# 563' SK. PIRU BUX & ORS v. KALANDI PATI RAO & ORS

- **Citation:** [1969] 2 S.C.R. 563
- **Court:** Supreme Court of India
- **Decided:** 1968-10-29
- **Case number:** Civil Appeal No. 25 of 1966
- **Bench:** S. M. Sikri, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/563-sk-piru-bux-ors-v-kalandi-pati-rao-ors-4566
- **Pages:** 6

## Headnote

Religious procession-Right to take out and restrictions thereon.
The respondents, who were Hindus filed a suit agaiost the appellants
who were Muslims, for a declaration that the Hindu residents df their
villages had the right to take out religious and non-religious processions
with appropriate music along the roads and public highways in the villages, including those by the side of two mosques in the villages. The
appellants contended that in 1931, in proceedings under s. 107, Criminal
Procedure Code, there was a compromise between the Hindus and
the
Muslims of the two villages, whereby it was agreed
that Hindus would
not play music between two land marks near the mosques, and that such
a restriction was necessary to enable them to say their prayers in the
mosques.
The trial court held the respondents were bound by the compromise.
The first appellate court also held that the respondents were
bound by the compromise, but that the respondents could take the processions between the landmarks with 'music in a low sound except drumbeating'. Both parties appealed to the High Court. The High Court held
that the respondents were not bound by the compromise, that no restriction could be imposed on the right of the respondents'
community
(Hindus) to take out processions with appropriate music, and that the restrictive order of the first appellate court that only low sound music could
be played should be set aside.
In appeal to this Court.
HELD : ( 1) As the compromise was not arrived at in a suit fought
in a respresentative cap·acity, it did not debar the partje~ from asserting
their legal rights in a civil court. [567 DJ
Babu Ram Singh v. Subban Machi, A.LR. 1929 All, 519, explained.
F
( 2) The respondents have the right to take out both religious and
non-religious processions with accompaniment of music on the road's and
highways subject only to (a) an.y order of the local authorities regulatmg the traffic; (b) any directions o'f the Magistrate under any law for
the time being in force; and (c) the rights of the public. [568 G]
G
H
Manzur Hasan v. Muhammad Zaman, (1924) 52 I.A.61, applied.

## Text

A
B
c
D
E
563'
SK. PIRU BUX & ORS.
V.
KALANDI PATI RAO & ORS.
October 29, 1968
(S. M. SIKRI AND R. S. BACHAWAT, JJ.]
Religious procession-Right to take out and restrictions thereon.
The respondents, who were Hindus filed a suit agaiost the appellants
who were Muslims, for a declaration that the Hindu residents df their
villages had the right to take out religious and non-religious processions
with appropriate music along the roads and public highways in the villages, including those by the side of two mosques in the villages. The
appellants contended that in 1931, in proceedings under s. 107, Criminal
Procedure Code, there was a compromise between the Hindus and
the
Muslims of the two villages, whereby it was agreed
that Hindus would
not play music between two land marks near the mosques, and that such
a restriction was necessary to enable them to say their prayers in the
mosques.
The trial court held the respondents were bound by the compromise.
The first appellate court also held that the respondents were
bound by the compromise, but that the respondents could take the processions between the landmarks with 'music in a low sound except drumbeating'. Both parties appealed to the High Court. The High Court held
that the respondents were not bound by the compromise, that no restriction could be imposed on the right of the respondents'
community
(Hindus) to take out processions with appropriate music, and that the restrictive order of the first appellate court that only low sound music could
be played should be set aside.
In appeal to this Court.
HELD : ( 1) As the compromise was not arrived at in a suit fought
in a respresentative cap·acity, it did not debar the partje~ from asserting
their legal rights in a civil court. [567 DJ
Babu Ram Singh v. Subban Machi, A.LR. 1929 All, 519, explained.
