Suraj Mal Singhvi v. State of Rajasthan — 1966 DIGILAW 78 (RAJ)

BHANDARI, J.—This is a writ petition under Art.226 of the Constitution on behalf of Surajmal Singhvi who claims to be the Chairman of the Trust Committee of Shri Nakodaji Paras Nath Tirth of Mevanagar. There is a famous temple of Lord Parasnath in village Mevanagar, Tehsil Pachpadra, District Barmer. This temple is known as. The temple of Shri Nakodaji Parasnath. This temple is a Jain Public religious temple. The gross income from the properties of this temple and other sources is more than Rs. 10,000/- per annum. According to the petitioner, the administration and management of this temple is being carried on by a Trust Committee on behalf of Jain Swetamber Sangh in which the entire property of the temple is vested. According to the petitioner, the properties of the said temple consist of the temple building, cash, ornaments for the idol and other movables and immovables, and all the said properties had been constructed or acquired by contributions from the members of the Jain Swetambar Murti Pujak Sangh residing in different places all over India and from offerings and gifts made to the said temple and moneys realised from gifts for performing religious ceremonies and from contributions for specific objects such as for temple, for idol, for Sadharan and Jiv Daya etc. which are considered to be religious, pious and charitable objects according to Jain scriptures and its religious tenets. It has been urged that according to the religious faith and belief of Jains, the properties of the said temple can only be utilised for the maintenance, upkeep and worship of the idol and for the purpose of different religious ceremonies and propagation of Jain faith and religion and for other analogous purposes which are pious, religious and charitable. It is also stated in the petition that administration and management of the said temple and the work of the idol and other religious ceremonies are carried on according to the scriptures and tenets of Jain religion. The management of the property is carried on in accordance with the advice, guidance and religious sense of the local Jain Murti Pujak Sangh known as Shree Sangh according to the advice of religious teachers, preceptors and Sadhus. 2. The management of the property is carried on in accordance with the advice, guidance and religious sense of the local Jain Murti Pujak Sangh known as Shree Sangh according to the advice of religious teachers, preceptors and Sadhus. 2. The Rajasthan State Legislature enacted the Rajasthan Public Trusts Act, 1959 (Act No. 42 of 1959) (hereinafter called the Act) which received the assent of the President on 22nd October, 1959 and was published in the Rajasthan Gazette Extra Ordinary Pt. IV-A, dated 28th October, 1959. In this petition, the petitioner has challenged the various provisions of the Acton the ground that they are in direct and flagrant breach of fundamental right of religious freedom and freedom of conscience of the Jains and their right freely to profess, practise and propagate religion and imposes unreasonable restrictions on the rights of religious denomination to maintain and manage religious institutions and to manage their own affairs in the matter of religion and to administer their property according to Jain Shsan rules and regulations. 3. In order to appreciate the contentions of the petitioner it is proper to refer to the provisions of the Act which are being challenged in this writ petition. Sec.2 (11) which defines "public trust", 2(13) defines "religious endowment" or "endowment", 2(14) defines "religious institution" or "institution", 2(15) "Specific endowment" and 2(16) "temple" in the following manner: 2(11). "Public trust" means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, dharmada or any other religious or charitable endowment or institution and a society formed either for a religious or charitable purpose or for both; 2(13). "religious endowment" or "endowment" means all property belonging to or given or endowed for the support of a religious institution or given or endowed for the performance of any service or charity connected therewith and includes the premises of the religious institution as well as the idols, if any, installed therein and any public charity associated with a festival or observance of a religious character, whether connected with a religious institution or not, but does not include gifts of property made as personal gifts to the trustee or hereditary trustee or working trustee of such institution or to any service-holder or other employee thereof; 2(14). "religious institution" or institution means an institution for the promotion of any religion or persuasion and includes a temple, math and any religious establishment or any place of religious worship or religious instruction whether or not appurtenant to such institution; 2(15) "Specific endowment" means any property or money endowed for the performance of any specific service or charity in a religious institution; 2(16). "temple" means a place, by whatever designation known, used as a place of public religious worship and dedicated to or for the benefit of or used as of right by a community or any section thereof as a place of public religious worship; 4. There is no doubt that the temple of Nakodaji Parasnath falls within the definition of public trust, religious institution and temple and its property is religious endowment within the meaning of that expression. 5. Secs. 3 to 6 contained in Chapter II of the Act make provision that the public trust shall not be void on the ground of uncertainty, and on the ground that it is void with respect to the non charitable or non-religious purpose, on the ground of absence of an obligation and on failure of specific object or society etc. ceasing to exist. Secs.7 to 10 contained in Chapter III relate to appointment of officers or servants by the State Government. Secs.11 to 15 contained in Chapter IV relate to establishment and functions of Board and Committees. Chapter V of the Act relates to registration of public trusts. In this Chapter, Sec. 17 makes it incumbent on the working trustee of public trust to file an application for registration before the Assistant Commissioner having jurisdiction for the registration of such trust. Sub-sec. 3 of Sec. 17 lays down that: "Each such, application shall be accompanied by such fee, if any not exceeding five Rupees and to be utilised for such purposes, as may be prescribed." 6. It is contended by the petitioner that the provision laying down that the application must be accompanied by such fee. if any not exceeding five rupees, is in the nature of tax and the State Legislature had no power to impose any kind of tax on any public trust or religious endowment. Then follow other sections in the Act which need not be set out in detail as they have not been challenged in this writ petition. if any not exceeding five rupees, is in the nature of tax and the State Legislature had no power to impose any kind of tax on any public trust or religious endowment. Then follow other sections in the Act which need not be set out in detail as they have not been challenged in this writ petition. Chapter VI relates to the management of trust property and consists of the two following secs. 30 and 31 which are set out in detail: 30. Investment of public trust moneys—Where any property belonging to public trust consists of money and such money cannot be applied immediately or at any early date to the purposes of the said public trust, the working trustee thereof shall be bound, notwithstanding a direction to the contrary contained in the instrument of trust, if any, to deposit the money in a Scheduled Bank as defined in the Reserve Bank of India Act, 1934 (Central Act 2 of 1934), or in Postal Savings Bank or in a Cooperative Bank registered under the Rajasthan Cooperative Societies Act, 1953 (Rajasthan Act 4 of 1953) or to invest it in public securities; Provided that such money may be invested in the first mortgage of immovable property situated in India if the property is not lease-hold for a term of three years and the value of the property exceeds by one-half the mortgage money; Provided further that the Commissioner may, by general or special order, permit the working trustee of any public trust or class of such trusts to invest such money in any other manner, (2) Nothing in sub-sec. (1) shall affect any investment or deposit already made before the commencement in the instrument of trust; Provided that any interest or dividend received or accruing from such investment or deposit on or after the commencement of this Act or any sum realised on the maturity of the said investment or deposit shall be applied or invested in the manner prescribed in sub-sec. (1). (1). 