# Ratilal Panachand Gandhi v. The State of Bombay and Others

- **Citation:** [1954] 1 S.C.R. 1055
- **Court:** Supreme Court of India
- **Decided:** 1952-09-12
- **Case number:** Civil Appeal No. 1 of 1954
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, S. R. DAs, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ratilal-panachand-gandhi-v-the-state-of-bombay-and-others-239
- **Pages:** 23

## Headnote

Constitution of India, arts. 25 and 26-Bombay Public Trust Act,
1950 (Act XX!X of 1950), ss. 44, 47(3) (4) (5) (6), 55(c) and 56(1)
-Whether ultra vires the Constitution-Section 58 of the
ActWhether ultra vires the State Legislature.
Held, that the provision of s.
44 of the
Bombay
Public
Trust Act, 1950, relating to the
appointment of the
Charity
Commissioner
as a trustee of
any public trust
by the
court
without any reservation
in regard to religious institutions
Iike
ten1ples and Maths is unconstitutional and must be held to be void.
The provisions of cl. (3) to (6) of s. 47 of the Act to the extent
that they relate to the appointment of the Charity Commissioner
as a trustee of a religious trust like temple
and Math are unconstitutional and must be held to be void.
A religious sect or
denomination has
the
undoubted right
guaranteed by the
Cofistitution to tnanage 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
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v •
The State of
Orissa and
Anot,,,,..
Mukherjea J.
1954
March 18.
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bombay and
Others.
1056
SUPREME COURT REPORTS
[1954]
obtaining' in a particular institution.
To divert the trust property
or funds for purposes which the Charity Commissioner or the court
considers expedient or proper, although the original objects
of the
founder can still be carried out, is an unwarrantable encroachment
on the freedom of religious institutions
in regard to the management of their religious affairs.
Therefore cl. (3) of s. 55.,
which
contains the
offending
provision and the corresponding provision relating
to
the
po,vers
of the court occurring in the latter part of s. 56(1), must be held
to be void.
Section 58 of the Act is not ultra vires of the State Legislature
because the contribution imposed under the section is not a tax but
a fee which comes within the
purview of entry 47 of List III in
Schedule VII of the Constitution.
Commissioner, Hindu Religious
Endowments, Madras v. Sri
Lakshmindra
Thirtha
Swamiar, ([1954]
S.C.R. 1005)
Davis
v. Beason (133 U.S. 333), Adelaide Company v. The Commonwealth
(67 C.L.R. 116, 124), and famshed Ji v. Soonabai [1919]
(I.LR.
33 Born. 112) referred to.
·
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 1 of 1954, and Civil Appeal No. 7 of 1954.
Appeals under article 132(1) of the Constitution of
India from the
Judgment and
Order dated the 12th
September, 1952, of the High Court of
Judicature
at
Bombay in Civil Application No. 880 of
1952
and
Miscellaneous
Application
No. 212 of 1952
respectively .
. N. C. Chatterjee and, U. M.
and I. N. Shroff, with them)
Appeal No. 1 of 1954.
Trivedi
for the
(H. H. Dalal
appellants
in
Rajinder Narain for the appellants in Civil Appeal
No. 7 of 1954.
M. C. Setalvad and C. K. Daphtary (G. N. Joshi and
Porus A. Mehta, with them) for the respondents in
both the appeals.
1954. March 18. The Judgment
of the Court was
delivered by
MuKHERJEA J.-These two
connected appeals
are
directed against a common

## Text

_Characters 0–39,346 of 52,837. This is a partial read: ask again with offset=39346 for what follows._

••
S.C.R.
SUPREME COURT REPORTS
1055
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.
The result is that, in our opinion, the
on! y sections
of the Act, which are invalid, are sections 38, 39 and
the proviso
to section 46.
The
application
under
article 32 is, therefore, allowed to this extent
that a
writ in the nature
of mandamus would issue restraining the
Commissioner
and
the
State
Government
enforcing against the petitioners the prov!Slons of the
sections mentioned above.
The other
prayers
of the
petlt10ners
are
disallowed.
No
separate
order is
necessary in Case No. 1 of
1950,
which
will
stand
dismissed.
We make no order as to costs either in the
petition or in the appeal.
RATILAL PANACHAND GANDHI
tJ.
THE STATE OF BOMBAY AND OTHERS.
(and connected appeal)
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of India, arts. 25 and 26-Bombay Public Trust Act,
1950 (Act XX!X of 1950), ss. 44, 47(3) (4) (5) (6), 55(c) and 56(1)
-Whether ultra vires the Constitution-Section 58 of the
ActWhether ultra vires the State Legislature.
Held, that the provision of s.
44 of the
Bombay
Public
Trust Act, 1950, relating to the
appointment of the
Charity
Commissioner
as a trustee of
any public trust
by the
court
without any reservation
in regard to religious institutions
Iike
ten1ples and Maths is unconstitutional and must be held to be void.
