This judgment will dispose of Civil Revisions Nos. 297/13, 326 and 526 of 1974 as they arise out of the same judgment and decree of the learned District Judge, Multan, dated the 25th January 1974, by which he dismissed the appeal of Hakeem Sher Ahmad Chishti, petitioner in Civil Revisions Nos.
297-D and 326 of 1974 against the decree of the learned trial Court dated the 5th February 1973, and allowed the appeal of Syed Abbas etc., plaintiffs-respondents.
2. On the 17th January 1975, I passed the following order :- "For reasons to be recorded later I allow Civil Revisions Nos. 526 of 1974 and 297/13 of 1974 to the extent that the order of modification of decree passed by the learned appellate Court and the decree passed in consequence thereof are set aside and the decree of the learned trial Court is restored. I may clarify that I am of the view that section 30 of the Police Act or rule 21.22 do not authorise the Superintendent of Police to totally ban a procession. The power vested in the Superintendent of Police is only to direct the conduct of the procession on the public roads or in the public streets or thoroughfares.
Since Hakim Sher Ahmad Chishti has filed two petitions against the same judgment and decree and one petition has already been partly allowed by me, the second petition (Civil Revision No. 326 of 1974) is dismissed.
There will, however, be no order as to costs."
I now proceed to give my grounds on Civil Revisions Nos. 297/13 and 526 of 1974.
3. The plaintiffs-respondents who are Shia by faith and reside in Mumtaz Abad Colony, Multan, submitted an application to the District Magistrate on the 21st December 1960, for grant of permission to take out Muh3rram Procession at Mumtazabad and to arrange for police protection.
This application was rejected in March 1970, on a report of Mr. S. M. Abdullah Iqbal, Assistant Commissioner, Sadder Sub-Division. The plaintiffs challenged this order by a suit for a declaration that they and Members of the Shia Community residing in Mumtazabad Colony, Multan City, individually and collectively have inherent, fundamental and unprevented legal right to conduct their religious profession of Azzadari comprising of Alam, Zul Jinnah, Jhoola, Tazia and Taboot etc., with its appropriate observances along with the performance of Matam ceremonies in the public street of Mumtazabad Colony, and the order dated the 17th March 1970, passed by defendant No. 2 refusing the grant of licence for police protection as well as the act of total prevention and obstruction of defendants in the exercise of the aforesaid legal religious right of taking out the aforesaid precession is male fide, without jurisdiction, illegal, void, ineffective and inoperative against the aforesaid rights of the plaintiffs and others and by way of consequential relief restraining the "defendants from obstructing, preventing, refusing and interfering in the performance and observance of aforesaid religious rites and ritual duties through the use of public streets of Mumtazabed Colony, Multan".
4. The learned trial Court passed a decree but made the injunction subject to the conditions that it would not affect the powers of the District Magistrate and the Superintendent of Police under section 144, Cr. P. C. And section 30 of the Police Act as well as the Police Rules.
5. In appeal by the plaintiffs the learned District Judge deleted that condition. The decree of the District Judge has been challenged by the Provincial Government and the District Magistrate in Civil Revision No. 526 of 1974, while Hakeem Sher Ahmad Chishti, defendant No. 3, who was impleaded as a party to the suit of the plaintiffs-respondents, on his own request has challenged it in Civil Revisions Nos. 326 and 297/13 of 1974.
6. In their revision petition the Government and the District Magistrate have challenged not only the decree of the learned District Judge but also the trial Court's decree although they had not filed any appeal against this latter mentioned decree before the District Judge. Under section 115, C. P. C.
The revision jurisdiction can be invoked only if the order sought to be revised is not appealable. The petitioners in Civil Revision No. 526 of 1974 had no right to challenge it for the first time in the revision petition. This revision petition shall, therefore, be deemed to be confined to the question whether the finding of the District Judge deleting the condition imposed by the learned trial Court can be sustained.
7. By imposing the condition of the decree for injunction being subject to the provisions of section 144, Cr. P.~C. And section 30 of the Police Act as --well as the Police Rules, the learned trial Court had held that the civil Court cannot grant injunction which amounted to interference in the discharge of public duties of Government Departments. He further held that under Police Rule 21.22 permission had to be obtained from the District Magistrate, Multan for periodical public processions and for this reason the civil Court cannot substitute its opinion for that of the District Magistrate.
7-A. The learned District Judge did not advert at all to the provisions of section 144, Cr. P. C. He deleted the condition only on the ground that there was nothing in section 30 of the Police Act making it incumbent upon the members of a community intending to take out processions to approach the District Magistrate for his permission. He referred to subsection (2) of section 30 being the only provision under which the Members of the Public were required to apply to the Police for the licence.
