MARTIN AND CO Vs. SYED FAIYAZ HUSAIN

JUDGEMENT

(1.) These are consolidated appeals from a judgment of the High Court at Allahabad reversing a judgment of the Munsif at Amroha in the district of Moradabad. Their Lordships have not had the advantage of hearing counsel for the respondents: but they have been able to consider the careful judgments in the respondents' favour given in the High Court. The plaintiffs are Shiah Mahomedans of the township of Amroha, and like other Shiahs on the tenth day of the Mahomedan month of Moharram they commemorate the death of Husain, a son of Fatimah, the daughter of Mohammed, by passing in a procession along the streets of Amroha. In the procession are carried "tazias" reproductions of the mausoleum of Husain, constructed of wood, paper and tinsil, borne on the shoulders of carriers. They are of various heights and have in some instances reached the height of 27, 30, or more feet from the ground. In 1929, Martin and; Co., defendants 3, obtained from the Local Government, pursuant to the Electricity Act 9 of 1910, a licence to supply electricity to the Municipality of Amroha. The licence was soon after transferred to the Upper Ganges Valley Electric Supply Co., Ltd., of which company Martin and; Co. became managing agents. The scheme for the supply of electricity involved placing electric wires across the streets in Amroha, a matter which is dealt with by S. 13, Electricity Act. It is only necessary to say that all the provisions of the Act were complied with, due notices were given as required by the Act, the approval of the municipality and the Local Government was obtained, and in due course the company became authorised under the Act to place their wires across the streets at a height not less than 20 feet. The respondents had full notice throughout of the proposals, and exercised their rights to object, but their objections after being considered were put aside by the authorities acting no doubt on their view of the general interests of the public.

(2.) In June 1930, representatives of the present plaintiffs brought a suit against the Municipal Board and Martin and Co. to restrain them from permitting the wires to interfere with the free passage of their tazias. At this time the wires had not been energised, and for the procession of that year a compromise was arranged by which the wires were either lifted or taken down. Immediately after the procession in June 1930 the wires were replaced, and in October 1930, the Local Government by its proper officer authorised them to be energised. In November 1930, the plaintiffs instituted the present suit claiming a declaration that by old custom they had a right to take out in procession tazias to the height of 27 feet, and an injunction ordering the defendants to raise the electric wires to such a height as not to obstruct the passage of the tazias in procession. The case in the Court of the Munsif appears to have been fought on the issue of custom. The learned Judge settled issues as to the existence of the alleged custom, and also as to whether, as alleged, according to the Shia religion the taking out of tazias in procession is a necessity, and whether under the Shia religion the reduction of the height of a tazia is not permissible. He found that the evidence was insufficient to establish the alleged custom, and founding himself upon authoritative evidence produced by the plaintiffs themselves he answered both the questions mentioned above in the negative. Finding, therefore, that the custom on which the plaintiffs based their case was not proved, he dismissed the suit.

(3.) On appeal Iqbal Ahmad J., as he then was, considered that the case did not depend upon custom, though apparently he was of opinion that the alleged custom was proved. But founding himself upon a decision of this Board in 52 IA 61,1 that in India there was a right to conduct a religious procession "with its appropriate observances" through the public streets, and being of opinion that to carry tazias of the height claimed was an appropriate observance he came to the conclusion that the plaintiffs had established their right. It remained, however, to consider the defence that the acts complained of had been done under statutory authority, a defence which seems to have been seriously argued for the first time on appeal. The learned Judge was of opinion that S. 19, Electricity Act, applied to the plaintiffs' case : "(1) A licensee shall in exercise of any of the powers conferred by or under this Act cause as little damage detriment and inconvenience as may be, and shall make full compensation for any damage detriment or inconvenience caused by him or by anyone employed by him." The effect of this section was to make the exercise of the powers of the company conditional on their not interfering with the rights of others; and as the plaintiffs had the right to carry tazias of the height claimed, they were entitled to the declaration and injunction asked for, subject to the rights of the Magistrate to give orders under S. 144, Criminal P. C. Bajpai J. in substance agreed.