Patna High Court
Baijaynanda Giri And Ors. vs State Of Bihar And Anr. on 5 October, 1953
Equivalent citations: AIR 1954 PATNA 266
JUDGMENT Ramaswami, J.
1. In these applications which have been heard together an important question of law arises for determination, viz., whether the Bihar Hindu Religious Trusts Act (Bihar Act 1 of 1951) is constitutionally valid.
2. In M. J. C. No. 418 the petitioner is Mahanth Moti Das whose muth is situated at village Parbatta in district of Monghyr. The Mahanth is a Bairagi and follower of the religion founded by Shri Kabir Sahib. The Mahanth states in the affidavit that the muth was founded for the spiritual benefit of a particular sect called Kabirpanthis whose doctrines are contrary to the beliefs of the Hindus. The Mahanth alleges that the properties of the muth have been treated as private properties and there is no trust imposed on these properties for any religious or charitable purpose. It is said that on 18-8-1952 a notice was served upon the Mahanth by the opposite party No. 1 under Section 59 of the impugned Act calling upon him to furnish a statement of the properties of the religious trust and threatening to prosecute him in case of default.
It is contended for the petitioner that the Bihar Hindu Religious Trusts Act is unconstitutional and void as its provisions violate Articles 14, 19(1) (f), 25, 26 and 27 of the Constitution of India. It is further contended that the religion founded by Kabir Sahib is not of Hindu origin and therefore the Act has no application to the petitioner or to the Asthal of which the petitioner is Mahanth. The petitioner prays that High Court should issue a writ in the nature of prohibition or mandamus against the opposite parties restraining them from interfering with the right of the petitioner to manage the properties of the muth.
3. In M. J. C. No. 415 the petitioner is Mahanth Sri Baijayananda Giri of Manik Chawk uth. The allegations of the petitioner are similar to those made in M. J. C. No. 418. The provisions of the Bihar Hindu Religious Trusts Act are challenged as unconstitutional and void and there is a further assertion on behalf of the petitioner that the properties of the muth are not trust properties at all and the Act has no application even if it is held that the Act does not violate any constitutional guarantee.
4. In the other Miscellaneous Judicial Cases the material facts alleged are of similar character.
5. It is necessary in the first place to set out the relevant provisions of the Bihar Hindu Religious Trusts Act (hereinafter referred to as the 'impugned, Act') for the purpose of reaching a conclusion as to its constitutional validity. The title of the Act is important. The Act is entitled "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 states :
"Whereas it is expedient to provide 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."
The preamble is followed by definitions in Section 2. Section 2(e) defines a 'Hindu' to mean a person professing any religion of Hindu origin and to include a Jain and a Budhist, but not a Sikh. Section 2(1) defines a 'religious trust' to mean any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but not to include a trust created according to the Sikh religion or purely for the benefit of the Sikh community or a private endowment created for the worship of a family idol in which the public are not interested.
Section 2(n) defines a 'trustee' to mean any person appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust or by the District Judge or any other competent authority. 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 & hold property, both movable & immovable. Section 7 makes provision for the appointment of the President and the members of the first Board and their terms of office. Section 3 contains the terms of the constitution of the second and every subsequent Board. Chapter 4 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 5 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 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 6 refers to the establishment of regional trust committees and the powers and duties imposed on such committees. Chapter 8 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 10 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 who may alter or modify the budget in such manner and to such extent as it thinks fit. Chapter 11 relates to audit of accounts and recovery of irregular expenses from the trustees in default. Chapter 13 provides for the creation of a trust fund which is to be vested in the Board. Section 70 states that for the purpose of defraying the expenses incurred in the administration of this 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 16 provides for the dissolution or supersession of the Board.
Section 80 states that it 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.
6. The first question debated in these cases is whether the impugned Act violates the guarantee under Article 19(1)(f) of the Constitution. It was pointed out by Mr. G. P. Das that Article 19(l)(f) declared that all citizens shall have the right to acquire, hold and dispose of property and that the impugned Act imposed unreasonable restrictions on the right of a mahanth, tooth from the substantive and procedural point of view. Belying upon the authority of the Supreme Court decision in the case of -- 'Sm. Angur Bala v. Debabrata', AIR 1951 SC 293 (A), Mr. G.P. Das argued that the right of a mahanth was not that of a bare trustee but that the right of the mahant carried with it the element of beneficial or personal interest in the properties. The complaint of the learned counsel is that the impugned legislation made a drastic restriction on the proprietary powers of the mahanth and the effect was to reduce the position of the mahanth to a mere servant of the Board, mechanically obeying its directions.
Learned counsel based his argument upon several important sections of the Act. For example, Section 28(2) (g) empowered the Board to give directions to the trustees for the proper administration of religious trusts. Reference was made to Section 58 of the Act which cast a duty upon the trustees to carry out the directions to be issued by the Board under any provisions of the Act. It was pointed out that Section 28(2) (e) of the Act empowered the Superintendent or any of the members, officers or servants of the trust to inspect the property of the muth and the office of the religious trust including accounts. Counsel also referred to Section 28(2) (h) (iii) which enabled the Board to remove a trustee from his office when he refuses to act according to the directions of the Board. Counsel also referred to Section 28 (2)(j) which enabled the Board to sanction the conversion of any property of religious trust into any other property if the Board was satisfied that such conversion was beneficial for the trust.
Reference was also made to Section 32 which empowered the Board to settle schemes for proper administration of religious trusts. Learned counsel also read Sections 44 and 45 of the Act which imposed restrictions on the power of the trustee to borrow money or transfer immovable property of religious trusts by way of sale, mortgage or gift or by way of lease for a term exceeding three years without the previous sanction of the Board. Learned counsel then read Section 59 of the Act which imposed a duty upon the trustee to furnish full particulars of religious trusts in a statement in the prescribed form. Learned counsel pointed out that Section 60 of the Act imposed a duty upon the trustee to prepare a budget of income and expenditure of the religious trusts and that under Section 60(2) the Board had authority to alter or modify the budget in such manner and to such extent as it thinks fit.
