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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 564 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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