The provisions of cl. (3) to (6) of s. 47 of the Act to the extent
that they relate to the appointment of the Charity Commissioner
as a trustee of a religious trust like temple
and Math are unconstitutional and must be held to be void.
A religious sect or
denomination has
the
undoubted right
guaranteed by the
Cofistitution to tnanage 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
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v •
The State of
Orissa and
Anot,,,,..
Mukherjea J.
1954
March 18.
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bombay and
Others.
1056
SUPREME COURT REPORTS
[1954]
obtaining' in a particular institution.
To divert the trust property
or funds for purposes which the Charity Commissioner or the court
considers expedient or proper, although the original objects
of the
founder can still be carried out, is an unwarrantable encroachment
on the freedom of religious institutions
in regard to the management of their religious affairs.
Therefore cl. (3) of s. 55.,
which
contains the
offending
provision and the corresponding provision relating
to
the
po,vers
of the court occurring in the latter part of s. 56(1), must be held
to be void.
Section 58 of the Act is not ultra vires of the State Legislature
because the contribution imposed under the section is not a tax but
a fee which comes within the
purview of entry 47 of List III in
Schedule VII of the Constitution.
Commissioner, Hindu Religious
Endowments, Madras v. Sri
Lakshmindra
Thirtha
Swamiar, ([1954]
S.C.R. 1005)
Davis
v. Beason (133 U.S. 333), Adelaide Company v. The Commonwealth
(67 C.L.R. 116, 124), and famshed Ji v. Soonabai [1919]
(I.LR.
33 Born. 112) referred to.
·
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 1 of 1954, and Civil Appeal No. 7 of 1954.
Appeals under article 132(1) of the Constitution of
India from the
Judgment and
Order dated the 12th
September, 1952, of the High Court of
Judicature
at
Bombay in Civil Application No. 880 of
1952
and
Miscellaneous
Application
No. 212 of 1952
respectively .
. N. C. Chatterjee and, U. M.
and I. N. Shroff, with them)
Appeal No. 1 of 1954.
Trivedi
for the
(H. H. Dalal
appellants
in
Rajinder Narain for the appellants in Civil Appeal
No. 7 of 1954.
M. C. Setalvad and C. K. Daphtary (G. N. Joshi and
Porus A. Mehta, with them) for the respondents in
both the appeals.
1954. March 18. The Judgment
of the Court was
delivered by
MuKHERJEA J.-These two
connected appeals
are
directed against a common
judgment
of a
Division
Bench of the Bombay High Court, dated the 12th of
September, 1952,
by
which
the learned
Judges
dismissed two petitions under article 226 of the Constitution presented respectively by the appellants in the
two appeals.
'
•
•
S.C.R.
SUPREME COURT REPORTS
1057
The petitioners in both the cases assailed the constitutional validity of the
Act, known as the
Bombay
Public Trusts Act, 1950 (Act XXIX of 1950), which was
passed by the Bombay Legislature with a
view to
regulate and make better provisions for the administration of the public and religious trusts in the State
of
Bombay.
By a notification,
dated
the
30th
of
January, 1951, the
Act was brought into force on and
from the 1st of March, 1951, and its
provisions
were
made applicable to temples, maths and all other trusts,
express or constructive, for either a public, religious or
charitable
purpose
or both.
The
State
of
Bombay
figures as the first respondent in both the appeals and
the second respondent is the
Charity
Commissioner,
appointed by the first respondent under section 3 of
the impugned Act to carry out the provisions
of the
Act throughout the
State of
Bombay. In one of the
appeals, namely, Appeal No. I of 1954, the
Assistant
Charity Commissioner for the region of Baroda has
been impleaded as the third respondent.
The appellant in Appeal No. I of 1954 is a Swetamber Murtipujak Jain and a resident of
Vejalpar in the
district of Punchmahals within the
State of.
Bombay ..
He is a Vahivatdar or manager of a Jain public temple
or Derasar situated in the same village and the endowed
properties appertaining to the temple are said
to be of
the value of
Rs. 5 lakhs. The petition, out of which
this appeal arises, was filed by the appellant
on the
29th of May, 1952, before the
High Court of
Bombay,
in its
Appellate
Side, against the
three
respondents
mentioned above,
praying for the issue of a writ in the
nature of mandamus or direction ordering and directing the respondents to forbear from enforcing or taking
any steps for the enforcement of the Bombay Public
Trusts Act, 1950; or of any of its provisions
and particularly the provisions
relating to registration
of public
and religious trusts
managed
by
the appellant and
payment of contributions levied in respect of the same.
The grounds urged in support of the petition
were that
a number of provisions of the Act conflicted with the
fundamental rights of the
petitioner
guaranteed under
articles 25 and 26 of the
Constitution
and that the
1954
Ratilal
Panachand
Gandhi
v.
