Full Judgment Text
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PETITIONER:
MAHANT MOTI DAS
Vs.
RESPONDENT:
S. P. SAHI, THE SPECIAL OFFICER IN CHARGEOF HINDU RELIGIOUS
DATE OF JUDGMENT:
15/04/1959
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
DAS, SUDHI RANJAN (CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1959 AIR 942 1959 SCR Supl. (2) 503
CITATOR INFO :
R 1959 SC 951 (4)
R 1959 SC1002 (6)
F 1959 SC1073 (9,14)
R 1960 SC 554 (8,9)
E 1980 SC 161 (12)
RF 1991 SC 672 (33)
ACT:
Hindu Religious Trusts-Constitutional validity of Bihar
Hindu Religious Trusts Act-Difference between Hindus, Jain
and Sikh religious trusts-Legislative classification-
Restrictions imposed on trustees-Validity-Whether Act
interferes with Practice of religion-Levy of a fee for the
expenses of administration of Act Legality-Bihar Hindu
Religious Trusts Act, 1950 (Bihar 1 of 1951), SS. 2, 5, 6,
7, 8, 28, 29, 32, 55(2), 60, 70-ConstitutiOn of India, Arts.
14, 19(1)(f), 19(5), 25, 26, 27.
HEADNOTE:
The appellants as the Mahants of the respective maths or
asthals were served with notices under s. 59 of the Bihar
Hindu Religious Trusts Act, 195o, by the President, Bihar
State Board of Religious Trusts, asking them to furnish
statements and accounts of the properties in their
possession. They challenged the constitutional validity of
the Act by proceedings taken in the High Court on the
grounds (1) that ss. 2, 5, 6, 7 and 8 of the Act infringe
Art. 14 Of the Constitution, inasmuch as there was
inequality of treatment as between Hindu religious trusts on
one hand and Sikh religious trusts on the other, the latter
having been excluded from the purview of the Act, and that
there was inequality of treatment even as between Hindu
religious trusts and Jain religious trusts, though both came
under the Act; (2) that the provisions of ch. V of the Act
and in particular ss. 28 and 32 violate Art. 19(1)(f) of the
Constitution, as under those provisions the mahant or
Shebait practically loses his right of management and is
reduced to the position of a mere servant of the Board; (3)
that the provisions of the Act contravene Arts. 25 and 26 of
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the Constitution, as the power to alter or modify the budget
relating to a religious trust or the power to give
directions to a trustee may be exercised by the Board in
such a way as to affect the due observance of religious
practices in the math or temple; (4) that s. 70 imposes an
unauthorised tax, and (5) that s. 55(2) contravenes Art.
I33 of the Constitution.
Held, (1) that in view of the fact that in the matter of
religious trusts in the State of Bihar, there are
differences between Sikhs, Hindus and jains and that the
needs of jains and Hindus are not the same in the matter of
the administration of
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their respective religious trusts, it is open to the Bihar
Legislature to exclude Sikhs who might have been in no need
of protection and to distinguish between Hindus and jains.
Accordingly, SS. 2, 5, 6, 7, and 8 of the Act do not
infringe Art. 14 Of the Constitution.
It is well settled that while Art. 14 forbids class
legislation, it does not forbid reasonable classification
for the purposes of legislation, and in order to pass the
test of permissible classification, two conditions must be
fulfilled, namely, (1) that the classification must be
founded on an intelligible differentia which distinguished
persons or things that are grouped together from others left
out of the group and (2) that that differentia must have a
rational relation to the object sought to be achieved by the
statute in question.
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tcndollkar,
[1959] S.C.R. 279, relied on.
(2) that having regard to the position of a trustee in
respect of the trust property which he holds and the object
or purpose of the Act, the restrictions imposed in Ch. V of
the Act are really for the purpose of carrying out the
objects of the trust and for the better administration,
protection and preservation of the trust properties, and are
reasonable restrictions in the interests of the general
public within the meaning Of cl. (5) Of Art. 19 of the
Constitution.
(3) that the Act does not contravene Arts. 25 and 26 of the
Constitution, as the provisions of the Act relating to the
power of the Board to alter the budget and to give
directions to the trustee are subject to restrictions,
namely, that they must be for the proper administration of
the religious trust ; and, further, none of the provisions
interfere with " matters of religion " including practices
which a religious denomination regards as part of its
religion.
(4) that S. 70 Of the Act is a valid provision as it only
provides for the levy of a fee for the purpose of defraying
the expenses incurred or to be incurred in the
administration of the Act and is not a tax.
Mahant Sri jagannath Ramanuj Das v. The State of Orissa,
[1954] S.C.R. 1046, followed.
