B. J. DIVAN, S. H. SHETH, J. ( 1 ) THE Dai-ul-Mutlaq of the Dawoodi Bohra Community has filed this petition challenging certain directions issued to him by the Charity Commissioner Gujarat State 1 respondent to the petition under Section 41a of the Bombay Public Trust Act 1950 in the matter of Dawat property trusts of which he is the sole trustee. He also challenges the vires of the said Section 41a on the ground that it violates Articles 25 and 26 of the Constitution. ( 2 ) THE facts of the case briefly stated are as under. The petitioner is the head priest of the Dawoodi Bohra community. He is called Dai-ul-Mutlaq. The original petitioner was the 51 Dai-ul-Mutlaq. He died during the pendency of the present petition. His successor-in-office - 52 Dai-ul-Mutlaq has since been substituted as petitioner in his place. ( 3 ) THE Dawoodi Bohras believe as a matter of faith that there is only one God that Mohmad was his Prophet that God revealed the Holy book (Koran) to the Prophet that Ali son-in-law of Mohmad the Prophet was his Wasi (executor) that Ali succeeded Mohmad by Nas-e-Jali that Ali was succeeded by a line of Imams and that in all there were 21 Imams. According to their belief Imam Tyeb the 21st Imam went into seclusion owing to persecution Imam always exists though he is not visible since 21st Imam went into seclusion 20th Imam directed his Hujjat (a dignitary ranking next to Imam) to appoint a Dai to carry on the Dawat (mission) of the Imam and this Dai is known as Dai-ul-Mutlaq. The present petitioner is the 52nd Dai-ul-Matlaq. He is the vicegerent on earth of the Imam in seclusion. ( 4 ) DAI-UL-MUTLAQ is the head of the sect and trustee of its property. As the religious leader of the Dawoodi Bohra community he enjoys ecclesiastical powers. As the sole trustee of the property of the sect he has exclusive right to manage and administer it. Its entire management and administration is under his sole direction and control. The status and powers of Dai ul-Mutlaq have been considered in two decisions. In Advocate General of Bombay v. Yusufali Ebrahim 24 Bombay Law Reporter 1060 the High Court of Bombay has considered them. In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay - (1962) Suppl. Its entire management and administration is under his sole direction and control. The status and powers of Dai ul-Mutlaq have been considered in two decisions. In Advocate General of Bombay v. Yusufali Ebrahim 24 Bombay Law Reporter 1060 the High Court of Bombay has considered them. In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay - (1962) Suppl. 2 S. C. R. 496 - the Supreme Court has considered them. It is not necessary for us to reproduce here what has been recorded in those two decisions. We however shall be bearing them in mind while examining the contentions which have been raised before us. ( 5 ) THE case of the petitioner is as under. All Dawat properties vest in him by virtue of his being Dai-ul-Mutlaq - the religious and spiritual head of the community. They pass on to his successor-in-office upon his death. In India several Gallas (boxes or other receptacles) are placed at the tombs of religious dignitaries or religious and pious persons of this community or at mosques and Musafarkhanas. Devotees or visitors place offerings in cash or 0in kind in these Gallas. The Dai-ul-Mutlaq is the sole trustee of these offerings which form part of the Dawat properties. The Dai-ul-Mutlaq applies them in his sole and absolute discretion for the purposes of the Dawat that is to say for the spiritual mission of the Dai-ul-Mutlaq and for the affairs relating to the mission. These offerings are made in the knowledge that the Dai-ul-Mutlaq will receive them in due course and apply them for the purposes of the Dawat and the community. They therefore confer upon the offeror religious merit and spiritual benefit. Earning of religious merit and spiritual benefit is the most essential feature of these offerings. ( 6 ) IN these circumstances the Gallas are placed at tombs mosques or Musafarkhanas only under the specific directions and authority of the Dai-ul-Mutlaq. He alone prescribes the mode and manner of administering the Gallas the offerings and all matters connected with them. Sole management of these offerings by the Dai-ul-Mutlaq in his absolute discretion is a religious tenet of this community and is therefore an essential and integral part of the religion of this community. He alone prescribes the mode and manner of administering the Gallas the offerings and all matters connected with them. Sole management of these offerings by the Dai-ul-Mutlaq in his absolute discretion is a religious tenet of this community and is therefore an essential and integral part of the religion of this community. ( 7 ) PURSUANT to the enactment of the Bombay Public Trusts Act 1950 (hereinafter referred to as the said Act) Dawat Property Trusts within the State of Bombay were registered under the said Act. The applications which were made in different regions of the State for the registration of these trusts specifically mentioned certain facts exclusively pertaining to them. They are as follows. Firstly the Dai-ul-Mutlaq is the spiritual guardian of the Dawoodi Bohra community. Secondly in his said capacity he receives the offerings and income which the Gallas yield for carrying out the objects specified in the Schedules annexed to those application. Thirdly the sole trusteeship of these Dawat properties devolves upon the successive holders of that office. Fourthly the Dai-ul-Mutlaq appoints manager to manage the Dawat properties and funds on his behalf and under his directions and orders. ( 8 ) THESE gallas are in reality iron safes. The Dai-ul-Mutlaq issues directions roughly at the end of every six months to the Amils or managers at different places to open the Gallas and it has been a long standing practice that the Gallas are opened in the presence of Amil or manager and some leading and respectable persons of the community. The collections which these Gallas yield are then checked and entered in the book specially maintained for the purpose and the persons who are present there sign the entries and endorse the correctness of the statements made therein. Proper accounts of these offerings have always been maintained. It is the petitioners case that all these details relating to the administration of Gallas and the offerings are matters of religion of the Dawoodi Bohra community. The Charity Commissioner therefore cannot interfere with the sole and absolute discretion of the Dai-ul-Mutlaq in the matters of placing sealing and opening of the Gallas and accounting and application of the collections yielded by them. All these things constitute an essential and integral part of the religion of the Dawoodi Bohra community. The Charity Commissioner therefore cannot interfere with the sole and absolute discretion of the Dai-ul-Mutlaq in the matters of placing sealing and opening of the Gallas and accounting and application of the collections yielded by them. All these things constitute an essential and integral part of the religion of the Dawoodi Bohra community. ( 9 ) THE Charity Commissioner respondent No. 1 herein in exercise of the powers conferred upon him by Section 4ia of the said Act issued to the original petitioner in March 1965 the following directions after having stated in the opening paragraph thereof that he had received several complaints in connection with the income of the Gallas and about the opening and sealing of such Gallas and that therefore it was expedient in the interests of the public trust to regulate the opening and sealing of the Gallas and to regulate the crediting of the offerings received in cash or in kind in the regular account books of a public trust to ensure that the income realized from the Gallas or iron safe etc. is properly accounted for and is duly appropriated and applied to the objects and for the purposes of the public trust. The actual directions issued by him to the trustee - Dai-ul-Mutlaq are as follows. (I ). . . they shall seal the Gallas or the iron safes etc. within 15 days of the receipt of this direction in the presence of the officer of-this Charity Organization and they and the officer of the Charity Organization will put their signatures and date on the seal. The Trustees shall inform of the said date to the Charity Commissioner quite in advance to enable the Charity Commissioner to depute officer of this Organization to remain present at the time and place mentioned in the said intimation of the Trustees. (II ). . . the Trustees shall open the Galla or iron safe etc. kept for receiving offerings in cash or kind at the Dargah or such other place of sanctity or religious place before about 10 days of the Uras of that Dargah in the presence of the Officer of the Charity Organization who will be deputed for this specific purpose. Persons interested in this Trust if they so desire to remain present at this time may be allowed to do so. Persons interested in this Trust if they so desire to remain present at this time may be allowed to do so. The offerings found in cash or kind in the Galla or the iron safe etc. may be credited in the account books of the Trust in the presence of the Officer of the Charity Organization who will put his initials in token of his presence. The Galla or the iron safes etc. will then be locked and sealed and the Trustees and the Officer of the Charity Organization will put their signature on the seal with date thereon. (III ). . . the said Galla or the iron safe etc. will then be reopened after 6 months which date will be fixed by the Trustees in consultation with the Officer of the Charity Organization when the Galla was last sealed. The same procedure will be followed for opening and sealing of the Galla and for crediting the offerings received in cash or kind from the Galla as stated above in these directions. The persons interested in this Trust will be allowed to remain present at the time of opening and sealing of Galla. For further opening and sealing of Gallas or iron safes etc. as stated above the same procedure as laid down above is required to be followed. (IV ). . . . The Trustees will notify the dates of opening and sealing of the Gallas by affixing a notice on a conspicuous part of the Trust at least 7 days in advance and send a copy of it to the Charity Commissioner. Though the Dai-ul-Mutlaq is the sole trustee the Charity Commissioner it may be noted has issued a plural expression to describe him. Therefore wherever he was required to write the trustee he has