The State ef
Bombq, .. and
Others.
Mukherjea J.
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bombay and
Others.
Mukhei;jea J.
•
1058
SUPREME COURT REPORTS
[1954]
contribution levied on the trust was a tax which it was
beyond the competence of the
State
Legislature to
impose.
A similar application under article 226 of the Constitution ana praying for almost the identical
relief
was
filed by the appellants in the other appeal, namely,
Appeal No. 7 of 1954
before the High
Court
in its
Original Side on the 4th of August, 1952. The petitioners in this case purport to be the present trustees
of the Parsi Punchayet Funds and Properties in Bombay
registered under the Parsi Public Trusts Registration
Act of 1936.
These properties
constitute
one
consolidated fund and they are administered by the trustees
for the benefit of the entire Parsi community and the
income is spent for specified
religious
and charitabTe
purposes of a public character
as indicated
by
the
various donors.
The petitioners challenged
the validity
of the
Bombay Public Trusts Act, 1950,
substantially
on the grounds that they
interfered. with the freedom
of conscience of the petitioners and with their right
freely to profess, practise and propagate . religion
and
also with their right to manage their
~wn affairs in
matters of religion and thereby contravened
the provisions of articles
25 and Z6 of
the
Constitution. The
levy of contribution under section 58 of the
Act was
also alleged in substance and effect to be a tax
on
public,
religious
and charitable
trusts,
a legislauon
upon which it was beyond the competency of the State
Legislature to enact.
As practically the same questions. were involved
m
both the petitions, the learned
Chief Justice of
Bombay directed the transfer of the later petition from the
Original Side to the Appellate Side of the High Court
and both of them were heard together by a
Division
Bench
consisting of the
Chief
Justice
himself
and
Shah J.
Both the petitions were disposed
of by
one
and the
same
judgment delivered
on the
12th of
September, 1952, and the learned
Judges rejected
all
the contentions put forward on behalf of the respective
applicants and dismissed the petitions.
The petitioners
in both the
cases
have
now come before
us in
appeal
on
the
strength
of
certificates
granted
'
..
S.C.R.
SUPREME COURT REPORTS
1059
by the
High
Court under article
132(1)
of
the
Constitution.
To appreciate the points that have been canvassed
before us by the parties to these appeals, it
may be
convenient to refer briefly to the
scheme
and salient
features of the impugned Act.
The object of the Act, as stated in the preamble, is
to regulate and make better provisions for the administration of public, religious
and charitable
trusts
within
the State of Bombay.
It includes,
within its scope,
all public trusts created not mere! y for religious but
for purely charitable
purposes as well and
extends
to
people
of all classes
and denominations in the
State.
The power
of superintendence and administration
of
public trusts is vested, under the
Act, in the Charity
Commissioner,
who is to be appointed
by the
State
Government in the manner laid down in Chapter II.
The State Government may also appoint such number
of Deputy and Assistant Charity
Commissioners
as it
thinks fit and these officers would be placed in charge
of particular
regions or particular trusts
or classes of
trusts as may be considered necessary.
Section 9, with
which Chapter
III of the
Act begins,
defines
what
'charitable purposes'
are, and
sections 10 and 11 lay
down that a public
trust
shall not be void
on the
ground of uncertainty, nor shall it fail
so
far as a
religious and charitable purpose is concerned,
even if a
non-charitable or non-religious purpose, which is included in it, cannot be given effect to.
Chapter IV provides
for registration of public trusts.
Section 18 makes
it
obligatory upon the trustee
of every
public trust to
which the Act applies, to make an application for the
registration of the trust, of which he is the trustee.
In
case of omission on the part of a trustee to comply with
this provision, he is debarred under section 31 of the
Act from instituting a suit to
enforce any right
on
behalf of sucl1 trust in a court of law. Chapter V deals
with accounts and audit.
Section 32 imposes a duty
upon every trustee of a public trust,
which has
been
registered under the
Act, to keep
regular
accounts.
Under section 33,
these
accounts
are to be
audited
annually
in such
manner as
may be
prescribed.
1954
Ratilal
Panachand
Gandhi
'"
The State of
Bombqy and
Others
Mukherjea J.
1954
·Ratilal
Panachand
Gandhi
v.
The State of
Bombay and
Others.
Mukherjea J.
1060
SUPREME COURTREPORTS
[1954]
Section 34 , prescribes it to be the duty of the auditor
to prepare
balance-sheets
and to report all irregularities in the accounts.
Section 35 lays down how
trust
money has to be invested,
and
section 36
prohibits
alienation of immovable trust property except
by way
of leases for specified
periods,
without the
previous
sanction of the
Charity
Commissioner.
Section 37
authorises the Charity
Commissioner and his
subordinate officers to enter on and inspect or cause
to
be
entered on and inspected any pr9perty
belonging to a
public trust.
