-recurring disputes

that occur. between the two communities, it is not possible to give a judicial imprimatur to such a solution as that would be inconsistent with the law

as laid down for very many years. It is therefore impossible in view of the existing state of the law to prohibit music at all times in front of the

mosque. Such a suggestion was considered in more than one case and was negatived, and we are unable to give effect to it as the law stands at

present. It therefore follows that the only change that has to be made in the decree of the Court below is to make it clear that the exception

contained in the decree is limited only to a certain area round the mosque. We consider, in the circumstances, that if the exception is made to

operate ""within the area constituted by a circle drawn round the mosque building proper of a radius of fifty yards (the centre of the mosque being

treated for this purpose as the mosque)"", it would, in all probability, prevent any real disturbance of public congregational worship in the mosque.

The words enclosed in inverted commas in the preceding sentence will therefore be inserted in the decree after the words ""the Islamic religion"".

Subject to the above modification in the decree both the appeal and the Memorandum of Cross-objections are dismissed; in the circumstances

of the case, the parties will bear their own costs.