31 Previous sanction to be obtained for certain transfers—(1) Subject to the directions in the instrument of trust or any direction given under this Act or any other law by any Court; (a) no sale, exchange or gift of any immovable property or of movable property exceeding five thousand rupees in value, and (b) no lease, for a period exceeding five year in the case of agricultural land or for a period exceeding three years in the case of nonagricultural land or a building, belonging to a public trust shall be valid without the previous sanction of the Assistant Commissioner; (2) An application for the sanction of the Assistant Commissioner under sub-sec. (1) shall be made in the prescribed manner and form. (3) Where, on an application duly made for sanction in respect of any transaction specified in sub-sec. (1), the Assistant Commissioner does not within two months of the receipt thereof, pass final orders, it shall be presumed that he has accorded sanction in respect of that transaction, provided that the application describes the transaction with sufficient accuracy. (4) The Assistant Commissioner shall not refuse to accord sanction in respect of any transaction specified in sub-sec. (1) unless such transaction is, in his opinion, likely to be prejudicial to the interests of the public trust, and no order refusing to accord sanction shall be passed unless the working trustee of such public trust has had a reasonable opportunity of being heard." It is contended by the petitioner that Section 30 of the Act makes it obligatory for the trustee to deposit the money referred to in the manner set forth therein and Sec. 31 provides restrictions on sale, exchange of gift or any immovable property or movable property exceeding five thousand rupees in value, and on a lease for a period exceeding five years. Both these provisions according to the petitioner, interfere with the right of Jains to manage their own affairs in matters of religion according to their religious scriptures and tenets and they are ultra vires the Constitution. This is amplified further by stating that money belonging to Jain Trust can be utilized specially for the specified objects and cannot be used for purposes which are regarded as hinsa according to the Jain tenets and the provision for depositing money in the particular manner would operate directly against the principles of Jain religion. This is amplified further by stating that money belonging to Jain Trust can be utilized specially for the specified objects and cannot be used for purposes which are regarded as hinsa according to the Jain tenets and the provision for depositing money in the particular manner would operate directly against the principles of Jain religion. Chapter VII contains Secs. 32 to 36 and they relate to the accounts, audit and budget of public trust. The provisions contained in this Chapter are also challenged in the Writ petition. Chapter VIII contains secs.37 to 46. Secs.38 to 43 are seriously challenged on various grounds. 7. It is contended by the petitioner that under Sec. 40 of the Act, court, meaning the District Court, has been given very wide powers as, for example, the power of removing any trustee or appointing a new trustee. It has also the power of deciding what portion of the trust property shall be allocated to any particular object of the trust and also provides for a scheme of management of the trust property. Besides, it can also direct how the funds of the public trust the original object of which has failed shall be spent and issue further directions as it thinks fit. Giving such wide discretion to the court may result in taking the administration from the hands of the religious denomination. Similarly, it may result in diverting the trust property of funds thereof for such purposes as the court considers expedient or proper even when the religious object of the Trust can be carried out. These are it is contended, unwarranted encroachments on the freedom of religious institution regarding the management of its religious affairs. For similar reasons, the powers granted to the court under sec. 43 are challenged as these powers may result in the appointment of new trustees at the discretion of the court. 8. Secs. 47 to 53 contained in Chapter IX relate to the general control over public trusts. Of this Chapter, sec 48 and 51(2) are challenged in the Writ petition. During the course of arguments objection to the validity of Sec. 48 was not seriously pressed. 8. Secs. 47 to 53 contained in Chapter IX relate to the general control over public trusts. Of this Chapter, sec 48 and 51(2) are challenged in the Writ petition. During the course of arguments objection to the validity of Sec. 48 was not seriously pressed. Sec. 51 runs, as follow: 51.Vacancy in the board of trustees—(1) Where a public trust is under the management of a board of trustees, the working trustee shall when a vacancy occurs in the board, inform the Assistant Commissioner within twenty days of such vacancy and the time within and the manner in which he proposes to fill the same. (2) If the working trustee fails to give any such information or to fill the vacancy within the time specified by him, the Assistant Commissioner may, by order passed in writing, fill the vacancy, and any person having interest in the public trust who may be aggrieved by the order of the Assistant Commissioner may apply to the court for setting aside the order of the Assistant Commissioner within thirty days from the date of such order. It is contended that wide powers have been given to the Assistant Commissioner for filling any vacancy and to any person having interest in the public trust as a trustee of that public trust. It is also pointed out that a person having interest has been very widely defined in sec. 2(9) and even a pujari or any person who undertakes or participates in the distribution of the gifts of the temple may be appointed as a trustee by the Assistant Commissioner. 9, Sec. 52 to 65 are contained in Chapter X which form the main subject of controversy in this writ petition. The first two secs.52 and 53 are important, and they are quoted below in extenso: 52. Application of Chapter—(1) The provisions contained in this Chapter shall apply to every public trust— (a) which vests in the State Government, or (b) which is maintained at the expense of the State Government, or (c) which is managed directly by the State Government, or (d) which is under the superintendence of the Court of Wards, or (e) of which the gross annual income is ten thousand rupees or more. (2) The State Government shall, as soon as may be after the commencement of this Chapter, publish in the official Gazette a list of the public trusts to which this Chapter applies and may by like notification and in like manner add to or vary such list. 53. Management of public trusts to which this chapter applies—(1) As from such date as the State Government may appoint in this behalf, the management of a public trust to which this Chapter applies, shall, notwithstanding anything contained in any provision of this Act or in any law, custom or usage, vest in a committee of management to be constituted by the State Government in the manner hereinafter provided and the State Government may appoint different dates for different public trusts for the purpose of this section. (2) On or before the dale fixed under sub-sec. (1) in respect of a public trust, the State Government shall, subject to the provision contained in sec. 54, constitute by notification in the official Gazette a committee of management thereof under such name as may be specified in the notification, and such committee shall be deemed to be the working trustee of the said public trust and its endowment; Provided that, upon the combined request of the trustees of, and persons interested in several public trusts representing the same religion or persuasion, the State Government may constitute a committee of all of them, if their endowments are situated in the same city, town or locality. (3) Every committee of management constituted under sub-sec.