A proviso is added to the section laying
down that in entering upon any such
property,
the
officers making the entry shall give
reasonable
notice
to the trustee and shall have. due regard to the religious
practices and usages. of the trust.
Among other powers
and functions of the Charity Commissioner, which are
detailea in
Chapter VII, section 44 enables
a Charity
Commissioner to be appointed to act as a trustee
of a
public trust by a court of competent jurisdiction or by
the author of the trust.
Section 47 deals with the
powers of the court to appoint new trustee or
trustees
and under clause (3) of this section, the court, after
making enquiry, may appoint the Charity Commissioner
or any other person as a trustee to fill up the vacancy.
Section 48 provides . for the levy
of
administrative
charges in cases
where the
Charity
Commissioner is
appointed a trustee.
Section
50 appears to be a substitute for section 92 of the Civil Procedure Code and
contains provisions of almost
the same character
in
respect to suits regarding ; public trusts.
One
of the
reliefs that can be claimed in such a suit is a declaration
as to what proportion of the trust property
or interest
therein shall be allocated to any
particular .object
of
the trust.
Section 55 purports to lay down the rule
of
cy pres in relation to the
administration
of
religious
and charitable trusts; but it
extends
that
doctrine
much further than. is . warranted by the principles
laid
, down by the Chancery Courts in England or recognised
by judicial pronouncements in this country.
Section 56
deals . with the powers of the courts , in relation
to the
application of the cy pres doctrine.
Section 57
provides for the establishment . of a fund . to be called
'The
..
S.C.R.
SUPREME COURT REPORTS
1061
Public Trusts Administration Fund' which shall vest in
the
Charity Commissioner and clause (2)
lays down
what sums shall be credited
to this fund. Section 58
makes it obligatory on every public trust to pay to
this
fund a contribution at such time and ;n such manner
as may be prescribed.
Under the rules
prescribed
by
the Government on this subject, the
contribution
has
been fixed at the rate of 2 per cent.
per annum
upon
the gross annual
income of every public· trust.
Failure
to pay this contribution will make the trustee liable to
the penalties
provided for in
section 66 of the
Act.
Section 60· provides that the Public Trusts Administration Fund shall, subject to the provisions of the Act
and subject t<:> the general
and special
orders of the
State Government, be applicable to the
payment of
charges for expenses
incidental
to the
regulation of
public trusts and generally for carrying out the
provisions cif the Act.
Sections 62 to 66, which are comprised
in Chapter IX of the Act, deal with the appointment and
qualifications of assessors.
The function
of the assessors is to assist
and advise the ·Charity
Commissioner
or his subordinate
officers
in the ·matter of making
enquiries which may be necessary under the provisions
of the Act.
Chapter X prescribes
the
penalties that
will be inilicted on trustees in case
of the;r
violating
any of the provisions of the
Act.
Chapter
XI deals
with procedural matters in connection with jurisdiction
of courts and rights of appeal, and the twelfth or the
. last . chapter deals with certain miscellaneous
matters.
These, in grief, are the provisions of the Act which are
material for our present purpose.
The contentions that have been raised by the learned
counsel, who appeared in support of the appeals, may
be considered under two heads. In the first
place,
a
number of provisions of the
Act have been challenged
as invalid on the ground that they conflict with freedom of religion and the right of the religious
denominations or sects, represented
by the. appellants
in each
case, to manage their own affairs in matter
of: religion
guaranteed under articles 25 and 26 of the
Constitution.
The sections of the
Act, the validity of which has been
challenged on this ground are sections 18, 31 to 37, · 44,
.1954
Ralilal
Panachand
Gandhi
v.
The State of
Bombay.and
Others.
M.J;/ajea J
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bombay and
Others.
Mukheijea ].
1062
SUPREME COURT REPORTS
[19541
47, 48, 50, clauses
(e) and
(g), 55, 58 and 66.
The
second head of the appellants' argument relates to the
levy of contribution as laid down in sections 57 and 58
of the Act and the argument is that this being in substance the levy of a tax, it was beyond the competence
of the State Legislature to enact such a provision.
As regards the first branch of the contention, a good
deal of argument has been advanced before
us relating
to the measure and extent of the fundamental
rights
guaranteed under articles 25 and
26 of the
Constitution.
It will be necessary to addrqs
ourselves
to
this question at the outset, because
without
a clear
appreciation of the scope and ambit of the fundamental
rights embodied in the two articles of the Constitution,
it would not be possible to decide
whether
there has
been a transgression
of these rights
by any
of the
provisions of the Act. This identical question came up
for consideration before this court in Civil Appeal No. 38
of 1953 (The Commissioner, Hindu
Religious
Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar( 1 )
and it was discussed at some length in our judgment
in that case.
It will be sufficient for our present
purpose to refer succinctly to the main principles that this
court enunciated in that judgment.
