This is a suit by the representatives of the Pariahs of Kottikulam locally known as Sambanmars against the defendants who are representative Muhammadans of the same place for a declaration that they are entitled to conduct processions along a certain public road in Kottikulam. As is usual in such cases, the existence of these processions has given rise to high feeling and is likely to lead to rioting and bloodshed unless the rights of parties are settled by the Civil Court. In March 1911 an application was made to the 2nd Class Magistrate of Palamcottah on behalf of the Pariahs for an order under Sect. 144 of the Criminal Procedure Code to restrain the Muhammadans from interfering with their procession. On that application the Sub-Magistrate made an order restraining the petitioners from going in procession along the path in question in this suit. It is true that he called it a warning, but we think it is clear that he meant to give a definite order and are prepared to treat Exhibit A as amounting to such. In November 1911 a further application was made to the Sub-Divisional Magistrate of Tinnevelly for a fresh order. He came to the conclusion that a breach of the peace was not imminent and therefore refused to pass orders either under Sect. 144 or Sect. 147, and he concluded by saying this: “If the Pariahs feel aggrieved by the Muhammadans objecting to their right of taking processions through a public street wherever Muhammadans live, they should resort to a proper Civil Court for redress.” Thereupon he dismissed the petition. No doubt in consequence of this the present suit was instituted in July 1912.

The objection taken by the defendants is that in the absence of proof of special damage no action will lie to enforce rights relating to a public highway. The case-law on the subject is complicated and difficult, and we think that an effort should be made to establish definitely for this Court at least what the legal position really is.

The leading case in India in which the doctrine of English Law was applied to this country was Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga(1) where the Chief Justice Sir Michael Westropp in a very learned judgment applied the rule of English Law in its entirety to India, the rule being that a private person cannot bring a suit for interference with a right which he enjoys merely as a member of the public unless he has individually suffered damage, which means in this connection pecuniary damage. The reason for the rule in England was that the true remedy was one by indictment, and we are unaware of any corresponding remedy under the Indian Law. Notwithstanding this the Courts of India have adopted this view as for instance in Baroda Prasad Mostafi v. Gora Chand Mostafi, Raj Luckhee Debia v. Chunder Kant Chowdhry(2) and the doctrine was explicitly recognised in this Court in Hussain Sahib v. Narasimhappa(3). At the same time another doctrine gradually evolved itself in the Courts, at any rate of this Presidency, which amounts in general terms to this: that in certain circumstances an order of a Magistrate prohibiting a procession under the provisions of the Criminal Procedure Code of itself gives a cause of action to the interdicted party. In our opinion the cases as to what those circumstances are are neither clear nor consonant. In Muthialu Chetti v. Bapun Saib(4), the order of the Magistrate was held to be ultra vires and to create a cause of action in those against whom it was directed against those who had procured it. In Muthayya v. Sudalaimuthu(5), the magisterial order was held to constitute a cause of action, but it is not clear whether the learned Judges regarded the order as ultra vires or not. In Kandasami Mudali v. Subroya Mudali(6), the head note is to the effect that where an “illegal” order of the Magistrate has been procured restraining a procession, a suit to declare the right to carry such procession is sustainable without proof of special damage. It does not appear from the report in that case that the order of the Magistrate was illegal in the sense of being one that he had not jurisdiction to make. It must be remembered that in making orders of this nature under the Criminal Procedure Code the Magistrate is expressly debarred from determining the civil rights of the parties, and is as expressly empowered in the interests of public order to restrain members of the public from exercising rights which they may indubitably possess. But it is quite true that in the judgment the following sentence occurs: “The real distinction appears to be as pointed out in Kazi Sujaudin v. Madhavdas(7), that in the one case the cause of action is the alleged obstruction and in the other the improper order issued by a Magistrate at the instance of the defendants.” The term ‘improper’ is obviously taken bodily from the judgment of Fulton, J., in Kazi Sujaudin v. Madhavdas. It is capable of two constructions. It may mean an order which the Magistrate had no power to make, or it may mean an order which though within the jurisdiction of the Magistrate was in fact a derogation from the legal rights of the person or persons against whom it was made. In Andi Moopan v. Muthuveera Reddy, a Bench of this Court appears clearly to have taken the view, though it was perhaps not necessary to the actual decision, that an order of itself intra vires on the part of the Magistrate would give rise to an action if in fact it fettered the plaintiffs in the action in the exercise of their legal rights. On the other hand, another Bench of this Court in W. Kalmatappa v. Joish Narayana Bhat unreservedly adopted the view that the order of the Magistrate to give rise of itself to a cause of action must be an order outside his competence and illegal. It is obvious that to restrict the cause of action to cases where the Magistrate's order is illegal will necessarily lead to an ‘impasse’ in which the claim of the parties will tend to be settled not by the determination of a Court of Law but by violence and bloodshed. We therefore think that the whole question had better be referred to a Full Bench.

