A civil suit can be filed to establish the right of members of the public to carry a non-religious procession through public streets without proof of special damages.

CHAGLA, C.J. - The question referred to this Full Bench is whether a civil suit will lie to establish the right of members of the public to carry a non-religious procession through the public streets. A suit was filed on behalf of the Hindu community of Sakur against the Muslim community of the same place for a declaration that the Hindu community had a right to conduct religious and social processions accompanied with music along certain public thoroughfares upon which certain Muslim mosques abutted. In 1938 the Muslims attempted to obstruct a Dasera procession from marching with music near one of the moseques. The Magistrate issued an order prohibiting the Hindus from carrying out their procession unless they obtained a declaration of their right from a competent civil Court. Hence the suit. The suit was decreed by the trial Court and the decree was confirmed by the learned Extra Assistant Judge at Ahmednagar. The Muslims came in second appeal to this Court, and that appeal having come before Bavdekar and Dixit, JJ. they referred the question, as I have set out, to a Full Bench.

2. It is important to note that the suit was filed for a declaration without claiming any special damages, and it is not disputed that a suit for a declaration as to the right of a subject with regard to a public thoroughfare would always lie if special damages are claimed. But the difficulty arises when the suit is for a mere declaration. If there is an obstruction to a public thoroughfare, it constitutes a public nuisance, no special private rights are affected, and the public as a whole is interested in the removal of the nuisance. Therefore, the law has provided that in case of a public nuisance no suit would lie at the instance of a private party unless he can show that he has suffered damages over and above what the public at large had suffered. Under S. 91, Civil P.C., only the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, can institute a suit in respect of a public nuisance. But it must be borne in mind that a public nuisance may also affect private and individual rights. Every citizen has the right to use a public thoroughfare in a lawful manner. Equally so has a community or a section of a community, and if such a right is threatened of taken away, there is no reason why a suit should not lie for a declaration of such a light. This Court in Satku v. Ibrahim, 2 Bom 457 held that a civil suit in respect of an obstruction to a public road could not be maintained unless the plaintiffs could prove some particular damage to themselves personally in addition to the general in. convenience occasioned to the public. Sir Michael Westropp, C.J. and Melvill, J. who decided that case followed English precedents as to procedure, and at p. 459 the Chief Justice points out that, speaking generally no action can, in England, be maintained for a public injury. Therefore, action did not lie for obstructing a mans passage in a highway, because, ordinarily, he has no more damage than others of the Queens subjects; but the party causing the obstruction must be proceeded against by indictment. If, however, the person had sustained more particular damage by the nuisance than the public in general, then he might sue the party causing it. This decision was followed in Kazi Sujaudin v. Madhavdas, 18 Bom 693, Virupaxappa v. Sherif Sab, 11 Bom LR 372 : (2 IC 494) and in Venkatesh Appashet v. Abdul Kadir, 42 Bom 438 : (AIR (5) 1918 Bom 162). It may be noted that Sir Michael Westropp did not consider the question as to whether a subject bad the right to take out a procession or join in one on a public highway. On the contrary, the learned Chief Justice emphasised the fact that His Majestys subjects at large had the right to pass and repass along a public highway so long as they did so peaceably and properly. The only point on which that decision turned was a purely procedural one, whether a suit would lie