ORAL JUDGMENT: K. J. ROHEE, J. 1. Heard. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. By this petition under Article 226 of the Constitution of India, the petitioner which is a society registered under the provisions of the Maharashtra Co-operative Societies Act as well as the Bombay Public Trusts Act, seeks quashing of the communication dated 3.9.2008 by respondent no.2 (Police Inspector, P.S. Khamgaon City) refusing permission to use horses to the chariot to carry the idol of Lord Ganesha by procession. The petitioner further seeks direction to respondents to allow the petitioner to use horses for pulling the chariot to take the idol of Lord Ganesha for immersion by procession. 4. It is not disputed that the petitioner has been celebrating Ganesh Festival and has been installing the idol of Lord Ganesh for the last more than 50 years. It is also not disputed that for Ganesh Festival of 2008 the petitioner obtained necessary permissions from the Deputy Charity Commissioner, Buldhana; Municipal Council, Khamgaon and PSO Khamgaon City Police Station and Shivaji Nagar Police Station. It is also not controverted that the petitioner prepared idol of Lord Ganeshs in gold and silver and is worth more than Rs.20 lacs which is a permanent idol. Another symbolic idol of Lord Ganesha is used during Ganesh Festival. 5. For Ganesh Festival of 2008, the petitioner got a chariot prepared at Ujjain costing Rs.1,85,000/- which admeasures 15 ft. in height and 12 ft. in length. The said chariot can be carried by four horses at the same time. The petitioner obtained four horses from Burhanpur by spending Rs.2,00,000/- for carrying the chariot. 6. On 3.9.2008 the procession of the idol of Lord Ganesha commenced. The chariot and the four horses were used for carrying the idol. During the course of procession, the Police Authorities initially communicated the petitioner to use only one horse and subsequently prohibited the petitioner from using any horse for carrying the chariot. A written communication (Annexure P-7) dated 3.9.2008 at page 29 was given to the petitioner to the effect that permission cannot be granted for using horse and hence horse should not be used in the procession. The petitioner has challenged the said communication. 7. The respondents have not filed any reply controverting the pleadings in the petition. 8. We have heard Mr. A.S. Mardikar, Advocate for the petitioner and Mr. The petitioner has challenged the said communication. 7. The respondents have not filed any reply controverting the pleadings in the petition. 8. We have heard Mr. A.S. Mardikar, Advocate for the petitioner and Mr. S.S. Doifode, APP for the respondents. Mr. Mardikar firstly stressed the right of the people to take out a procession. In order to highlight his point he cited the following cases:- i) In Parthasaradi .vs. Chinnakrishna, (1882) ILR 5 Mad 304 it was held that :- “persons were 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 as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace.. 5 ii) In Sadagopachariar .vs. A Rama Rao, (1903) ILR 26 Mad 376 it was held:- .the right to conduct religious processions through the public streets is a right inherent in every person, provided he does not , thereby, invade the rights of property enjoyed by others, or cause a public nuisance or interfere with the ordinary use of the streets by the public, and subject to directions or prohibitions for the prevention of obstructions to thoroughfares or breaches of the peace.. iii) In Vijiaraghava Chariar .v. Emperor, (1903) ILR 26 Mad 554 it was observed as under:- .The practice of using the public highways for religious processions has existed in India for thousands of years. History, literature and tradition all tell us that religious processions to the village shrines formed a feature of the national life from the very earliest times. That alone is sufficient to raise a presumption that it is lawful and to throw on those who allege it to be unlawful the onus of showing that it is forbidden by law, but this it admittedly is not. The law recognizes the use of highway by processions as lawful, and gives the Magistrate and superior officers of police power to direct the conduct of assemblies and processions through the public streets and to regulate the use of music in connection with them, and to prevent obstructions on the occasion of such assemblies and processions. ....... The law recognizes the use of highway by processions as lawful, and gives the Magistrate and superior officers of police power to direct the conduct of assemblies and processions through the public streets and to regulate the use of music in connection with them, and to prevent obstructions on the occasion of such assemblies and processions. ....... The law recognises religious processions as lawful just as much as it recognises other processions.......It is more reasonable to suppose that he would dedicate the highway to the purposes for which, in accordance with the custom of the country, it would be required by the people. The penal law of India extends a special protection against voluntary disturbance to all assemblies lawfully engaged in religious worship. A procession is but an assembly in motion and if it is a religious procession, it is, in my judgment, entitled to the special protection given by the Penal Code to assemblies lawfully engaged in religious worship.. iv) In Manzur Hassan .vs. Muhammed Zaman, - (AIR 1925 PC 36) by upholding the above judgments, the Privy Council held as under:- In India, there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the magistrates. A civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observance. 9. After discussing the above case law in Himmat Lal vs. Police Commissioner , Ahmedabad- AIR 1973 Supreme Court 87, it was observed in para 34 as under:- “If the right to hold public meetings flows from Art.19(1)(b) and Art. 19 (1)(d) it is obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that Art. 19 (1)(b), read with Art. 13, protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property. 10. In Himmat Lal's case the Apex Court struck down Rule 7 framed by the Commissioner of Police, Ahmedabad as it conferred arbitrary powers on the officer authorized by the Commissioner of Police. 11. It was submitted by Mr. Mardikar that the power to regulate is different from the power to prohibit. 10. In Himmat Lal's case the Apex Court struck down Rule 7 framed by the Commissioner of Police, Ahmedabad as it conferred arbitrary powers on the officer authorized by the Commissioner of Police. 