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Sanganbasaswami Guru Mahantaswami Pattadadevaru Hiremath v. Baburao Ganesh Kulkarni
Judgment Summary — Kania, A.C.J.
Factual and Procedural Background
This is a second appeal from the judgment of the District Judge at Bijapur. The plaintiffs (appellants) sued claiming a right to take out an annual religious procession in the streets of Mangoli, Taluka Bagewadi, Bijapur District, carrying a symbol described as "vyasantol" (the cut arm of Vyas). They alleged a customary/right-based entitlement to parade this symbol on Bhadrapad Sud 5 every year, beginning at 9 a.m. and terminating at 3 p.m., following the route shown in the plaint's annexed plan.
The defendants allegedly obstructed that practice. The plaintiffs asked for a permanent injunction restraining the defendants from obstructing the procession. The defendants answered that (1) the carrying of vyasantol is not part of a religious observance and (2) the plaintiffs' claim was barred by limitation. The defendants further pointed to an order of the Sub‑Divisional Magistrate at Bijapur issued in 1931 (served on the plaintiffs on January 27, 1932) prohibiting the taking out of a procession with vyasantol until the plaintiffs obtained either a civil decree establishing their right or a magistrate's order permitting it. The plaintiffs did not take steps between that service and the filing of the suit.
The plaintiffs lost at trial and on first appeal. They filed this second appeal to the High Court. The question of limitation was initially considered for early resolution by the single judge, but the appeal was referred to a Bench. Counsel for the appellants (Mr. Desai) argued that limitation was bound up with the substantive question of an inherent right to parade vyasantol and that the inherent‑right question should be determined first. The Bench heard the appeal on its merits.
Legal Issues Presented
- Whether the plaintiffs have an inherent right, as citizens or as a matter of religious freedom, to take out a procession in public streets carrying vyasantol (i.e., whether the vyasantol procession is a part of their religious observance).
- Whether the plaintiffs' claim is barred by limitation in view of the Sub‑Divisional Magistrate's 1931 order prohibiting such processions until a civil decree or magistrate's permission was obtained.
- Relatedly, whether any broader, non‑religious public right exists to take out processions in streets that would support the plaintiffs' claim (as argued by counsel for the appellants).
Arguments of the Parties
Appellants' Arguments (Mr. Desai)
- Although the plaint framed the claim as a religious right, counsel argued more broadly that every member of the public, as a citizen, has a general right to take out processions in public streets irrespective of whether the procession is religious.
- In support of that broader proposition counsel relied on observations in two Privy Council decisions: Manzur Hasan v. Muhammad Zaman and Martin & Co. v. Faiyaz Husain, arguing that those decisions acknowledged a public right to take out processions not limited to religious processions.
- Counsel also contended that the question of limitation should be considered together with the substantive claim to the inherent right, not decided separately first.
Defendants' / Respondents' Arguments
- The carrying of vyasantol is not a part of the plaintiffs' religious observance and therefore does not attract protection as a religious procession.
- The plaintiffs' claim is barred by limitation, because in 1931 the Sub‑Divisional Magistrate prohibited the procession until plaintiffs obtained either a civil decree or magistrate's permission; that order was served on the plaintiffs on January 27, 1932, and the plaintiffs took no steps until filing the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Manzur Hasan v. Muhammad Zaman (Privy Council) | The scope of civil remedies for preventing interference with processions and the distinction between exclusive use of a highway by one sect and the question whether a civil suit lies against those who prevent a procession with its observances (in the context of religious processions). | The Court read the passage cited in the context of the facts of that case (which concerned a religious procession). It rejected counsel's contention that the passage established a general public right to take out non‑religious processions, emphasizing that observations must be read with the factual background and did not lay down a broad proposition of law in the way argued by counsel. |
| Martin & Co. v. Faiyaz Husain (Privy Council) | Recognition that members of the public have a right to take part in religious processions in the streets as part of normal use of highways, subject to the rights of other members of the public and the regulatory powers of authorities (and that such rights can be curtailed by law or licences). | The Court relied on the passage quoted to show that the Privy Council referred to rights to take part in religious processions (not a general, non‑religious right). The Court held that Martin & Co. did not support counsel's argument that a general right to non‑religious processions exists. |
| Decisions of the Madras High Court (unnamed) | Historical decisions mentioned in Manzur Hasan dealing with religious processions and exclusive use of highways by one sect. | The Court noted that Lord Dunedin had referred to certain Madras High Court decisions in formulating the questions in Manzur Hasan, reinforcing that those observations were confined to the religious‑procession context; the High Court used this to caution against reading such observations as general propositions. |
Court's Reasoning and Analysis
The Court proceeded by addressing counsel's principal submissions and by examining the factual findings below.