The complaint of the learned counsel was that Section 60 imposed unreasonable fetters on the discretion of a mahanth or shebait to spend the surplus portion of the income in any manner he thought fit. Reference was lastly made to Section 30 of the Act which empowered the Board to determine the object to which the trust funds should be applied when the original object of the endowment had ceased to exist or had become impossible of achievement. Learned counsel also referred to Section 49 of the Act and submitted that the doctrine of 'cypres' has been carried too far.
7. In examining the argument with respect to violation of Article 19(1)(f), it is, I think, desirable to bear in mind the exact legal position of the shebait or mahanth of the religious institution at the time when the impugned Act was passed. It is necessary to examine what was the legal right of the mahanth, what were the legal limitations on that right, and what further limitations to that right have been imposed by the Act. That is the true approach to the problem presented in these cases. It was contended by Mr. G.P. Das that the right of a mahanth was not a mere right of office but that the mahant had a beneficial interest in the properties endowed in the name of the muth. This argument is correct. It is now established that in the position of a mahanth the elements of office and proprietary right, of duty and personal interest are mixed up and blended. The matter was elaborately discussed by a Full Bench of the Calcutta High Court in the case of -- 'Monohar Mukherjee v. Bhupendra Nath', AIR 1932 Cal 791 (FB) (B) and the decision of the Pull Bench was approved by the Judicial Committee in the case of --'Ganesh Chunder v. Lal Behari', AIR 1936 PC 318 (C) and case of -- 'Bhabatarini Debi v. Asha-lata Debi', AIR 1943 PC 89 (D) and by the Supreme Court in AIR 1951 SC 293 (A).
These authorities emphasise that the position or a mahanth or shebait is a combination of office and proprietary right and though the position is anomalous, it is an anomaly which has been recognised and accepted in Hindu law from a very early date. But it is important to remember that though a mahant has a beneficial interest and though he has large administrative powers, his control is always subject to certain obligations and duties governed by the custom and usage of the particular muth. A Mahant is not a trustee in English sense of the term but a Mahant is nevertheless in view of the obligations and duties resting upon him answerable as a trustee in the general sense for proper, administration. The Mahanth in fact occupies a fiduciary position in respect of the endowment and he has duties and obligations of certain kinds to discharge.
In 'Ram Parkash Das v. Anand Das', AIR 1916 PC 256 (E) the Judicial Committee described the status of a Mahanth as follows :
"The mahant is the head of the institution.
He sits upon the gaddi, he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites, he manages the property of the' institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself. Upon the death or abdication he is succeeded by one of the bairagi chelas. These bairagi chelas are, as stated, celibates; or if they have ever been married they must prior to their initiation as bairagi chelas, have renounced their wives and families and have conformed to the practice of the muth. This practice is ascetic; it involves a separation from all worldly wealth and ties, and a self dedication to the services and rites of the asthal ..... this property is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the muth or institution itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist, and that it must be respected."
The law stated in this case as regards the Juristic position of the mahant is substantially correct. The implication of this case was later explained by the Judicial Committee in -- 'Vidya Varuthi v. Baluswami Ayyar', AIR 1922 PC 123 (F). It was pointed out that in AIR 1916 PC 256 (E) the term 'trustee' had been used by Lord Shaw not in the technical English sense but in the general sense to convey a general conception of the obligations imposed on the mahant. It was held by the Judicial Committee in -- 'Vidya Varuthi's case (F) that a mahant was neither a corporation sole nor a life tenant in respect of the muth properties nor was he a trustee in the sense in which the term was understood in English law, But the Judicial Committee was emphatic that though a mahant was not a trustee in the technical sense of English law he was nevertheless in view of the obligations and duties resting upon him answerable as a trustee in the general sense for proper administration of the properties of the institution.
At p. 126 the Judicial Committee states :
"Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system": to Brahmans, Goswamis, Sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usaga and custom certain obligations ..... In many cases in Southern India especially where the diffusion of Aryan Brahmanisrn" was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of muth were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application or the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage."
It is clear therefore that though a mahanth is not a trustee in the strict sense of English law, he is a trustee in the general sense occupying a fiduciary position in respect to the endowment and having obligations of certain kinds to discharge. He holds the muth property for certain religious and charitable purposes which are laid down by the founder in the original grant or sanctioned by custom and usage of the muth. A mahant has no authority to alienate trust properties except for benefit or legal necessity of the muth. A mahant has authority to borrow money but he may do so only for the purposes connected with the muth A mahant is not entitled to grant lease in perpetuity and fix an unalterable rate of rent. A mahant has a large discretion in spending the surplus over the objects connected with the institution. But it is not permissible for the mahant to spend the surplus for his personal use. He is not bound to save the surplus but if he spends it at all he must spend it only for the purpose connected with the objects of the institution.
That he is not the owner of the surplus income is clear from the fact that after his death the savings are not regarded as his personal property and cannot be proceeded against for satisfaction of his personal debts (see -- 'Appa Rao v. Vignesam Subudhi', AIR 1937 Mad 118 (G) ). A mahant is therefore accountable if he uses the surplus fund for purposes alien to those for which the institution was founded. Even before the passing of the impugned Act there was statutory machinery for enforcing the obligations and duties imposed upon a mahant. Section 92, Civil P. C. provides that in the case of any 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 is 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, may institute a suit in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial Government, to obtain a decree -- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
The section therefore provides an important machinery for enforcing the obligations and duties imposed on trustees. The section can be invoked when there is a case of any alleged breach of any express or constructive trust or when the directions of the Court are deemed necessary for the administration of any such trust. The jurisdiction granted to the Court is of very wide extent. The Court may remove a trustee and appoint a new trustee, the Court may direct account and inquiries into the trust properties, the Court may declare what proportion of the trust property shall be allocated to any particular object of the trust. The Court may also authorize the whole or any part of the trust property to be let, sold, mortgaged or exchanged. The Court is also empowered to settle a scheme for the trust properties or grant such other relief as the nature of the case may require.