Article 25 of the Constitution guarantees
to every
person and not merely to the citizens of
India the freedom of conscience and the right
freely
to
profess,
practise
and propagate
religion.
This is
subject,
in
every case, to
public
order,
health
and
morality.
Further exceptions are engrafted
upon
this
right
by
clause (2)
of the article. Sub-clause (a) of clause (2)
saves the power of the State to make laws regulating
•
'•
or restricting any economic, financial, political
or other
•
secular activity which mav be associated with religious
practice; and sub-clause
(b) reserves the State's power
to make laws
providing for social
reform
and social
welfare even though they might interefere with religious
practices.
Thus, subject to the restrictions
which this
article imposes, every person has a fundamental right
under our Constitution
not merely to entertain
such
religious belief as may be approved of by his judgment
or conscience but to exhibit his belief and ideas in such
(1)
[1954] S. C.R. ioo5.
S.C.R.
SUPREME COURT REPORTS
1063
overt acts
as are enjoined or sanctioned by his religion
and further to propagate his
religious views
for
the
edification of others.
It is immaterial also whether the
propagation is made by a
person in
his
individual
capacity or on behalf of any church or institution.
The
free exercise of religion by which is meant the performance of outward acts in pursuance
of religious belief,
is. as stated above, subject to
State regulation imposed
to secure order, public health and morals of the people.
What sub-clause (a) of clause (2) of article 25 contemplates is not
State regulation of the religious
practices
as such which are protected unless they rnn counter
to
public health
or morality but of activities
which
are
really
of
an
economic,
commercial
or
political
character though
they are
associated
with
religious
practices.
So far as article 26 is concerned. it deals with a
particular aspect of the subject of religious freedom.
Under this article, any religious
denomination or a
section of it has the guarnteed right to establish and
maintain
institutions
for
religions
and
charitable
purposes and to manage in its own way all affairs in
matters of religion.
Rights
are
also
given to such
denomination or a section of it to
acqmre
and own
movable and immovable properties
and to
administer
such properties in accordance with law.
The language
of the two clauses (b) and ( d) of article 26 would at once
bring out the difference between the
two.
In regard
to affairs in matters of religion, the
right of management given to a religious body is a guaranteed
fundamental right which no legislation can take
away.
On
the other hand, as
regards
administration
of property
which a religious denomination is entitled to own and
acquire, it has undoubtedly
the
right
to
administer
such property but only in accordance with
law.
This
means that
the
State can regulate the
administration
of trust properties by means of laws validly
enacted ;
but here again it should be
remembered
that under
article 26 ( d), it is the religions
denomination
itself
which has been given the right to administer its property in accordance with anv law which the
State may
validly impose.
A law, which takes away the right of
3-98 S. C. India./59
1954
Ratila.j
Pancchand
Gandhi
v.
The State of
Bomba;· and
Others.
Mukherjea J.
1954
Ratilal
Panachand
Gandhi
v.
The Stat< of
Bombay and
Others.
MuklurJea J.
1064
SUPREME COURT REPORTS
administration altogether from
the religious
nation and vests it in any other or secular
would amount to violation
of
the
right
guaranteed by article 26( d) of the Constitution.
[1954]
denomiauthority,
which is
The moot point for consideration, therefore, is where
is the line to be drawn between what are
matters
of
religion and what are not ? Our Constitution-makers
have made no attempt to define what 'religion'
is
and
it is certainly not possible to
frame
an
exhausti 1·e
definition of the word 'religion' which would be applicable to all classes
of persons.
As has
been indicated
in the Madras case referred to above,
the definition
of
'religion' given by Fields J. in the
American
case
of
Davis v. Beason (1), does not seem to us
adequate or
precise.
"The term 'religion' '',
thus
observed
the
learned Judge in the case mentioned above, "has reference to one's views of his relations to his
Creator and
to the obligations
they impose
of reverence
for His
Being and character and of obedience to His Will. It is
often confounded with culttis or form of worship
of a
particular sect, but is distinguishable
from the latter".
It may be
noted that 'religion'
is
not
necessacily
theistic and in fact there are well known religions in
India like Buddhism and Jainism which do
not believe
in the existence of God or of any
Intelligent First
Cause. A religion undoubtedly has its basis
in a sys:cm
of beliefs and doctrines which are
regarded by
those
who profess that religion
to be
conducive
to
their
spiritual well being, but it would not be correct
to say,
as seems to have been suggested by one of the learned
Judges of the
Bombay
High Court, that matters of
religion are nothing but matters of religious
faith
and
religious belief.
A religion is not merely
an op11110n,
doctrine or belief.
It has its outward expression
rn
acts as well.
We may quote in this
connection
the
observations of
Latham C. J. of the High Court of
Australia in the case of Adelaide Company v. The Commonwealth( 2 ), where the extent of protection
given to
religious freedom
by
section 116 of the
Australian
Constitution came up for consideration.
