HARI LAL AGRAWAL, J.

1. We had already passed an order in this case on 24th Jan. 1985, giving necessary directions in the matter of taking of the immersion procession of the idol Saraswati, reserving our reasoned judgment. Now I give the reasons and the judgment for the said order.

2. The important question of law falling for consideration in this case is as to whether on the facts and in the circumstances of the present case, the petitioners can be refused permission to take the immersion procession of idol Saraswati through the highway, which was being allowed since a long time without any objection or obstruction, on the objection of some of the Muslim residents of an intervening village.

3. The four petitioners of village Fulwaria under Dhaka Police Station in the district of East Champaran, have filed this application for a writ of mandamus directing the respondents, namely, the executive and police authorities, to grant a licence for the passing of the Saraswati Pooja Immersion Procession through the road passing via village Mahuawa, shown in red colour in the sketch map (Annexure 7 to the writ application), to river Lal Bakeya near Guabari Barrage at a distance of about 11/2 Kms. from their village, on a declaration that the respondents have got no legal authority to refuse to grant a licence for taking the immersion procession through the public road or any road, under the purported exercise of their powers under R.23 of the Police Manual.

4. Petitioner No. 1 is the Pooja Committee of the village constituted by the local people, for carrying out and performing the necessary rituals and ceremonies of the Hindu festivals including the Saraswati Pooja, which has been actively engaged in its affairs for more than the last 50 years. The Saraswati Pooja is performed on the Basant Panchami day and usually on the next day the idols are taken out in a procession for immersion in the river. The claim of the petitioners has been founded on these allegations and assertions vide para 5 of the writ application :-

"That it has been long uninterrupted custom of the villagers of Fulwaria that all the idols installed in the village are taken out together in a procession for its immersion ...... after Pooja they are taken to Lalbakeya river through village Mahuawa........."

5. According to the case of the petitioners, the immersion procession has been passing through this route for over 50 years without any objection of any kind from anybody. Undisputedly village Mahuawa itself was established at the present place by the side of the road to rehabilitate the residents who were uprooted on the construction of the Guabari Barrage in the year 1978. The Hindu population there is only 20 per cent and the remaining population is said to be of the Muslims.

No objection was taken by anybody to the taking of the procession through the route in question up to the year 1982 when for the first time "some anti social elements had made an abortive attempt to stop the procession at village Mahuawa but due to the timely intervention of the local Officer-In-charge of Jundwa Chainpur Police Station, the idols were immersed in the river in the traditional manner without causing any problem to the law and order authorities."

In the next year, i.e., during the 1983 immersion procession, direction was issued by the authority to take the procession through another route shown in green colour in the said sketch map, covering a distance of 51/2 Kms. passing along the Mahuabari Canal, reaching the site of immersion (barrage) by a circuitous route. The alternative route, however, was not acceptable to the people and they were stopped en route while passing through the usual route, and immersion of the idols could not take place at the old site. According to the case of the petitioners, the police immersed the idols in the village pond, hurting the religious sentiments of the devotees.

6. During the course of hearing, the petitioners also filed two affidavit