8. While deleting the condition of the order of injunction being subject to certain provisions of law tie learned District Judge has not only held that the permission of the District Magistrate is not necessary for taking out a procession but notwithstanding reference to subsection (2) of section 30 under which under certain circumstances it is necessary for the processionists to obtain licence, the learned District Judge has-Virtually made section 144, Cr. P. C. And section 30 of the Police Act inapplicable for good to the Shia Community of Mumtazabad Colony. This is beyond the jurisdiction of the Court which has only the power to apply or interpret the law but has no power to legislate and exempt certain persons from the operation of law which otherwise brooks no exemption. The learned District Judge could not, therefore, delete at least the conditions about the injunction being subject to the provisions of section 144, Cr. P. C. And section 30 of the Police Act. As will be seen in the later part of this judgment, similar and more onerous conditions were imposed in Sayid Manzur Hassan and others v. Saiyid Muhammad Zaman and others (1).
9. The learned counsel for the respondents also could not justify this portion of the finding of the learned District Judge. His sole argument was centred round the power of the District Magistrate to grant or refuse a licence for taking out a procession. In this connection he referred to sections ?0 and 30-A of the Police Act which as admitted by the learned counsel for the petitioners do not vest the District Magistrate with any such power or authority. He challenged the vires of Police Rule 21.22 which reads as follows :- "21.22. Religious processions. AIR 1925 PC 36, Periodical public religious processions shall not be permitted to proceed along new routes without the written sanction of the District Magistrate.
(2) When a periodical public religious procession is about to take place the Superintendent shall acquaint himself with the police arrangements made in past years and shall make the necessary arrangements in consultation with the District Magistrate, following, as far as may be, the procedure previously adopted.
(3) In each district a separate file shall be kept of each periodical public religious procession showing the strength and disposition of the police force employed and the average number of persons attending the procession.
(4) Whenever a licence is granted for a procession there shall, if possible, be a plan of-the route on the back of licence. All licences granted shall be in Form 21.22 (4).
(5) The Superintendent shall not grant a licence for an important public religious procession of a novel character or on an occasion when public feeling is excited, without taking the orders of the District Magistrate.
(6) When a procession other than one of regularly exercised is allowed to take place any sums necessary to defray the cost of barriers, additional police and the carriage of such police shall be deposited with the Superintendent by the managers of such processions before the licence is granted."
He argued that only sections 7, 12 and 46 of the Police Act authorise making of Rules. Sections 7 and 12 are not applicable. Section 46 authorises the framing of Rules for giving effect to the provisions of the Act and for regulating the procedure to be followed in discharge of any duties imposed upon them by the .Act. The section all the same provides that Rules should be consistent with the Act.
The learned counsel for the respondents, therefore, urged that the above Rule which authorises the District Magistrate to issue a sanction for a new route cannot be intra vires of the Act which recognises only certain Police Officers as the Licensing Authorities and necessity for licence arises only subject to the condition of subsection (2) of section 30.
10. The learned counsel for the Government did not dispute that the Shia Community has the right to take Azzadari Processions. He also conced--ed that except under rule 21.22 of the Police Rules there was no need to apply for a licence. He further admitted that need for licence only arises where the District Magistrate is of the opinion that uncontrolled forming of procession may be likely to cause a breach of the peace and only in such circumstances, the Superintendent of Police or the Assistant Superintendent of Police may require by general or special notice that the persons convening such\procession shall apply for a licence, But he placed reliance upon section 33 of the Police Act which recognizes the general control of the District Magistrate over the matters dealt with by inter alia sections 30 ,and 30-A of the Police Act. He justified the said rule under the provisions . Of section 33.
11. The learned counsel for Hakeem Sher Ahmed Chishti argued that the -scheme of -the Act is that a licence is necessary and that it can neither be granted permanently nor refused permanently. It can be refused in a fit case but it is the exclusive jurisdiction of the executive functionary to .Determine whether to grant the licence or refuse to grant it. He referred to section 56 (d) of the Specific Relief Act wherein no injunction can be granted which interferes with the public duties of the Government. He justified the impugned order of the District Magistrate on the basis of the report of the Assistant Commissioner (Exh. D/1) dated the 14th March 1970, about there being a likelihood of breach of peace. In support of his assertion that the licence can be refused in appropriate cases, he referred to Mian Muhammad v. Government of West Pakistan 1970SCMR645 , wherein it was held that it was clear from section 30 that processions cannot be banned altogether under the provisions of that section. But that dies not mean that licence cannot be refused on any ground or that the number of processions to be taken out in any particular area cannot be regulated under any circum--stances. He also argued that the District Judge has issued a perpetual licence in favour of the plaintiffs. He also justified Rule 21.22 under section 33 of the Police Act.