(1) 133U.S.333.
(2) 67 C. L. R. 116, 124·
S.C.R.
SUPREME COURT REPORTS
1065
"It is sometimes suggested in discussions
on the
subject of freedom
of religion
that,
though
the civil
Government should not interfere with religious opinions,
it nevertheless may deal as it pleases
with any
acts
which are done in pursuance of religious belief without
infringing the
principle of freedom
of religion.
It
3ppears to me to be difficult to maintain this distinction
as relevant to the interpretation
of section 116.
The
section refers in express terms to the exercise of religion,
and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in
the exercise of religion. Thus the section goes far
beyond protecting liberty of opinion.
It protects also
acts done in pμrsuance of
religious
belief as
part of
religion."
In our opinion,
Madras case, these
provision regarding
in our Constitution.
as we have already
said
in the
observations
apply fully
to the
religious freedom that is embodied
Religious
practices or performances
of acts
in
pursuance of religious belief
are as much
a
part of
religion as faith or belief in particular
doctrines.
Thus
if the tenets of the Jain or the Parsi religion lay down
that certain rites and ceremonies
are to be
performed
at certain times and in a particular
manner, it cannot
be said that these are secular activities
partaking
of
commercial or economic characte_r simply
because they
involve expenditure of money or employment of priests
or the use of marketable
commodities.
No
outside
authority
has any right to say that these
are not
essential parts of religion and it is not
open to the
secular authority
of the
State to restrict
or prohibit
them in any manner they like under
the guise
of
administering the trust estate.
Of course, the scale of
expenses
to be incurred
in
connection
with
these
religious
observances
may
be
and
is
a matter of
administration of property
belonging to religious institutions; and if the expenses on these heads
are likely
to deplete the endowed properties or affect the stability
of the
institution,
proper
control can
certainly
be
exercised by State agencies as the law
provides.
We
may refer in
this
connection
to the
observation
of
1954
Ratilal
P aruu:l111nd
Gandhi
v.
TheStat,.f
Bombay and
Others.
Mukherjea J.
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bombqy and
Others.
Mukhe>-jea J.
1066
SUPREME COURT REPORTS
[1954}
Davar J. in the case of Jamshedji v. Soonabai(' ), and
although they were made in a case where the questio!'
was whether the bequest
of property by a Parsi testator
for the purpose
of perpetual ce1ebration of ceremonies
like Muktad baj, Vyezashni, etc., which are sanctioned
by the Zoroastrian religion were valid charitable gifts,
the observations, we think, are
quite
appropriate for
our present purpose. "If this is the belief of the community" thus
observed
the learned
Judge, "and it is
proved undoubtedly to be the belief of the Zoroastrian
community,-a secular Judge is
bound to accept that
belief-it is not for him to sit in judgment on that
belief, he has no right to interfere with
the
conscience
of a donor who makes a gift in favour
of what he
believes to be the advancement of his religion and the
welfare of his community
or mankind".
These observations do, in our opinion, afford an indication
of the
measure of protection that 1s given by article 26(b) of
our Constitution.
The distinction
between
matters of religion
and
those of secular administration of ;eligious
properties
may, at times, appear to be a thin one.
But
in cases
of doubt, as Chief Justice
Latham pointed out
in the
case(2) referred to above, the court should take a common sense view and be actuated by considerations
of
practical necessity.
It is in the light of these
principles that we
will proceed to examine the
different
provisions of the
Bombay
Public
Trusts
Act,
the
validity of which has been challenged on behalf of the
appellants.
We will first turn to the provisions of the Act which
relate to registration of trusts.
Under section 18, it is
incumbent on the trustee of every public, religious
or
charitable trust to get the same registered.
Section 66
of the
Act makes it an offence for a trustee not
to
comply with this provision and prescribes
punishment
for such offence.
Section 31 provides
for further compulsion by laying down that no suit shall lie on behalf
of a public trust to enforce its right in any court of law
unless the trust is registered.
A compulsory payment
(1) 33 Born. 122.
(2/ Vide Adelaide Company v· The Commonwealthi 67 C. L. R. 116, 129.
S.C.R.
SUPREME COURT REPORTS
1067
of a fee of Rs. 25 has also been prescribed
by the rules
framed by the Government for registration
of a trust.
The provisions of registration undoubtedly have been
made with a view to ensure due supervision of the trust
properties and the exercise
of proper
control
over
them. These are matters relating to administration of
trust property as contemplated
by article 26( d) of the
Constitution and cannot, by any stretch
of imagination, be held to be an attempt at interference with
the
rights of religious institutions
to manage
their religious
affairs.
The fees leviable under section 18 are credited
to the Public Truit Administration
Fund constituted
under section 57 and are to be spent for
meeting
the
charges incurred in the regulation of public trusts
and
for carrying into effect the provisions of the Act.