used the expression the trustees. Similarly he has used they in place of he. ( 10 ) THE petitioner was required to intimate to the Charity Commissioner compliance with these directions by 2 9/03/1965 under the pain of prosecution under Section 67 of the said Act. The aforesaid directions were issued to the petitioner in respect of Dawat Properties Trust relating to Saiyadna Kutbuddin Sahib Saheb Saraspur Ahmedabad and Saiydi Maulai Adam Saheb Suleman Kankaria Road Ahmedabad. The aforesaid directions were issued to the petitioner in respect of Dawat Properties Trust relating to Saiyadna Kutbuddin Sahib Saheb Saraspur Ahmedabad and Saiydi Maulai Adam Saheb Suleman Kankaria Road Ahmedabad. Identical directions were issued by the Charity Commissioner to the petitioner in respect of Dawat Properties Trust relating to (1) Saiyadi Mulla Wahedalibhai Mulla Ibrahim Saheb (2) (a) Saiyadi Lukamanji Habibullaha Sabeb and (b) Saiyadna Abedali Saifuddin Saheb and (3) (a) Saiyedna Yusuf Nazmuddin Saheb and (b) Saiyedna Mohamed Buhanudin Saheb at Surat and also in respect of Dawat Properties Trust relating to Sayani Va Maulai Musanji Bin Taj Saheb Durgah and Musafarkhana Trust at Baroda. ( 11 ) CORRESPONDENCE between the petitioners attorneys and the Charity Commissioner followed these directions. The material facts emerging out of the correspondence are that the petitioner challenged the impugned directions as ultra vires Articles 25 and 26 of the Constitution that he requested the Charity Commissioner to furnish him certified copies of the complaints received by him and referred to in the impugned directions and that the Charity Commissioner refused to furnish him those certified copies on the ground that they were not a part of regular Judicial proceedings and that the impugned directions were issued under office noting certified copies of which could not be granted. ( 12 ) THEREUPON the petitioner filed this petition challenging the constitutional validity of Section 41 of the said Act and the validity of the impugned directions. Mr. Sen who appears for the petitioner has raised the following three contentions before us. (1) Section 41a of the Bombay Public Trusts Act 1950 in so far as it applies to trusts of religious denominations is ultra vires Articles 25 and 26 of the Constitution. (2) Even if Section 41a is not ultra vires Arts. 25 and 26 the impugned directions are wholly beyond the purview of Section 41a and are in conflict with Arts. 25 and 26. (3) Such directions cannot be issued without hearing the party affected thereby either on the ground of principles of Natural Justice if they are quasi-judicial or on the ground of principles of Fair Play if they are purely executive or administrative in character. ( 13 ) WE now proceed to examine the first contention raised by Mr. Sen. (3) Such directions cannot be issued without hearing the party affected thereby either on the ground of principles of Natural Justice if they are quasi-judicial or on the ground of principles of Fair Play if they are purely executive or administrative in character. ( 13 ) WE now proceed to examine the first contention raised by Mr. Sen. Article 25 guarantees to all persons freedom of conscience and the right freely to profess practice and propagate religion while Article 26 guarantees to religious denominations freedom to manage their religious affairs. Therefore whereas Article 25 defines the bounds of freedom of religion for individuals Article 26 defines them for religious denominations. Article 26 therefore can he brought into play only in case of a religious denomination. The Dawoodi Bohra community is indisputably such a religious denomination and it can invoke Article 26 as was done in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay reported in A. I. R. (1962) Supreme Court 853. ( 14 ) CLAUSE (1) of Article 25 guarantees to all persons freedom of conscience and the right to freely profess practice and propagate religion. It has been subjected to two fetters. Firstly it is subject to public order morality and health. Secondly it is subject to the other provisions of Part III of the Constitution. Clause (2) thereof carves out an exception to Article 25 and saves the operation of any existing law and the power of the State to make any law (a) regulating or restricting any economic financial political or other secular activity which may be associated with religious practice. and (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. For the purpose of this case it is not necessary to refer to the Explanation to Article 25. ( 15 ) RIGHT to practise religion within the meaning of Clause (1) of Article 25 is itself subject to the provisions of Article 26 as the opening words in that clause unmistakably indicate. Article 26 guarantees to every religious denomination or any section thereof freedom to manage religious affairs of four kinds. This guarantee is also not absolute. It is subject to public order morality and health. Article 26 guarantees to every religious denomination or any section thereof freedom to manage religious affairs of four kinds. This guarantee is also not absolute. It is subject to public order morality and health. The fourfold classification of religious affairs to which the guarantee of freedom extends is as follows: Establishing and maintaining institutions for religious and charitable purposes; (2) Managing its own affairs in matters of religion; (3) Owning and acquiring movable and immovable property and (4) Administration of such property in accordance with law. The guarantee of freedom extended to the first three kinds of religious affairs is subject to the requirements of public order morality and health unqualified and absolute. The fourth kind of religious affair apart from being 4 subject to the requirements of public order morality and health is also subject to the law which a competent Legislature may make. On reading Articles 25 and 26 together it is clear to us that in the matters of acquiring and owning property by a religious denomination and also in the matters of the management of the religious affairs of a religious denomination it is Article 26 to which Article 25 is subject which comes into play. ( 16 ) HAVING noted the provisions of Articles 25 and 26 let us now turn to Section 41a and analyse it before we proceed to examine the arguments advanced by Mr. Sen. Section 41a has been enacted by the Gujarat Legislature. It was inserted in the said Act in 1962. It provides as follows. (1) Subject to the provisions of this Act the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust. (2) It shall be the duty of every such trustee and person to comply with a direction issued to him under sub-Section (1 ). Sub-Section (1) which is material for the purpose of this case empowers the Charity Commissioner to issue directions only for the following purposes and no others. (A) Proper administration of a public trust (B) Proper accounting of its income (C) Due appropriation and application of the income to the objects and for the purposes of the trust. Sub-Section (1) which is material for the purpose of this case empowers the Charity Commissioner to issue directions only for the following purposes and no others. (A) Proper administration of a public trust (B) Proper accounting of its income (C) Due appropriation and application of the income to the objects and for the purposes of the trust. The Charity Commissioner has his jurisdiction under Section 41a confined to these matters only. Exercise of this jurisdiction is further subjected to other provisions of the Act. The question which has been argued before us by Mr. Sen is that Section 41a violates Clauses (b) and (c) of Article 26 and is therefore ultra vires Article 26 ( 17 ) THE first question which therefore arises for our consideration is this. Which is the religious affair or religious practice which Section 41a interferes with ? The second question which arises is this. Does it interfere with acquisition and owning of movable or immovable property by the Dawoodi Bohra community ? Mr. Sen in this behalf has made the following submissions. Charity at such religious places is a part of the religious tenents of the Dawoodi Bohra community. It. falls under the broader category of religious practice. The authority of Dai-ul-Mutlaq alone sanctions the collection of charity. Donations are made by devotees for earning spiritual benefit and religious merit and the offerings are placed in the Gallas instead of at the feet of the Dai-ul-Mutlaq. They are meant for Dawat. These collections are not a commercial activity. This religious activity cannot brook or suffer any interference whatsoever even at the hands of the State except in the interests of public order morality and health. Assuming that this activity falls under Clause (d) of Article 26 it can be regulated only by law itself and not by any executive directions. Section 41a does not lay down any rule of administration of public trust property. The Dai-ul-Mutlaq acquires the property by the instrumentality of Gallas. He then owns and administers it. Nature of directions to be issued under Section 41a cannot be left to the executive action or discretion though Section 41a may empower such a course. The Dai is the trustee by virtue of his religious headship of the community. It is Dai alone who can issue directions to open the Gallas. He then owns and administers it. Nature of directions to be issued under Section 41a cannot be left to the executive action or discretion though Section 41a may empower such a course. The Dai is the trustee by virtue of his religious headship of the community. It is Dai alone who can issue directions to open the Gallas. Any directions from the Charity Commissioner will completely affect the position of the Dai in the matter of receiving the offerings at such hour such time and such place as he chooses and also in the matter of crediting them in the account-books. Clause (c) of Article 26 places complete embargo upon the legislative or executive regulation of such acquisitions (subject indeed to public order morality and health ). The offerings confer spiritual benefit upon the offerors. They are offerings made to God. They cannot be regulated. These offerings and their collections are not acquisition of property as such but they distribute and confer spiritual benefit. Any directions issued under Section 41a will substitute the channel of receipt of collections. Charity Commissioners sealed box will be substituted for Dais sealed box. None has conferred authority upon the Legislature to say