# MAHANT MOTI DAS v. S. P. SAHI, THE SPECIAL OFFICER IN CHARGE OF HINDU H,ELIGIOUS TRUSTS & OTHEH,S

- **Citation:** [1959] Supp. 2 S.C.R. 563
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeals Nos. 225, 226, 228, 229 and 248 of 1955
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahant-moti-das-v-s-p-sahi-the-special-officer-in-charge-of-hindu-h-eligious-1701
- **Pages:** 20

## Headnote

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 fe§ for the expenses of administration of ActLegality-Bihar Hindu Religious Trusts Act, r950 (Bihar I of
r95r), ss. 2, 5, 6, 7, 8, 28, 29, 32, 55(2), 60, 70-Constitution of
India, Arts. r4, r9(r)(j), r9(5), 25, 26, 27.
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, 1950, 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 (r) that ss. 2, 5, 6, 7 and 8 of
the Act infringe Art. 14 of the Constitution, inasmuch as there
was ine:!qu:;Llity 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. i9(r)(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 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 clue 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. 133 of the
Constitution.
Held, (r) 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
I959
April Ij.
• I959
Mah ant i'v! ofi
v.
S. P. S11hi
•
564
SUPREME COURT REPORTS [1959] Supp.
their respective religious trusts, it is open to the Bihar Legislature to exclude Sikhs who might have been in no need of proDas tection and to distinguish between Hindus and Jains.
Accordingly, ss. 2, 5, 6, 7, and 8 of the Act do not infringe Art. r4 of
the Constitution.
It is well settled that while Art. r4 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 distingvished 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. Tendolkar,
(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 admini

