@JUDGMENTTAG-ORDER
T. Mathivanan, J.@mdashHeard Mr. A. Sivaji, learned counsel appearing for the petitioner, Mr. M. Alagathevan, learned Special Government Pleader, appearing for respondents 1 and 2 and Mr. G. Karuppasamy Pandian, learned counsel appearing for the 3rd respondent. The writ petition has been filed invoking Article 226 of the Constitution of India, seeking an order in the nature of certiorari-fied mandamus or any other appropriate writ or direction, calling for the records relating to the impugned order passed by the 2nd respondent, quashing the same and consequently to direct the 2nd respondent to accord permission for conducting Arulmighu Muthalamman Temple Festival at Mamsapuram village, Srivilliputtur Taluk, Virudhunagar District and other connected cultural programmes, every year, for 10 days, from the first Tuesday of Valarpirai in "Thai" Tamil Month, between 10.00 p.m. and 4.00 a.m.
2. Mr. A. Sivaji, learned counsel appearing for the petitioner, drew the attention of this Court to Page No. 26 of the typed-set of papers, wherein it is seen that Telungupatti Chetti Uravinmurai, Mamsapuram, an Association of People of the said community, is celebrating the temple festival and as per the document available at Page No. 28 of the typed-set of papers, various community people, in and around that area, are contributing their assistance for the purpose of Muthalamman Temple Festival. It is further stated that the people of Telungupatti Chetti Uravinmurai would provide statue for the function and similarly people belonging to Kulalar, Valaiyar, Hindu Nadar, Kodivazhi Velalar, Viswakarma, Yadavar and Arunthathi-yar communities are doing certain contribution for the function.
3. A perusal of the said document shows that the role played by the alleged community people would be as per the caste system that was prevailing earlier. Admittedly, it is a Hindu Temple festival, hence it would be proper to elect their President, Secretary and other Office Bearers among the Hindu community people, if they are really interested in performing the function properly and it should not be caste oriented in allotting the work, for which the Court cannot grant approval, in view of various provisions, especially Articles 14, 15 and 16 of the Constitution of India, which would say that there should be no discrimination based on religion, race, caste, sex or place of birth. As it is a religious function, it should be open to any person in the religion to perform any service voluntarily, without detrimental to the rights of other people. However, in the same religion, allotting certain works based on caste system cannot be approved by this Court invoking the power under Article 226 of the Constitution.
4. Mr. A. Sivaji, learned counsel for the petitioner, submits that for this year only short time is available for the function and in future allotting work would not be based on the caste system. The learned counsel also drew the attention of the Court to page No. 30 of the typed set of papers, wherein the programme is stated. As per the programme, on 27.01.2015, Tuesday, there would be Flag hoisting for the festival, following the same, programmes like singing devotional songs, ''Pattimandram'' (Debating in Tamil) and other religious and cultural events have been stated. Learned counsel submits that there is no Record Dance programme, especially obscene in nature, so as to give room to raise objection by the villagers.
5. Per contra, the learned counsel appearing for the 3rd respondent submitted that earlier a writ petition in W.P. (MD) No. 1066 of 2013 was filed by the 3rd respondent herein, namely Mrs. Sagunthala, against the authorities seeking for a direction, forbearing them from granting permission to conduct any meeting or temple festival in front of Pillaiyar temple, 3rd Main Road, Mamsapuram, Virudhunagar District and by order, dated 21.01.2013, a Division Bench of this Court passed an order, whereby there was restriction to use amplifier or causing traffic jam or creating noise pollution so as to make hazards to the public. In the aforesaid order, the Division Bench directed to restrict the celebration by fixing the time limit upto 10.30 p.m. Earlier Division Bench also relied on the decision of this Court in M.S. Apparao v. Government of Tamil Nadu, rep. by its Secretary, Home Department, 1995 1 L.W. 319 : LNIND 1995 MAD 917 and other decisions passed similar orders. It is pointed out by the learned counsel for the 3rd respondent that though the temple is available, as shown in the rough sketch at Page No. 32, on the northern side in the area stated by No. 13, the petitioner is going to perform the celebrations only at No. 2, nearby the house of the 3rd respondent, which is stated as No. 7 and other numbers 3, 4, 5, 6 and 8 are also in the residential area.
6. Any celebration, either religious or cultural, be treated as a right when the rights of other persons are not affected. In the instant case, the petitioner has sought permission to perform the function for nearly 10 days after 10.30 p.m., upto 4.00 a.m. It is not ruled out that they are not entitled to use amplifier, mike and perform the function till early morning at 4.00 a.m. on the next day. In this regard, the learned counsel drew the attention of this Court to the decision in
"72. In India, the position is different, and the use of loudspeaker assumes the status of a fundamental right by virtue of Art. 19(1) and Art. 25 of the Constitution. Article 19(1) provides that all citizens have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India.