11. It was submitted by Mr. Mardikar that the power to regulate is different from the power to prohibit. According to him Sections 33 and 36 of the Bombay Police Act, 1951 give power only to regulate and not to prohibit or to ban. 12. Mr. Mardikar submitted that under Section 33 of the Bombay Police Act, 1951, the Police Authorities have only the power of regulating traffic of all kinds in streets and public places and they do not have the power to prohibit user of the streets and public places. In this respect the learned counsel for the petitioner invited our attention to Section 33 (1) (b) and 33 (1)(f) of the Bombay Police Act, 1951 the relevant portion of which is as under:- 33. ........the Commissioner, the District Magistrate and the Superintendent of Police in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for-- (b) regulating traffic of all kinds in streets and public places, and the use of street 9 and public places by person riding, driving, cycling, walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconvenience to the public; (f) regulating the leading, driving, conducting or conveying of any elephant or wild or dangers animal through or in any street.. 13. Section 36 of the said Act also empowers the Commissioner and the Superintendent to give all such order either orally or in writing as may be necessary to :- (b) prescribe the routes by which and the time at which any such processions may or may not pass.. 14. On the basis of the above provisions, Mr. Mardikar urged that the Police have powers to regulate the procession so as to prevent danger, obstruction or inconvenience to public. However, the communication does not show as to how using of the horses for carrying the chariot would cause danger, obstruction or inconvenience to the public. Mr. Mardikar further submitted that in sub-clause (f) of section (1) of Section 33, any elephant or wild or dangerous animal is specifically mentioned and the domestic animals like horses are conspicuously missing. However, the communication does not show as to how using of the horses for carrying the chariot would cause danger, obstruction or inconvenience to the public. Mr. Mardikar further submitted that in sub-clause (f) of section (1) of Section 33, any elephant or wild or dangerous animal is specifically mentioned and the domestic animals like horses are conspicuously missing. This clearly shows the intention of the Legislature not to compare horse with elephant or wild or dangerous animal so far as their user on street is concerned. Mr. Mardikar submitted that the impugned communication is in the nature of non-speaking order. It does not give any reason as to why permission to use horses in the procession to carry chariot cannot be granted and it simply prohibits user to horse in the procession which is not permissible either under Section 33 or 36 of the Bombay Police Act. 15. As against this it is vehemently urged by the learned APP Mr. S.S. Doifode that in the application for permission to take out precession, the petitioner simply mentioned in column no. (10) that a chariot would be used in the procession. However, it did not mention that chariot would be pulled by horses and that is why the petitioner is not entitled to use horses for chariot which was never prayed for by it. It was tried to be urged by the learned APP that during immersion procession of Lord Ganesha at Khamgaon, a huge crowd is assembled every year. There had been communal riots at Khamgaon during such procession and that is why the risk of permitting user of horses cannot be taken. It was submitted that all these grounds the permission to use horses was refused. It was also urged that this was a reasonable restriction on the right to take out procession and that there was no arbitrariness in the impugned communication. 16. Mr. Mardikar pointed out that the impugned communication does not contain any ground whatsoever for refusing permission to use horses. He submitted that the respondents cannot be permitted to raise any ground which is not there in the impugned communication in order to justify the communication. In this respect reliance was placed on Mohinder Singh .vs. Chief Election Commissioner . Mr. Mardikar pointed out that the impugned communication does not contain any ground whatsoever for refusing permission to use horses. He submitted that the respondents cannot be permitted to raise any ground which is not there in the impugned communication in order to justify the communication. In this respect reliance was placed on Mohinder Singh .vs. Chief Election Commissioner . AIR 1978 Supreme Court 851 (A) wherein it is held as under:- When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.. 17. So far as the communication in question is concerned, it does not disclose any ground on which permission has been refused to use horse. As such in our view fresh reasons or grounds cannot be considered to save impugned communication as not arbitrary or illegal. 18. In our opinion when the petitioner sought permission to use chariot, the provisions of Section 33 and 36 of the Act did not impose any obligation upon the petitioner to mention user of a domestic animal like horse in the procession for drawing the chariot. Secondly when the petitioner made the said application in procedural fairness, Police Authorities could have called upon the petitioner to state as to how chariot would be drawn. Nothing of this sort seems to have been done by the Police Authorities. Now they cannot take the advantage of nonmentioning of horses in the application for permission to take out the procession so as to ban the user of horses in the procession. We find that the impugned communication dated 13 3.9.2008 (Annexure P-7) by respondent no.2 is arbitrary, illegal and unreasonable. It violates the fundamental rights of the petitioner under Article 19 (1) (b) of the Constitution of India. As such the said communication cannot be sustained and needs to be quashed. We, therefore, pass the following order:- (i) The petition is allowed. The communication dated 3.9.2008 (Annexure -P-7) by respondent no.2 refusing permission to carry the idol of Lord Ganesha in procession by chariot by using horses is hereby quashed and set aside as arbitrary and illegal. As such the said communication cannot be sustained and needs to be quashed. We, therefore, pass the following order:- (i) The petition is allowed. The communication dated 3.9.2008 (Annexure -P-7) by respondent no.2 refusing permission to carry the idol of Lord Ganesha in procession by chariot by using horses is hereby quashed and set aside as arbitrary and illegal. (ii) The respondents are directed to allow the petitioner to take out procession by carrying the idol of Lord Ganesha for immersion by chariot to be pulled by four horses. (iii) Rule is made absolute in the above terms. (iv) Ordinary copy of this order be supplied to the parties to act upon