- On the contention that every citizen has a general right to take out a procession (not limited to religious processions), the Court examined the passages relied upon in the Privy Council decisions. It concluded that the observations in Manzur Hasan must be read in light of the facts of that case (which concerned a religious procession) and that Lord Dunedin did not lay down a general rule establishing a citizen's broad right to hold non‑religious processions. The Court therefore rejected the expansive interpretation urged by counsel.
- The Court considered Martin & Co. and quoted the passage recognizing that "the plaintiffs have the right as members of the public to take part in religious processions in the streets" but emphasized that such rights are subject to the rights of other members of the public and to the powers of appropriate authorities. From that passage the Court concluded Martin & Co. likewise did not recognize a general right to non‑religious processions.
-
The Court then addressed the narrower (pleaded) issue: whether carrying vyasantol in procession is a religious observance protected as a religious procession. That question was identified as one of fact. The Court noted that the lower appellate court (the District Judge) had examined evidence, texts and expert testimony and had specifically concluded (paras. 15–17 of the lower court judgment) that:
- the parading of vyasantol was not done out of worship of Vyas;
- there was no evidence to show that vyasantol was paraded as an object of worship or that the practice was enjoined or recommended by any shastra or tenets of the Lingayats or Veershaiva faith;
- the parade appeared to serve purposes and motives (honour of the Swami or the puran) that did not amount to a religious observance; and
- there was no evidence of similar practice in other villages in Bijapur District.
- Because the factual finding was against the plaintiffs on the essential question whether their parade was a religious observance, the Court held the appeal must fail on that ground.
- As to limitation, the Court declined to decide that question. It explained that the underlying Sub‑Divisional Magistrate order of 1931 was not before the Court in a form that allowed resolving the legal effect of that order. The evidence contained only a lay summary by the first plaintiff and did not state under which statutory provision the order had been made. The Court noted that the order might have been made under s.147 CrPC, s.145 CrPC or s.44 of the District Police Act, and that the effect of an order would differ depending on the section. For these reasons the Court considered it undesirable to resolve the limitation point on the incomplete record.
Holding and Implications
Final Holding: The appeal fails and is dismissed. The Court expressly dismissed the second appeal and awarded costs against the appellants.
Implications:
- The direct effect is that the plaintiffs' claim to a right to parade vyasantol as a religious procession is rejected on the factual finding that the practice is not a religious observance within the meaning relied upon; the plaintiffs therefore do not obtain the permanent injunction sought.
- The Court did not decide the limitation question and explicitly avoided ruling on the legal effect of the 1931 Sub‑Divisional Magistrate order because the precise statutory basis of that order was not established in evidence before the court.
- The opinion refrains from announcing any new general legal proposition expanding a citizen's right to hold non‑religious processions; it treats the authorities cited as confined to their factual contexts and does not adopt the broader interpretation advanced by the appellants. Therefore, no novel precedent extending a general right to non‑religious processions was established by this decision.
Appeal dismissed.
Costs awarded to the respondents. (Signature block in the opinion: J.G.R.)
Kania, A.C.J:—
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.
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 in Bijapur District. It is stated that they have got such right to take out a procession on Bhadrapad Sud 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 vyasantal 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.
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, rel ed on certain observations in two judgments of the Privy Council. The first case was Manzur Hasan v. Muhammad Zaman. That was a case in which certain members of the Shiah community desired to take out the Moharram procession with the ceremoney 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 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:
“Two other questions have, however, emerged. In several cases one sect claimed the exclusive use of the highway for their worship. This has been consistently refused. 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.