The
penalties provided are mere
consequential
prov1S1ons
and involve no infraction
of any
fundamental
right.
It has been argued
by
the learned
counsel
for the
appellants that according to the
tenets
of
the
Jain
religion the property of the temple and its income exist
for one purpose only, viz., the religious purpose,
and a
direction to
spend money
for purposes
other .than
those which are considered sacred in the Jain scriptures
would
constitute interference
with
the freedom
of
religion.
This contention does not appear to us to be
sound.
These expenses are incidental to proper management and administration of the trust estate
like
payment of municipal rates
and taxes, etc.,
and
cannot
amount to diversion
of
trust
property
for purposes
·Other than those which are prescribed by any religion.
The next group of sections to which objections have
been taken
comprises
sections 32 to 37.
Section 32
compels a trustee of a public trust to keep accounts in
such form as may be prescribed by the
Charity Commissioner.
Section
33 provides
for the
auditing
of
such accounts and section 34 makes it the duty of the
auditor
to prepare
balance-sheets and to report irregularities, if any,
that are found in the
accounts.
These
are certainly
not matters of religion and the objection
raised with regard to
the validity
of these provisions
seem to be altogether baseless.
Section 35 relates
to
investment of money belonging
to trusts. It is a well
1954
Ratilal
Panachand
Gandhi
v.
Tiu Stat• of
Bombay and
Others.
Muk/uefea J.
1954
Ratilal
Panachand
Gandhi
v.
Tht Stat< of
Bombay and
Others.
Mukhtrjea J.
1068
SUPREME COURT REPORTS
[1954]
settled principle of law that trustees
in charge of trust
properties should not keep cash money in their hands
which are not necessary for immediate expenses ; and
a list of approved securities upon which trust money
could be invested
is invariably
laid
down in every
legislation on the
subject of trust. There is nothing
wrong in section 36 of the
Act.
Immovable
trust
properties are inalienable by their very nature and a
provision that they could be alienated
only
with
the
preyious sanction of the Charity
Commissioner
seems
to us to be a perfectly salutary provision.
Section 37 has been objected to on the ground that
an unrestricted right of entry in any religious premises
might offend the sentiments of the followers of that
religion; but the section
has expressly
provided
that
the officers
making the
entry shall give
reasonable
notice of their intended entry to the trustees
and shall
have due regard to the religious practice
and usages
of
the trust.
Objection has next been taken to sections 44
and 47 of the Act. Section
44 lays
down that
the
Charity
Commissioner can
be appointed
to act
as
trustee of a public trust by a court of competent
jurisdiction or by the author
of the trust. If the author
of the trust chooses
to appoint the
Charity
Commissioner a trustee, no objection can possibly
be taken to
such action ; but if the
court is
authorised
to
make
such appointment, the provisions of this section
in the
general form as it stands appear to us
to
be open to
serious objection.
If we take for example the case of
a religious institution like a Math at the head of which
stands the
Mathadhipati
or spiritual
superior.
The
Mathadhipati is a trustee according
to
the provisions
of the Act and if the court is competent to appoint the
Charity Commissioner as a superior of a Math, the
result would be
disastrous
and it would amount to a
flagrant violation of the constitutional guarantee which
religions institutions
have
under the
Constitution in
regard to the management of its religious affairs. This
is not a secular affair at all relating to the administration of the trust property. The very object of a Math
is to maintain a competent line of religious
teachers
for
propagating
and
strengthening
the
religious
S.C.R.
SUPREME COURT REPORTS
1069
doctrines of a particular order or sect
and as there
could
be no
Math
without a Mathadhipati
as
its
spiritual head, the substitution of the Charity Commissioner for the superior would mean a destruction
of
the institution
altogether.
The evil
is further aggravated by the provision
of clause
( 4) of the
sect10n
which says that the Charity Commissioner shall be the
sole trustee and it shall not be lawful to appoint him
as a trustee along with other persons.
In our opinion,
the provision of section 44 relating to the appointment
of the Charity Commissioner as a trustee of any public
trust by the court without any reservation in regard to
religious institutions like temples and Maths is unconstitutional and must be held to be void. The very same
objections will apply to the provisions
of clauses (3) to
(6) of section 47. The court can certainly be empowered
to appoint a trustee to fill up a vacancy
caused
by
any of the reasons mentioned in section 47 (I), and it is
quite a salutary principle that in making
the
appointment the court should have regard to matters specified
in clause (4) of sedion 47; but the provision of clause (3)
to the extent that it authorises
the
court
to appoint
the Charity Commissioner
as the
trustee-and who
according to the provisions of clause (5) is to be the
sole trustee-cannot be regarded as valid
in regard to
religious institutions of the type
we have
just
indicated. To allow the Charity Commissioner to function
as the Shebait of a temple or the superior of a Math
would
certainly
amount to interference
with
the
religious affairs
of this institution. We hold accordingly
that the
provisions
of clauses (3) to
(6) of
section 47 to the extent that they relate
to the appointment of the
Charity Commissioner as a trustee of a
religious trust like temple and Math are invalid.