(2) shall be a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property subject to such conditions and restrictions as may be prescribed and may by the name specified in the notification under sub-sec. (2) sue and be sued (4) A committee of management shall consist of a Chairman and such even number of members, not exceeding ten and not less than two, as the State Government may determine. (2) sue and be sued (4) A committee of management shall consist of a Chairman and such even number of members, not exceeding ten and not less than two, as the State Government may determine. (5) The Chairman and members of a committee of management shall be appointed by the State Government by notification in the official Gazette from amongst— (a) trustees of public trusts representing the same religion or persuasion and having the same objects, and (b) persons interested in such public trusts or in the endowments thereof or belonging to the denomination for the purpose of which or for the benefit of whom the trust was founded, in accordance with the general wishes of the persons so interested so far as such wishes can be ascertained in the prescribed manner ; Provided that in the case of a public trust having a hereditary trustee such trustee, and in the case of a math, the head thereof, shall be the Chairman of the Committee of management, if he is willing to serve as such. It is contended in the writ petition that the provisions contained in Chapter X are very drastic and they take away the management from the hands of a denomination and vest it in the hands of a committee, known as Committee of Management. The constitution of this committee as provided in Sec. 53(5) may result in taking away altogether the management out of the hands of a denomination, for the reasons that any person not even belonging to the denomination of the religious trust can be appointed as member of the committee of management and that a person who is not worthy of such appointment though belonging to the same religious denomination, can be appointed as its member. It is also contended that according to the tenets and scriptures of Jain religion, only Jains who are well versed in the Jain Scriptures and have very high spiritual and moral abilities can be appointed as trustees of the Jain trust and that the management and administration of the Jain trust is to be carried out according to the advice and orders of Acharyas and Sadhus, and the provisions contained in the Chapter are wholly inconsistent with the administration of public trust as contemplated by Jain scriptures. Sec. 62 in this Chapter gives certain powers to the Commissioner, and which runs as follows: "The Commissioner may, with the previous sanction of the State Government, provide for the performance of any duty which a committee of management is bound to perform under the provisions of this Act or the rules or directions made or given thereunder and may direct that the expenses of the performance of such duties shall be paid by the person having for the time being the custody of any fund belonging to the public trust for which the committee has been constituted from out of such fund." 10. The petitioner contends that this section gives very wide powers to the Commissioner to provide for the performance of any duty which a committee of management is bound to perform. Thus, the commissioner has been given very wide powers to take the management from the hands of the committee in his own hands and such a provision offends against the religious freedom guaranteed to religious denomination under Art 26. Section 63 gives power to the State Government to supersede the Committee of Management, if in the opinion of the State Government, the Committee is unable to perform the duties imposed on it by or under the Act. It is contended that this provision also deprives religious denomination of the management of the religious trust. It is also pointed out that under stc. 61, the Committee of Management is to perform its duties subject to general or special order of the Commissioner which when carried into effect may mean that the Committee of Management is to be a body to act according to the orders of the Commissioner and the Commissioner may make order to substantively deprive the committee of management of the power of management and thus there is a danger that the religious denomination may be deprived of the power of its management. 11. Secs. 77 and 80 are also challenged in the Writ petition, but this part of the case was not pressed at the time of arguments. 12. The petitioner contends that the Rajasthan State (Respondent No. 1) is not entitled to enforce the provisions of the Act and in any case, those which are specifically challenged. 11. Secs. 77 and 80 are also challenged in the Writ petition, but this part of the case was not pressed at the time of arguments. 12. The petitioner contends that the Rajasthan State (Respondent No. 1) is not entitled to enforce the provisions of the Act and in any case, those which are specifically challenged. It is prayed that a writ direction or order including a writ in the nature of mandamus be granted against Respondent No. 1, Advocate-General, Rajasthan, Jaipur (Respondent No. 2) Commissioner, Devasthan, Udaipur (Respondent No. 3) and the Assistant Commissioner, Devasthan, Jodhpur (Respondent No. 4) ordering and directing each of them to forbear from enforcing or taking any steps in the enforcement of the Rajasthan Public Trust Act or any of its provisions and in particular from enforcing any of the penal provisions, or in any case, sections 2(9), 12(4), 17, 18, 19, 21, 23, 29, 30, 31, 32, 33, 40, 41, 43, 43, 51(2), 53, 61, 63, 71, 73, 76, 77 and 80 of the said Act and the Rules framed there under be declared void. 13. In the reply filed by the Respondents, it is admitted that the temple of Nakodaji Parasnath is a public trust and is governed by the Rajasthan Public Trusts Act. It is, however, denied that any of the Fundamental Rights guaranteed by the Constitution are infringed by the said Act The contention raised by the petitioner are controverted and it is urged that the provisions of the Act are good and valid and that the petitioner is not entitled to any relief. 14. This at once takes us to the examination of the question as to what is meant by religion in Articles 25 and 26. This aspect of the matter has been considered by their Lordships of the Supreme Court in a number of cases. The earliest authoritative pronouncement on this point is contained in the judgment of Mukherjea, J. on behalf of the Court in the Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt (1). "Religion is certainly a matter of faith with individuals or communities and it is not necessarily atheistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. "Religion is certainly a matter of faith with individuals or communities and it is not necessarily atheistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of wardship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress." "The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Art.25." Paras 17-18 page 290). 15. Their Lordships also pointed out that what constitutes the essential part of religion is primarily to be ascertained with reference to the doctrines of that religion itself. 16. In Ratilal Panachand Gandhi vs. State of Bombay (2), Mukherjea, J. further pointed out that:— "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 overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." It was also pointed out that:— "Religious practices or performances of acts in pursuance of religious belief are as such a part of religion as faith or belief in particular doctrines." In Durgah Committee, Ajmer vs. Syed Hussain Ali (3), the Supreme Court pointed out that: — "In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other." 17. Now let us examine briefly what are the religious beliefs of Jains. In a nutshell, the Jains believe that the Universe consists of animate and in-animate objects. Each animate object has a soul, which has all the characteristics of Godhead, but on account of the fact that -Karmas are attached to it, it has taken a particular shape or form. It has the Karmas which make the soul to take a particular form i.e. of an animate object. The Karmas are the results of good or bad doings of an individual. The soul survives the bodily existence and takes another form according to its Karmas. This process goes on till the soul is freed from Karmas. For gaining this freedom from Karmas, the individual must acquire right knowledge, right perception and right conduct. The Jains do not believe that the Universe is the creation of any Supreme being. In this respect, it is not atheistic religion like Hinduism and other religions. 