Although the right as specified in (a), (b), (c) and (d) above is subject to reasonable restriction imposed or impossible by law in the interest of--
(i) sovereignty and integrity of India;
(ii) security of the State;
(iii) friendly relations with foreign States;
(iv) public order, decency or morality or in relation to contempt of Court, defamation or incitement to offence.
(v) general public.
It may not be missed that the restrictions to be placed in the interests of the general public to obtain in relation only to the right to move freely throughout the territory of India, which right has not so much to do with the use of a loudspeaker, with the result that the right to freedom of speech and expression, or to assemble peaceably and without arms and to form associations or unions, which are manifest most in advertisement of wares or entertainment shows, speeches of party leaders or office bearers of any Union, the assemblage of guests or visitors at marriage or birthday parties or at fairs, melas or exhibitions, the street processions or Shobha Yatras betokening a social or religious festivity or the twists and pop songs heralding a marriage procession or the election campaign of a candidate, which must and shall invariably go with a loudspeaker, and all these are subject to reasonable restrictions on ground not of noise being a pollutant, but only on grounds of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order, decency or morality or in relation to contempt of Courts, defamation or incitement to offence."
7. It cannot be disputed that fundamental rights guaranteed under the Constitution are paramount, hence no authority, either the State or Central Government is empowered to take away the fundamental rights or infringe the rights guaranteed under Part-III of the Constitution and the Courts dealing with the power of Judicial Review could declare the law or the particular provision of any Act or order as void, when it is violative of the fundamental rights guaranteed under Part-III of the Constitution, as per Article 13(2) of the Constitution. Similarly, there is no absolute right even in respect of right to freedom of speech and expression or any other right conferred under the Constitution as it should not be detrimental to the rights of other persons.
8. Learned counsel appearing for the petitioner submitted that it is the custom being followed by the people and the restrictions imposed are unreasonable, which affects their fundamental rights of the petitioner and Others. It cannot be disputed that if the programme is within the four walls, either in a room or auditorium or in a hall, the people can exercise their rights with a minimum reasonable restriction, if there is any consensus between the performers and the audience. However, in the public place, using amplifier, after 10.30 p.m., certainly will affect the rights of other people who are residing in the nearby area. Having considered the same, even in an earlier occasion, a Division Bench of this Court in M.S. Apparao v. Government of Tamil Nadu, rep. by its Secretary, Home Department (supra), has held that amplifiers should not be used beyond 10.30 p.m. in a public place, detrimental to the rights of other people. It has been made clear, amplifiers can be used only between 9.00 a.m. and 10.30 p.m. and not beyond 3 hours at a time. However, duration of 3 hours is relaxable based on certain special circumstances.
9. The learned counsel for the petitioner argued that 3 hours is relaxable, as per the above Judgment, however that is a different issue. As per the decision rendered by the Division Bench consisting of The Hon''ble Mr. Justice M. SRINIVASAN and The Hon''ble Mr. Justice S.S. SUBRAMANI, M.S. Apparao v. Government of Tamil Nadu, rep. by its Secretary, Home Department (supra), it was made crystal clear that beyond 10.30 p.m., amplifiers cannot be used in a public place or detrimental to the rights of the public, however during the said period, even if it exceeds 3 hours at one stretch, that can be relaxed.
10. It has been made clear from the decisions rendered by the Division Benches of this Court as well as the Delhi High Court, has been made clear that while exercising fundamental rights while conducting functions, either religious or cultural, the mandatory requirement is that it should not be detrimental to the rights of other people, if it is in a open area. Using amplifiers after 10.30 p.m. would certainly be detrimental to the rights of other people. It cannot be disputed that there may be aged persons, children, pregnant ladies and people suffering from ill-health. Using amplifier even after 10.30 p.m. upto 4.00 a.m., goes without saying that it would certainly affect the people residing in the area, especially school going children, aged people and Others. Therefore, we are of the considered view that there is nothing wrong on the part of the Authorities in imposing condition not to use amplifiers, after 10.30 p.m., when the function is being conducted in a public place and not within the four walls of any auditorium. Even if any religious or cultural function is being conducted in a private premises, the same should not cause noise pollution or annoyance to the public residing outside the said premises. Learned counsel for the petitioner submits that the petitioner is only conducting debates, musical contest/performance and other cultural programmes that would not be detrimental to the people. However, programmes could be commenced either in the morning or evening and continued upto 10.30 p.m., which should not be beyond the said time limit. On the facts and circumstances, considering the decisions, especially the decision rendered by the Division Bench of this Court in W.P. (MD) No. 1066 of 2013, we find it reasonable to pass appropriate orders, in respect of conducting the function and we make it clear that the function should not affect either religious or communal harmony. Accordingly, the petitioner and the other organizers of the function are permitted to celebrate the function, without detrimental to the interest of other people and their sentiments. They can use amplifiers only upto 10.30 p.m. and beyond 10.30 p.m., they should not use the same. With the above restrictions, they are permitted to conduct the function every year. The writ petition is ordered accordingly. No order as to costs. Connected miscellaneous petition is closed.