(5) that S. 55(2) Of the Act does not contravene Art. I33
Of the Constitution as it does not override or is not
intended to override Art. 133 or any other Article of the
Constitution relating to appeals to the Supreme Court.
JUDGMENT:
Civil, APPELLATE JURISDICTION: Civil Appeals Nos. 225, 226,
228, 229 and 248 of 1955.
Appeals from the judgments and orders dated October 5, 1953,
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in Misc. Judicial Cases Nos. 418/52 and 124/53 and October
8, 1953., in T. S. No. 106/53,
565
Misc. Judicial Cases Nos. 188/53 and 235/53 of the Patna
High Court.
R. Patnaik, for the appellant (in C. A. No. 225/55).
R. C.Prasad, for the appellants (in C. As. Nos. 226, 228,
229 & 248/55).
Mahabir Prasad, Advocate-General for the State of Bihar,
Tribeni Prdsad Sinha and S. P. Varma, for the respondents
(in C. As. Nos. 225, 226, 228 & 229/55).
Mahabir Prasad, Advocate-General for the State of Bihar and
S. P. Varma, for the respondent (in C. A. No. 248/55).
1959. April 15. The Judgment of the Court was delivered
by’
S. K. DAS, J.-This is a batch of five appeals which have
been heard together and the principal question for decision
in these appeals is the constitutional validity of the Bihar
Hindu Religious Trusts Act,, 1950 (Bihar I of 1951),
hereinafter referred to as the Act. Four of these appeals
arise out of writ proceedings taken in the High Court of
Patna on petitions made under Arts. 226 and 227 of the
Constitution. One of them, namely, Civil Appeal No. 228 of
1955, arises out of a suit which was originally instituted
in the Court of the Subordinate Judge of Patna but was later
transferred to the High Court by an order made by it tinder
Art. 228 of the Constitution. The Petitioners in the writ
petitions and the plaintiffs in the suit challenged the
constitutional validity of the Act on certain grounds to
which we shall presently refer. The petitions and the suit
were contested by the State of Bihar and/or the President,
Bihar State Board of Religious ,trusts, who are now
respondents before us.
The High Court in three separate judgments, two dated
October 5, 1953, and the third dated October 8, 1953, held
that the Act was a valid piece of legislation and on that
main finding dismissed the writ petitions and the suit. The
petitioners and the plaintiff-,, appellants before us,
applied for and obtained certificates from the High Court
under Art. 132 of the Constitution to the effect that the
cases involved substantial ques-
566
tions of law as to the interpretation of the Constitution
and the appeals have been brought to this Court in pursuance
of those certificates.
The facts lie within a very narrow compass. In Civil Appeal
No. 225 of 1955 the appellant is Mahant Moti Das, and he
alleged that he was the Mahant of a math or astral situate
in village Parbatta, district Monghyr, in Bihar, that he was
a follower of the religion founded by Sri Kabir Sahib, that
the properties of the asthal were treated as private
properties of the mahants and that the President of the
Bihar State Board of Religious Trusts constituted under the
Act had no authority to serve him with a notice under s. 59
of the Act, inasmuch as the Act was ultra vires and
unconstitutional and, in any event, did not apply to his
math or asthal. In Civil Appeal No. 226 of 1955 the
appellant Mahant Ram Das similarly alleged that he was the
mahant of a math or asthal situate in village Bhuthari in
the same district of Monghyr, that he was a "bairagi sadhu "
and follower of Ramanandi Laskari Sri Vaishnava Sampradaya,
that he was the absolute owner of the properties belonging
to the math and that the President, Bihar State Board of
Religious Trusts, had no authority to issue a notice to him
asking him to furnish statements and accounts of the
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properties in his possession. In Civil Appeal No. 228 of
1955 the appellants made similar allegations in their plaint
and challenged the " vires " of the Act, mentioning as their
cause of action the date on which the assent of the
President of India to the Act was first published in the
Bihar Gazette. In Civil Appeal No. 229 of 1955 the
appellant Mahant Mahabir Das stated that he was the Mahant
of a asthal known as Bisanpur Asthal situate in the self-
same district. He also received a notice from the
President, Bihar State Board of Religious Trusts, to furnish
statements and accounts, and he challenged the vires of the
Act on similar grounds. In Civil Appeal No. 248 of 1955
Mahant Ram Krishna Das alleged that the temple in question,
known as Bhikam as Thakurbari in the town of Patba, was
constructed by one Benidasji with his own money and he
installed certain deities therein.