18. The Jains further entertain the view that in some part of the Universe or other, there are cycles of progressive evolution which rotate one after another. Each cycle of progressive evolution or regressive evolution is composed of six ages. In particular ages, religious preceptors are born to preach the Jain religion. According to Jains, 24 Tirthankars were born during the first four ages which preceded the present age which is the 5th age of the present cycle. The first of these 24 Tirthankaras was Lord Rishabdeo and the last was Mahavira. In particular ages, religious preceptors are born to preach the Jain religion. According to Jains, 24 Tirthankars were born during the first four ages which preceded the present age which is the 5th age of the present cycle. The first of these 24 Tirthankaras was Lord Rishabdeo and the last was Mahavira. It is not for us to go into the question as to how and when temples or the worship of idols became part of Jain religious practices, but it must be admitted that they are part of the Jain religious practices, but it must be admitted that they are part of the Jain religious practices at least of the important sect of the Jain Swetamber Murti Pujaks who believe in the establishment of temples, in creating endowments for various purposes connected with the temple and other charitable objects and the worship of the idol for the purpose of self-purification i.e. for getting release from the bondage of the Karma. We must not detain ourselves in discussing the theoretical background of this matter. Suffice it to say that the Jains in the last several generations have constructed temples and other places of worship and created trusts and endowments which are unique in grandeur and architectural design and which have considerable property attached to them. 19. The contention of the petitioner is that the creating of a religious trust for a temple is part of the Jain religion and that the administration and management thereof is also part of their religion. On this point, various scriptures have been quoted before us. Fortunately for us, the gist of what is contained in the scriptures is given in the Report of the Hindu Religious Endowments Commission (1960-1962) at pages 104 to 106 in Chapter IX which relates to Jain Endowments. This saves us the trouble from entering into meticulous examination of the various texts of the scriptures. Learned counsel for the parties have admitted before us that Paragraphs 7 to 13 of this Report will serve a useful guide for deciding the matter at issue. We quote below in extenso these paragraphs— "7. Jain scriptures have made meticulous rules and regulations for the utilization of funds and management of the trusts. In respect of religious funds Jain Shastras enunciate seven types of funds called "Sar Kshetras" and also dictate the uses to which each type of fund could be put. We quote below in extenso these paragraphs— "7. Jain scriptures have made meticulous rules and regulations for the utilization of funds and management of the trusts. In respect of religious funds Jain Shastras enunciate seven types of funds called "Sar Kshetras" and also dictate the uses to which each type of fund could be put. These seven types of funds arc as under : Those concerning— (1) Jeena Bima i.e. Idol of Jineshwar (2) Jeena Chaitya i.e. Temple of Jineshwar These types together are called Dev Dravya. Funds that arc collected by boli (auction), etc. for puja, angi and temple of Jeena are called Dev Dravya. This fund could be used only for the construction restoration and renovation of temples, for the carving of idols, for vilepan or application of chandan and ungunts on idols, and for providing ornaments for idol. (3) Gyan Fund—This fund is to be used for teaching writing, publication and distribution of Jain Agamas and other Shastras, the knowledge of which enables one to obtain Moksha. The money is reserved for the spread of knowledge among Sadhus and not among the laity. (4) Sadhu, (5) Sadhvi—These two funds constitute for practical purposes one Fund called Sadhu/Sadhvi fund which could be used for constructing Upashraya, i.e. building wherein the monks reside, for providing Upkarans i.e. material and daily necessities required by the monks and to provide medicine and other means of Vaiyavachha i.e. instruments of service and devotion required during sickness or travelling. (6) Shravak (7) Shravika—These are merged together for practical purposes and are called Shravak and Shravika Fund which could be used for help and for religious, economic and social uplift of Shravaks and Shravikas, i.e. the followers of Jainism. The categories are graded in certain order which is unchangeable and equally important. 8. Besides the above seven Kshetras there is another Fund known as Jiva Daya Fund. This Fund can be used for the care and maintenance of birds, animals, the maintenance of a panjara-pole and the construction of sheds and buildings for the purpose, the provision of grass, veterinary aid and water and the maintenance of grass land. There is again another Fund known as Sadharan Fund. This Fund can be used for the care and maintenance of birds, animals, the maintenance of a panjara-pole and the construction of sheds and buildings for the purpose, the provision of grass, veterinary aid and water and the maintenance of grass land. There is again another Fund known as Sadharan Fund. This fund is of a secular nature and is used for providing dharamshalas for pilgrims and for keeping and maintaining all the paraphernalia required for the convenience of pilgrims and for doing all things necessary for the comfort and convenience of pilgrims. This fund can also be utilized to finance any other activities towards human uplift. Apart from these there are numerous other Funds (for specific purposes), the corpus or interest of which is to be utilized as per donors intentions. 9. It is very relevant to note in this connection that the funds donated to one Kshetra cannot be utilized for another Kshetra, Even in the same Kshetra, funds allocated for a particular purpose can be utilized only for that purpose and for no other. Thus, the donations earmarked for beggars cannot be utilized for giving grass to cattle or grain to pigeons, though both are charitable objects Anukumpa or compassion which is the source of both these charities has its watertight compartments for Jiv Daya and Bhikshya Daya. However, if the purpose for which the donation was made becomes extinct or if by reason of circumstances the purpose cannot be carried into effect either in whole or in part or where there is a surplus left after exhausting the purposes of the trust, the funds in a Kshetra, for the lower purposes can be taken to higher ones but not vice versa. Similarly funds of a lower Kshetra can be transferred to any higher Kshetra but not vice versa. The application of the doctrine of cypress may thus be allowed to a limited extent. 10. It is also important to note that income not spent in any one year is not necessarily surplus. Such balance may have been kept from year to year to accumulate to a larger amount so as to be utilized later in a more effective manner on objects for which the funds are intended. Generally the purposes in the Kshetra are perennial in character. They do not fail nor do they become incapable of fulfilment. Such balance may have been kept from year to year to accumulate to a larger amount so as to be utilized later in a more effective manner on objects for which the funds are intended. Generally the purposes in the Kshetra are perennial in character. They do not fail nor do they become incapable of fulfilment. There is therefore, no question of exhausting the object for which donations in Jainism are made. It is also stated, that Jain tenets do not recognize any cognate purpose in the secular sense of the word. The purposes looking alike are not cognate. They are different with different characteristics. 11. The guiding principle in the utilization of funds of a particular kshetra is the special religious merit. The person receiving the benefit of the funds is a secondary consideration. Thus, the fund for one place or for a particular groups of persons can be used for another place and for other persons anywhere in the world but for the same identical object. 