RATILAL PANACHAND GANDHI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) These two petitions before us challenge the constitutionality of certain provisions of Act 29 of 1950 which is the Bombay Public Trusts Act. In the first petition the petitioner is S Swetamber Murtipujak Jain and a resident of Vejalpur in the Panch Maha's District and the petitioner is the 'vahivatdar' of a Jain Derasar situate in that place in the second petition the petitioners arc the trustees of the Parsi Panchayet Funds. Both the petitions challenge the Act on more or less identical grounds. It would be perhaps better if we first deal with the petition presented by the 'vahivatdar' of the Jain Derasar. Before we do so it would be perhaps advisable to look at the object with which the Act was passed and its main provisions.

(2.) The Act was passed to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. Chapter II of the Act sets up the establishment which consists of a Charity Commissioner and Deputy and Assistant Charity Commissioners. Chapter III deals with what are charitable purposes and it provides that public trusts will not be void on ground of uncertainty. Chapter TV deals with registration of public trusts. Chapter V deals with accounts and audit. Chapter VI deals with control and the control is to be exercised by a power of Inspection and supervision conferred upon the officers and also by reports to be made by the auditor and the explanation to be obtained from the trustees on the report of the auditor. Chapter VII deals with the functions and powers of the Charity Commissioner. The Charity Commissioner is constituted a corporation sole, he is given the power to act as a trustee of public trusts, the consent of the Charity Commissioner is required for the institution of a suit in relation to a public charity corresponding to Section 92, Civil P. C., and there is also provision for the application of the 'cypres' doctrine which has been given a considerably extended form and shape. Then Chapter VIII deals with a special fund which is set up under the Act which is called the Public Trusts Administration Fund. Chapter IX deals with the appointment and qualification of assessors. Chapter X deals with offences and penalties. Chapter XI is procedural and deals with jurisdiction of Courts and appeals. And Chapter XII deals with miscellaneous matters.

(3.) Broadly speaking, certain provisions of the Act are challenged on the ground that they contravene two articles of the Constitution, and those two articles are Articles 25 and 26, and the contention on behalf of the Jain Derasar is that the properties of this Derasar are held in trust for a specific purpose and these properties are looked upon as Dev Dravya and can only be utilised for a specific purpose and that is for the temple and the idols belonging to the temple, and it is urged in the petition by the petitioner that it is an important and fundamental tenet of the Jain religion that when properties are held in trust for the specific purpose of being utilised for the temple and the idol, the properties or the income thereof cannot be diverted to any other purpose. The petitioner says that this is not a matter of usage or practice, but it is part and parcel of their faith, and by enacting certain provisions of the Act the Legislature has interfered with their religion. The other objection, broadly speaking, taken to the provisions of the Act is that the Act makes it possible for a non-Jain to become a trustee of a Jain Derasar, and again it is urged that it is contrary to the tenets of the Jain religion for any non-Jain to be a trustee of a Derasar or a non-Jain to be associated in the administration of a Derasar. I shall presently examine the specific sections which are challenged, but he-fore I do that it is necessary to look at Articles 25 and 26 and to consider what these articles provide and what fundamental right they safeguard.