Judgement Consolidated Appeals (No. 60 of 1942) from a judgment and decree of the High Court (November 15, 1938) which reversed a judgment and decree of the Munsif of Amroha (March 16, 1932). The following facts are taken substantially from the judgment of the Judicial Committee The plaintiffs (respondents) were Shia Mohammedans of the township of Amroha, and, like other Shias, on the tenth day of the Mohammedan month of Moharram they commemorated the death of Husain, a son of Fatimah, the daughter of Mohammed, by passing in a procession along the streets of Amroha. In the procession were carried "tazias,” reproductions of the mausoleum of Husain, constructed of wood, paper and tinsil, borne on the shoulders of carriers. They were of various heights and had in some instances reached the height of 27, 30, or more feet from the ground. In 1929 Martin and Co., defendants No. 3 (appellants No. 1 in the first appeal), obtained from the local government, pursuant to the Indian Electricity Act (IX of 1910), a licence to supply electricity to the municipality of Amroha (defendants No. 1, whose appeal had abated for lack of security for costs). The licence was soon after transferred to the Upper Ganges Valley Electric Supply Co. Ld. (defendants No. 4, and appellants No. 2 in the first appeal), of which company Martin and Co. became managing agents. The scheme for the supply of electricity involved placing electric wires across the streets in Amroha, a matter which was dealt with by s. 13 of the Electricity Act. It was only necessary to say that all the provisions of the Act were complied with, due notices were given as required by the Act, the approval of the municipality and the local government was obtained, and in due course the company became authorized under the Act to place their wires across the streets at a height not less than twenty feet. The respondents had full notice throughout of the proposals, and exercised their rights to object, but their objections, after being considered, were put aside by the authorities acting, no doubt, on their view of the general interests of the public. In June, 1930, representatives of the present respondents brought a suit against the Municipal Board and Martin and Co. to restrain them from permitting the wires to interfere with the free passage of their tazias. In June, 1930, representatives of the present respondents brought a suit against the Municipal Board and Martin and Co. to restrain them from permitting the wires to interfere with the free passage of their tazias. At that time the wires had not been energised, and for the procession of that year a com promise was arranged by which the wires were either lifted or taken down. Immediately after the procession in June, 1930, the wires were replaced, and in October, 1930, the local government, by its proper officer, authorized them to be energised. In November, 1930, the respondents instituted the present suit claiming a declaration that by old custom they had a right to take out in procession tazias to the height of twenty-seven feet, and an injunction ordering the defendants to raise the electric wires to such a height as not to obstruct the passage of the tazias in procession. The case in the court of the Munsif appeared to have been fought on the issue of custom. The learned judge settled issues as to the existence of the alleged custom, and also as to whether, as alleged, according to the Shia religion the taking out of tazias in procession was a necessity, and whether under the Shia religion the reduction of the height of a tazia was not permissible. He found that the evidence was insufficient to establish the alleged custom, and founding himself on authoritative evidence produced by the respondents themselves he answered both the questions mentioned above in the negative. Finding, therefore, that the custom on which the respondents based their case was not proved, he dismissed the suit. On appeal Iqbal Ahmad J., as he then was, considered that the case did not depend on custom, though apparently he was of opinion that the alleged custom was proved. But founding himself on a decision of the Board in Manzur Hasan v. Muhammad Zaman (( 1924) L. R. 52 I. A. 61.), that in India there was a right to conduct a religious procession " with its appropriate " observances" through the public streets, and, being of opinion that to carry tazias of the height claimed was an appropriate observance, he came to the conclusion that the respondents had established their right. It remained, however, to consider the defence that the acts complained of had been done under statutory authority, a defence which seemed to have been seriously argued for the first time on appeal. The learned judge was of opinion that s. 19 of the Indian Electricity Act applied to the respondents case " (1.) A licensee shall, " in exercise of any of the powers conferred by or under this " Act, cause as little damage, detriment and inconvenience as " may be, and shall make full compensation for any damage, " detriment or inconvenience caused by him or by any one “employed by him.” The effect of that section, he held, was to make the exercise of the powers of the company conditional on their not interfering with the rights of others ; and as the respondents had the right to carry tazias of the height claimed, they were entitled to the declaration and injunction asked for, subject to the rights of the magistrate to give orders under s. 144 of the Code of Criminal Procedure. Bajpai J. in substance agreed. 1943. Nov. 8, 9. Sir Thomas Strangman K.C. and W. W. K. Page for appellants Nos. 1 and 2. The question is whether the Shias of Amroha, represented by the respondents, are entitled to a declaration that subject to certain qualifications, they have a right to take out in procession tazias up to twenty-seven feet in height (the shoulder height of the bearers included) on the tenth day of the month of Moharram, and to a mandatory injunction ordering these appellants so to dispose the energised wires as not to cause any interference with, or obstruction to, tazias of such height. Tazias vary in height from time to time, there being no fixed height. There does not appear to be any case in India where the height of any emblem which might be carried has been in question. In Manzur Hasan v. Muhammad Zaman (( 1924) L. R. 52 I. A. 61.) the expression " appropriate observances " was not used with reference to height, but in regard to wailing outside a Sunni mosque. Here a limit has been put to the height of the street with the sanction of the government and under statutory authority, and that really concludes the matter. Wandsworth Board of Works v. United Telephone Co. Here a limit has been put to the height of the street with the sanction of the government and under statutory authority, and that really concludes the