An entirely different set of considerations is evoked by the decision in Baslingappa Parappa v. Dharmappa Basappa. The report is meagre and the grounds of decision are not very clear; but the result is indubitably this: that the Bombay High Court held in that case that though an action for the abatement of a public nuisance would not lie without proof of special damage, a suit for a declaration of the right to pass in procession along a public highway would. We regard this decision as salutary and convenient, but we doubt whether considering the trend of authority in the Courts of India, and above all in this Court, we are at liberty to follow it. We think it best to refer this matter also to the decision of a Full Bench.

The questions we refer are therefore as follows:—

(1) When a Magistrate has made an order under the Criminal Procedure Code forbidding a person or body of persons from using a highway for the purpose of processions, does such an order invest the person or persons interdicted with a cause of action if they allege it to be an infringement of their legal rights, though such order be in itself intra vires and no special damage be alleged or proved?

(2) Can a person or body of persons who claim a right to go in procession along a public highway bring a declaratory suit to establish that right against a person who threatens to obstruct it without allegation or proof of special damage?

[This Second Appeal then came on for hearing on the 30th and 31st days of October 1918 in pursuance of the above order of reference before the Full Bench as constituted above.]

Mr. T. R. Ramachandra Aiyar for the Appellants.

Mr. M. D. Devadoss for the Respondents.

OPINION

Sir John Wallis, C.J — In Satku Valadkadir Sausare v. Ibrahim Aga Valad Mirza Aga the facts are not set out in the report, and all that appears is that the plaint averred obstruction of the plaintiffs in their use of the highway by the defendants, and also an order of the Magistrate under Sect. 518 (now 144) of the Code of Criminal Procedure prohibiting the plaintiffs from using the highway in the particular way to which the defendants took objection. Sir Michael Westropp, C.J, after reviewing the English decisions as to the right of an individual member of the public to maintain an action for the obstruction of a public thoroughfare and showing that no such action would lie without proof of special damage, dismissed the plaintiffs' suit on that ground. The obstruction in the cases cited consisted of interference with the surface of the highway which interfered with the right of the public to pass and repass freely. The same principle would, no doubt, apply if the defendants obstructed the public by assembling on the highway for their own purposes, as for the purpose of holding a market. That also would be a public nuisance and the rule as to special damage would apply. If, however, the defendants assembled to prevent the plaintiffs from exercising their lawful right to pass along the highway in a particular manner, that would appear not to be a case of public nuisance but of trespass or threatened trespass to the plaintiffs, and in trespass an action lies without proof of special damage. That, indeed is the general rule, the rule as to special damage in cases of public nuisance being the exception. The Bombay High Court has recently taken this view in Baslingappa Parappa v. Dharmappa Basappa and has refused to apply the decision in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga to a case like this. In that case the plaintiffs sued to establish their right to go in procession with a temple car along a particular road which was denied by the defendants. The Lower Appellate Court thought that the plaintiffs had the right they claimed, but dismissed their suit as no special damage was shown following Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga. The High Court reversed the decrees of the Lower Courts and gave the plaintiffs a declaration and an injunction, observing, in the course of their judgment, that the suit was not for the removal of a public nuisance, but for a declaration of the right of an individual community to use the public road, a suit which they held to lie without proof of special damage. This case, in my opinion, was rightly decided and should be followed.

The case is stronger both on principle and authority where, in addition to the plaintiffs' right to use the road in a particular manner being challenged by the defendants, the plaintiffs have been prohibited from exercising it under Sect. 144, Criminal Procedure Code. In deciding in a case like this how to exercise the power given him by the section to direct any person to abstain from a certain act “if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury or risk of obstruction, annoyance or injury or a disturbance of the public tranquillity or a riot or an affray the Magistrate must be governed largely, though not exclusively, by the opinion he forms as to the legal rights of the contending parties. He is not the proper Judge of these rights and all that he can do in summarily and on materials which are necessarily imperfect to form an opinion that one side or the other had made out a prima facie case of right and to give due weight to that opinion in deciding what order to pass. The effect, however, of the order which the Magistrate is empowered to pass by the section in the general interest is that for two months it becomes a punishable offence for the party to do an act which he may be in a position to establish his right to do before a competent tribunal. Further, the order may be extended by the Government, and, even if not extended, must necessarily form a precedent for the passing of a similar order whenever the circumstances recur.