8. In the light of these facts the constitutional objection under Article 19 (1) (f) has to be tested. The powers granted to the Board under the impugned Act are very similar to the powers granted to a District Judge under Section 92, Civil P. C. Section 28 (2) (e) grants authority to the Board to inspect the property and office of every religious trust including accounts. Section 28 (2) (g) empowers the Board to give directions for the proper administration of religious trusts in accordance with law governing such trusts. Section 28 (2) (h) empowers the Board to remove a trustee from his office for certain reasons. Section 28 (2) (j) authorises the Board to sanction conversion of any property of the trust into any other property if the Board is satisfied that such conversion is beneficial for the said trust. Section 32 empowers the Board to settle a scheme for the proper administration of religious trusts. Sections 44 and 45 impose restriction on the power of the trustee to borrow money or to transfer immovable property of the trust. Section 60 (2) authorises the Board to alter or modify the budget of the religious trusts in such manner and to such extent as it thinks fit. Section 30 enables the Board to determine the object to which the funds of religious trusts should be applied if the original object has ceased to exist or has become impossible of achievement.
All these powers conferred on the Board of religious trusts correspond to the powers of the district judge in a suit instituted under Section 92, Civil P. C. The only distinction is that the impugned Act provides a better and more speedy remedy for the enforcement of the obligations and duties imposed on the trustees instead of the lengthy and cumbrous procedure of a suit. The Board is vested with summary powers on various matters but the control of the Board is always subject to the important condition that the control as exercised for the better and more efficient administration of the trusts, and for the protection and preservation of the trust properties. That is the key-note which runs through the whole Act. The preamble of the Act states that "It is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trust."
Section 23 (1) 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 60 (2) empowers the Board to alter or modify the budget in such manner and to such extent as it thinks fit. But Section 60 (6) states that "nothing contained in the section shall be deemed to authorise 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."
The argument was presented on behalf of the petitioners that large powers have been conferred on the Board and that there is a possibility that the Board may abuse its powers and harass the trustees. But it is not proper to test the constitutional validity of an Act by the possibility that the powers conferred may be abused. In any case, important restrictions have been imposed on the Board in various matters. For example, Section 28 (2) (h) enables the Board to remove a trustee for the reasons stated therein but the trustee has right of appeal to District Judge under Section 28(3). That section states that the order should be communicated to the trustee concerned and such trustee may within ninety days of the communication of the order appeal to the District Judge for varying, modifying or setting aside the order.
Again Section 28(2) (j) empowers the Board to sanction conversion of the property of religious trusts into other property if the Board is satisfied that-such conversion is beneficial for the trust. But there is a proviso that no such conversion shall be sanctioned unless the Board so resolves by a majority of three-fourths of its members and the resolution of the Board must be approved by the District Judge. Again Section 32 empowers the Board to settle a scheme for proper administration of religious trusts. But Section 32(3) gives right to the trustee or any other person interested in the trust to appeal to the District Judge for varying, modifying or setting aside the scheme. On certain points however the Act may be capable of improvement from the procedural aspect. If the trustee of a particular endowment objects that the Board has no jurisdiction on the ground that the trust is private and the properties are not trust properties, there is no provision- made in the Act for proper determination of this question. Presumably the Board may hear and determine the objection and the aggrieved party has the right to institute a suit in the civil court to challenge the decision of the Board.
It is perhaps desirable that the Act should contain a provision that the question should be determined by District Judge in a summary manner and the aggrieved party should also have a right to file a suit in the civil court if the decision of District Judge is challenged. The Act contains a duplication of procedure for the removal of a trustee. Section 28(2)(h) provides that the Board may remove a trustee from his office if such trustee (i) is convicted of any such offence as implies moral turpitude, (ii) is convicted more than once of the same or different offences under this Act, (iii) refuses to obey the directions of the Board. Section 48 states that the Board may apply to District Judge for removing a trustee if such trustee (i) acts in a manner prejudicial to the interest of the said trust; (ii) defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property or income of the said trust or any other statutory charge on such property or income, (iii) defaults on three or more occasions in the payment of any sum payable to any beneficiary under the said trust, or in discharging any other duty imposed upon him under it or (iv) is guilty of a breach of trust.
There appears to be no good reason why the Board should be empowered to remove the trustee for certain cases of default and the District Judge should be given authority to remove trustee in other cases of default. It is perhaps desirable that provision should be made for the removal of a trustee only by the order of District Judge on application made by the Board. Again Section 60 authorises the Board to alter the budget in any manner it thinks fit and the aggrieved trustee has no remedy against the action of the Board. It is desirable in my opinion that an appeal to District Judge should be proved against the order of the Board modifying or altering the budget.
9. Two other points were taken by the learn-ed counsel on behalf of the petitioners. It was argued that Section 60(2) empowered the Board to alter and modify the allocation of expenditure to the various objects for which the endowment was made. But Section 60(6) enacts that the power of the Board is subject to the directions of the founder. If there is any direction as regards allocation of the income to be spent on the various objects of the grant the Board is not empowered by the Act to make any change in the allocation. But if there is no such direction contained in the original grant, the Board has authority to allocate the income to the various objects in such manner as it thinks fit. This power is not new. It is exactly similar to the power granted under Section 92, Civil P. C. to a District Judge "to declare what proportion of the trust property or the interest therein shall be allocated to any particular object of the trust."
It was argued on behalf of the petitioners that if the mahant is taken ill and money has to be spent for medical treatment the Board may unreasonably disallow this item of expenditure of the budget. The argument proceeds on a misconception. If the expenditure for medical treatment is permissible according to the wishes of the founder or according to the custom and usage of a particular muth, the Board has obviously no power under the Act to disallow that item of expenditure. If the expense of medical treatment is not justified by the custom or usage of the muth or there is no provision made by the founder in the original grant, the matter will be left to the discretion of the Board of Trust who are presumed to exercise the discretion in a reasonable manner.