matter. Wandsworth Board of Works v. United Telephone Co. (( 1884) 13 Q. B. D. 904, 913.) deals with what is included in " street," and is the nearest case. [Reference was also made to Man Singh v. Arjun Lal (( 1937) L. R. 64 I. A. 354,359.) ; Finchley Electric Light Co. v. Finchley Urban Council ([ 1903] 1 Ch. 437.) ; and Sadagopa Chariar v. Rama Rao (( 1907) L. R. 34 I. A. 93,100.).] The rights of the respondents and the Shia community of Amroha to conduct processions along the public streets are merely their rights as members of the public to use such streets. The second appellant, in erecting the electric wires at a height of twenty feet above the public streets did so in the lawful exercise of its rights and obligations under the Electricity Act, and did not prevent or obstruct an adequate or proper conduct of such procession or infringe the rights of the respondents, or interfere with the proper user of the streets as public streets or give rise to any cause of action on the part of the respondents. The right of the respondents to take out the religious procession does not constitute a right to the exclusive user for such purpose of the public streets. J. M. Pringle for the Secretary of State for India (appellant in the second appeal). My main submission is that in litigation of this kind the Secretary of State is not a proper party at all. Under the Electricity Act the local government is given certain duties to perform and has certain rights, and they have done everything that the statute enjoined them to do, but under no principle of law can the Secretary of State become liable in a suit. The respondents have no cause of action against him, and he should not have been made liable for costs in the courts below. The Secretary of State in discharge of his sovereign duty is not responsible for any torts ; that has been regarded as good law since 1861. There has not been a decision on the point by the Board, but it has been laid down clearly by authoritative decisions in India P. & 0. The Secretary of State in discharge of his sovereign duty is not responsible for any torts ; that has been regarded as good law since 1861. There has not been a decision on the point by the Board, but it has been laid down clearly by authoritative decisions in India P. & 0. S. N. Co. v. Secretary of State for India (( 1861) 5 B. H. C. R. Appdx. 1.). There was no cause of action against the Secretary of State under the general principle, and no cause of action against his servants by reason of s. 56 of the Electricity Act. [Reference was also made to Secretary of State for India v. Shreegobinda Chaudhuri (( 1932) I. L. R. 59 C. 1289, 1299.).] The respondents did not appear. Dec. 13. The judgment of their Lordships was delivered by Lord Atkin, who stated the facts and continued Their Lordships have not had the advantage of hearing counsel for the respondents, but they have been able to consider the careful judgments in the respondents favour given in the High Court. Their Lordships are unable to accept the reasons given by the learned judges. They agree that it is unnecessary to consider the question of custom. The respondents have the right as members of the public to take part in religious processions in the streets, subject, of course, to the rights of other members of the public to pass and repass along the same streets, and subject to the powers of the appropriate authorities of controlling traffic and preventing disturbance. This right as a normal user of the highway does not originate in custom. Whether a highway could be dedicated subject to such a custom need not be considered ; it is not alleged in the present case, and it is difficult to see how such a situation could arise. The rights of the respondents, therefore, are no more and no less than the rights of any member of the public, and, subject to questions of danger or disorder, there seems no reason why a member of the public should not convey along an open street as part of a normal use of the street articles of any height. But as the respondents rights are those of the public, so where public rights may lawfully be abridged, so may the respondents. But as the respondents rights are those of the public, so where public rights may lawfully be abridged, so may the respondents. It is unnecessary in this case to discuss the effect of the United Provinces Municipal Act, 1916, which by s. 116 (g) vests the streets in the Municipal Board. For in the present case the company derive their rights to place the wires at a height of twenty feet under the statutory authority of the Electricity Act; and clearly, therefore, are given the power to abridge the public right to carry through the streets objects of a greater height. The respondents therefore have had their rights modified in favour of other rights which the authorities acting under the authority of the statute have considered to be to the greater advantage of the public. In their Lordships judgment s. 19 of the Electricity Act has no bearing on the respondents claim. That section requires the licensee to exercise the powers given to him (in this case the power to place wires twenty feet above the street] causing as little damage as may be it would give no right to have the lawful exercise of the power restrained even if it necessarily caused inconvenience the remaining part of the section appears to be an ordinary provision for compensation for injurious affection. But in no case has it any reference to compensation for damage, detriment or inconvenience to public rights such as the respondents. If any such claim could be made, it would have to conform to the provisions of s. 91 of the Code of Civil Procedure and be made with the consent of the Advocate-General. In the present case, for the reasons given, no such claim could be made. Their Lordships in leaving the case wish to emphasize that no question arises of ignoring or depreciating the respect due to the well established religious beliefs and observances of the respondents. Like any other religious or secular body, or any other member of the public, their rights over the streets are subject to the present law which may abridge them. In the particular case their objections were obviously carefully considered and were overruled. The legal rights which flow from the decision of the authorities to grant the licence in question are indisputable. In the particular case their objections were obviously carefully considered and were overruled. The legal rights which flow from the decision of the authorities to grant the licence in question are indisputable. For the reasons given their Lordships will humbly advise His Majesty that the appeal be allowed and the decree of the learned Munsif restored. The respondents must pay the separate costs of the appellants in both appeals before the Board and in the High Court.