12. By and large Jain trusts are public trusts, the beneficial interest being vested in an uncertain and fluctuating body of persons, eitder the public at large or a considerable section of it answering a particular description. Private trusts on their own admission are few and in the nature of Ghar Derasers which are located within the precincts or in the vicinity of residences built by individual Jains for the benefit of their family only in which the general public are not interested. The trusts which come into existence on account of Dravyadan to Kshetras belong to the Jain Sangh. There is no individual ownership. The possession is always of the Sangh through the trustees. 13. So far as Digamber Jains are concerned, they do not have Dev Dravya or Gyan Dravya as such. The funds are donated to the Bhandar Fund and money from that fund can be used for purpose of that temple or for any institution that is run by that temple or for any good object; The money can also be utilized for teaching the principles of Jain philosophy exclusively or alongwith secular learning. There are many patasalas and other educational institutions which are run within the premises of the temple and a few outside the premises as well, by Digamber Jains from the Funds of the Bhandar." 20. Mr. There are many patasalas and other educational institutions which are run within the premises of the temple and a few outside the premises as well, by Digamber Jains from the Funds of the Bhandar." 20. Mr. Ameen has contended that the Jain scriptures have laid down that contribution to particular funds must be utilized for the purpose for which the fund exists, and that the fund donated for a particular purpose cannot be utilized for other purpose unless according to the scriptures, the purpose is that mentioned in Shastras. Side by side with this argument another argument was built relying on the texts of the scriptures that for the investment of particular funds certain rules aire to be followed and the funds belonging to the Jain religious trust cannot be invested for earning interest with such persons or institutions which may utilize them for causing hinsa or keeping brothel etc. It is contended by Mr. Ameen that all these are matters of Jain religion, the essential part of it, and in this, there can be no interference by the State, except on the ground of public order, morality or health. 21. Granting that all this is so, we may examine whether in the Act there are any provisions which in any way encroach upon the right of freedom of religion guaranteed under Art.25. We have already set out the relevant provisions of the Act and in our opinion, it is clear from these provisions that the Act does not in any way interfere with the freedom of conscience and the right to practise, profess freely and propagate religion of Jains. The provisions of Chapters V, VI and VII deal with the registration of public trusts and provide certain safeguards to protect it from dissipation. The provisions contained in these Chapters are for all practical purposes on the same lines as those contained in the Bombay Public Trusts Act, 1950 (hereinafter called the Bombay Act). The provisions of the Bombay Act were challenged in Ratilal Panachand Gandhi vs. State of Bombay (2). It is significant that the petitioners in that case also were Jains and the case related to a Jain religious trust. Their Lordships of the Supreme Court upheld the validity of the provisions in the Bombay Act regarding registration of the public trust. The provisions of the Bombay Act were challenged in Ratilal Panachand Gandhi vs. State of Bombay (2). It is significant that the petitioners in that case also were Jains and the case related to a Jain religious trust. Their Lordships of the Supreme Court upheld the validity of the provisions in the Bombay Act regarding registration of the public trust. The view taken was that: "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 Art. 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 own affairs." The provisions of that Act also cast a duty on a public trust to keep accounts and to get them audited and to prepare balance sheet and to report irregularities, if any. Their Lordships said that: "These are certainly not matters of religion and the objections raised with regard to the validity of these provisions seem to be altogether baseless. Sec. 35 of that Act was on the same lines as sec. 30 of the Act. The Supreme Court upheld the provisions of see. 35 of the Bombay Act on the ground that: "It is a well-established principle of law that trustees in charge of trust properties should not keep cash money in their hand 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." It is contended before us that the deposit in a scheduled Bank is a sort of an encroachment on Jain religion and that Bank may utilize the money for the purposes forbidden by the Jain religion. But the scriptures that have been cited only say that any investment will not be directly made by the trustee for the purposes forbidden in the scriptures. From this, it cannot be inferred that the Jain religion has forbidden the deposit in bank or any institution mentioned in sec. 30 of the Act. 22. The objection of the petitioner with regard to sec. 31 of the Act is also unsound as such a provision contained in sec. From this, it cannot be inferred that the Jain religion has forbidden the deposit in bank or any institution mentioned in sec. 30 of the Act. 22. The objection of the petitioner with regard to sec. 31 of the Act is also unsound as such a provision contained in sec. 36 of the Bombay Act was considered to be a salutary provision by the Supreme Court as it aimed at protecting the property of the trust. There is, of course, one provision i.e. charging fee for registration which was struck down by the Supreme Court while considering the provisions of the Bombay Act. Under the Act also, there is a provision of charging Rs. 5/- as Registration Fee under sec. 17(3). If this amount is taken to be a fee, then of course, under Schedule II of the Constitution, a State Legislature has the power to make the law. But it is contended by Mr. Ameen that in order that the sum may be a fee, there must be at least a provision that it should not go to the Consolidated Fund and should be utilized separately for keeping machinery for registration. It may be pointed out that under Sub-sec. 3 of the sec. 17 it has been provided that the fee collected shall be utilized for such purpose as may be prescribed. The rules that have been made under the Act provide that the sum collected as a fee shall go to the Consolidated Fund. The Act does not specify for what purposes the fee will be utilized and has left it to the State Government to denote the purpose in the rules and the State Government has denoted that the fee collected shall go to the Consolidated Fund. In these circumstances, we have no alternative, but to hold that this provision is ultra vires the powers of the State Legislature as the amount of Rs. 5/-chargeable under sub-sec. 3 of sec. 17 is not a fee but a tax. Apart from this the contentions raised in the petition challenging the provisions contained in Chapters V to VII have no force. 23. Coming to the provisions of Chapter VIII, we find that in this Chapter, the Assistant Commissioner, or the Commissioner is not to decide any matter by himself. 3 of sec. 17 is not a fee but a tax. Apart from this the contentions raised in the petition challenging the provisions contained in Chapters V to VII have no force. 23. Coming to the provisions of Chapter VIII, we find that in this Chapter, the Assistant Commissioner, or the Commissioner is not to decide any matter by himself. Sec. 38 of the Act requires that the Assistant Commissioner, when he is satisfied that: (a) the original object of the public trust has failed; (b) the trust property is not being properly managed or administered; or (c) the direction of the court is necessary for the administration of the public trust; has to direct the working trustee or any other trustee or person having interest in the trust to apply to the court for direction. In case these persons fail to do so he may himself make an application to the Court. When there is a refusal by the Assistant Commissioner to apply, an application can be made under Sec. 39 to the Commissioner. In Sec. 40, the court has been given the power to pass such order thereon as it may consider proper on the receipt of an application as provided in Sec. 38 or 39. Similar are the provisions contained in Sec. 41 to 43 which are applicable when the working trustee disclaims, or dies, is absent for 6 months,. is declared insolvent, desires to be discharged from the trust, or refuses to act as a trustee or is not available to administer the trust. Under Sec. 40 it is the court which after making such inquiry as it think to fit, appoints a new working trustee having regards the facts enumerated therein. 