Another argument was advanced that the mahant would be required to show in the budget the personal offerings made by his disciples and such a provision was unreasonable. The question again depends upon the intention of the disciples who make the offerings. If the intention of the disciples was to make offering to the institution and not to the mahant personally, the offerings must be accounted for in the budget prepared by the mahant. But if the offerings are made to the Mahant personally and not to the institution, it is not necessary that the offering should be shown in the budget, for Section 60 only requires the trustee to prepare a budget "of the estimated income and expenditure of such trusts."
10. The Act may be capable of improvement on certain points but if the provisions of the Act are examined as a whole, I am of opinion that the restrictions imposed upon the trustees are not unreasonable from procedural or sub-stantive aspect. There is no violation of the guarantee provided under Article 19 (1) (f) of the Constitution and the argument of Mr. G.P. Das on this part of the case must fail.
11. I next turn to the question whether the impugned Act violates Article 31 of the Constitution. It was argued that there was compulsory acquisition of the property within the meaning of Article 31 that there was no compensation provided in the statute nor was there any public purpose involved. It was contended that there was violation of Article 31 of the Constitution and the whole of the Act must be held to be invalid. In support of his proposition learned counsel referred to. --'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392 (SB) (H), in which it was held by a special Bench that the Bihar State Management Act of 1949 (Bihar Act 21 of 1949) was unconstitutional and invalid. In my opinion the argument proceeds on a misconception. The ratio of the Special Bench decision referred to above has no application to the present case. The majority opinion of Shearer and Sinha JJ. proceeded upon the view that the Bihar Legislature had no competence to enact the legislation, since the subject-matter was not covered by item 21 of the Provincial List. The third learned Judge, Das J. held that there was legislative competence, but the Act was invalid as there was no public purpose and there was no provision for payment of compensation.
The Bihar State Management Act is in any event different in material respects from the Bihar Hindu Religious Trusts Act which is the subject-matter of the present cases. Under the Bihar State Management Act the management of the proprietor or tenure-holder was taken away and the management of the estate was vested in the manager to be appointed by the Government. Section 4 of the Act empowered the manager to take possession of the estate of the proprietor or tenure-holder together with buildings, papers and other properties appertaining to the estate or tenure. Section 4(c) declared that the proprietor or tenure-holder shall be incompetent to mortgage or lease the estate or to grant valid receipts for the rents and profits arising therefrom. The position is different with respect to the Bihar Hindu Religious Trusts Act. The Board does not take possession of the endowed properties; the Board does not perform any act of management with reference to the endowed properties. The Board merely exercises the power of superintendence as provided in Section 28(1) of the Act. There is no acquisition or requisition of property right within the meaning of Article 31. In other words, the impugned Act is legislation made in exercise of the Police Power and not in exercise of the right of Eminent Domain, to use the language of American lawyers.
12. The right of superintendence of public trusts is essentially the right of a sovereign authority. This will be manifest if the question id examined from the historical standpoint. In -- 'Raja Muttu Ramlinga v. Peria Nayagam Pillai', 1 Ind App 209 (PC) (I) it was observed by the Judicial Committee that the superintending authority over temples and religious endowments had been exercised by the old rulers. After the establishment of the British Government it was discovered that the income of many endowments, both Hindu and Mohammadan, was misspent and misappropriated by the persons who were in charge of the same. The British Government therefore asserted its right of supervision over the endowed properties which was exercised by previous rulers and in 1810 a regulation was passed in respect of the province of Bengal under which the general superintendence of all religious and charitable endowment was vested in the Board of Revenue. Similar regulations for Madras and Bombay were passed in the years 1310 and 1817. Later on it was thought that the connection of the British Government with religious establishment of Hindus and Mohammadans was inexpedient and a report was therefore called for by the Government of India in the year 1841 from the Collectors of all districts with a view to divest itself of the management of religious endowments and transfer the management to properly qualified individuals.
As a result, Act 20 of 1863 was passed, whereby such of the provisions of the abovementioned Regulations as related to religious endowments were repealed, and provision was made for the transfer of all such endowments, in certain cases to trustees, and in others to committees. ' But the duty of superintending charitable endowments imposed on the Board of Revenue by the old Regulations was still retained. In the Civil Procedure Code of 1877 a definite section was introduced, viz., Section 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public, religious or charitable purposes, by the Advocate-General or with his consent, by two or more persons, having an interest in the Trust, in the principal Civil Court of the district, for removal of trustees, for appointment of new trustees, for settlement of a scheme and for various other reliefs specified in the section. The section was rater on amended and in this amended form it stands as Section 92 of the present Civil Procedure Code.
In 1890 another statute, the Charitable Endowments Act (Act 6 of 1890) was passed and this statute provided for the vesting and administration of property held in trust for charitable purposes not of a religious nature. The other important Act is Act 14 of 1920. The object of this enactment was to provide facilities for the obtaining of information regarding trusts for public purposes of a charitable or religious nature and to enable the trustee to obtain directions of the Court on certain matters and also to make special provisions for the payment of expenditure incurred in certain suits against the trustees.
13. The argument was put forward on behalf of the petitioners that the definition of a 'religious trust' in Section 2(l) was too wide and that the Act would apply not merely to public endowments but also to endowments of private character with the exception of endowments created for worship of family idol in which the public were not interested. The contention of the petitioners was that there was no warrant or justification why the State should exercise any superintendence over private endowments in which the public were not interested. It was submitted that the superintendence over private endowments was not in the interest of general public and there was a clear violation of the guarantee provided in Article 19(1) (f) of the Constitution. The argument is based upon the definition of 'religious trust' in Section 2(1) of the Act which" defines 'religious trust' to mean 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 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.