that the offerings shall be received through the Charity Commissioners sealed box. Therefore this legislative enactment violates this religious practice. Therefore guarantee under Clause (c) of Article 26 is infringed. Collection of offerings through Dais sealed box is sanctioned by religious tenet and practice. Any interference with it or any probe or peep into it renders Dai unfit to perform his religious duty and lowers his position. Therefore Clause (b) of Article 26 is violated. Constitution protects and renders sacrosanct all religious usages beliefs and practices. Directions issued under Section 41a derogate from religious usages and practices. Section 41a violates Clause (b) of Article 26 because directions issued thereunder render Dai unfit and lower his position. He is reduced to the position of a suspect. Lowering of Dais position reduces him in public estimation. Therefore the source of collections is affected. Therefore Section 41a violates Clause (b) or Article 26. If directions are permissible to be issued they can be issued by law alone that is to say by legislative enactment or by a piece of subordinate legislation. They cannot be issued by an executive fiat. Therefore the source of collections is affected. Therefore Section 41a violates Clause (b) or Article 26. If directions are permissible to be issued they can be issued by law alone that is to say by legislative enactment or by a piece of subordinate legislation. They cannot be issued by an executive fiat. Therefore in as much as Section 41a leaves it to the Charity Commissioner to issue directions it violates Clause (d) of Article 26. He has invited our attention to a number of decisions to which we shall refer later. ( 18 ) IN reply the learned Government Pleader has made the following submissions. Galla collections are trust property. Dai is the trustee. They are to be used for charitable purposes. The very fact that the Dawat Properties Trust has been registered under the said Act shows that there is a distinction between Dais civil powers and his ecclesiastical powers. The devotees make offerings for earning religious merit and spiritual benefit in the hope of their receipt by Dai. Actual offerings by devotees and their actual receipt by the Dai are not interfered with by Section 41a. Method and mode of their collections are not interfered with. Matters of religion within the meaning of Clause (b) of Article 26 mean profession of religion practice of religion and propaganda of religion contemplated by Clause (1) of Article 25. The only religious practices recognised in this behalf are (i) visit to the Durgah or mosque (ii) offering by a devotee at such a place of sanctity (iii) their receipt by the Dai. It is the offering at a Durgah or mosque which produces a link of intercession between an offeror and God. The method and manner of sealing and opening the Gallas are not a religious tenet or practice or belief. In fact it is the offerings at a place of sanctity which earn spiritual benefit and religious merit. No spiritual benefit and religious merit are earned by placing them in the Gallas. Nothing turns upon the Gallas boxes or receptacles into which the offerings are placed. They are only an earthly contrivance to safely accumulate the collections. In any case there is no evidence to establish that sealing and opening of Gallas are also a matter of religious belief or practice. Therefore Clause (b) of Article 26 is not violated. Nothing turns upon the Gallas boxes or receptacles into which the offerings are placed. They are only an earthly contrivance to safely accumulate the collections. In any case there is no evidence to establish that sealing and opening of Gallas are also a matter of religious belief or practice. Therefore Clause (b) of Article 26 is not violated. Matters of religion are only those which are essential and integral parts of religious practices and beliefs. Clause (b) excludes matters relating to administration of public trust property. As soon as an offeror offers some moneys or property the Dai receives it. It is not physical receipt of the offering by the Dai which is material. If moneys placed in a Galla are stolen the Dai alone can complain of theft. If the property is insured and if it is destroyed before it reaches his hands the Dai alone will receive payment from the Insurance Company. Any directions which the Charity Commissioner may issue under Section 41a will ensure to the Dai the proper receipt of the collection. They will therefore help and promote the religious belief and practice. The Dai may not receive the collections physically at all. He may direct his Amil to distribute them directly to the poor and needy on the Uras day or on any other day. Even then the offeror has earned the religious merit and spiritual benefit. Nothing therefore turns upon their physical receipt by the Dai. Section 41a does not empower the Charity Commissioner to do anything more than what the said Act provides for elsewhere. The other sections of the said Act providing for trustees obligations have been held to be intra vires. Therefore Section 41a is not ultra vires. He has also drawn our attention to certain decisions to which we shall refer later. ( 19 ) MR. Qureishi appearing for respondent No. 3 has made the following submissions in addition to the submissions made by the learned Government Pleader. Proper accounting is a secular activity. Accounting is altogether different from an act of offering and receiving. The latter act has religious sanctity and not the former. Accounting is not even administration of trust property. Giving and taking are over long before the Galla is opened. The Dai has dual capacity. He is both the spiritual head and trustee. Section 41a does not transgress either Article 25 or Article 26. The latter act has religious sanctity and not the former. Accounting is not even administration of trust property. Giving and taking are over long before the Galla is opened. The Dai has dual capacity. He is both the spiritual head and trustee. Section 41a does not transgress either Article 25 or Article 26. Clauses (b) and (d) of Article 26 are mutually exclusive. ( 20 ) MR. Sen in reply to the arguments advanced by the learned Government Pleader and by Mr. Qureishi has invited our attention to the averments made in Paragraph 9 of the petition. They according to him spell out the religious practice of this community. Relying upon the decision of the High Court of Bombay reported in 24 Bombay Law Reporter 1060 he has submitted that the reply contained in Paragraph 10 of the affidavitin-reply is thoroughly misconceived. Section 41a does not fall within the compass of Clause (d) of Article. 26 and is therefore not saved by it. Gallas are a part of the management of religious affairs. He has invited our attention to the meaning of the word to manage. There cannot be interference with giving and taking of the offerings. Offerings are admittedly a religious matter. Their management is also a religious matter as it is inseverably interlinked with offerings. Mr. Sen in order to reinforce his submissions has again invited our attention to certain decisions to which he had referred earlier. He has lastly submitted that either Section 41a is ultra vires Articles 25 and 26 or that it should be read down so as to hold that it has no application to public trusts of religious denominations. . ( 21 ) SO far as the religious practice is concerned we have before us the statement on oath of the petitioners constituted attorney Sheikh Kurbanali Fidahussain Campwala. No other evidence has been placed on record to prove it. However this question has been dealt with in The Advocate General of Bombay v. Yusufalli Ebrahim 24 Bombay Law Reporter 1060 Mr. Justice Marten in that case was called upon to deal with an identical question. Both the sides have placed strong reliance upon this decision. The learned Judge was considering in that case the religious practice of the Dawoodi Bohra community in connection with the Dais Galla at the tomb of Chandabhoy. Justice Marten in that case was called upon to deal with an identical question. Both the sides have placed strong reliance upon this decision. The learned Judge was considering in that case the religious practice of the Dawoodi Bohra community in connection with the Dais Galla at the tomb of Chandabhoy. He took great pains in unfolding and analysing different facets of the religious beliefs of the Dawoodi Bohra community in the light of their historical background and wrote a very instructive and learned judgment. He records the following finding at page 1072 of the report on the religious belief as to the chain of intercession with the Almighty. Another tenet put forward by the defendants is a chain of intercession with the Almighty. This can only be through the Dai the Imam and the Holy Prophet. If the intercession is sought by or by the aid of the deceased person such as Seth Chandabhoy then it is said that the intercession can only reach the Almighty through the Dai and the Imam of the time of such deceased person. Thus it would be proper for the present Mullaji to ask for Seth Chandabhoys intercession but in that event the prayer would reach God through the Dai and the Imam of Seth Chandabhoys time. If on the other hand the intercession is sought by a person now living then it would reach God through the present Dai and Imam. Some comment was made that this chain of intercession was not put to the plaintiffs principal witness Shaikh Faizullabhoy. But I am satisfied on the evidence that it is an article of belief and that though its details may be esoteric and known only to a few its essentials are dealt with in periodical sermons to the people. Dealing with the question of mosques the learned Judge at page 1089 of the report has observed as under. But I am satisfied on the evidence that it is an article of belief and that though its details may be esoteric and known only to a few its essentials are dealt with in periodical sermons to the people. Dealing with the question of mosques the learned Judge at page 1089 of the report has observed as under. Now in my judgment it is clear on the evidence (1) that the mosque is Gods house and is held by the Mullaji as Dai and passes on his death to his successor on the gadi and not to his heirs (2) that the Mullaji cannot sell or alienate the mosque (3) that he cannot close it except for some temporary and necessary purpose such as repairs or sanitation (4) that it is a mosque for the use of the Dawoodi Bohra community although others may occasionally