567
The allegation was that the temple and the properties
thereof did not constitute a ’ religious trust ’ within the
meaning of that expression in the Act and further that the
Act was ultra vires the Constitution inasmuch as it
infringed some of his fundamental rights. The defence in
all these cases was that the Act was valid, and applied to
the asthals or temple in question and the properties
thereof.
The principal argument presented before us on behalf of the
appellants is that the Act is bad on the ground that its
several provisions infringe the appellants’ fundamental
rights guaranteed under (a) Art. 14; (b) Art. 19 (1)(f); and
(e) Arts. 25, 26 and 27 of the Constitution. The Act has
also been impugned on the ground that it imposes an
Unauthorised tax and also contravenes Art. 133 of the
Constitution.
At this stage, it is necessary to advert to the object or
purpose of the Act and set out the relevant provisions
thereof The Act was passed by the Bihar Legislature and
received the assent of the President,, which assent was
published in the Bihar Gazette on February 21, 1951. The
long title of the Act and the preamble give the object of
the Act. The long title says that it is an "Act to provide
for the better administration of Hindu Religious Trusts and
for the protection and preservation of properties
appertaining to such trusts." The preamble repeats the same
object or purpose, and makes it further clear that the Act
is meant to provide for the better administration of Hindu
Religious Trusts in the State of Bihar. Section I gives the
short title, and provides for extent and commencement, the
Act having come into force on August 15, 1951. Section 2 is
the definition section, and the word ’Hindu’ in the Act
means a person professing any religion of Hindu origin and
includes a Jain and a Buddhist, but does not include a Sikh.
The expressions " religious trust " and " trust property "
are defined in the following way :-
"Section 2 (1). I religious trust’ means any express or
constructive trust created or existing for any purpose
recognised by Hindu Law to be religious, pious or
charitable, but shall not include a trust created
568
according to the Sikh religion or purely for the benefit of
the Sikh community and a private endowment created for the
worship of a family idol in which the public are not
interested ;
(p) I trust property’ means the property appertaining to a
religious trust
Section 3 states:
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" This Act shall apply to all religious trusts, whether
created before or after the commencement of this Act, any
part of the property of which is situated in the State of
Bihar. "
Section 4 was amended by Bihar Act 16 of 1954, and it
provides for necessary amendment or repeal, as the case may
be, of certain earlier Acts dealing with public religious
trusts and charitable endowments, such as, the Religious
Endowments Act, 1863 (20 of 1863), the Charitable Endowments
Act, 1890 (6 of 1890) and the Charitable and Religious
Trusts Act, 1920 (14 of 1920). Sub-section (5) of s. 4 has
an important bearing on one of the questions before us and
must be quoted in full :
"Section 4 (5). The Religious Endowments Act, 1863, and
section 92 of the Code of Civil Procedure, 1908, shall not
apply to any religious trust in this State, as defined in
this Act."
Chapter II of the Act deals with the constitution of the
Board. Section 5 provides for the constitution of the Bihar
State Board of Religious Trusts. Section 5(3) states that
the Board shall be a body corporate and shall have perpetual
succession and a common seal with power to acquire and hold
property, both moveable and immovable. Section 7 makes
provision for the appointment of the President and the
members of the first Board and their terms of office.
Section 8 contains the terms of the constitution of the
second and every subsequent Board. Chapter IV refers to the
appointment and qualification of the Superintendent of the
religious trusts. The chapter further provides for the
appointment of officers and servants for the Board. Chapter
V relates to the power and duties of the Board. Section 28
(1) provides that the general superintendence of all
religious trusts in the State shall be vested in the
569
Board and the Board shall do all things reasonable and
necessary to ensure that such trusts are properly supervised
and administered and that the income’ thereof is duly
appropriated and applied to the objects of such trusts and
in accordance with the purposes for which such trusts were
founded and for which they exist. Section 28 (2) enumerates
in great detail the powers and duties of the Board in regard
to certain matters. Section 28(2)(e), for example, states
that the duty of the Board shall be to cause inspection to
be made of the property and the office of any religious
trust including accounts and to authorise the Superintendent
or any of its members, officers or servants for that
purpose. Section 28(2)(g) empowers the Board to give
directions for the proper administration of a religious
trust in accordance with the law governing such trust and
the wishes of the founder in so far as such wishes can be
ascertained. Section 32 empowers the Board to settle a
scheme for the proper administration of religious trusts.