The argument involves consideration of two questions -- (1) whether Section 2(1) of the Act upon a true construction applies to private religious endowment; (2) whether the Act is unconstitutional as a whole if the first question is answered in the affirmative. I think that for the purposes of this case it is not necessary to express a concluded opinion on either of these two questions. I shall assume that Section 2(1) upon a right interpretation includes religious endowments of private character and that the provisions of the impugned Act apply to such endowments. On this assumption it was contended for the petitioners that the Act would be wholly unconstitutional and void since the restriction imposed was beyond the permissible constitutional limit. Mr. G.P. Das referred in this connection to Madras and Bombay Acts which applied only to endowments of public character. Mr. G.P. Das referred to Section 6(14) of Madras Act 19 of 1951 which defines "religious endowment" to mean all property endowed for the support of muths or temples, or given for the performance of any service or charity of a public nature.
Counsel also referred to Bombay Act 29 of 1950, the preamble of which states that it was enacted "to regulate and to make better provision for the administration of public, religious and charitable trusts in the State of Bombay." The Advocate-General, however, put forward the opposite view. It was contended that the legislation fell under item 28 of List in -- "Charities and charitable institutions, charitable and religious endowments and religious institutions". The argument was that item 28 was comprehensive enough to include both public and private religious and charitable endowments and that the legislation would be competent even though it embraced within its ambit charitable endowments of private character. It was also contended that Article 19(5) would not be a bar because it might be necessary and reasonable in exceptional cases of the legislature to legislate for better management of private endowments. It is not necessary for the purpose of this case to express any final opinion on this point.
I shall assume in favour of the petitioners that the State Legislature cannot validly legislate for private, charitable or religious endowments. But the petitioners are not right in submitting that the Act would be unconstitutional and void even so far as it applied to public, religious and charitable endowments. In a matter of this description, the principle to be applied is well-settled. The principle is that Legislature must not be presumed to exceed its own jurisdiction and if two constructions of a statute are possible, one of which would make it intra vires and the other ultra vires, the Court must lean to that construction which would make the statute intra vires. To put it differently, the language used in Section 2(1) of the Act must be read down in such a case so as not to apply to public or charitable trust of a private character. In support of this principle reference should be made to -- 'Macleod v. Attorney General for New South Wales', (1891) AC 455 (J), in which the Legislature of New South Wales had enacted a law providing that "whosoever being married marries another person during the life of the former husband or wife," wheresoever such second marriage takes place, shall be liable to penal servitude for seven years."
The appellant who had during the lifetime of his wife married another woman in the United States of America, contended that the Court had no jurisdiction to try him for the alleged offence, since the Act under which he was tried, according to its true construction, was limited to offences committed within the jurisdiction of the local Legislature by persons subject at the time of the offence to its jurisdiction; and that upon any other construction the Act would be ultra vires. The Judicial Committee observed that if the statute was construed as it stood and upon the bare words, any person, married to any other person, who married a second time anywhere in the habitable globe, was amenable to the criminal jurisdiction of New South Wales, if he could be caught in that Colony.
At page 457 Lord Halsbury states :
"That seems to their Lordships to be an impossible construction of the statute, the Colony can have no such jurisdiction, and their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge then: jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, in-consistent with the most familiar principles of international law. It, therefore, becomes necessary to search for limitations, to see what would be the reasonable limitation to apply to words so general; and their Lordships take it that the words 'Whosoever being married' mean "Whosoever being married, and who is amenable, at the time of the offence committed, to the jurisdiction of the Colony of New South Wales."
And again at p. 459 :
"It appears to their Lordships that the effect of giving the wider interpretation to this statute necessary to sustain this indictment would be to comprehend a great deal more than Her Majesty's subjects; more than any persons who may be within the jurisdiction of the Colony by any means whatsoever; and that, therefore, if that construction were given to the Statute, it would follow as a necessary result that the statute was ultra vires of the Colonial Legislature to pass. Their Lordships are far from suggesting that the Legislature of the Colony did mean to give to themselves so wide a jurisdiction. The more reasonable theory to adopt is that the language was used, subject to the well-known and well-considered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the Colony."
The principle applies to all law-making bodies with limited powers.
In 'D'Emden v. Pedder', (1904) 1 CLR 91 (K), the High Court of Australia held that there was no jurisdiction for assuming that a State Parliament intended general words in an enactment to have an application which would conflict with the constitution of the Commonwealth :
"It is, in our opinion, a sound principle of construction that Act of a sovereign Legislature, and indeed of subordinate legislatures, such as a municipal authority, should, if possible, receive such an interpretation as will make them operative and not inoperative ..... It is a settled rule in the interpretation of statutes that general words will be taken to have been used in the wider or in the more restricted sense according to the general scope and object of the enactment."
The principle is also enunciated in the decision of the "Federal Court 'in the matter of Hindu Women's Rights to Property Act, 1937' AIR 1941 FC 72 (L) in which it was held that the word 'property' in the Hindu Women's Rights to Property Act must be construed as referring to property other than agricultural land. It was observed that when a Legislature with limited and restricted powers makes use in an Act of a word of such wide and general import as 'property', the presumption must be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other.
14. Adopting the principle in the present case it follows that the Act would not be unconstitutional even on the assumption that the State Legislature cannot validly enact a law with respect to private religious endowments. In such a case, Section 2(1) would be read in a restricted sense so as to include only Hindu religious or charitable trusts of public character and the provisions of the Act would apply only to Hindu religious or charitable trusts of public character.
15. I must next examine the question whether the impugned Act violates Article 25 and 26 of the Constitution. The argument of Mr. G. P. Das is that the freedom of the mahants in dealing with the endowed properties is greatly hampered by the drastic provisions embodied in the impugned Act. For example, learned counsel referred to Section 28(2) (g) which empowered the Board to give directions to the trustees for the proper administration of a religious trust, and to Section 28(2) (h)(iii) which empowered the Board to remove a trustee from his office if such trustee wilfully disobeys the directions and orders of the Board. Learned counsel also referred to Sections 44, 45, 51, 58 and 59 of the Act.