be permitted to use it and (5) that it cannot be used for any other purpose than a mosque. . . . . It is clear that the sole management and general control of the mosque is vested in the Mullaji in right of his office as Dai. Dealing with the theory of Dais non-accountability the learned Judge has at page 1093 of the report observed as under. So the only point left was as to the theoretical trusteeship of the Mullaji. The defendants however persisted in contesting this and in my judgment they were wrong. Their religion however stands where it did. A theoretical accountability affects the doctrine of infallibility no more than the theoretical criminal liability does that is not at all. Neither could materialise except under unthinkable circumstances e. g. if the Dai sold the mosque and appropriated the proceeds for his private ends. The claim to non-accountability is all the more surprising because in effect it involves the infallibility of some 266 Amils and numerous other managers and officers under the Mullaji. No man can manage personally 648 mosques to say nothing of 69 Gullas. The Mullaji must therefore act by agents. But no one suggests that they are infallible. If then any such agent is corrupt or negligent why should the community be without a remedy against him ? It may be that the Dai might thus be obliged to repair the misdeeds of his agents. The Mullaji must therefore act by agents. But no one suggests that they are infallible. If then any such agent is corrupt or negligent why should the community be without a remedy against him ? It may be that the Dai might thus be obliged to repair the misdeeds of his agents. But this would be no slur on him any more than the misdeeds of the Kings ministers would affect the constitutional doctrine that the King can do no wrong. . . . The conclusion therefore which I have ar rived at on this part of the case is that in law the Mullaji is a trustee of the suit mosque and theoretically accountable as such. . . . The learned Judge has then proceeded to deal with the tomb and Gulla. After having observed at page 1094 of the report that there is clearly some connection between tomb and Gulla and that it is not altogether simple to define it in law he has recorded his finding in the following terms at page 1098. I will next consider whether the offerings at Chandabhoys tomb are charitable. These admittedly come to the Mullaji in right of his office; they pass to his successor as Dai and not to his heirs; they are not his private property like the Salaam but according to him are Dawat property. In the past they have been spent regularly on the upkeep of the mosque and tomb the Ooros feasts Majlis and illuminations. The surplus has been invested in land and the resulting rents carried to the Gulla account. But I need not repeat the facts already mentioned. The essential features of the offerings are: (1) their religious connection and merit and (2) their practical benefit to the community. They are given in connection with prayers to through or for Chandabhoy and in the knowledge that the High Priest as such will receive them and in the ordinary course distibute them for the benefit of the community. As I have already stated I accept the view that they are gifts to God and are Gods property. Mr. Sen has laid great stress upon this passage in support of the first contention raised by him before us. Dealing with the power of the Dai-ul-Mutlaq in respect of these Gulla offerings the learned Judge has recorded the following finding at page 1090. Mr. Sen has laid great stress upon this passage in support of the first contention raised by him before us. Dealing with the power of the Dai-ul-Mutlaq in respect of these Gulla offerings the learned Judge has recorded the following finding at page 1090. After giving my best consideration to the evidence and arguments I am of opinion that it is imperative on the Mullaji Saheb to distribute these gulla offerings for the benefit of the community and that he is a trustee in respect thereof. So far as the Majlis ceremony Ooros feast and illuminations in honour of Chandabhoy are concerned he has recorded his opinion that they are religious celebrations by the whole community in honour of a saint of theirs and that therefore they tend to the advancement of religion in their community. Thereafter the learned Judge has recorded his view that the Gulla offerings are public funds of the community of which the Dai is the trustee and has summed up his finding in the following terms at page 1104: the conclusion then which I have arrived at is that all the suit gulla moneys whether surplus or otherwise are held upon charitable trusts. I am also of opinion that in law the Mullaji is the trustee thereof and that as such trustee he has wide powers of management and also a wide discretionary power as to the particular purposes for the benefit of the community on which the surplus moneys should be expended. ( 22 ) IN our opinion the petitioner has on the authority of that decision established that the offerings made by the devotees at the tombs and mosques and their receipt by the Dai-ul-Mutlaq (and they make the offerings in that hope) are matters of religious practice for the Dawoodi Bohra community. He has also established that the chain of intercession with God which these offerings are supposed to produce is a matter of religious belief for the said community. It is also amply clear from that decision that though the Dai-ul-Mutlaq is the sole trustee of the Gulla income by virtue of this office he is not immune to accountability to the community. So far as accountability is concerned he is the trustee and nothing more. It is also amply clear from that decision that though the Dai-ul-Mutlaq is the sole trustee of the Gulla income by virtue of this office he is not immune to accountability to the community. So far as accountability is concerned he is the trustee and nothing more. We have no evidence before us to enable us to find that such ancillary and incidental acts as sealing and opening of the Gullas and their method and manner are also matters of religious practice for the community. A bare word on oath of the constituted attorney of the petitioner is not sufficient for the purpose. Having given our full consideration to the arguments advanced by Mr. Sen we are of the opinion that these incidental and ancillary matters are not inseverably integrated with the religious practice of making offerings at the tombs and mosques in anticipation and hope of their receipt by the Dai-ul-Mutlaq. The aforesaid decision rendered by Mr. Justice Marten is no authority for this proposition. On the contrary the accountability of the Dai-ul-Mutlaq which has been accepted by Mr. Justice Marten in principle completely refutes the argument that these incidental and ancillary matters are inseverably integrated with the aforesaid religious practice. ( 23 ) LET us now examine the impact of Articles 25 and 26 of the Constitution upon Section 41a of the said Act. These two articles have been the subject matter of quite a few decisions of the Supreme Court. We proceed to discover their scheme by analysing the principles laid down in those decisions. The first of these decisions is in The Commissioner Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swaminar of Sri Shirur Mult (1954) Supreme Court Reports 1005. In that case the Supreme Court was considering the constitutional validity of several provisions of the Madras Hindu Religious and Charitable Endowments Act 1951 (hereinafter referred to as the Madras Act ). The first principle which has been laid down is that in the interest of the public reasonable restrictions can always be placed upon the rights of a person who is in charge of a public institution such as a Mathadhipati but that these restrictions should not be such as would bring him down to the level of a servant under a State department. The reasonableness of the restrictions has to be judged from this standpoint. The reasonableness of the restrictions has to be judged from this standpoint. These observations were made in the context of the rights of the Mathadhipati of Sri Shirur Mutt under Article 19 of the Constitution. Dealing with Article 25 Mr. Justice Mukherjea speaking for the Court has observed as under:we now come to Article 25 which as its language indicates secures to every person subject to public order health and morality a freedom not only to entertain such religious belief as may be approved of by his judgment and conscience but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word persons here means individuals only or includes corporate bodies as well. The question in our opinion is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practise and propagate the religious tenets of which he is an adherent and if any provision of law prevents him from propagating his doctrines that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practise or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is -the propagation of belief that is protected no matter whether the propagation takes place in a church or monastery or in a temple or parlour meeting. ( 24 ) DEALING with Article 26 (b) Mr. Justice Mukherjea has observed as under:the other thing that remains to be considered in regard to Article 26 is what is the scope of Clause (b) of the article which speaks of management of its own affairs in matters of religion ? The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is where is the line to be drawn between what are matters of religion and what are not ?it will be seen that besides the right to manage its own affairs in matters of religion which is given by Clause (b) the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away whereas the former can be regulated by laws which the legislature can validly impose. It is clear therefore that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which Clause (b) of the article applies. What then are matters of religion ? The word religion has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case it has been said that the term religion has reference to ones views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect but is distinguishable from the latter. We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44 (2) of the Constitution of Eire and we have great doubt whether a definition of religion as given above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. 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 theistic. 