F
( 2) The respondents have the right to take out both religious and
non-religious processions with accompaniment of music on the road's and
highways subject only to (a) an.y order of the local authorities regulatmg the traffic; (b) any directions o'f the Magistrate under any law for
the time being in force; and (c) the rights of the public. [568 G]
G
H
Manzur Hasan v. Muhammad Zaman, (1924) 52 I.A.61, applied.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 25 of
1966.
Appeal by special leave from the judgment and decree dated
January 2, 1963 of the Orissa High Court in Second Appeal No.
365 of 1960.
V. D. Misra, for the appellant.
N. C. Chatterjee and Sukumar Ghose, for the respondents Nos.
1 to 3 aoo 5 to 12.
564
SUPREME COURT REPORTS
[1969] 2 S.C.R.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against the
judgment of the Orissa High Court in a second appeal whereby
the High Court affinned the decree and order passed by the First
Additional Sub-Judge, Cuttack, with modifications.
The High
Court held that "the restrictive order of the lower appellate court
directing the plaintiffs to take out processions with a 'low sound
music except drumbeating', is not justified" and directed the deletion of this portion from the order of the lower appellate court.
In order to appreciate the points raised before us it is necessary to give a few facts and the findings of the court below. The
plaintiffs, respondents before us and hereinafter referred to as the
plaintiffs, brought this suit against the defendants,
appellants
before us and hereinafter referred to as the defendants, praying
for a declaration that the Hindu villagers of the two villages had
the right to take out religious and non-religious processions with
appropriate music along the District Board and village roads and
other public highways of the locality including those by the side
of the defendants' mosques without any interruption wherever the
plaintiffs' community chose to take out without restriction and that
the defendants, viz., the Mohamedan villagers of villages Alkund
and Nuagaon, be permanently restrained from interfering \vith the
plaintiffs' lawful procession as aforesaid in any manner.
The case of the plaintiffs, in brief, was that the villages N uagaon and Alkund were contiguous villages and they had a common social, cultural and religious life, and they were entitled to
take out religious and non-religious processions with appropriate
music.
It was alleged that the Muslim villagers of the locality
had two mosques, one in each village, abutting the highway. It
was further alleged that till the Kartick Pumima day of 1952 the
plaintiffs had taken out their religious and social processions with
appropriate music without any interruption before the mosques in
question; that the plaintiffs were prevented from exercising their
lawful rights by orders of the Magistracy at the instance of the
defendants; that the defendants held out threats to attack the plaintiffs' peaceful processions and accordingly it was necessary to clear
the cloud created by the Magistracy and the conduct of the
defendants.
We may mention that the District Magistrate and the State
Government were not made parties to this suit.
The defendants' main plea was that the right claimed by the
plaintiffs could only be exercised as not to cause any interference
with the exercise of the rights of the defendants. It was alleged
that the Muslim community of the two mauzas also had inherent,
natural and fundamental rights to offer their prayers in complete
calmness without any interference whatsoever and they were
entitled to oppose music being played near about the mosque in
A
B
c
D
E
F
'
G
H
I
'
t
1 •
A
B
c
D
E
F
G
H
PIRU BUX V'. KALANDI PAT! (Sikri, J.)
565
order to maintain the calmness inasmuch as the music or Sankirtan
really disturbed the calmness which was absolutely necess~ry for
concentration of mind in prayer.
The defendants also relied on
a compromise alleged to have been arrived at between the two
communities in 1931. It was alleged that in pursuance of the
compromise two pillars had been put up by the defendants on both
sides of the mosques to indicate to the music players of the processionists where to stop the music, and the pillars bore the
following engraved inscriptions :
"Baja bajaiba nishdha"
The following issues, among others, were framed by the Trial
Judge:
( 5) Is the right of the plaintiff villagers to
t~e
religious and non-religious processions with appropnate
music by the side of tbe mosques of
Nu~gaon and
Alkund likely to infringe the rights of the defendant
moslem villagers to offer their ptayer in calmness ?