## Text

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(2) S.C.R.
SUPREME COURT REPORTS
563
MAHANT MOTI DAS
v.
S. P. SAHI, THE SPECIAL OFFICER IN CHARGE
OF HINDU H,ELIGIOUS TRUSTS & OTHEH,S
(and connected appeals)
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
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 fe§ for the expenses of administration of ActLegality-Bihar Hindu Religious Trusts Act, r950 (Bihar I of
r95r), ss. 2, 5, 6, 7, 8, 28, 29, 32, 55(2), 60, 70-Constitution of
India, Arts. r4, r9(r)(j), r9(5), 25, 26, 27.
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, 1950, 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 (r) that ss. 2, 5, 6, 7 and 8 of
the Act infringe Art. 14 of the Constitution, inasmuch as there
was ine:!qu:;Llity 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. i9(r)(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 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 clue 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. 133 of the
Constitution.
Held, (r) 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
I959
April Ij.
• I959
Mah ant i'v! ofi
v.
S. P. S11hi
•
564
SUPREME COURT REPORTS [1959] Supp.
their respective religious trusts, it is open to the Bihar Legislature to exclude Sikhs who might have been in no need of proDas tection and to distinguish between Hindus and Jains.
Accordingly, ss. 2, 5, 6, 7, and 8 of the Act do not infringe Art. r4 of
the Constitution.
It is well settled that while Art. r4 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 distingvished 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. Tendolkar,
(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 tn 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) thats. 55(2) of the Act does not contravene Art. 133 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.
CIVIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 225, 226, 228, 229 and 248 of 1955.
Appeals from the judgments and orders dated
October 5, 1953, in Misc. Judicial Cases Nos. 418/52
and 124/53 and October 8, 1953, in T. S. No. 106/53,
(2) S.C.R.
SUPREME COURT REPORTS
565
Mi,;c. Judicial Cases Nos. 188/53 and 235/53 of the
r959
Patna High Court.
Mahant Moti Das
R. Patnaik, for the appellant (in C. A. No. 225/55).
v.
R. 0. Prasad, 'for the appellants (in C. As. Nos. 226,
5· P. Sahi
228, 229 & 248/55).
Mahahir Prasad, Advocate-General for the State of
Bihar, Tribeni Prasad 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. 248z55).
1959.
April 15.
The Judgment of the Court was
delivered by
S. K. DAS, J.-This is a batch of five appeals which
s. K. Das].
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.
l!'our 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. 228of1955, 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 under
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 plaintiffs, 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
SUPREME COURT REPORTS . (1959] Supp.
1959
tions of law as to the interpretation of the Constitution
-
. D and the appeals have been brought to this Court in
JHahant /\Jolt
as
f h
'fi
v.
pursuance o t ose 9ert1 cates.
·
s. r. sahi
The facts lie within a very narrow compass. In
Civil Appeal No. 225 of 1955 the appellant is Mahant
s. K. Das J.
Moti Das, and he alleged that he was the Mahant of a
math or asthal 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 as th al 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 l\fahant Ram Das similarly alleged that
ho was the mahant of a math or asthal situate in
villae\e Bhuthari in the same district of Monghyr, that
he was a " bairagi sadh u " and follower of Ramanandi
Laskari Sri Vaishnava Sampradaya, that he was the
absolute owner of the properties belonging to tbe math
and that the 'President, Bibar State Board of Religious
Trusts, had no authority to issue a notice to him
asking him to furnish statements and accounts of the
propert.ies 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
puhlished in the Bihar Gazette.
In Civil Appeal
No. 229 of Hl55 the appellant Mahant Mahabir Das
stated that he was the Mahant of an 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
Mahrmt Ram Krishna Das alleged that the temple in
question, known as Bhikam Das Thakurbari in the
town of Patna, was constructed by one Benidasji with
his own money and he installed certain deities therein.
(2) S.C.R. SUPREME COURT REPORTS
567
The allegation was that the temple and the properties
x959
thereof did not constitute a ' religious trust ' within
h
-
. D
th
.
f h t
.
.
h A t
d f th
Ma ant Motz
as
e meanmg o t a express10n m t e
c an
ur er
v.
that the Act was ultra vires the Constitution inasmuch
s. P. sahi
as it infringed some of his fundamental rights. The
defence in all these cases was that the Act was valid,
s. !(, Das J.
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 (l)(f); and (c) 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 tho 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
1 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).
' 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
SUPREME COURT REPORTS [1959) Supp.
1959
according' to the Sikh religion or purely for the benefit
Mahant Moti Dasof the Sikh community and a private endowment
v.
created for the worship of a family idol in which the
s. P. sa1,;
public are not interested ;
·
S. K. Das}.
(p) 'trust property' means the property appertaining to a religious trust".
Section 3 states :
"This Act shall apply to all religious trustR, 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, 18~0 (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 Bibar 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 sea.I
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 tbe 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 tru•ts in the State shall be vested in the
(2) S.C.R. SUPREME COURT REPORTS
569
Board and the Board shall do all things reasonab~
r959
and necessary to ensure that such trusts are properly
-
.
supervised and administered and that the income Mahant Moh Das
thereof is duly appropriated and applied to the objects
s. p~·Sahi
of such trusts and in accordance with the purposes for
which such trusts were founded and for which they
s. K. n,,s J.
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 administratio_n 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. 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
SUPREME COURT RE.PORTS [1959] Supp.
'959
93oard.
Section 70 states that for the purpose of
Mahant Moti Da> defraying the expenses incurred in the administration
v
of the Act the trustee of every religious trust shall pay
s. P. Sahi
to the Board such fee, not exceeding five per centum
of its net income as the Board may from time to time
5 · K. Da> J.
with the previous sanction of the State Government
determine. Chapter XVI provides for the dissolution
or supcrsession of the Board. Section 80 states that if
in the opinion of the Stat\) 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 superneded. 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 power~ 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 not 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 con-
• stitution 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 ineg uality of
treA.tment as between Hindu religious trusts on one
hand and Sikh religions 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 ,i,nd Jain religious
trusts, though both come under the Act.
We do not
(2) S.C.It~ SUPREME COURT H,EPORTS
571
think that there is any substance in this contention.
r959
The provisions of Art. 14 of the Constitution had comeM h -M . D
f
d,
.
b £
h'
C
.
b
f
a ant
oti
as
up or
1scuss10n
eiore t is
ourt m a num er o
v.
earlier cases (see the cases referred to in Shri. Ram
s. P. sahi
Krishna Dalmia v. Shri J·ustice S. R. Tendolkar (1)). It
is, therefore, unnecessary to enter upon any lengthy s. K. Das J.