24. These provisions are in fact reproduction of Secs.92 and 93 of the Code of Civil Procedure which are made inapplicable by Sec. 44 of the public trust covered by the Act. 25. Now the important point to be considered with regard to the provisions is that the Assistant Commissioner or the Commissioner has not been given any power to pass orders by himself, except in the matter of presentation of an application to the Court." It is the court which is to pass orders after applying its mind to the case before it. The court is bound to pass orders in accordance with the law respecting the fundamental rights of parties. The court is bound to pass orders in accordance with the law respecting the fundamental rights of parties. The court cannot ignore the fundamental right of a party in passing the order, because the court is to act in accordance with law contained in the Constitution. When the machinery of the Court is introduced for taking action in such matters, we do not find that there arises any question of breach of fundamental right. There is a remedy by way of appeal to a higher court and even the highest court may be approached in this matter by way of appeal or other appropriate proceedings. It is contended that according to Jain tenets there can be no failure of the object of a public trust inasmuch as the object is a permanent object, such as maintenance and upkeep of any temple or maintenance of sadhus, sadhvis and the fund created for such objects can always be utilized for that purpose. If this is so, the court of law is bound to take action as if the original object of the public trust has not failed. There should be no apprehension in the mind of anybody that powers given to the Court under Secs. 40 and 43 will not be used in accordance with law. In Mahant Shri Jagannath Ramanuj Das vs. The State of Orissa (4), it has been observed, as follows: "A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides for the framing of a scheme not by a Civil Court or under its supervision but by the Commissioner, who is a mere administrative or executive officer. There is no provision for appeal against his order to the Court." This is not the case here. Here whatever is to be done by the court of law and on the application made to it under the provisions of the Act. It may also be pointed out that clause (e) of Sec.50 of the Bombay Act was held to be valid by their Lordships of the Supreme Court on the ground that it was really a substitute for Sec. 92 of the Code of Civil Procedure and that there was no question of infraction of any fundamental right by reason of the provisions of that Section. We are, therefore, of the opinion that none of the provisions of Chapter VIII encroaches upon the fundamental right of the petitioner,or of the denomination to which he belongs, and the provisions of Chapter VIII of the Act are valid. 26. Coming to Chapter IX, the only section which is seriously challenged is Sec. 51 which provides for filling of vacancy in the board of trustees of a public trust under the management of such a board. Sub-Sec. 1 says that: "the working trustee shall, when a vacancy occurs in the board, inform the Assistant Commissioner within twenty days of such vacancy and the time within and the manner in which he proposes to fill the same." Sub-Sec. 2 provides that: "If the working trustee fails to give any such information or to fill the vacancy within the time specified by him, the Assistant Commissioner may, by order passed in writing, fill the vacancy, and any person having interest in the public trust who may be aggrieved by the order of the Assistant Commissioner may apply to the Court for setting aside the order of the Assistant Commissioner within thirty days from the date of such order." This Section casts the duty of filling up the vacancy on the Board of trustees and it is only when the vacancy is not filled up that the Assistant Commissioner is to fill up the vacancy. The order of the Assistant Commissioner is then subject to review by the Court. In our opinion, there is no infringement of any fundamental right if this procedure is followed for filling up the vacancy of a public trust under the management of the board of trustees. This section is designed to keep a watch by the Assistant Commissioner that the vacancies in the Board of trustees are filled up speedily. The Court has been given the power to review the matter in case the Assistant Commissioner fills up the vacancy. This is a sufficient safeguard against the arbitrary exercise of the power by the Assistant Commissioner. 27. Now we take into consideration the provisions of Chapter X. The key section in this Chapter is sec. The Court has been given the power to review the matter in case the Assistant Commissioner fills up the vacancy. This is a sufficient safeguard against the arbitrary exercise of the power by the Assistant Commissioner. 27. Now we take into consideration the provisions of Chapter X. The key section in this Chapter is sec. 53 which specially empowers the State Government to vest in the Committee of management to be constituted by the State Government in the manner provided therein the management of a public trust to which the provisions of the Chapter are applicable and this the State Government can do notwithstanding anything contained in any provision of the Act or in any law, custom or usage. Now let us examine to what kind of trust the provisions of Chapter X are applicable. They are given in sec. 52 and they are, as follows: "52. Application of Chapter—(1) The provisions contained in this Chapter shall apply to every public trust. (a) which vests in the State Govt., or (b) which is maintained at the expense of State Govt. or (c) which is managed directly by the State Govt, or (d) which is under the superintendence of the Court of Wards, or (e) of which the gross annual income is the ten thousand rupees or more." 28. It may be pointed out that in the Bombay Act Chapter VII-A was added by the Bombay Act of 1960 (Amendment Act No. 6 of 1960). That Chapter contains special provisions regarding religious and charitable institutions and endowments which vest in, or the management of which vests in, the State Government. But these provisions do not apply to any other endowment. Thus, the amended Bombay Act did not go so far as to apply the provisions of Chapter VII-A to public trusts which were under the superintendence of the Court of Wards or of which the gross-annual income was more than a particular sum of money and which were not directly or indirectly under the management of the State Government. 29. One can understand that the State Government may vest the management of a public trust in a Committee of management appointed as provided in sec. 29. One can understand that the State Government may vest the management of a public trust in a Committee of management appointed as provided in sec. 53 in case of a public trust management of which had already vested in the State Government or of a public trust maintained at the expense of the State, or a public trust managed directly by the State Government. In such cases, it may be taken that the management of the public trust being already in the State Government, there was no divesting of the management from some other body. In case of a trust mentioned in sub-secs.1(a), (b) and (c) of sec. 52 the State Government may think it proper that hence forth the management of such trusts may vest in a committee. The purpose of such a provision may be that a secular State intends to part with its power of management of religious trusts or even of other trusts so that instead of the trust being managed by a department, it may be managed by persons who may be better equipped for managing it in accordance with the wishes of the founder or of the religious denomination to which the trust belongs. 