Chapter VI refers to the establishment of regional trusts
committees and the powers and duties imposed on such
committees. Chapter VIII refers to transfer of immovable
properties and borrowing of money by trustees. Section 44
of this chapter states that no transfer made by a trustee,
of any immovable property of a religious trust by way of
sale, mortgage, or lease for a term exceeding three years
shall be valid unless made with the previous sanction of the
Board. Section 45 prohibits a trustee from borrowing money
for the purpose of any religious trust without the previous
sanction of the Board. Chapter X relates to trustees and
their duties. Section 59 of this chapter imposes a duty on
the trustee to furnish particulars of the religious trust.
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Section 60 relates to the budget of religious trusts and
submission of such budgets to the Board and the Board may
alter or modify the budget in such manner and to such extent
as it thinks fit. Chapter Xi relates to audit of accounts
and recovery of irregular expenses from the trustees in
default. Chapter XIII provides for the creation of a trust
fund which is to be vested in the 72
570
Board. Section 70 states that for the purpose of defraying
the expenses incurred in the administration of the Act the
trustee of every religious trust shall pay to the Board such
fee, not exceeding five per centum of its net income as the
Board may from time to time with the previous sanction of
the State Government determine. Chapter XVI provides for
the dissolution or supersession of the Board. Section 80
states that if in the opinion of the State Government the
Board makes default in the performance of the duties imposed
on it or exceeds or abuses its powers, the State Government
may declare the Board to be in default and direct that the
Board shall be superseded. Section 81 provides that where
an order of supersession has been passed, all the members of
the Board shall vacate their offices as such members and all
the powers and duties to be performed by the Board shall be
performed by such person as the State Government may direct.
Section 81 empowers the State Government to make rules and
s. 83 empowers the Board to make bye-laws not inconsistent
with the Act and the rules made thereunder.
We proceed now to consider the contentions urged on behalf
of the appellants. The first contention is that the
provisions in ss. 2, 5, 6, 7 and 8 infringe Art. 14 of the
Constitution. It is pointed out that the definition of the
word ’ Hindu’ in s. 2 does riot include Sikhs; and s. 5
constitutes a Board for religious trusts other than Jain
religious trusts, and also two separate Boards-one for
Swetambar Jain religious trusts and the other for Digambar
Jain religious trusts. It is further pointed out that under
ss. 6, 7 and 8 the constitution of the Board for religious
trusts other than Jain religious trusts differs in material
particulars from the constitution of the two Boards for Jain
religious trusts. The submission is that there is
inequality of treatment as between Hindu religious trusts on
one hand and Sikh religious trusts on the other, the latter
having been excluded from the purview of the Act; secondly,
there is inequality of treatment even as between Hindu
religious trusts and Jain religious trusts, though both come
under the Act. We do not
571
think that there is any substance in this contention. The
provisions of Art. 14 of the Constitution had come up for
discussion before this Court in a number of earlier cases
(see the cases referred to in Shri Ram Krishna Dalmia v.
Shri Justice S. R. Tendolkar (1)). It is, therefore,
unnecessary to enter upon any lengthy discussion as to the
meaning, scope and effect of the Article. It is enough to
say that it is now well settled by a series of decisions of
this Court that while Art. 14 forbids class legislation, it
does not forbid reasonable classification for the purposes
of legislation, and in order to pass the test of permissible
classification, two conditions must be fulfilled, namely,
(1) that the classification must be founded on an
intelligible differential which distinguishes persons or
things that are grouped together from others left out of the
group and (2) that differentia must have a rational relation
to the object sought to be achieved by the statute in
question. The classification may be founded on different
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bases such as, geographical, or according to objects or
occupations and the like. The decisions of this Court
further establish that there is a presumption in favour of
the constitutionality of an enactment and the burden is upon
him who attacks it to show that there has been a clear
transgression of the constitutional guarantee ; that it must
be presumed that the legislature understands and correctly
appreciates the needs of its own people and that its laws
are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds; and
further that the legislature is free to recognise degrees of
harm and may confine its restrictions to those cases where
the need is deemed to be the clearest. It is not disputed
before us, and this has been pointed out by the High Court,
that there are some differences between Hindus, Sikhs and
Jains in some of the essential details of the faith which
they profess and the religious practices they observe; the
Sikhs have no caste or priests, though they have grantis who
officiate at marriages and other ceremonies; they do not
believe in the Vedas, Puranas or Shastras, at least not in
the same
(1) [1959] S.C.R. 279.
372
way as the Hindus believe in them. The Jains also do not
recognise the divine authority of the Vedas and do not
practise sradhs or ceremonies of the dead, nor do they
recognise the spiritual authority of the Brahmins (Maine’s
Hindu Law, 11th Edition, p. 82). It has been further
pointed out that there are also organizational differences
in the matter of religious trusts between Hindus, Sikhs and
Jains. There are not many Sikh religious trusts in Bihar,
and their organization is essentially different. Jains
consist of two main branches-Swetambar Jains and Digambar
Jains-and each branch has a separate central organisation.