Learned counsel complained that Section 58 imposed a duty upon the trustee to carry out all directions which may be issued by the Board. It was argued that the mahant would be reduced to the status of a mere servant, carrying out the orders of the Board, and no discretion would be left to the mahant in the matter of administration. Learned counsel also referred to Section 60 which provided that the trustee should prepare a budget for the estimated income and expenditure and submit a copy thereof to the Board. Section 60(2) empowered the Board to alter or modify the budget in such manner and to such extent as it thinks fit. On the basis of these provisions it was argued that the right of free practice and propagation of religion guaranteed under Article 25 has been interfered with. It was also contended that the guarantee under Article 26 has been violated.
16. In my opinion the argument is not correct. The freedom of religion guaranteed by Article 25 is not an uncontrolled freedom. The religious freedom which has been safeguarded by this article is religious freedom in the background of a secular State. The freedom which Article 25 guarantees is freedom in a social organisation which requires the protection of law against the evils masquerading in name of religion, against evils which menace the welfare and the morals of the people It should be noticed that the right guaranteed under Article 25 is "subject to public order, morality and health." The article also is subject to other provisions of part III of the Constitution, for instance, the right is subject to Article 17 which abolishes untouchability and forbids its practice in any form. Article 17 provides that the enforcement of any disability arising out of 'untouchability' shall be an offence punishable in accordance with law.
There are other restrictions imposed on the right guaranteed by Article 25 (1). For instance, Article 25 (2) permits the State to make any law regulating or restricting any economic, political or other secular activity which may be associated with religious practice. The State has also the right under this article to legislate for social welfare and social reform though it may interfere with the profession, practice and propagation of religion by any particular individual. The State may also legislate for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus though such legislation may interfere with religious practice.
17. In the present case I am of opinion that the impugned Act does not violate the guarantee under Article 25 (1). Unless the legislation 'directly' attempts to control the practice and propagation of religion there is, in my opinion, no violation of the guarantee under Article 25 of the Constitution. The question must always be asked -- "Does the impugned law prohibit the propagation or practise of religion in its character as such ?" The true approach is to consider the directness of the legislation. It was argued on behalf of the petitioners that Section 60 of the Act grants wide discretion on the Board to alter the budget in such manner as it thinks fit. It was contended that the right of the mahant to propagate religion may be affected by the orders given by the Board and the guarantee under Article 25 of the Constitution was therefore violated by the impugned Act. I am unable to accept the argument. The impugned Act may indirectly affect the propagation of religion but Article 25 is not attracted unless the legislation directly relates to the exercise or propagation of religion.
For example, a mahant who is a reputed religious leader may be detained under the provisions of the Preventive Detention Act for reasons of the security of the State. Would it be open to the Mahant to complain that his right under Article 25 has been violated though the legislation fulfils all the requirements of Article 21? It is manifest that Article 25. has no application to such a case. Again, take the case of a millionaire who is piously disposed and who devotes all his income for printing and publishing leaflets to propagate a particular religious tenet. If there is a legislation providing for increased rate of income-tax and sale-tax, is it open to the millionaire to complain that his right under Article 25 has been abridged? It is manifest that such a plea cannot be entertained. This view is supported by the decision of the Supreme Court in -- 'Gopalan v. State of Madras', AIR 1950 S.C. 27 (M).
It was held by the Supreme Court in that case that Article 19 of the Constitution has no application to a law which relates directly to preventive detention even though as a result of the order of detention the rights referred to in Sub-clauses (a) to (e) and (g) of Clause 1 of Article 19 may be restricted or abridged; and that the constitutional validity of a law relating to such detention cannot therefore be judged in the light of the test prescribed in Clause 5 of the said article. At p. 35 Kania, C. J. states;
"If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peacefully and without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of Article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life. On that short ground, in my opinion, this argument about the infringement of the rights mentioned in Article 19(1) generally must fail. Any other construction put on the article, it seems to me will be unreasonable."
Applying this test in the present case it is obvious that there is no violation of the guarantee under Article 25 of the Constitution. The impugned Act is not legislation directly interfering with the practice and propagation of religion. On the contrary, the object of the Act is to provide for the better administration of Hindu religious trusts and for the protection and preservation of the properties appertaining to such trusts. The preamble of the Act makes an express statement to this effect. Section 28 of the Act imposes a duty on the Board to do all things reasonable and necessary to ensure that 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 60 authorises the Board to alter or modify the budget of a trust in such manner as it thinks fit; but Section 60(6) sets an important limitation on the power. Section 60(6) provides that the Board is not authorised to alter or modify the budget in a manner inconsistent with the wishes of the founder. Upon a consideration of these provisions it is clear that the impugned Act deals only with administration of the properties of religious trust and that the impugned Act does not directly relate to practice and propagation of religion. There is no violation of the guarantee under Article 25 of the Constitution and the argument of the learned counsel for the petitioners on this point must fail.
18. That the freedom of religion guaranteed does not prohibit legislation dealing with administration of property is also clear from a consideration of the provisions of Article 26. Article 26 states: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -- (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. The article makes clear distinction between right of a religious denomination to manage its own affairs in the matter of religion and the right of such religious denomination to own and acquire movable and immovable property and to administer such property. Article 26 (d) expressly states that the right of a religious denomination to administer property is not an unqualified right. The right to administer the property is subject, in the first place, to the condition that public order, morality and health are safeguarded. The right is also qualified by the expression that the "administration should be in accordance with law." Article 26 (d) therefore contemplates the right of the State to make a law with respect to administration of property owned and acquired by religious denominations or by any section thereof.
All that is safeguarded is that so long as the religious denomination or a section thereof administers its property in accordance with such law as the State Legislature has passed, that right should not be interfered with. It was not disputed in the course of argument that the expression 'law' in Article 26 (d) should be construed to mean enacted law or State made law and not to mean the principles of natural justice outside the realm of positive law. That was the interpretation given to the word 'law' in Article 21 by the Supreme Court in AIR 1950 SC 27 (M). It was held in that case that the word 'law' in Article 21 was used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice. In my opinion, the word 'law' in Article 26 (d) must be interpreted in the same manner as in Article 21 to mean State-made law. If this view is correct, it follows that the freedom guaranteed under Article 26 to a religious denomination includes the freedom of denomination to manage its own affairs in the matter of religion but does not include unqualified freedom to administer its property. The right of the denomination to administer its property is subject to the right of the State to make law for the administration of such property. In my opinion the impugned Act does not therefore violate the freedom given under Article 26 of the Constitution of India.