( 6) Are the plaintiffs entitled tcJ enforce their right
in wanton disregard of the fundamental rights of the
defendants ?
( 7) Are the plaintiff villagers estopped to re-agitate
their lost fundamental right to play music in front of
the mosques ?
( 8) Are the plaintiffs bound by the compromise
entered into between the properly represented leaders
of both the conununities dated 2-3-31 and had the compromise been acted upon ?
The Trial Court held that the rigl)ts of the plaintiffs to take
out the processions with the accompaniment of music was not
absolute and the plaintiffs could only exercise the same on all
occasions except near the mosques at the time of congregational
prayer of the defendant community according to Islamic religion
and subject to other lawful orders or directions given by the
Magistrate or Police for preventing breach of peace or regulating
traffic.
The Court further held that a compromise was effected
in 1931 and the Hindu community had been acting according to
the tenns of the compromise so as not to disturb the religious sentiments of the Muslim community by playing music before their
mosques w~il~ going in processions.
The Court accordingly held
that the plamtiffs were estopped from re-agitating the matter which
they had agreed not to do.
The Court accordingly decreed the
suit and gave the following declaration :
"That the plaintiffs have a right to take out both
religious
and
non-religious
processions
with
the
566
SUPREME COURT REPORTS
[1969] 2 S.C.R.
accompaniment of proper music for the occasion on the
highways of Alk:und and Nuagaon villages subject to the
undermentioned restrictions (a) that they do not play
music between the space of brick pillars situated on
both sides of Alkund mosque and between the space indicated by two stones on either side of the Nuagaon mosques so as not to disturb the defendants or their community in their offering their prayers and (2) that the
right also subject to any lawful order or direction by the
Magistrate or the Police for preventing breaches of
public peace or obstructing the highway and such other
orders under any other statutory provisions for regulating traffic.
The parties will bear their own costs."
On appeal by the plaintiffs, the First Additional Sub-Judge
also held that the compromise was binding on the plaintiffs.
He
further held that it was manifest from the inscription on the two
pillars (Baja bajaiba nishdha) that the leaders of tbe Hindu community agreed to stop only drum-beating near the said two mosques.
In view of this conclusion he gave the following modified
declaration :
"That the plaintiffs both in their individual capacities
and as members of the Hindu Community have a right
to take out relib>ious and social processions accompanied
by music iJn, a low sound except drum-beating along
public roads while passing the two brick pillars situated
on either side of Alkund mosque and the two stones
fixed on either side of Nuagaon Mosque, subject to any
orders or directions issued by the magistrate or police
for preventing breaches of public peace or obstructions
of the thoroughfares or for other matters mentioned in
section 144 Criminal P.C. or under other statutory provisions or for regulation of traffic, provided that the
exercise of such right does not amount to a nuisance
reco@ist;d by law."
The defendants appealed to the High Court and the plaintiffs
filed a cross appeal.
R. K. Das, J., held that no restriction
order of the lower appellate court directing the plaintiffs to take
out processions with appropriate music and th~t the restrictive
could be imposed on the right of the plaintiffs' community to take
out procession with "low sound music except drum-beating" was
not justified and was liable to be set aside.
He, however, maintained the rest of the declaration given by the First Additional
Sub-Judge.
The High Caurt further held that the compromise
did not create an estoppel against the plaintiffs.
He observed
that "there is nothing o~ record to show that the signatories to the
said compromise had any authority whatsoever to bind the comA
•
•
G
i
• •
'I
'
P!RU BUX V. KALAND! PAT! (Sikri, /.)
56T
A
munity as a whole.
It is well-settled that a few self-constituted
leaders or even leaders. chosen by the ofticials do not legally represent the entirn community which includes minors also and without
proof of valid authority such leaders cannot bind the other members of the community. The question whether any valid authority was given or not is a question of fact in each case."