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 of 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 worship 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 Article 25. Latham C. J. of the High Court of Australia while dealing with the provision of Section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the free exercise of any religion made the following weighty observations:it is sometimes suggested in discussions on the subject of freedom of religion that though the civil Government should not interfere with religious opinions it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of Section 116. The section refers in express terms to the exercise of religion and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. INDIAN Constitution. Restriction by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order morality and health. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. INDIAN Constitution. Restriction by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order morality and health. Clause (2) (a) of Article 25 reserves the right of the State to regulate or restrict any economic financial political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon Clause (2) (a) of the article and his contention is that all secular activities which may be associated with religion but do not really constitute an essential part of it are amenable to State regulation. The contention formulated in such broad terms cannot we think be supported. In the first place what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26 (b ). What Article 25 contemplates is not regulation by the State of religious practices as such the freedom of which is guaranteed by the Constitution except when they run counter to public order health and morality but regulation of activities which are economic commercial or political in their character though they are associated with religious practices. Thereafter Mr. What Article 25 contemplates is not regulation by the State of religious practices as such the freedom of which is guaranteed by the Constitution except when they run counter to public order health and morality but regulation of activities which are economic commercial or political in their character though they are associated with religious practices. Thereafter Mr. Justice Mukherjea has discussed a few American and Australian cases bearing on the regulation of activities which are economic commercial or political in character but which are associated with religious practices and then observed as under. As we have already indicated freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well as subject to the restrictions which the Constitution itself has laid down. Under Article 26 therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed however that under Article 26 (d) it is the fundamental right of a religious denomination of 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 Clause (d) of Article 26. 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 Clause (d) of Article 26. ( 25 ) SEN has invited our attention to Sections 20 and 92 of the Madras Act and contended that the Supreme Court has upheld the validity of Section 20 thereof which contains provisions similar to those in Section 41a of the Bombay Public Trusts Act 1950 because of the provisions of Section 92 of the Madras Act. In the Act with which we are dealing there is no section corresponding to Section 92 of the Madras Act. According to him therefore Section 41a is ultra vires Articles 25 and 26 of the Constitution or if its validity is to be upheld it should be read down so as not to be applicable to religious institutions. Section 20 of the Madras Act provides as follows:subject to the provisions of this Act the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist. SECTION 92 of the Madras Act privides as under. NOTHING contained in this Act shall be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Clauses (a) (b) and (c) of Article 26 of the Constitution. On this aspect Mr. Justice Mukherjea in the aforesaid decision has observed as under:section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math which is a public institution some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant. We do not agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in Section 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law. WHILE examining the constitutional validity of the impugned Section 41a we shall bear in mind this submission. The next decision is in Mahant Sri Jagannath Ramanuj Das and Another v. The State of Orissa and Another (1954) S. C. R. 1046. In that case the Supreme Court was considering the constitutional validity of the Orissa Hindu Religious Endowments Act 1939 (hereinafter referred to as the Orissa Act) as amended by Orissa Act II of 1952 in light of the provisions of Articles 19 (1) (f) 25 26 and 27 of the Constitution. It has reaffirmed the principles laid down by it in the case of the Commissioner Hind Religious Endowments Madras (supra ). Provisions of Section 11 of the Orissa Act are similar to those of Section 20 of the Madras Act with a minor difference that Section 11 of the Orissa Act has an explanation appended to it while Section 20 of the Madras Act does not have it. The said Explanation has no relevance whatsoever for the purpose of this case. The Orissa Act does not have a section corresponding to Section 92 of the Madras Act and in view of the fact that it was enacted in 1939 it cannot have any. The said Explanation has no relevance whatsoever for the purpose of this case. The Orissa Act does not have a section corresponding to Section 92 of the Madras Act and in view of the fact that it was enacted in 1939 it cannot have any. We do not know whether the amending Act Orissa Act II of 1952 inserted any corresponding section therein. The Supreme Court has however upheld the constitutional validity of Section 11 of the Orissa Act. ( 26 ) THE third decision to which our attention has been invited by Mr. Sen is in Ratilal Panachand Gandhi v. The State of Bombay and Others (1954) S. C. R. 1055. In that case the Supreme Court was considering the constitutional validity of the very Act with which we are concerned in this petition. The impugned Section 41a was however not there at that time. Mr. Justice Mukherjea speaking for the Court has laid down the scope and ambit of Articles 25 and 26 in the following terms. Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess practise and propagate religion. This is subject in every case to public order health and morality. Further exceptions are engrafted upon this right by Clause (2) of the article. Sub-clause (a) of Clause (2) saves the power of the State to make laws regulating or restricting any economic financial political or other secular activity which may be associated with religious practice; and sub-Clause (b) reserves the States power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Thus subject to the restrictions which this article imposes every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief is as stated above subject to State regulation imposed to secure order public health and morals of the people. What sub-Clause (a) of Clause (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic commercial or political character though they are associated with religious practices. So far as Article 26 is concerned it deals with a particular aspect of the subject of religious freedom. Under this article any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand as regards administration of property which a religious denomination is entitled to own and acquire it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26 (d) it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority would amount to violation of the right which is guaranteed by Article 26 (d) of the Constitution. A law which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority would amount to violation of the right which is guaranteed by Article 26 (d) of the Constitution. Discussing the question of religious practices and religious beliefs it has been further observed as under: religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner it cannot that said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar J. in the case of Jomshedji v. Soonabai and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad Baj Vyezashni etc. which are sanctioned by the Zoroastrian religion were valid charitable gifts the observations we think are quite appropriate for our present purpose. which are sanctioned by the Zoroastrian religion were valid charitable gifts the observations we think are quite appropriate for our present purpose. If this is the belief of the community thus observed the learned Judge and it is proved undoubtedly to be the belief of the Zoroastrian community a secular Judge is bound to accept that belief it is not for him to sit in judgment on that belief he has no right to interfere with the conscience of a donor who makes a gift in favour of what be believes to be the advancement of his religion and the welfare of his community or mankind. These observations do in our opinion afford an indication of the measure of protection that is given by Article 26 (b) of our Constitution. After considering the provisions of the said Act the Supreme Court has upheld the validity of Sections 18 31 to 37 50 and 58 of the said Act. That decision has a great-bearing on the question under examination. We shall revert to it later. ( 27 ) THE next decision is in Shri Venkataramana Devaru and Others v. State of Mysore and Others A. I. R. (1958) Supreme Court 255. The Supreme Court in that decision was considering the constitutional validity of the Madras Temple Entry Authorization Act 1947 in light of the provisions of Articles 25 and 26. Therein after having reaffirmed its earlier decision in the case of The Commissioner Hindu Religious Endowments Madras (supra) it has observed that Article 26 (b) embraces not merely matters of doctrine and belief pertaining to the religion but also the practice of it or to put it in terms of Hindu theology not merely its Gnana but also its Bhakti and Karma Kandas. After having quoted a passage from the judgment of Mr. Justice Mukherjea in the case of The Commissioner Hindu Religious Endearments Madras (supra) it has further observed that it is well-settled that matters of religion in Article 26 (b) include even practices which are regarded by the community as part of its religion. Proceeding further Mr. After having quoted a passage from the judgment of Mr. Justice Mukherjea in the case of The Commissioner Hindu Religious Endearments Madras (supra) it has further observed that it is well-settled that matters of religion in Article 26 (b) include even practices which are regarded by the community as part of its religion. Proceeding further Mr. Justice Venkatarama Aiyar has explained the scope of Articles 26 (b) and 25 in the following terms: it is next contended that while the right conferred under Art. 26 (b) is subject to any law which may be passed with reference thereto there is no such restriction on the right conferred by Art. 26 (b ). It is accordingly argued that any law which infringes the right under Art. 26 (b) is invalid and that S. 3 of Act V of 1947 must accordingly be held to have become void. Reliance is placed on the observations of this Court in the Commissioner Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) at page 1023 (of SCR): (at pp. 289 of AIR) in support of this position. It is undoubtedly true that the right conferred under Art. 26 (b) cannot be abridged by any legislation but the validity of S. 3 of Act V of 1947 does not depend on its own force but on Art. 25 (2) (b) of the Constitution. The very Constitution which is claimed to have rendered S. 3 of the Madras Act void is being repugnant to Art. 26 (b) has in Art. 25 (2) (b) invested it with validity and therefore the appellants can succeed only by establishing that Art. 25 (2) (b) itself is inoperative as against Art. 25 deals with the rights of individuals Art. 26 protects the rights of denominations and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination that would remain unaffected by Art. 25 (2) (b ). This contention ignores the true nature of the right conferred by Art. 25 (2) (b ). This contention ignores the true nature of the right conferred by Art. 25 (2) (b ). That is a right conferred on all classes and sections of Hindus to enter into a public temple and on the unqualified terms of that Article that right must be available whether it is sought to be exercised against an individual under Art. 25 (1) or against a denomination under Art. 26 (b ). The fact is that though Art. 25 (1) deals with rights of individuals Art. 25 (2) is much wider in its contents and has reference to the right of communities and controls both Art. 25 (1) and Art. 26 (b ). ( 28 ) THE result then is that there are two provisions of equal authority neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well-settled that when there are in an enactment two provisions which cannot be reconciled with each other they should be so interpreted that if possible effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule if the contention of the appellants is to be accepted then Art. 25 (2) (b) will become wholly nugatory in its application to denominational temples though as stated above the language of that Article includes them. On the other hand if the contention of the respondents is accepted then full effect can be given to Art. 26 (b) in all matters of religion subject only to this that as regards one aspect of them entry into a temple for worship the rights declared under Art. 25 will prevail. While in the former case Art. 25 (2) (b) will be put wholly out of operation in the latter effect can be given to both that provision and Art. 26 (b ). We must accordingly hold that Art. 26 (b) must be read subject to Art. 25 (2) (b ). ( 29 ) THE next decision on the subject is in Durgah Committee Ajmer and Another v. Syed Hussain Ali and Others A. I. R. (1961) Supreme Court 1402 The Supreme Court in that case was considering the constitutional validity of Durgah Khawaja Saheb Act 1955 The challenge was made on two grounds. ( 29 ) THE next decision on the subject is in Durgah Committee Ajmer and Another v. Syed Hussain Ali and Others A. I. R. (1961) Supreme Court 1402 The Supreme Court in that case was considering the constitutional validity of Durgah Khawaja Saheb Act 1955 The challenge was made on two grounds. Firstly it was contended that certain provisions of the impugned Act were inconsistent with Article 26 (b) (c) (d) of the Constitution. Secondly some other provisions were challenged as ultra vires Article 19 (1) (f) and (g ). Mr. Justice Gajendragadkar (as he then was) while dealing with the scope and ambit of Article 26 has observed as under:we will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizens right of freedom of religion. Under Art. 25 (1) subject to public order morality and health and to other provisions of Part III all persons are equally entitled to freedom of conscience and their right freely to profess practise and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that 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 property; and (D) to administer such property in accordance with law. The four clauses of this article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes it is entitled to manage its own affairs in the matters of religion it is entitled to own and acquire movable and immovable property and to administer such property in accordance with law. What the expression religious denominations means has been considered by this Court in Commr. Hindu Religious Endowments Madras v. Lakshmindra Thirth Swamiar 1954 SCR 1005 : ( AIR 1954 SC 282 ). What the expression religious denominations means has been considered by this Court in Commr. Hindu Religious Endowments Madras v. Lakshmindra Thirth Swamiar 1954 SCR 1005 : ( AIR 1954 SC 282 ). Mukherjea J. as he then was who spoke for the Court has quoted with approval the dictionary meaning of the word denomination which says that a denomination is a collection of individuals classed together under the same name a religious sect or body having a common faith and organisation and designated by a distinctive name. The learned Judge has added that Art. 26 contemplates not merely a religious denomination but also a section thereof. Dealing with the questions as to what are the matters of religion the learned Judge observed that the word religion has not been defined in the Constitution and it is a term which is hardly suscetible of any rigid definition. Religion according to him is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being but it is not 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 worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress (pp. 1032 1024 (of SCR): (p. 290 of AIR ). Dealing with the same topic though in another context in Venkataramana Devaru v. State of Mysore 1958 SCR 895 : ( AIR 1958 SC 255 ) Venkatarama Aiyer J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion and in support of this statement the learned Judge referred to the observations of Mukherjea J. which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe 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 eve 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 the 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 scrutinized; in other words the protection must be confined to such religious practices as re an essential and an integral part of L and no other. In that decision the Supreme Court has not only reaffirmed its earlier decisions on the subject referred to in he foregoing paragraphs but it has gone a step further and limited the protection of Article 26 only to such religious practices as are an essential and an integral part of it and no other. In all its earlier decisions the Supreme Court had not gone beyond accepting the view of Mr. Justice Davar expressed in Jamshedji v. Soonabai ILR (33) Bombay 122 who stated it in the following terms:if this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian communitya secular Judge is bound to accept that belief it is not for him to sit in judgment on that belief he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion or the welfare of his community or mankind. Ordinarily once a belief is proved to be a religious belief of a community or a religious denomination it is sufficient to attract the protection of Article 26 but the decision of the Supreme Court in the case of Durgah Committee (supra) goes a step beyound and lays down that only those religious practices which are an essential and integral part of a religion and which have not sprung up from merely superstitious beliefs and which are not extraneous and unessential accretions to it receive the protection of Article 26. ( 30 ) THE next decision is in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay A. I. R. (1962) Supreme Court 853. In that case the Supreme Court was considering the constitutional validity of the Bombay Prevention of Excommunication Act 1949 in the light of the provisions of Articles 25 and 26 of the Constitution. The majority judgment in paragraph 34 of the report approves the principles laid down in its earlier decisions by the Supreme Court. In his separate but concurring judgment Mr. Justice Rajgopala Ayyangar explains the scope and ambit of clauses (b) and (d) of Article 26 in the following terms in the context of the facts of that case. Article 26 confers on every religious denomination two rights which are relevant in the present context by cl. (b) to manage its own affairs in matters of religion and by the last clause cl (d) to administer such property which the denomination owns or has acquired [vide cl. (c)] in accordance with law. In considering the scope of Art. 36 one has to bear in mind two basic postulates: First that a religious denomination is possessed of property which is dedicated for definite uses and which under Art. 36 (d) the religious denomination has the right to administer. From this it would follow that subject to any law grounded on public order morality or health the limitation with which Art 26 opens the denomination has a right to have the property used for the purposes for which it was dedicated. So far as the present case is concerned the management of the property and the right and the duty to ensure the proper application of that property is admittedly vested in the Dai as the religious head of the denomination. So far as the present case is concerned the management of the property and the right and the duty to ensure the proper application of that property is admittedly vested in the Dai as the religious head of the denomination. Article 26 (d) speaks of the administration of the property being in accordance with law and the learned Attorneygeneral suggested that a valid law could be enacted which would permit the diversion of those fund to purposes which the legislature in its wisdom thought it fit to appropriate. I feel wholly unable to accept this argument. A law which provides for or permits the diversion of the property for