If
these provisions
of
section
47
are
eliminated,
no
objection can be taken to the provision
of section 48
as it stands. This section will in that event be confined
only to cases where the Charity
Commissioner has been
appointed
a trustee by
the author
of
the
trust
himself
and
the
administrative
charges
provided
by
this
section
can
certainly
be
levied
on the
trust.
1954
Ratilal
Panachand
Gandhi
v.
The State of
Bomba)' and
Others.
-=
Mukhedea J.
1954
Ra ilal
;·•anachand
. Gandhi
v.
The State of
Bombay and
Others.
Mukherjea J.~
1070
SUPREME COURT REPORTS
[1954]
We now come to section 50 and exception has been
taken to clauses
( e) and (g) of that section.
It is
difficult to see how these provisions
can at
all be
objected to.
Section 50, as has been said above, is really
a substitute for section 92 of the Civil Procedure Code
and relates to suits in connection
with
public
trusts.
Clause ( e) of section 50 is an exact
reproduction
of
clause ( e) of section 92 of the
Civil
Procedure
Code
and clause (g) also reproduces
substantially
the provision of clause (g) of section 92 of the
Civil
Procedure
Code. There is no question of infraction of any fundamental right by reason of these provisions.
A more serious objection
has
been taken
by the
learned counsel for the appellants
to the provisions
of
sections 55 and 56 of the impugned
Act and it appears
to us that the objections are to a great
extent
well
founded.
These sections purport to lay down
how the
doctrine of cy pres
is to be applied
in regard
to the
administration of public trust
of a religious or charitable
character. The doctrine of cy pres as developed by the
Equity Courts in
England, has been adopted
by our
Indian courts since a long time past.
The provisions of
sections 55 and 56, however, have extended the doctrine
much beyond
its recognised
limits
and have further
introduced certain principles which run counter to well
established rules
of law regarding the
administration
of charitable trusts.
When the particular
purpose for
which a charitable trust is created fails
or by reason
of
certain circumstances the trust cannot be carried into
effect either in whole
or in part, or where there is a
surplus left after exhausting the purposes specified
by
the senior, the court would not, when there is a general
charitable intention expressed by the
settlor, allow the
trust to fail but would execute it cy pres,
that
is to
say, in some way as nearly as possible
to
that which
the author of the
trust intended.
In such cases,
it
cannot be disputed that the court can frame a scheme
and give suitable directions regarding the objects upon
which the
trust
money
can be spent.
It
is well
established, however,
that where the donors' intention
can be giyen effect to, the court has
no authority
to
sanction any deviation from the
intentions
expressed
S.C.R.
SUPREME COURT REPORTS
1071
by the settlor on the grounds
of expediency
and the
court cannot exercise the power of applying
the trust
property
or its income to other
purposes
simply
because it considers
them
to
be more expedient
or
more beneficial than what the settlor had
directed(' ).
But this is exactly what has been done
by the provision of section 55 ( c) read with section 56 of the Act.
These provisions allow a diversion of property
belonging to a public trus.t or the income
thereof
to
objects
other than those intended by the donors if the Charity
Commissioner is of opinion, and the court confirms its
opinion and decides,
that
carrying
out
wholly
or
partially the original intentions of the author
of the
trust or the object for which the trust
was created is
not wholly or partially expedient, practicable, desirable
or necessary ; and that the property
or income of the
public trust or any portion thereof
should
be applied
to any
other charitable or religious
object.
Whether
a provision like this is reasonable or not is not pertinent
to our enquiry and we may assume that the legislature,
which is competent
to legislate on
the subject
of
charitable and religious trust, is at liberty ·to make any
provision which may not be in consonance
with
the
existing law ; but the
question
before us is, whether
such
provision
invades
any
fundamental
right
guaranteed
by our
Constitution,
and we
have
no
hesitation in holding that it does
so in the case
of
religious trusts.
A religious sect or
denomination has
the undoubted right guaranteed by the
Constitution to
manage its own affairs in matters of religion and this
includes the right to spend the trust property or its
income for the religious purposes and objects indicated
by the founder of the trust
or established
by nsage
obtaining in a particular
institution.
To divert
the
trust property or funds for purposes
which the Charity
Commissioner
or the
court considers
expedient or
proper, although the original
objects
of the founder
can still be carried out, is to our minds an unwarrantable
encroachment
on
the
freedom
of
religious
institutions
in regard to
the
management
of their
religious affairs.
It is perfectly true, as has been stated
(I) Virle Rasbury, 2nd Edn., vol. IV, p.