B
c
D
E
F
G
H
The learned counsel for the defendants contends that ( 1) the
High Court had no jurisdiction to set aside the finding that the
compromise was effected in a representative capacity; (2) that
Babu Ram Singh v. Subhan Machi(') lays down good law and
should have been followed by the High Court: and (3) that both
the Hindus and the Muslims have fundamental rights and in case
of conflict reasonable restrictions on playing of music before the
mosques shoulq be imposed by this Court.
In our opinion the High Court was right in coming to the·
conclusion that the compromise was not binding on the Hindu
community.
The learned Additional Sub-Judge had misdirected
himself in law in coming to the contrary conclusion.
The compromise was not arrived at in a suit fought in a representative
capacity but was filed in a proceeding under s. 107, Criminal
Procedure Code.
The signatories declared inter alia that "neither
we, the Musalmans nor we the Hindus can at any time in future·
create any disturbance towards each other's religion and will deal
with each other amongst ourselves ...... There is no apprehension of breach of peace as we the Hindus and the Musalmans
have amicably settled the matter nor will there occur any breach
of peace in future.
So we both parties having settled the matter
amicably hereby submit this petition and pray that the case be
disposed of in terms of this compromise petition." It is signed by
a number of persons but there is no indication that they represented the two communities. It may be that these persons, who·
signed the compromise, were important persons in the communities and it may be that both the communities should act according to the compromise effected by the so-called important persons .
But in law it does not debar the parties from asserting their legaf
rights in a civil ~ourt. We need not decide what the compromise
means, and par!lcularly whether the words inscribed on the pillars.
were part of the compromise effected by the leaders.
The facts in Babu Ram Singh v. Subhan Machi('), which was
relied on by the learned counsel for the defendants, were different.
There the Court was satisfied from a consideration of the circumstances that the agreement was binding on the parties.
The Court
observed:
(1) A.LR. 1932 All. 519.
568
SUPREME COURT REPORTS
[1969] 2 S.C.R.
"It is manifest that the parties did summon the
leaders of the various communities and that they were
summoned as representatives of their various communiti.es .... We find it quite impossible to believe in the
crrcumstances of the case that the other Mahomedans of
Rasra were not fully aware of the meeting to which their
leaders had been summoned, and their subsequent conduct in the ensuing years shows that during those years,
at any rate, they accepted the representative capacity of
the leaders who had signed the agreement.
It is manifest that for at least three years no single Mahomedan
made any endeavour to repudiate the authority of those
leaders . . . . That it is right and proper to infer the
representative character of the signatories to the agreement from the surrounding circumstances is amply supported by a reference to s. 187, Contract Act."
We are not called upon to decide whether that case was
rightly decided or not as the facts in that case were quite different.
As we have said, this was a proceeding under s. 107 against parti-
·cular parties and we are unable to appreciate how any party in a
proceeding under s. 107, Criminal Procedure Code, could represent the whole community to which he belongs.
The law on the subject of rights of persons to take out religious proc_essions was settled by the Privy Council in Manzur
Hasan v. Muhammad Zaman('). The learned counsel has not
challenged that decision, but appeals to us to incorporate more
reasonable restrictions so as to fully preserve the rights of the
appellants-defendants to say their prayers in peace in the mosques.
In our opinion there is no reason why we should not follow the
decision of the Privy Council in Manzur Hasan v. Muhammad
Zaman('), and the form of declaration given therein.
The declaration given by the Privy Council paid due regard to the rights of
both communities.
We accordingly substitute the following
declaration :
"That the plaintiffs have a right to take out both
religious and non-religious processions with the accompaniment of music on the highways of Alkund and
Nuagaon villages ( 1) subject to the order of the local
authorities regulating the traffic and (2) subject to the
Magistrate's directions under any law for the time being
in force and the rights of the public."
The appeal accordingly fails and is dismissed.
There will be
no order as to costs.
V.P.S.
Appeal dismissed.
(1) [1924] 52 I.A. 61.
A
B
c
D
E
F
•
G
H