SANGABASAVASWAMI MAHANTASWAMI Vs. BABURAO GANESH

JUDGEMENT

(1.) This is a second appeal from the judgment of the District Judge at Bijapur. The dispute between the parties relates to the claim of the appellants to take out a religious procession with what is described as vyasantol, which is equivalent to carrying the symbol of a cut arm of Vyas, the great Hindu mythological writer. It is alleged that he wrote verses in praise of God Vishnu. That enraged God Shiva, and thereupon the Nandi (bull) of Shiva attacked Vyas and the arm was cut off. Thereafter Vyas recognised the supremacy of Shiva over Vishnu. The plaintiffs now contend before us that under the circumstances this is a part of their religious belief.

(2.) The plaintiffs filed this suit claiming that they and the public have an inherent right, as citizens, to take out a procession with vyasantol according to their religion in the streets of Mangoli, in taluka Bagewadi, if Bijapur District. It is stated that they have got such right to take out a processiom on Bhadrapad Shud 5, at 9 a.m. every year, and they have been doing so for many years past over the route marked on the plan annexed to the plaint. The procession terminates at 3 p.m. at the end of the route shown on the map. The defendants are alleged to have wrongfully obstructed the taking out) of the procession with this symbol. The prayer is in these terms: As the plaintiffs and their people have got a birthright to take out parading of vyasantol ... in a procession according to their religion along the public streets as shown in the map on Bhadrapad Sud 5 or any other festival, the defendants should be permanently restrained from obstructing the plaintiffs and their party people. The defences are that this is not a part of the religious observance of the procession, and that the claim was barred by limitation. On the second question it was pointed out by the defendants that in 1931 the Sub-Divisional Magistrate, S. D., Bijapur, prohibited the taking out of a procession with vyasantol so long as the plaintiffs did not obtain a decree establishing their right in a civil Court or an order from the Magistrate giving such permission. That order was served on the plaintiffs on January 27, 1932. The plaintiffs took no steps thereafter till they filed this suit. On both points the plaintiffs failed in the trial Court and in appeal. They filed this second appeal in the High Court. When the appeal came before Mr. Justice Macklin he thought that the question of limitation may be determined first before going into the merits. He referred the appeal to a bench of Judges. Mr. Desai, who appears for the appellants, contends that the question of limitation is bound with the question of the inherent right as claimed by him, and therefore, the question whether the appellants have the inherent right should be decided first. We have heard the whole appeal.

(3.) Mr. Desai commenced his argument by contending that although in the plaint it was contended that the plaintiffs had a right to take out a procession according to their religion, the public right was not limited to religious processions only. According to him, every member of the public, as a citizen, had a right to take out a procession, irrespective of the question whether it was a religious procession or not. In answer to Court, Mr. Desai admitted that in no decided case he had found such a general right admitted or conceded or upheld, He, however, relied on certain observations in two judgments of the Privy Council. The first case was Manzur Hasan V/s. Muhammad Zamin (1924) 27 Bom. L.R. 170, P.C.. That was a case in which certain members of the Shiah community desired to take out the Moharram procession with the ceremony called " matam," That meant that they stopped for a little while at intervals and wailed. The procession used to pass along the mosque of the Sunnis. The Sunnis objected to the inclusion of this particular ceremony, and, therefore, the matter came to Court. Their Lordships of the Privy Council considered whether a civil suit lay for establishing such a right. In discussing the rights of the parties to take out processions, their Lordships were discussing clearly the question of religious processions. Having regard to the controversy between the parties, there was no occasion to discuss the rights of citizens at large to take out processions, irrespective of the same being religious. In the course of his judgment, Lord Dunedin, after noticing certain decisions of the Madras High Court which dealt with religious processions, observed as follows (p. 173): Two other questions have, however, emerged. In steveral cases one set claimed the exclusive use of the highway for their worship. This has been consistently refuse. The other question, which goes deep into what ought to be done in the present case, is this:- Does a civil suit lie against those who would prevent a procession with its observances ? Mr. Desai argued that the second question framed by the Court was not limited to religious processions, and, therefore, impliedly assumed the right of a citizen to take out a procession: for any purpose whatsoever. We are unable to read that passage in the judgment with the meaning given to it by Mr. Desai. The two questions formulated were these. One was the right claimed by certain persons to use certain streets exclusively. The Court held that such a right had been consistently, and rightly, refused. The other question, contrasted with the first, was, when such an exclusive right was not claimed, whether a civil suit lay for establishing a right to take out a religious procession with its observances. As has been repeatedly pointed out, the observations in a case must be read along with the facts of the case, and should not be, unless expressly so pronounced, read as laying down general propositions of law. In the case in question Lord Dunedin has not laid down any general proposition of law, but had formulated the; two questions which arose in the case before the Judicial Committee.