Section 8 of the Act recognises these differences; for
example, there is an assembly’ of Swetambar Jains known as
Shree Sangh and under s. 8(2)(c) of, the Act the Shree Sangh
is entitled to elect five per-. sons to the Board of
Swetambar Jain Religious Trust. Similarly, Digambar Jains
also have an assembly known as the Digambar Samaj and under
s. 8(3)(c) of the Act this assembly is entitled to elect
five persons to the Board for Digambar Jain Religious Trust.
In view of these differences it cannot be said that in the
matter of religious trusts in the State of Bihar, Sikhs,
Hindus and Jains are situated alike or that the needs of the
Jains and Hindus are the same in the matter of the
administration of their respective religious trusts;
therefore, according to the well established principles laid
down by this court with regard to legislative
classification, it was open to the Bihar Legislature to
exclude Sikhs who might have been in no need of protection
and to distinguish between Hindus and Jains. Therefore, the
contention urged on behalf of the appellants that the
several provisions of the Act contravene Art. 14 is devoid
of any merit.
The next contention urged on behalf of the appellants is
that the provisions in Chapter V, and in particular ss. 28
and 32, violate the fundamental right guaranteed to the
appellants under Art. 19(1)(f) of the Constitution, namely,
their right to acquire, hold and dispose of the trust
properties. This argument before us has proceeded on the
footing that the properties which the appellants bold are
trust properties within
573
the meaning of the Act ; but we must state here that the
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appellants have also alleged that the properties are their
private properties, to which aspect of the case we shall
advert later. Chapter V of the Act, and in particular s. 28
thereof, lays down the powers and duties of the Board. To
some of these powers and duties we have already made
a reference earlier. Section 32 gives power to the Board,
of its own motion or on application made to it in that
behalf by two or more persons interested in any trust, to
settle schemes for proper administration of the religious
trust. There are other sections in the chapter which give
the Board power to enter into contracts and to borrow money,
etc., for carrying out any of the purposes of the Act or to
give effect to the provisions thereof. Under s. 58 every
trustee must carry out all directions which may from time to
time be issued to him by the Board under any of the
provisions of the Act. The powers given under s. 28 include
the power to prepare and settle the budget, to cause
inspection to be made of the property and the office of any
religious trust, to call for information, reports, returns,
etc., to give directions for the proper administration of a
religious trust in accordance with the law governing such
trusts and the wishes of the founder, to remove a trustee
from his office in certain circumstances, and to control and
administer the trust fund, etc. The argument before us is
that the position of a maharani or shebait of a Hindu
religious trust is a combination of office and proprietary
right and under the provisions of the Act the mahant or
shebait practically loses his right of management and is
reduced to the position of a mere servant of the Board;
this, it is contended, is violative of the appellants’
fundamental right under Art. 19(1)(f).
In Angurbala Mullick v. Debabrata Mullick (1) Mukherjea, J.,
delivering the majority judgment of this Court, has said
that the exact legal position of a, shebait may not be
capable of precise definition, but its implications are
fairly well established. It is now settled that the
relation of a shebait in regard to
(1) [1951] S.C.R. 1125, 1133.
574
debutter property is not that of a trustee to trust property
under the English law.
Mukherjea, J., said :
" In English law the legal estate in the trust property
vests in the trustee who holds it for the benefit of cestui
que trust. In a Hindu religious endowment on the other hand
the entire ownership of the dedicated property is
transferred to the deity or the institution itself as a
juristic person and the shebait or mahant is a mere manager.
But though a shebait is a manager and not a trustee in the
technical sense, it would not be correct to describe the
shebaitship as a mere office. The shebait has not only
duties to discharge in connection with the endowment, but he
has a beneficial interest in the debutter
property............ In almost all such endowments the
shebait has a share in the usufruct of the debutter property
which depends upon the terms of the grant or upon custom or
usage. Even where no emoluments are attached to the office
of the shebait, he enjoys some sort of right or interest in
the endowed property which partially at least has the
character of a proprietary right. Thus, in the conception
of shebaiti both the elements of office and property, of
duties and personal interest, are mixed up and blended
together ; and one of the elements cannot be detached from
the other. It is the presence of this personal or
beneficial interest in the endowed property which invests
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shebaitship with the character of proprietary rights and
attaches to it the legal incidents of property."