the use of persons who have been excluded from the denomination would not be a law contemplated by Art. 26 (d ). Leaving aside for the moment the right of excommunicated persons to the enjoyment of property dedicated for the use of a denomination let me take the case of a person who has renounced that religion and in passing it might be observed that even in cases of an apostate according to the principles governing the Dawoodi Bohra denomination there is no ipso facto loss of rights only apostasy is a ground for excommunication which however could take place without service of notice or an enquiry. It could not be contended that an apostate would be entitled to the beneficial use of property dedicated to the Dawoodi Bohra community be it the mosque where worship goes on or other types of property like consecrated burial grounds etc. It would be obvious that if the Dai permitted the use of the property by an apostate without excommunicating him he would be committing a dereliction of his duty as the supreme head of the religion in fact an act of sacrilege besides being guilty of a breach of trust. I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property belonging to the denomination by an apostate it would be a wholly unauthorised diversion which would be a violation of Art. 26 (d) and also of Art. 26 (c) not to speak of Art. 25 (1 ). I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property belonging to the denomination by an apostate it would be a wholly unauthorised diversion which would be a violation of Art. 26 (d) and also of Art. 26 (c) not to speak of Art. 25 (1 ). The other postulate is the position of the Dai as the head of the religious denomination and as the medium through which spiritual grace is brought to the community and that this is the central part of the religion as well as one of the principal articles of that faith. Any denial of this position is virtually tantamount to a denial of the very foundation of the faith of the religious denomination. ( 31 ) A similar question arose in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Others A. I. R. (1963) Supreme Court 1638 where the Supreme Court was considering the constitutional validity of the Rajasthan Nathdwara Temple Act 1959 The constitutional challenge was inter alia based upon Articles 25 and 26. Mr. Justice Gajendragadkar (as he then was) who delivered the judgment of the Court after having analysed these two Articles and referred to the two earlier decisions of the Supreme Court in the cases of the Commissioner Hindu Religious Endowments. Madras (supra) and Sri Venkatraman Devaru and Others (supra) has observed as under:it would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25 (1) and Art. 26 (b) extends to such practices. (58) In deciding the question as to whether a given religious practice is an internal part of the religion or not the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding one section of the community claims that while performing certain rites white dress is an integral part of the religion itself whereas another section contends that yellow dress and not the white dress is the essential part of the religion how is the Court going to decide question ? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion because the community may speak with more than one voice and the formula would therefore break down. This question will always have to be decided by the Court and in doing so the Court may have to enquire whether the practice in question is religious in character and if it is whether it can be regarded as an integral of essential part of the religion and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of Durgan Committee Ajmer v. Syed Husain Ali 1962 SCR 383 at p. 411 ( AIR 1961 SC 1402 at p. 1415) and observed 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. (59) In this connection it cannot be ignored that what is protected under Arts. 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. (59) In this connection it cannot be ignored that what is protected under Arts. 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character it cannot be urged that Art. 25 (1) or Art. 26 (b) has been contravened. The protection is given to the practice of religion and to the denominations right to manage its own affairs in matters of religion. Therefore whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practice religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management it alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice of the affairs are the affairs in matter of religion then of course the right guaranteed by Art. 25 (1) and Art. 26 (b) cannot be contravened. (60) It is true that the decision of the question as to whether a certain practice is a religious practice or not as well as the question as to whether an affair in question is an affair in matters of religion or not may present difficulties because sometimes practices religious and secular are inextricably mixed up. This more particularly so in regard to Hindu religion because as is well known under the provisions of ancient Smritis all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration we may refer to the fact that the Smiritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may not be easy it must nevertheless be attempted in dealing with the claims for protection under Arts. 25 (1) and 26 (b ). As an illustration we may refer to the fact that the Smiritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may not be easy it must nevertheless be attempted in dealing with the claims for protection under Arts. 25 (1) and 26 (b ). If the practice which is protected under the former is a religious practice and if the right which is protected under the latter is the right to manage affairs in matters of religion it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affairs is in regard to a matter of religion. In dealing with this problem under Arts. 25 (1) and 26 (b) Latham C. J. s observation in Adelaide Co. of Jehovahs Witnesses v. Commonwealth 1943 Com-WLR 116 at p. 123 thatwhat is religion to one is superstition to another on which Mr. Pathak relies is of no relevance. If an obviously secular matter is claimed to be matter of religion or if an obviously secular practice is alleged to be a religious practice the Court would be justified in rejecting the claim because the protection guaranteed to secular practices and affairs in regard to denominational matters which are not matters of religion and so a claim made by a citizen that a purely secular matter amounts to a religious practice or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art. 25 (1) or Art. 26 (b ). This aspect of the matter must be borne in mind in dealing with true scope and effect of Art. 25 (1) and Art. 26 (b ). The proposition laid down in the case of the Durgah Committee (supra) that what Article 26 (b) protects are those religious practices which are an essential and integral part of the religious beliefs of a denomination has been reiterated in this decision. The proposition laid down in the case of the Durgah Committee (supra) that what Article 26 (b) protects are those religious practices which are an essential and integral part of the religious beliefs of a denomination has been reiterated in this decision. The second proposition which has been laid down is that when the protection under Article 26 (b) is sought by a denomination the task of disengaging the secular practices from the religious practices must be attempted even though such a task may present difficulties. In paragraph 61 of the report it has been further observed as follows so far as the right to manage the properties of the Nathadwara temple is concerned. The right to manage the properties of the temple is purely secular matter and it cannot in our opinion be regarded as a religious practice so far as to fall under Article 25 (1) or as amounting to affairs in matters of religion A distinction must always be made between a practice which is religious and a practice in regard to a matter which is purely secular and has no element of religion associated with it. ( 32 ) IN that decision the two different fields in which clauses (b) and (d) of Article 26 operate have been stated thus:incidentally this clause will help to determine the scope and effect of the provisions of Art. 26 (b ). Administration of the denominations property which is the 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 (b) 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 (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. Mr. 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. Mr. Sen has invited our attention to paragraphs 13. 14 and 13. 17 in Constitutional Law of India by H. M. Seervai (1968 reprint) but the criticism made by the learned author against certain observations made in Durgah Committee case (supra) and the Tilkayat case (supra) is beyond our province to take note of. ( 33 ) DIGYADARSAN Rajendra Ramdassji Varu v. State of Andhra Pradesh and Another A. I. R. 1970 Supreme Court 181 is the last decision which has been cited before us on this point. Therein the Supreme Court was examining the Constitutional validity of Sections 46 and 47 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1966 No new principles which can be applied to the instant case have been laid down therein. It however gives us an idea as to how the Supreme Court has applied to that case the principles laid down in the case of Commissioner Hindu Religious Endowments Madras (supra ). ( 34 ) THE aforesaid decisions of the Supreme Court tell us that the four clauses of Articles 26 are not overlaping. They distinctly dissect four aspects of freedom to manage religious affairs guaranteed to religious denominations. Therefore when a particular affair falls under one of the four clauses it cannot be outstretched to fall under another. The impugned Section 41a upon analysis empowers the Charity Commissioner to issue directions to a trustee of a religious trust in the matters of (a) proper administration of a public trust (b) proper accounting to its income and (c) due appropriation and application of the income to the objects and for the purposes of the trust. These matters firstly pertain so far as the instant case is concerned to the Dais civil powers which he enjoy as the trustee of the property of the denomination. Secondly any directions which the Charity Commissioner may issue to the Dai under the impugned section cannot interfere with or regulate a devotees or an offerors act of making an offering at a tomb