19. There are decisions of the Supreme Court of United States which deal with the constitutional protection of religious freedom. These cases clearly lay down that such protection is not absolute and that it does not involve dispensation from obedience to general laws of the land which are not expressly directed against religion. Speaking of the guarantee, Justice Frankfurter declared in a recent case :
"But the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow-men. When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good? To state the problem is to recall the truth that no single principle can answer all of life's complexities. The right to freedom of religious belief, however dissident and however obnoxious to the cherished beliefs of others -- even of a majority is itself the denial of an absolute. But to affirm that the freedom to follow conscience has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration .....
In the judicial enforcement of religious freedom, we are concerned with a historic concept. See Mr. Justice Cardozo in -- 'Hamilton v. University of California', (1934) 293 US 245 at p. 265 (N). The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. The necessity for this adjustment has again and again been recognized" ('Miners Ville School Dist. v. Gobitis', (1939) 310 US 586).
20. I turn next to the question whether the fee payable by religious trust under Section 70 of the impugned Act is in the nature of a tax and whether the statutory provision is constitutionally valid. The argument presented on behalf of the petitioners is that the fee imposed under Section 70 was a compulsory fee, that the fee was not proportionate to the services rendered and there was no relationship between what was paid by the trustee and the services rendered by the Board. It was therefore contended that the fee mentioned under Section 70 is a contribution in the nature of a tax and the State Legislature was incompetent to enact such provision. It was conceded that the impugned legislation falls under items 28, 10 and 47 of List III and if the fee imposed by Section 70 was not a tax but a fee, the legislation could be sustained under the power of the State Legislature mentioned in item 47 of the Concurrent List. It was however contended that the fee was in the nature of a tax and the power to tax was vested in the Parliament and not in the State Legislature by reason of Article 248(1) and entry 97 in List I of the Constitution.
The question to be determined is therefore whether the fee imposed under Section 70 is a payment in the nature of a fee. In my opinion the contribution made under Section 70 is in the nature of a fee and not in the nature of a tax. It is true that there is the element of compulsion in the payment of the fee and it is also true that the fee is not uniform and there is no relationship between the amount of the fee and the services rendered. But the main consideration in such a case is whether the contribution goes to swell the public revenue. In this connection the definition of Bastable is important:
"A tax is a compulsory contribution of the wealth of a person or body of persons for the services of the public powers" (Public Finance, 3rd edition, p. 263).
Seligman also defines the nature of a tax in similar terms-
"A tax is a compulsory contribution from the person to the Government to defray the expenses incurred in the common interest of all without reference to the special benefits conferred" (E. R. A. Seligman -- Essays on Taxation, 10th edition, p. 432).
In the present case the contribution imposed under Section 70 does not go to the consolidated fund of the State of Bihar.
A separate fund is constituted under Section 69 which is ear-marked for a separate purpose. Section 71 states that the trust fund should be applied to certain objects including all the expenses for carrying out the object of the statute. The fund created under Section 69 is not a part of the consolidated fund of State and there is hence no justification for holding that the contribution imposed under Section 70 on the trustee of every religious trust is in the nature of a tax. In his book on American Constitutional Law, Willis states :
"Taxation is the legal capacity of a government to impose charges upon persons or their property to raise revenue for governmental purposes."
Under the present Act, the authorities may be raising revenue from the trustees of religious endowments under Section 70 but the levy is not made for any governmental purpose but for the limited specified purpose laid down in Section 70, viz. for defraying the expenses incurred in the administration of the Act. For these reasons I hold that the contribution made under Section 70 of the Act is in the nature of a fee and not in the nature of a tax and the State Legislature was competent to enact this provision.
21. on this question learned counsel for the petitioners placed much reliance upon the decision of the Madras High Court in -- 'Sri Lakshmindra Theertha Swamiar v. Commissioner, Hindu Religious Endowments Board', AIR 1952 Mad 613 (P), The question at issue in that case was whether the levy of 5 per cent on the income of the muth under the Hindu Religious Endowments Act was constitutionally valid. It was held by a Bench of the Madras High Court that the levy was a tax and not a fee and the Madras State Legislature was not competent to enact the provision with regard to the imposition of the tax. But the authority of that case is of no assistance to the petitioners for the material facts are different. The main distinguishing feature of the Madras Act was that no separate fund was constituted of the levy imposed by the Government on the religious institutions. The contributions were not allocated to any specific fund but the contributions went to the Consolidated Fund of the State. The expenses provided in the Act had therefore to be met by a proper Appropriation Act and not out of any specific fund created by the statute.
The decision of the Madras High Court proceeds mainly on the footing that the contributions made by religious institutions were not ear-marked for any specific fund but the contributions went to the general revenue of the State. The material provisions of the impugned Act in the present case are manifestly different. The present case bears resemblance to -- 'Ratilal Pannachand v. State of Bombay', AIR 1953 Bom 242 (Q) in which it was held that the levy imposed by the Bombay Public Trust Act was in the nature of a fee and not in the nature of a tax. It was held by Chagla C. J.
in that case that the real test to be applied was to consider whether the levy was made for the purpose of raising public revenue for the State. With great respect, I think, that the test laid down by the learned Chief Justice is correct.