Mr. Desai further relied on the recent judgment of the Privy Council in Martin & Co. v. Faiyaz Husain. In that case, the Shiah community of Amroha claimed the right to take out tazias of a height greater than what could pass under the electric wires laid out by the local electric company. The company had put up its poles and fixed the wires according to the licence granted to it by the appropriate authority. In considering the right of the public to pass and repass along the street, the Court observed as follows:—
“The plaintiffs have the right as members of the public to take part in religious processions in the streets; subject of course to the rights of other members of the public to pass and repass along the same streets and subject to the powers of the appropriate authorities of controlling traffic and preventing disturbance. This right as a normal user of the highway does not originate in custom. Whether a highway could be dedicated subject to such a custom need not be considered * * *. The rights of the plaintiffs therefore are no more and no less than the rights of any member of the public, and subject to questions of danger or disorder there seems no reason why a member of the public should not convey along an open street as part of a normal use of the street articles of any height.”
The Court then held that the Shiah community had not the right claimed by it because the legislative authority had power to curtail the public right, and by the issue of the licence the public right, in fact, to that limited extent, had been curtailed. Later on in the same judgment it was observed as follows:—
“Their Lordships in leaving the case wish to emphasize that no question arises of ignoring or depreciating the respect due to the well established religious beliefs and observances of the plaintiff. Like any other religious or secular body or any other member of the public their rights over the streets are subject to the present law which may abridge them.”
From these observations we are unable to accept the argument of Mr. Desai that the Court recognised the general right of public to take out a procession which was not religious.
We should point out that such a larger claim has not been found in the plaint. The plaint is limited to the right to take out the procession as a religious procession. That aspect of the claim is made clear by the prayer itself. We, therefore, think that the larger right claimed by the plaintiffs is not pleaded and is not supported by law.
The second aspect urged by Mr. Desai was that the carrying of the vyasantol in procession was the right to take out a religious procession. The question whether this particular procession was a religious procession, within the accepted description recognised by law, is a question of fact. The lower appellate Court has considered in detail the evidence given before the trial Court. It has considered the various texts which were cited before the Court and considered the expert opinion of witnesses who had been called on the point. In para. 15 of its judgment the lower appellate Court has stated as follows:
“Nor is the parading of vyasantol done, as a matter of fact, out of any respect for Vyas. There is nothing in plaintiff No. 1's deposition to show that vyasantol is paraded as an object of worship * * * Plaintiff No. 1 has stated that he seeks to parade it as a birudavali of his math, in honour of himself as the Swami and of the puran, which are both seated in the palaki”
In para. 16 of his judgment, he has recorded his conclusion in these words:—
“The parading of vyasantol is thus not a religious observance, in the sense that it has been enjoined or even recommended by any shastra or work containing the tenets of the Lingayats or the Veershaiva faith. Nor can it be considered to be an appropriate observance, having regard to the purpose and motive that has prompted the parading of it.”
Later on, in para. 17 he observed that there is no evidence in the case, that vyasantol was paraded in any of the other villages in Bijapur District. In second appeal we are bound by the findings of fact of the lower appellate Court. The abovementioned conclusion of the learned District Judge, on this question, shows that the carrying of vyasantol in procession was not the taking out of a religious procession with “appropriate observances”, as stated by the Privy Council in Manzur Hasan v. Muhammad Zaman. Having regard to that conclusion the appeal must fail.
We do not consider it necessary to go into the question of limitation, particularly because the order made by the Sub-Divisional Magistrate of Bijapur in 1931 is not before the Court. In the evidence of the first plaintiff its effect is generally described. It is not found under what section of what Act of the legislature the order was made. We think it undesirable to come to a conclusion about the true effect of the order on such summary made by a layman. The order may have been passed under s. 147 of the Criminal Procedure Code, or s. 145 of the Criminal Procedure Code, or s. 44 of the District Police Act. The effect of the order passed under each of these sections is different and, therefore, we do not consider it necessary to decide the question of limitation.
The appeal fails and is, therefore, dismissed with costs.
Appeal dismissed.
J.G.R
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