12. The learned counsel for the respondents referred to a number of authorities to support his argument about the legal and fundamental rights of the plaintiffs to take out Azzadari processions.
He stated at the Bar that the observations made in the case referred to above by the learned counsel for Hakeem Sher Ahmad Qureshi are the subject-matter of a review petition pending before the Supreme Court which will be heard after the decision of Civil Appeal No. 92 of 1971, pending in the Supreme Court.
13. There is no doubt, and this point is conceded that there is a right ,vested in members of the public to take out a procession.
Saiyid Manzur Hassan and others v. Saiyid Muhammad Zaman and others is a case of similar nature as the present one. It was held that: "There is a right to conduct a religious procession with its appropriate observances along a highway. Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions a8 the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace . . . . ." in that case in a suit filed by the Shias of Aligarh, the District Judge granted the declaration that they craved, but subject to any order that from time to time the Magistrates might make. This decree was restored by the Privy Council on an appeal against the decree of dismissal of the suit passed by the-----High Court. But another condition was imposed by addition after the word "Traffic" in line 3, P. 42 of record of the words "to the Magistrate's directions and the rights of the- public".
Muhammad Jalil Khan and others v: Ram Nath Katua and others AIR 1931 All. 341is a Division Bench decision about the right of a community to take out a religious procession. It was held that; "There is right in every community to take out a religious procession, with its appropriate observances, along a highway. This is an inherent right and does not depend on the proof of any custom or long established practice. Even if such a procession be an innovation it would be in the exercise of legal rights. The right is independent of any long-standing --tradition and is not lost by mere abstention or non-exercise of it for a number of years. An enquiry as to the existence or non- existence of an old custom is, therefore, unnecessary and irrelevant."
It was, however, observed that this right is to be exercised in a reasonable: manner so as not to infringe the legal rights of another. The right to take out procession is subject to the provisions of section 144, Cr. P. C. And the, provisions of the Police Act.
A Division Bench of the Allahabad High Court held in Qasim Raza v.. Emperor AIR 1935 All. 657 that; "It is the right of a citizen to use the public thoroughfares provided that he commits no offence in doing so, and the taking out of a procession is not in itself an offence, nor does it require a Special licence, except as provided by section 30, Police Act. That is a section which-- empowers the authorities to control processions, and the manner ire which they are to be controlled if it is necessary to control them is set forth in subsection (2). Neither in the marginal note, nor in the body of the section, is any express power given to the authorities absolutely, to forbid the taking out of a procession. Hence the Superintendent of` Police has no power under the Act absolutely to forbid a procession,, but only has the power to regulate one."
14. In view of the clear language of section 30 of the Police Act and then authorities on its interpretation. There is, also no scope for argument that procession can be banned altogether or a `licence for taking a procession is always necessary (Mian Muhammad v. Government of West Pakistan and Sarslbala Dawan and others v. State AIR 1962 Pat. 244.
15. This question also cropped up in certain cases whether section 30" authorises the Superintendent or Assistant Superintendent of Police to issue a general order for all occasions or for some time extending over several months making it necessary for the promotors of a procession to" obtain licence. This was answered in the negative.
The Calcutta High Court held in Debendranath Mandal v. Emperor 133 1 C 192 , that section 30 of the Police Act does not empower the Superintendent of Police to issue a general notice that anyone taking out a procession which might pass by a mosque, must take out a licence under that section.
In that case the order of the Superintendent of police was directed to remain in force for two months. It was held that the Superintendent of Police has first of all to be satisfied that it is intended by a person or class of persons to take out a procession or hold a meeting. He has then to take the opinion of the District Magistrate or the Sub-Divisional Magistrate and if in the opinion of that Officer, such assembly or procession, if uncontrolled, may cause a breach of the peace, he might then issue a notice, general or special, that these persons shall apply for a licence.
In K. V. Govindarajulu Mudaliar v. Devar & Co. AIR 1954 Mad. 248 it was held that subsection (2) of section 30 does not contemplate a general order over a prolonged stretch of time so as to take in assemblies and processions which at the time the order is issued nobody has even thought of collecting or forming. What the subsection visualises is something proximate, something concrete, spine particular assembly or assemblies, some particular procession or processions. It does not empower a Superintendent to lay down a general interdict. (Per Balakrishna Aiyar, J.).
Chandra Reddi, J., stated that a separate order must be passed as and when the Police Officer is satisfied that a public meeting is going to be convened or a procession is going to be taken out.