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 differentia
which distinguishes 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.
The classification may be founded on different 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 cons.titutional guarantee ;
that it must be presumed that the legislature understands and correctly appreciates the needs of its own
people and that its faws 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 J ains in some of the essential details of the
faith which they ~rofess and the religious practices
they observe; the Sikhs ha.ve 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) [I959] S.C.R. 279.
•
572
SUPREME COURT REPORTS [19.59] Supp.
z959
way as the Hindus believe in them. The J ains also
Mahant Moti Das do not recognise the divine authority of the Vedas and
v.
do not practise sradhs or ceremonies of the dead, nor
s. P. Sahi
do they recognise the spiritual authority of the Brahmins (Maine's Hindu Law, 11th Edition, p. 82). It
5 · I<. Das f.
has been further pointed out that there are also organisational differences in the matter .of religious trusts
between Hindus, Sikhs and Jains. There are not
many Sikh religious trusts in Bihar, and their organi-
, sation is essentially different. J ains consist of two
main branches-Swetambar Jains and Digambar
J ains-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 persons 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 J ains are situated alike or that the needs
of the J ains and Hin!i us 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 J ains.
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(l)(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 th.at the properties
which the appellants hold are trust properties within
(2) S.O.R..
SUPREME COURT l~EPORTS
573
the meaning of the Act; but we must state here that
1959
the appellants have also alleged that the properties M h -;; . D
are their private properties, to which aspect of the
a ant v. oti
as
case we shall advert later. Chapter V of the Act, and
s. P. sahi
in particular s. 28 thereof, lays down the powers and
duties of the Board. To some of these powers and. s. K. Das J.
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 mahant 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(l)(f).
In A ngurbala 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) (195r] S.C.R, 1125, 1133.
574 SUPREME COURT REPOiiTS [1959] Supp.
I959
debutter property is not that of a trustee to trust property under the English law.
Mahant Moti Da>
M I h ·
J
'd
u { erJea, ., sa1 :
v.
S. I). Sahi
"In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of
s. K Da, J.
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 de butter 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 tog_ether ; 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 shebaitship with the character of proprietary rights and attaches to it the legal incidents of
property,"
lt 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 a mahant or shebait.
SectioR 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
(2) S.O.R. SUPREME COURT REPORTS
575
a. suit to obtain a decree-(a) to remove any trustee,
1959
(b) appointing a new trustee, (c) vesting any property
h
-
. Das
.
(d} d"
t'
t
d
. .
Ma ant Moti
m a trustee,
rrec mg accoun s an enquiries,
v.
(e) declaring what proportion of the trust property
s. P. sahi
or of the interest therein shall be allocated to
any particular object of the trust, (f) authorising
s. K. Das J.
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 trus~ees and
the jurisdiction given to the court was of a very
wide extent.
Now, the right guaranteed under
·Art. 19(l)(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
SUPREME COURT REPORTS [1959] Supp.
1959
60 (2) no doubt empowers the Board to alter or modify
M h -;; . D the budget of any religious trust in such manner and
• ant v.
01
'
as to such extent as it thinks fit; but sub-s. (6) of s. 60
s. P. saM
makes it clear that nothing contained in the section
shall be deemed to authorise the Board to alter or
s. IC Das J.
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
removaJ passed by the B9ard under cl. (h) of sub-s. (2)
shall be communicated to the trustee concerned ar~d
such 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 conver-
,
sion 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 resolutiol) is approved by the District J·udge.
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
the true nature of the restrictions imposed under the
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 cl. (5) of Art. 19 of the Constitution. In
(2) S.C.R. SUPREME COURT ~EPORTS
577
this respect, the impugned provisions of the Act differ
L959
from those provisions of the Madras Hindu ReligiousM ,
-M .
.
.
a1ta nt
oti Das
and Charitable Endowments Act, 1951, and the Or1ssa
v.
Hindu Religious Endowments Act, 1939, as amended
s. P. sahi
by the Amending Act II of 1952, which came under
consideration of this Court in The Commissioner,
s. J<. Das J.
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 cl. (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 (I) 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 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 a math or tern ple 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 Swa-
. miar of Sri Shirur Mutt (1 ), for his submission tj1at
(r) [1954] S.C.R. 1005.
73
(2) [1954] S.C.R, ro.16.
578
SUPREME ,COUR1'. REPOR'.t'S [1959) Supp.
I959
freedom of religion in our Constitution is not confined
·
-
.
to religious beliefs only, but extends to religious practiMahant Moti Das
II
b'
h
t · ·
h' h h C
'
ces as we su Ject to t e res notions w IC t e onst1s. p~· Sahi
tution itself bas laid down. The answer to this submission is two-fold: we have pointed out ,earlier that
s. K. Da., J.
the power to alter the budget is subject to cl. (6) of
s. 60 of the Act and the Board is not 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 direct.ions to the trustee is also subject to a siniilar restric-
~
tion, 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('), 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, els. (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 onr attention to
Sri Venkataramana Devaru v. The State of Mysore (2),
where following the earlier decision in The 001nmissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt('),
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
(1) [1954] S.C R. 1005.
(2) [1958] S.C.R. 895.
(2) S.C.R.
SUPREME COURT REPORTS
579
to Ratilal Panachand Gandhi v. The State of Bombay (1)
r959
in. wh~ch it has been ~eld that a religio.us sect or ~en?- Maha,.1-;;01; Das
mmatwn has the right to manage its own affairs rn
v.
matters of religion and this includes the right to spend
s. P. sahi
the trust property or its income for religion and for
religious purposes and objects indicated by the founder
s. I<. Das J.
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 institutions 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 in a pai.ticular institution. On the contrar.Y, 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 s~veral
provisions seeks to fulfil 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:
"Section 70(1).
For the purpose of defraying the
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
SUPREME COURT REPORTS [1959) Supp.
'959
The argument is that s. 70 imposes an unauthorised
M I
-;-1 . D
tax. The point. is, we think, concluded by our decision
a 1ant
Jr oti
as .
,
.
v.
m M ahant Sri J agannath RamanUJ Das v .. The State
s. P. sahi
of Orissa (1) where the distinction between a tax and a
fee for legislative purposes under our Constitution was
s. J{. Das J.
pointed out and with regard to an identical imposition under s. 49 of the Orissa Hindu Religious Endow-·
mcnts 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 50ofthe Act ......