30. The target of attack of Mr. Ameen are the provisions of sec. 52(l)(d) and (e). It is contended that the State Government cannot be empowered to take away the management from the hands of a denomination and vest it in some other body especially in the case of a Jain religious trust. This contention has been urged from two stand points the first is that the management and administration of Jain religious trust is a matter of Jain religion falling under Art. 26(b) of the Constitution and no law can be made in relation thereto, and the second is that a denomination cannot be altogether divested of the power of management of a religious trust as Art 26(d) guarantees that a denomination or a section of a denomination cannot be deprived altogether of its power of management by any law. 31. We first take up the contention that management of a Jain religious trust is a matter of religion for Jains and no law can be made in relation thereto. We cannot agree to the proposition that even the secular management of a Jain public trust is a matter of religion. 31. We first take up the contention that management of a Jain religious trust is a matter of religion for Jains and no law can be made in relation thereto. We cannot agree to the proposition that even the secular management of a Jain public trust is a matter of religion. The scriptures cited before us no doubt say that protection of religious property is a highly pious act conducive to the spiritual upliftment of the individual. It is of such a high order that a man who protects the property of a Jain religious trust may be born a Tirthankara in some coming age. All these texts only lay emphasis on the duty of an individual to protect the property of a religious institution, but in the matter of protecting the property, it is nowhere enjoined that the law of the land is not to be respected. Such is not the injunction of the religion In the matter of protection of property the secular aspect naturally comes in. In Rev. Father Farcisus Mascarenhas vs. The State of Bombay (5), it was contended before the Bombay High Court that the Roman Catholic Churches were governed by the canon law and that the provisions of the Act contravened the fundamental rights of the Catholics in so far as it called upon the church to register under the provisions of the Act. Their Lordships pointed out that the provisions of the Bombay Act did not affect the fundamental rights of the Roman Catholics to hold property but they could only administer the property of the Church in conformity with law. Again, in the State of Madhya Pradesh vs. Mother Superior, Convent School(6), it was contended that the canon law made elaborate rules for the administration of properties held by the Prefecture Apostolic and that any law made contrary to the canon law would in effect be an inroad upon the religious faith and practices of the Roman Catholics. It was urged that the canon law was a part of their religion, being in the nature of a mandate by the Pontiff, which the Roman Catholics have to obey and put into effect, whether they be the plain members of the community or spiritual leaders or officers administering the church. It was urged that the canon law was a part of their religion, being in the nature of a mandate by the Pontiff, which the Roman Catholics have to obey and put into effect, whether they be the plain members of the community or spiritual leaders or officers administering the church. M. Hidayatullah C., J. (as he then was) pointed out that: "In matters of property there is always a secular angle which is supplied by the law of the country, and that no religious denomination can make a law about its own property and thus nullify the law of the land. The property of the Christian religious institutions therefore, is as much subject to law as any other property privately held in our country. Of course, if matters of religion be involved in the disposal or use of the property, then to that extent laws cannot be made. But there is nothing to prevent the legislatures to enact laws for regulating property, be it private or belonging to religious institutions. I do not think that on this ground alone the State Legislature was incompetent to make laws with regard to property possessed by religious institutions." 32. Thus, the secular aspect of the management of the property of a religious trust is always to be carried out in accordance with the law of the land. The Supreme Court in Ratilal Panachand Gandhi vs. State of Bombay (2) observed as follows:— "......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." Again, it has been pointed out in Tilkayat Shri Govind Lalji Maharaj vs. State of Rajasthan (7) that: "Administration of the denominations property which is subject matter of this clause is obviously outside the scope of Art.26 (b). Matters relating to the administration of the denominations property fall to be governed by Art.26 (d) and cannot attract the provisions of Art.26 (b). Article 26(b) relates to affairs in matters of religion such as the performance of the religious rites or ceremonies, or the observance of religious festivals and the like; it does not refer to the administration of the property at all. Article 26(b) relates to affairs in matters of religion such as the performance of the religious rites or ceremonies, or the observance of religious festivals and the like; it does not refer to the administration of the property at all. Article 26(d) therefore, justifies the enactment of a law to regulate the administration of the denominations property and that is precisely what the Act has purported to do in the present case. If the clause "affairs in matters of religion" were to include affairs in regard to all matters, whether religious or not, the provision under Art.26 (d) for legislative regulation of the administration of the denominations property would be rendered illusory." 33. Having considered the matter carefully, we are of the view that it,is no part of the injunction of the Jain religion that even the secular management of the property should be above law and that even according to the Jain religion the secular management of the property by a denomination is to be carried on in accordance with law. 34. Now we examine the matter from the standpoint of Art.26 (d). Art.26 (d) has been interpreted to mean that the administration of the property of a religious denomination must not be taken away from it by any law. This has been laid down by their Lordships of the Supreme Court in a number of cases. The following observations of their Lordships of the Supreme Court in the Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt. (1) may be quoted:— "It should be noticed, however, that under Art. 26(d) it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under cl. (d) of Art.26". These observations have been reiterated in Ratilal Panachand Gandhi vs. State of Bombay (2). 35. It is contended by Mr. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under cl. (d) of Art.26". These observations have been reiterated in Ratilal Panachand Gandhi vs. State of Bombay (2). 35. It is contended by Mr. Ameen that on the face of it Sec. 53 empowers the State Government to take away the management of a public trust from a denomination and vest it in a committee of management to be constituted by it even in cases covered by Section 52(1) (d) and (e) i.e. even in cases of religious trusts of which the gross annual income is ten thousand rupees or more, or which is under the superintendence of the Court of Wards. Sec. 53(1) no doubt says so. It clearly empowers the State Government to divest a denomination of the management of a public trust and to vest it in a committee in case the gross annual income of such a trust is ten thousand rupees or more. 36. It is, however, contended by the learned Advocate, General that the committee of management which is to be constituted under Sub-Secs. (4) and (5) of Sec. 53 will be of the denomination itself, and there shall be no taking away of the right of management from the denomination, but the State Government shall only be transferring the management from one set of trustees to another set of trustees belonging to the same denomination. 37. Let us now examine, whether this is so. 37. Let us now examine, whether this is so. Sub-Sec. (4) of Sec. 53 lays down that: "A committee of management shall consist of a Chairman and such even number of members, not exceeding ten and not less than two, as the State Government may determine." Sub-Sec. 5 of Sec. 53 lays down that: "The Chairman and members of a committee of management shall be appointed by the State Government by notification in the official Gazette from amongst: (a) trustees of public trusts representing the same religion or persuasion and having the same objects; and (b) persons interested in such public trusts or in the endowments thereof or belonging to the denomination for the purpose of which or for the benefit of whom the trust was founded; in accordance with the general wishes of the persons so interested so far as such wishes can be ascertained in the prescribed manner." Ir is contended by learned Advocate-General on behalf of the State that all the members of the committee including the Chairman will be under sub-sec. (5) members of the same denomination as the one which had been managing the trust and thus there is no taking away of the property from the denomination. 