It is to be remembered that even before the passing of the
Act here impugned, there was statutory machinery for
enforcing the obligations and duties imposed Upon mahant or
shebait. Section 92 of the Code of Civil Procedure provided
that in the case of an alleged breach of any express or
constructive trust created for public purposes of a
charitable or religious nature or where the direction of the
court was deemed necessary for the administration of any
such trust, the Advocate-General, or two or more persons
having an interest in the trust and having obtained the
consent in writing of the Advocate-General, might institute
575
a suit to obtain a decree-(a) to remove any trustee, (b)
appointing a new trustee, (c) vesting any property in a
trustee, (d) directing accounts and enquiries, (e) declaring
what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the
trust, (f) authorising the whole or any part of the trust
property to be let, sold, mortgaged or exchanged, (g)
settling scheme and/or (h) granting such further or other
relief as the nature of the case might require. The section
therefore provided an important machinery for enforcing the
obligations and duties imposed on trustees and the
jurisdiction given to the court was of a very wide extent.
Now, the right guaranteed under Art. 19(1)(f) is subject to
cl. (5), thereof, which says inter alia that nothing in sub-
clause (f) shall prevent the State from making any law
imposing reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of
the general public. We are of the view, in agreement with
that of the High Court, that the restrictions imposed by the
Act on the power of the trustees are really intended, as the
preamble of the Act states, for the better administration of
Hindu religious trusts in the State of Bihar and for the
protection and preservation of properties appertaining to
such trusts. It is indeed true that the Act provides a
better and more speedy remedy for the enforcement of the
obligations and duties imposed on the trustees than the
lengthy and cumbrous procedure of a suit under s. 92 of the
Civil Procedure Code. The Board is vested with summary
powers in various matters, but the control is to be
exercised for the better and more efficient administration
of the trust and for the protection and preservation of the
trust properties. It is germane to refer in this connection
to sub-s. (1) of s. 28 which states that the Board shall do
all things reasonable and necessary to ensure that the
religious trusts are properly supervised and administered
and that the income thereof is duly appropriated and applied
to the objects of such trusts and in accordance with the
purposes for which such trusts were founded. Section
576
60 (2) no doubt empowers the Board to alter or modify the
budget of any religious trust in such manner and to such
extent as it thinks fit ; but sub-s. (6) of s. 60 makes it
clear that nothing contained in the section shall be deemed
to autborise the Board to alter or modify any budget in a
manner or to an extent inconsistent with the wishes of the
founder, so far-as such wishes can be ascertained, or with
the provisions of the Act. Section 28 (2) (h) gives the
Board power to remove a trustee from his office in certain
contingencies; but sub-s. (3) of s. 28 says that an order of
removal passed by the Board under el. (h) of sub-s. (2)
shall be communicated to the trustee concerned and such
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trustee may within 90 days of the communication of such
order apply to the District Judge for varying, modifying or
setting aside the order. Section 28 (2) (j) empowers the
Board to sanction the conversion of any property of a
religious trust into another property if the Board is
satisfied that such conversion is beneficial for the trust;
there is, however, an important proviso that no such
conversion shall be sanctioned unless the Board so resolves
by a majority which includes at least three-fourths of its
members and the resolution is approved by the District
Judge. Even with regard to the settling of a scheme under
s. 32 there is a safeguard under sub-s. (3) thereof, which
says that the trustee or any person interested in the trust
may within three months of the publication of the scheme
make an application to the District Judge for varying,
modifying or setting aside the scheme.
These and similar other safeguards clearly indicate Act, and
we are of the view that having regard to the position of a
trustee as respects the trust property which he holds and
the object or purpose of the Act,the restrictions imposed
are really for the purpose of carrying out the objects of
the trust and for better administration, protection and
preservation of the trust properties ; they are, therefore,
reasonable restrictions in the interests of the general
public within the meaning of el. (5) of Art. 19 of the
Constitution. In
577
this respect, the impugned provisions of the Act differ from
those provisions of the Madras Hindu Religious and
Charitable Endowments Act, 1951, and the Orissa Hindu
Religious Endowments Act, 1939, as amended by the Amending
Act 11 of 1952, which came under consideration of this Court
in The Commissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt (1) and
Mahant Shri Jagannath Ramanuj Das v. The State of Orissa
(2), and were held to be invalid on the ground that they
were not reasonable restrictions within the meaning of el.
(5) of Art. 19 of the Constitution.
The third contention of the appellants rests upon Arts. 25
and 26 of the Constitution. The appellants have invoked in
aid Art. 25 (1) which says inter alia, that subject to
public order, morality and health, all persons have the
right freely to profess, practice and propagate religion.