In the case of King-Emperor v. Abdul Hamid AIR 1923 Pat. 1 majority of the Special Bench of the Patna High Court consisting of Mullick, Courts and Dass, JJ. Justified even the general order of the Superintendent of Police prohibiting any procession or assemblies other than under licence granted by him for a period of three months on the ground that the words of the section are sufficiently general to enable the Superintendent to issue a general notification containing prohibition against convening or collecting assemblies or directing or promoting procession without a licence. It was held that the terms of the section are also wide enough to cover a prohibition without any limit of time. It was further held that when a notification is issued by an executive authority in exercise of a power conferred by statute that notification is as much a part of the law as if it had been incorporated within the body of the statute at the time, of its enactment.
The command is in every respect a command by the appropriate legislative authority. But this view was dissented from in another case decided by the same Court: Sitaram Das v. Emperor AIR 1962 Pat. 173.
In Emperor v. Shamakandu 49 I C 773 it was held that under section 30 of the Police Act there must be a notice, special or general, on such occasion on which an intended assembly or assemblies is or are required by the Superintendent of Police to be controlled by means of licences to be taken out by the persons celebrating the festivities concerned.
A Division Bench of the Calcutta High Court held in Keshab Lal Dutta and others v. Emperor AIR 1928 Cal. 272 that a notification under section 30 cannot be held to be operative after the occasion which called for the notification has passed away.
In Emperor v. Bhagwat Singh Ram Singh and others AIR 1941 Lah. 372 it was held that a licence under section 30 is not required for every procession. It required to be taken only when a breach of the peace is apprehended by the authorities concerned. The opinion of the majority of the Special Bench in King-Emperor v. Abdul Hamid was not followed. It was held that the opinion about the words being sufficiently general to enable the Superintendent to issue a general notification containing a prohibition was obiter dictum.
15. Now I may sum up the principles which are clear from these authorities. These principles are that members of a religious sect have a right to take out processions provided they do not infringe the legal rights of others. This right is subject to the provisions of different laws. Section 30 only empowers some Police Officers to regulate the conduct o procession and in case of apprehension of breach of peace which must have the sanction of a Magistrate, to ask the promoters of the procession to take a licence. In rare cases the licence may be refused but that refusal cannot be permanent but can only be for a particular occasion since no general order can be passed under this section calling upon the members of the public to take a licence before taking out a procession. Unless called upon by the Superintendent of Police or the Assistant Superintendent of Police to obtain a licence in view of the circumstances prevailing as enumerated in subsection (2) of section 30, the Organisers of a procession have no obligation to submit any application for permission or licence. The Police is required to be vigilant in finding out the programme of processions being taken out and to act of its own under subsection (1) of section 30 on receipt of such information. But the law does not imply the necessity of making any application to the Police for invoking the regulation of the procession on the part of the citizens.
16. Rule 21.22 does not make any departure from the provisions of section 30 of the Act. Its sub-rule
(1) does not confer upon the District Magistrate the power to issue a licence. Sub-rule (4) of this Rule provides that the licence granted for a procession shall be in form of rule 21.22 (4).
The form shown to me by the learned counsel for the Government proves that it is a licence issued tinder section 30 of the Act. It is also admitted that the licensing authority is the Superintendent of Police. In view of this, rule 21.22 cannot be read as creating an obligation on the part of a citizen to apply for a licence before taking out procession. Sub-rule (1) only places an embargo upon the use by a procession of new routes without sanction of the District Magistrate where the route for a procession is already sanctioned. 1, therefore, agree with the finding of the learned District Judge that no licence is necessary to be obtained from the District Magistrate. In view of this interpretation of rule 21.22, in my view the condition imposed by the learned trial Court which is similar to one imposed by the Privy Council in Saiyid Manzur Hassan and others v. Muhammad Zaman and others should not have been deleted.
17. Before closing this case I may refer to an argument of the learned counsel for the petitioner that since the plaintiffs themselves had applied to the District Magistrate for a licence, they could not challenge the order of refusal to issue the same. The learned counsel for the Government, on the other hand, additionally argued that the District Magistrate having no power to issue a licence, rejection of an application submitted to him does not furnish the plaintiffs with a cause of action.
This argument, in so far as the Government is concerned, cannot be taken into consideration since it amounts to throwing a challenge to the decree of the learned trial Court. However, this argument has no force. It appears that the plaintiffs had submitted an application, although misconceived, to the District Magistrate for arranging the Police force to protect the procession from any untoward incident.
20. 1 have for these reasons, allowed Civil Revisions Nos. 526 of 1974 and 297/1) of 1974 to the extent that the order of modification of decree passed by the learned Appellate Court and the decree passed in consequence thereof stand set aside and the decree of the learned trial Court stands restored.
There will, however, be no order as to costs.