38. Under that sub-section three sets of persons will constitute the members and the Chairman of the Committee. One set is of the trustees of the public trust representing the same religion and pursuing the same objects and the second set is of the persons interested in such public trusts or in the endowments thereof, and the third set is of the persons belonging to the denomination for the purpose of which and for the benefit of whom the trust was founded. The last two categories of persons the State Govt. is directed to select in accordance with the general wishes of the persons so interested so far as such wishes can be ascertained in the prescribed manner. Now if the State Government appoints persons of the first category, they may not necessarily be of the same denomination which manages the trust and so also the persons coming in the second category. Of course, the persons in the third category may be of the same denomination. Now take a case of a public trust managed only by a section of the denomination. Of course, the persons in the third category may be of the same denomination. Now take a case of a public trust managed only by a section of the denomination. Art. 26 clearly says that even a section of a religious denomination shall enjoy the protection given under it. It has been pointed out by their Lordships of the Supreme Court in The Commissioner of Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt (2) that: "As Art.26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article." The same view has been reiterated in the case of Shri Venkataramana Devaru vs. State of Mysore (8). Though it is unfortunate yet it is a fact that sects professing the same religion are sometimes antagonistic to each other in the matter of management of the property of a particular trust. Thus, trustees of a public trust representing the same religion may not necessarily be the members of the section of denomination managing the property, even if such public trust has the same object as that of the public trust the management of which is being transferred to the committee of management. Again, the word "object" is very vague. Thus, in the first category of cases, persons may come who may not belong to the same sect of the denomination as was managing the property. In the second category may come persons who may not at all belong to the same religion to which the members of the denomination managing the property belong, because the definition of the expression "persons interested" is very much wide under the Act. Thus, barring the third category, there is no guarantee that persons even of the same sect of denomination may come in the committee of management. The State Government has been given arbitrary powers to select Chairman and members of the Committee of Management without ensuring fully that if such trust was being managed by a section of the denomination it shall have a predominant voice in the management thereof. Cases may arise in which the State Government may altogether divest the denomination or a section thereof of the management of a trust property. Cases may arise in which the State Government may altogether divest the denomination or a section thereof of the management of a trust property. This situation may also arise in cases in which the public trust is not of a section of denomination but of the denomination as a whole though the chances for such a situation arising may be less. 39. Learned Advocate-General has relied on the following passage from the judgment of their Lordships of the Supreme Court in Tilkayat Shri Govmdlalji Maharaj vs. State of Rajasthan(6) to show that the Supreme Court upheld the validity of the provisions contained in Nathdwara Temple Act, 1959 which were of analogous character: It is, however, argued that by the constitution of the Board in which the administration of property now vests is not the denomination, and since the administration is now left to the Board, the denomination has been wholly deprived of its right to administer the property. It is remarkable that this plea should be made by the representatives of the denomination who in their writ petition were prepared to support the Tilkayat in his case that the temple and the properties of the temple were his private property. That apart, we think that the constitution of the Board has been deliberately so prescribed by the legislature as to ensure that the denomination should be adequately and fairly represented on the Board. We have already construed s. 5 and we have held that sec. 5(2) (g) requires that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti-Margiya Vallabhi Sampradaya. It is true that these members are nominated by the State Government, but we have not been told how else this could have been effectively arranged in the interests of the temple itself. The number of the devotees visiting the temple runs into lacs ; there is no organisation which comprehensively represents the devotees as a class ; there is no register of the devotees and in the very nature of things, it is impossible to keep such a register. The number of the devotees visiting the temple runs into lacs ; there is no organisation which comprehensively represents the devotees as a class ; there is no register of the devotees and in the very nature of things, it is impossible to keep such a register. Therefore, the very large mass of Vallabhs followers who constitute the denomination can be represented on the Board of management only by a proper nomination made by the State Government, and so, we are not impressed by the plea that the management by the Board constituted under the Act will not be the management of the denomination. In this connection, we may refer to clause (1) of the Firman which vested in the Darbar absolute right to supervise the management of the property. As a successor-in-interest of the Darbar, the State of Rajasthan can be trusted to nominate members on the Board who would fairly represent the denomination Having regard to all the relevant circumstances of this case, we do not think that the legislature could have adopted any other alternative for the purpose of constituting the Board. Therefore, we must hold that the challenge to the validity of the Act on the ground that it contravenes Arts. 25(1), 26(b) and 26(d) must be repelled." It must not be forgotten that the aforesaid observations were made in a case in which devotees of the temple ran into lakhs and there was no organisation which comprehensively represented the devotees as a class. Again, the aforesaid observations were made with regard to a trust over which the State Government had already the power of supervision. Another point of distinction is that Sec. 5 of the Nathdwara Temple Act, 1959, was very specific and care was taken by the Legislature that the members of the Board in which the management vested other than the Collector not only professed Hindu religion but must belong to Pushti Margiya Vallabhi Sampradaya to which denomination the Temple of Nathdwara related. This case is, therefore, clearly distinguishable. We are, therefore, of the opinion that proper safeguards are not provided in Sec. 53 for leaving the administration of the property in the hands of a denomination. 40. We are of the opinion that clauses (d) and (e) of Sub-sec. (1) of Sec. 52 are ultra vires the Constitution and should be struck off. 41. We are, therefore, of the opinion that proper safeguards are not provided in Sec. 53 for leaving the administration of the property in the hands of a denomination. 40. We are of the opinion that clauses (d) and (e) of Sub-sec. (1) of Sec. 52 are ultra vires the Constitution and should be struck off. 41. As a result of the aforesaid discussion, the writ petition is partly allowed. Sub-sec. (3) of Sec. 17 clauses (d) and (e) of sub-sec. 1 of Sec. 52 are declared ultra vires the State Legislature. They are struck off and the respondents are directed not to take any action under these provisions. Other provisions of the Act are held valid. Parties to bear their own costs in this writ petition.