Article 26 is also relied on for the contention that every
religious denomination or any section thereof has a, right
(a) to establish and maintain institutions for religious and
charitable purposes and (b) to manage its own affairs in
matters of religion. It is difficult to see how any of the
provisions of the Act can be said to interfere with the
right guaranteed by Art. 25, viz., freedom of conscience and
the right freely to profess, practice and propagate
religion. Learned counsel for the appellants has not been
able to point out to us any particular provision of the Act
which interferes with such a right. On behalf of the
appellants it has been submitted that the power to alter or
modify the bud get relating to a religious trust or the
power to give directions to a trustee may be exercised by
the Board in such a way as to affect the due observance, of
religious practices in a math or temple so as to constitute
an encroachment on the right guaranteed under Art. 25, and
learned counsel for the appellants had placed reliance on
The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), for his
submission that
(I) [1954] S.C.R. 1005.
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73
(2) [1954] S.C.R. 1046.
578
freedom of religion in our Constitution is not confined to
religious beliefs only, but extends to religious practices
as well subject to the restrictions which the Constitution
itself has laid down. The answer to this submission is two-
fold : we have pointed out earlier that the power to alter
the budget is subject to cl. (6) of s. 60 of the Act and the
Board is nit authorised to alter or modify the budget in a
manner or to an extent inconsistent with the wishes of the
founder or with the provisions of the Act. The power to
give directions to the trustee is also subject to a similar
restriction, namely, the directions must be for the proper
administration of the religious trust in’ accordance with
the law governing such trust and the wishes of the founder
in so far as such wishes can be ascertained and are not
repugnant to such law. The keynote of all the relevant
provisions of the Act is the due observance of the objects
of the religious trust and not its breach or violation.
Secondly, as was observed in The Commissioner, Hindu
Religious Endowments, Madras v. Shri Lakshmindra Thirtha
Swamiar of Shri Shirur Mutt(1), at p. 1030, " an
apprehension that the powers conferred...... may be abused
in individual cases does not make the provision itself bad
or invalid in law ".
With regard to Art. 26, cls. (a) and (b), the position is
the same. There is no provision of the Act which interferes
with the right of any religious denomination or any section
thereof to establish and maintain institutions for religious
and charitable purposes; nor do the provisions of the Act
interfere with the right of any religious denomination or
any section thereof to manage its own affairs in matters of
religion. Learned counsel for the appellants has drawn our
attention to Sri Venkataramana Devaru v. The State of
Mysore, (2), where following the earlier decision in The
Commisssioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), it was
observed that matters of religion included even practices
which are ,regarded; by’-the community as part of its
religion. Our attention has also been drawn
(I) [1954] S.C.R. I005.
(2) [1958] S.C.R. 895.
579
to Ratilal Panachand Gandhi v. The State of Bombay in which
it has been held that a religious sect or denomination has
the right to manage its own affairs in matters of religion
and this includes the right to spend the trust property or
its income for religion and for religious purposes and
objects indicated by the founder of the trust or established
by usage obtaining in a particular institution. It was
further held therein that to divert the trust property or
funds for purposes which the charity commissioner or the
court considered expedient or proper, although the original
objects of the founder could still be carried out, was an
unwarranted encroachment on the freedom of religious insti-
tutions in regard to the management of their religious
affairs. We do not think that the aforesaid decisions
afford any assistance to the appellants. Granting that
matters of religion’ include practices which a religious
denomination regards as part of its religion, none of the
provisions of the Act interfere with such practices; nor do
the provisions of the Act seek to divert the trust property
or funds for purposes other than those indicated by the
founder of the trust or those established by usage obtaining
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in a particular institution. On the contrary, the
provisions of the Act seek to implement the purposes for
which the trust was created and prevent mismanagement and
waste by the trustee. In other words, the Act by its
several provisions seeks to fulfill rather than defeat the
trust. In our opinion, there is no substance in the
argument that the provisions of the Act contravene Arts. 25
and 26 of the Constitution.
Lastly, the appellants have challenged the validity of s. 70
of the Act,the relevant portion of which states:
expenses incurred or to be incurred in the administration of
this Act, the trustee of every religious trust shall, in
each financial year, pay to the Board such fee, not
exceeding five per centum of its net income in the last
preceding financial year, as the Board may, from time to
time, with the previous sanction of the State Government,
determine."
(I) [1954] S.C.R. 1055.
