K MURUGAPPA MUDALIAR Vs. KUPPUSWANI MUDALIAR

JUDGEMENT

(1.) THIS is an application to revise an order under Section 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 under Section 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.

(2.) 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:

(3.) 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 Manzur Hasan v. Mohammad Zaman, 47 ALL. 151 : A. I. R. (12) 1925 P. O. 36) 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 : A. I. R. (15) 1928 Mad. 1049: 30 Cr. L. J. 31 F. E.) with reference to the scope and extent of orders under Section 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 Allahabad High Court, Md. alii Khan v. Bamnath A. I. R. (18) 1931 ALL. 341 : 53 ALL. 484) 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.