22. Lastly the argument was put forward by Mr. G. P. Das that the statute violated Article 14 of the Constitution. The argument was based on Section 2(e) of the Act which defines a 'Hindu' to mean a person professing any religion of Hindu origin and includes a Jain and a Budhist, but does not include a Sikh. Reference was also made to Sections 5, 7 and 8 of the Act which relate to the constitution of the Board of Religious Trusts. It was pointed out that Section 8 made a distinction in the constitution of the Board for the Jains and the Board for the Hindus. In the case of Hindus the constitution of the Board is as follows : (a) four persons appointed by the State Government, (b) two persons elected in the prescribed manner by the trustees of religious trusts other than Jain Religious Trusts; (c) eleven persons elected in the prescribed manner by the Hindu members of the State Legislature, the Parliament, the Municipalities and the District Boards. As regards Jains, two Boards are constituted, one for Swetamber Jains and the other for Digamber Jains. The constitution of these two Boards is identical.
The constitution is (a) two persons appointed by the State Government, (b) four persons elected in the prescribed manner by the trustees of the Jain Religious Trusts, (c) five persons elected in the prescribed manner by Shree Sangh or by the Digambar Samaj. The argument of the learned counsel was that there was no apparent reason why a distinction should be made in the constitution of the three" Boards. Learned counsel complained that the Board of Jain Religious Trusts had a greater proportion of members elected by the trustees. It was further argued that there was no reason why the Sikh endowments were excluded from the purview of the Act. In my opinion the argument of the learned counsel cannot be accepted as valid. The guarantee of equal protection under Article 14 is not absolute. The article does not prohibit legislative classification nor does it prevent the Legislature from enacting special laws to combat special evils.
In this context it is important to remember the principle that the Court ought to make every possible presumption in favour of the constitutionality of the enactment.
"It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds" -- 'Middleton v. Texas Power and Light Co.', (1918) 249 US 152 at p. 157 (R).
The onus is therefore on the petitioners to establish that the classification adopted by the Legislature is arbitrary and unreasonable. That is the principle laid down by the Supreme Court in --'Charanjit Lal v. Union of India', AIR 1951 SC 41 (S). In the present case there is no material produced on behalf of the petitioners to discharge the onus. It is true that in the affidavit the petitioners state that Article 14 has been violated and that the classification is unreasonable; but the petitioners have not alleged that Sikh and Jain endowments are in the same situation as Hindu trusts or that they are mismanaged to the same extent.
No facts are stated in the affidavit to indicate that the classification adopted by the Legislature is unreasonable. On behalf of the respondents it was argued that Sikhs, Jains and Hindus are different in the matter of profession of faith. It was pointed out that Sikhs have no caste or priest, that they do not believe in the Vedas, Puranas or Shastras and the ceremony of initiation was different. It was pointed out that the Jains also do not recognise the divine authority of Vedas and do not practise Saradhs or ceremonies of the dead, nor do they recognise spiritual superiority of the Brahmins. The Government Advocate referred in support of his contention to p. 82 of Maine's Hindu Law, eleventh edition. The contention of the Government Advocate was that Sikhs, Jains and Hindus differ in the matter of numerical strength. It is also conceivable that there is difference as regards the number of religious institutions, the amount of the properties held, the measure and extent of mismanagement and the consequent need for control.
The contention of the Government Advocate was that the onus was on the petitioners to show that the Hindus, Jains and Sikhs were similarly situated in respect of these matters and that the classification adopted in the Act was unreasonable. The argument of the Government Advocate was that the question depends on investigation of facts, that evidence has to be given 'aliunde' and that the petitioners have not shown either by swearing affidavit or otherwise that the classification made under the Act was unreasonable. In this connection counsel pointed out that there was indication in the Act that the Jains possessed an organisation different from that of the Hindus. Section 8 of the Act referred to Shree Sangh which was an assembly of Swetambar Jains and made provision that five persons shall be elected to the Board in the prescribed manner by these two assemblies. The Government Advocate said that the religious institutions of Jains were organised on an ail-India basis.
23. The argument of the Government Advocate is well-founded. The petitioners have not established their claim that the classification is unreasonable or that the guarantee of equal protection of laws under Article 14 is violated. To adopt the words of Justice Stone "It is a salutary principle of Judicial decision long emphasised and followed by this Court that the burden of establishing the unconstitutionality of a statute rests on him who assails it and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of the equal protection of the laws if any state of facts reasonably may be conceived to justify it" ('Metropolitan Casualty Insurance Co. v. Brow-nell, (1934) 294 US 580 (T) ).
24. The next point urged on behalf of the petitioners is that even if the Act is constitutionally valid, the Board has no jurisdiction to issue a notice under Section 59 of the Act for the reason that the endowments are not public endowments and that they do not come within the ambit or operation of the Act. In M. J. C. No. 415 it was asserted by the petitioner that the property was not trust property at all and that the Act had no application. There is a counter affidavit on behalf of the State of Bihar to the effect that Manik Chawk Asthal is a public religious trust. In M. J. C. No. 418 there is an affidavit on behalf of Mahanth Moti Das that the trust exists for the benefit of the Kabirpanthis who are not of Hindu origin and the Act has no application to the petitioner or to the Asthal. There is also an assertion that the properties are not trust properties and there is no endowment made for any public, charitable or religious purpose. There is a counter affidavit also on behalf of the State that the Parbatta Asthal is a public Asthal and the properties in question are trust properties.
In M. J. C. No. 131 of 1953 we have examined the question whether Kabirpanthis are of Hindu origin. We have reached the conclusion that Kabirpanthis are of Hindu origin and that the impugned Act applies to trusts existing for the benefit of Kabirpanthis. The judgment in M. J. C. 131 of 1953 will be pronounced today. The other question at issue, viz., whether the properties be-' long to a public or private endowment, is a question which involves investigation of complicated facts and involves recording of evidence. It is manifest that a proceeding under Article 226 is not a proper machinery for investigating such complicated questions of fact. If the petitioners contend that the properties are not trust properties they are at liberty to institute a properly framed suit claiming the reliefs they seek in a court of competent jurisdiction.
25. For the reasons which I have expressed I think that the Bihar Hindu Religious Trust Act (Bihar Act I of 1951) is a valid piece of legislation and that all these applications for a writ under Article 226 of the Constitution of India must be dismissed with costs. Hearing fee five gold mohars in each case.
Sinha, J.
26. I entirely agree.