580
The argument is that s. 70 imposes an unauthorised tax. The
point is, we think, concluded by our decision in Mahant Sri
Jagannath Ramanuj Das v. The State of Orissa (1) where the
distinction between a tax and a fee for legislative purposes
under our Constitution was pointed out and with regard to an
identical imposition under s. 49 of the Orissa Hindu
Religious Endowments Act, 1939, it was held that the
contribution levied was a fee and not a tax. It was
observed there at p. 1054:
" The collections made are not merged in the general public
revenue and are not appropriated in the manner laid down for
appropriation of expenses for other public purposes. They
go to constitute the fund which is contemplated by section
50 of the Act...... We are further of opinion that an
imposition like this cannot be said to be hit by article 27
of the Constitution. What is forbidden by article 27 is the
specific appropriation of the proceeds of any tax in payment
of expenses for the promotion or maintenance of any
particular religion or religious denomination. The object
of the contribution under section 49 is not the fostering or
preservation of the Hindu religion or of any denomination
within it; the purpose is to see that religious trusts and
institutions wherever they exist are properly administered.
It is the secular administration of the religious
institutions that the legislature seeks to control and the
object, as enunciated in the Act, is to ensure that the
endowments attached to the religious institutions are
properly administered and their income is duly appropriated
for purposes for which they were founded or exist. As there
is no question of favouring any particular religion or
religious denomination, article 27 could not possibly
apply." These observations apply with equal force to the
present case.
It has also been argued that s. 55 (2) of the Act con-
travenes Art. 133 of the Constitution and is accordingly
invalid. Section 55 is in these terms:
55 (1). "Unless otherwise provided in this Act, an appeal
shall lie to the High Court against every order passed by
the District Judge under this Act.
(I) [1954] S.C.R. 1046.
581
(2) No appeal shall lie from any order passed in appeal
under this section."
We do not think that s. 55 (2) of the Act overrides or is
intended to override Art. 133 or any other Article of the
Constitution relating to appeals to the Supreme Court. Such
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appeals must undoubtedly lie to the Supreme Court, provided
the necessary requirements for such appeals are fulfilled.
It is, we think, obvious that the Act cannot affect the
jurisdiction of the Supreme Court.
We now come to that part of the case of the appellants in
which they claim the properties to be their private
properties or, in the alternative, the trusts to be private
trusts. The High Court has pointed out that in M. J. C. 418
of 1952 out of which has arisen Civil Appeal No. 225 of
1955, though there was an assertion that the properties were
not trust properties, there was a counter-affidavit on
behalf of the State of Bihar that the asthal in question was
a public asthal and the properties appertaining thereto
trust properties within the meaning of the Act. In M. J. C.
124 of 1953 out of which has arisen Civil Appeal No. 226 of
1955 there was a similar claim that the mahant of the asthal
was the absolute owner of the properties belonging to the
math. In Suit No. 34 of 1952/106 of 1953 out of which has
arisen
Civil Appeal No. 228 of 1955 there was a prayer for
adjournment in order to enable the plaintiffs (now ap-
pellants before us) to file a petition to amend the plaint,
and the purpose of the amendment sought to be made was to
claim that the institutions in question were of a private
charater and the Act had no application to them. This
prayer was disallowed by the-High Court on the ground that
the amendment sought to be made would alter the whole
character of the suit. In M. J C. 188 of 1953 out of which
has arisen Civil Appeal No. 229 of 1955 the claim was that
there was no trust,. express or implied. In M. J. C. 235 of
1953 out of which has arisen Civil Appeal No. 248 of 1955
there was a counter-affidavit on behalf of the State of
Bihar that the temple in question was a public temple and
the Act applied to it. In all these cases the High Court
has
582
taken the view, rightly in our opinion, that the questions
whether the trusts are public or private trusts or the
properties are private or trust properties are questions
which involve investigation of complicated facts and
recording of evidence and such investigation could not be
done on writ proceedings. In the one suit which was tried
in the High Court the question did not arise as no amendment
was allowed. Therefore, in these cases there are no
materials on which the question as to the nature of the
trust can be determined, though in Civil Appeal No. 343 of
1955 (1) in which also judgment is being delivered today, we
have held that having regard to the preamble to the Act, the
provisions in s. 3 and the provisions of sub-s. (5) of s. 4
the definition clause of ’religious trust’ in the Act must
mean public trusts express or constructive, recognised by
Hindu law to be religious, pious or charitable. That
finding, however, is of no assistance to the appellants in
the present cases. The fate of these cases must depend on
the sole question whether the Act is constitutionally valid
or not. We have held that the Act is constitutionally
valid.
In the result we hold that the appeals are without any
merit. They are accordingly dismissed with costs.
Appeals dismissed.
(1) mlahant ]?am Saroop Dasji v. S. P. Sahi, see p. 583
Post-
583
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