In these circumstances, even if there were any rule of law prohibiting persons from establishing by suit their rights to use the road in a particular manner against those who challenge it unless they could show special damage, and in my opinion there is no such rule, I should still hold that the statutory interference under the order with the legal rights of the party without any adjudication upon them would of itself give him a cause of action in a Civil Court for the establishment of his right so as to prevent the order being continued by Government or renewed on a future occasion owing to a misapprehension of his rights if not so established. This would appear to be the result arrived in the recent decisions of the Court which are referred to in the order of reference, except in W. Kalmatappa v. Joish Narayana Bhat which should be overruled and also in Mannada Mudali v. Nallaya Goundan. In the earlier cases which are referred to in the order, the Court seems to have been hampered by the decision in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mtrza Aga and to have avoided the difficulty by holding that in the particular case the illegal or improper order of the Magistrate constituted the cause of action. In some of the cases it is not easy to see wherein the illegality or impropriety consisted, and this consideration has been rightly discarded in later cases such as in Mannada Mudali v. Nallaya Goundan which should, I think, be followed.

I would answer both questions in the affirmative.

Ayling, J.—I agree that both questions should be answered in the affirmative.

As stated in the order of reference, I regard the decision in Baslingappa Parappa v. Dharmappa Basappa as salutary and convenient; and was only deterred from following it by the rulings of Divisional Benches of this Court (e. g. in Kandasami Mudali v. Subroya Mudali) in which the decision in Satku Valad Kadir Samsare v. Ibrahim Aga Valad Mirza Aga had been treated as barring suits to declare a right of way where no special damage or special cause of action was proved. Now that the matter has been referred to a Full Bench, I have no hesitation in adhering to the view taken in the later Bombay case.

The first question is really unnecessary if the second be answered as above; but I would only add that I fail to see why when a magisterial order purporting to be passed under Sect. 144, Criminal Procedure Code, is alleged as the cause of action, it should make any difference whether the said order is intra vires or ultra vires of the Magistrate, who passed it. Its legality as distinguished from its expediency will ordinarily depend on considerations entirely dissociated from the civil rights of the parties affected. If it is held that an illegal order which may be disobeyed with impunity gives a right of action, all the more should a legal order, which cannot be contravened without a breach of the criminal law. If a legal order gives no cause of action, then the person injuriously affected will in most cases be without a legal remedy: for he could only secure special damage by disobeying the order and committing a criminal offence,

Seshagiri Aiyar, J.—I am of the same opinion. I am satisfied after listening to the very full arguments of Mr. Ramachandrier that there should be no distinction between orders intra vires and ultra vires with reference to a right of suit. It is practically offering a premium to break the law, if it is held that a party is not entitled to have recourse to a civil suit to establish his right after an adverse order against him by the Magistrate. I fail to see why the mistake of a Magistrate in clutching at jurisdiction or in passing an order which the law does not permit him to pass should place the party against whom it is made in a more advantageous position as regards civil remedy than a party against whom a Magistrate has acted within his powers, and has exercised his functions within the limits of law. In either case the party seeks the assistance of the Court on the ground that the order is wrong and deprives him of his common right; consequently, there can be no justification for an artificial distinction drawn between illegal and legal orders.

The earlier cases which laid down that for an injury which is common to himself and to the rest of the public, the complaining plaintiff should allege special damage, proceeded on the ground that otherwise there would be multiplicity of suits. That seems to have been the basis of the English decisions on the point. But in England, there is apparently no procedure by which the Magistracy can prohibit particular classes, communities or bodies of persons from exercising civil rights. In my opinion, magisterial orders cause special injury to the persons prevented. Therefore the rule of English Law is not strictly applicable in India. If I am right in this view, it would lead to no good to classify such orders into proper and improper ones and to invest the latter alone with the attributes of special injury. In both cases, the party is equally affected. In both cases, it is desirable that the party should have an opportunity of proving that his rights have been interfered with.

I am of opinion that Mannada Mudali v. Nallaya Goundan Muthayya v. Sudalaimuthu, Andi Moopan v. Muthuveera Reddy, lay down the law correctly. In the Bombay High Court there are a number of cases which hold that an order issued by the Police would not furnish a cause of action, but that special damage should be proved. Vimpaxappa v. Sheriff Sab and Dundappa Mallappa Sigandhi v. Secretary of State. They are inconsistent with Baslingappa Parappa v. Dharmappa Basappa. Although this latter decision is based on a dictum in Sadagopachariar v. Rama Rao which is not to be found in it, the conclusion is that special injury need not be proved when a portion of the public sues to establish a right of procession through a public highway. In my opinion this view is right. The dicta in Muthialu Chetti v. Bapun Sahib, Kandasami Mudali v. Subroya Mudali and Kalmatappa v. Joish Narayana Bhat, that unless the order of the Magistrate is ultra vires, special damage should be proved, must be overruled.

My answer to both the questions is in the affirmative.

C. K.Questions answered in the affirmative