mosque or Musafarkhana. Secondly any directions which the Charity Commissioner may issue to the Dai under the impugned section cannot interfere with or regulate a devotees or an offerors act of making an offering at a tomb mosque or Musafarkhana. His freedom to make such an offering in any manner or shape remains untrammelled unregulated and uninterfered with. The impugned section does not even remotely or indirectly contemplate the regulation of much less interference with a devotees or an offerors act of offering and of seeking intercession with God through the traditional or customary chain. What the impugned section provides for is something which follows such an act of offering. In our opinion therefore the Legislature by enacting the impugned section has not provided for regulation of or interference with any religious belief or practice. Section 41 therefore does not violate Article 25 (1 ). It also does not regulate or interfere with the Dais right to receive the offering which an offeror makes in the hope that it will reach the Dai who will spend it for the benefit of the denomination and that he will be a recipient of the Gods grace through the Dai. The impugned section nowhere Provides for anything which curtails abridges shrinks or otherwise derogates from the Dais right to receive an offering. As soon as an offering is made it vests in him absolutely and he is the sole Judge to decide how it shall be spent for the objects and purposes of the trust. In this view of the matter we are of opinion that there is nothing in the impugned section which militates against his right to manage its own affairs in matters of religion as contemplated by clause (b) of Article 26. These offerings are indeed a real source of acquiring property as contemplated by clause (c) of Article 26 To provide for a manner and mode of administration of the income derived from these offerings so as to ensure the fulfilment of the objects and purposes of the trust cannot in our opinion be equated with an act of rendering the Dai a suspect and destroying the very source of that income. In matters of public trust the supervision by the State in the matter of the property and income of the trust does not and cannot cast an aspersion upon the trustee and reduce him in public esteem. In matters of public trust the supervision by the State in the matter of the property and income of the trust does not and cannot cast an aspersion upon the trustee and reduce him in public esteem. On the contrary it redoubles public confidence in the system and elevates the very source of the income to a greater and more majestic height. If the impugned section had provided for regulating the inflow of visitors to these sacred places and the offering they would make we think there would have been some reason to complain of the infringement of clause (c) of Article 26. It does not aim at regulating or controlling the offerings made by the visitors. It does not aim at regulating or controlling the inflow of visitors. It also does not in any manner whatsoever interfere with the acquisition of the property through the instrumentality of tombs mosques and Musafarkhanas. The legislature has in this case scrupulously avoided such things. Since the impugned section in our opinion does not provide in any manner whatsoever for the regulation of acquisition of property by a religious denomination and since it does not provide for regulating its ownership clause (c) of Article 26 is not attracted much less violated. ( 35 ) THREE matters which the impugned section provides for are in our opinion purely secular matters and they have got to be disengaged from the religious practice of making the offerings and religious belief of seeking intercession with God. They relate to the field of administration of property acquired and owned by a religious denomination. Therefore the impugned section seeks to regulate matters which clearly and distinctly fall under clause (d) of Article 26. It merely evolves a system of checking and controlling public funds by the State does not denigrate any individual however high and great he may be. We have already seen that Article 26 (d) can be violated only if a denomination is deprived of the administration of the property altogether. Therefore complete deprivation for sometime to be followed by restoration thereof does not violate to be Article 26 (d ). Partial deprivation for all time by devising system of regulation and control also does not violate Article 26 (d ). In this case the second proposition holds good and the Legislature is competent to legislate upon it. Therefore complete deprivation for sometime to be followed by restoration thereof does not violate to be Article 26 (d ). Partial deprivation for all time by devising system of regulation and control also does not violate Article 26 (d ). In this case the second proposition holds good and the Legislature is competent to legislate upon it. We are therefore of the opinion that the impugned section neither violates Article 25 (1) nor clauses (b) and (c) of Article 26. It is protected by clause (d) of Article 26. ( 36 ) IN Ratilal Panachand Gandhis case (supra) the Supreme Court has upheld the constitutional validity of Sections 18 31 to 37 and 58 of the said Act. Sections 32 to 36 in Chapter V thereof provide for accounts and audit. Section 32 enjoins upon a trustee the duty to maintain regular accounts in such form as the Charity Commissioner may approve and containing such particulars as may be prescribed by rules. Section 33 requires a trustee to balance them at the end of each financial year or at the end of such period as the Charity Commissioner may fix and such accounts are required to be audited annually in such manner as may be prescribed by rules by a chartered accountant or by a person authorised by the State Government. For this purpose the auditor has been given a statutory right to have access to all books vouchers records and other documents which may be in possession and control of a trustee. In addition thereto the Charity Commissioner has been empowered under sub-Section (4) thereof to order a special audit of the accounts in such cases as he thinks necessary. Section 34 casts a statutory obligation upon the auditor to report to the Charity Commissioner all irregular illegal or improper expenditure by a trustee and also report to him failure or omission to recover the moneys or other property of a public trust or loss or waste of money or other property thereof. Section 35 requires a trustee to invest in approved securities all moneys of a public trust which are not required immediately or at an early date for application to the purposes of a public trust. Section 36 prohibits alienation of immovable property of a public trust by a trustee without the previous sanction of the Charity Commissioner. Section 35 requires a trustee to invest in approved securities all moneys of a public trust which are not required immediately or at an early date for application to the purposes of a public trust. Section 36 prohibits alienation of immovable property of a public trust by a trustee without the previous sanction of the Charity Commissioner. Sections 37 to 41 which fall under Chapter VI provide for control. Section 37 which has been upheld by the Supreme Court as intra vires the Constitution empowers the Charity Commissioner (i) to enter upon and inspect or cause to be entered on and inspected any property of a public trust (ii) to call for and inspect the proceedings of the trustees and books and accounts in their possession and under their control and (iii) to call for any return statement account or report from a trustee or any person connected with a public trust. Sections 38 to 40 empower him to call for the explanation of a trustee or any other person concerned in regard to the matters which the auditors report discloses and to determine the loss which may have been caused to a public trust on account of breach of trust misapplication or misconduct on his part. Section 41 empowers him to charge such amount of loss on such a defaulter. Section 58 which has also been upheld by the Supreme Court as intra vires the Constitution directs the contribution by a public trust to Public Trusts Administration Fund. Section 69 (a) casts upon the Charity Commissioner a statutory duty of exercising general superintendence of the administration of the Act and requires him to carry out the purposes of the said Act. A quick glance at these provisions to which all religious trusts are subject makes it clear beyound any doubt that the three matters which Section 41a provides for (a) proper administration of a public trust. (b) propel accounting of its income and (c) due appropriation and application of the income to the objects and for the purposes of the trust are abbreviated expressions of those very matters which Sections 32 to 41 provide for. The only purpose which therefore Section 41a serves is to empower the Charity Commissioner to issue directions in respect of matters falling under Sections 32 to 41. The only purpose which therefore Section 41a serves is to empower the Charity Commissioner to issue directions in respect of matters falling under Sections 32 to 41. It is therefore merely ar enabling and ancillary provision intended to make the implementation and enforcement of the provisions of Section 32 to 41 more effective. In our opinion therefore by enacting Section 41 the Legislature has not introduced any mew principle which is not there elsewhere but has merely filled in a lacuna in the effective implementation of the provisions of the said Act. We are therefore unable to countenance an argument that though Sections 32 to 41 are valid Section 41 is not. Even though Section 41a is intended to confer upon the Charity Commissioner only such an ancillary power the Legislature has been careful enough to circumscribe the power of the Charity Commissioner by subjecting it to the provisions of the said Act. The impugned section therefore opens with the expression Subject to the provision of this Act. In our opinion therefore it does not impinge upon any fundamental right of a person or a religion denomination and it does not suffer from any constitutional infirmity. In that vies of the matter it is not necessary for us to read it down so as to exclude it application to religious trusts. The firs contention raised by Mr. Sen therefore fails and we reject it. ( 37 ) SINCE we are upholding the third contention raised by Mr. Sen we do not think it necessary to decide the second contention. ( 38 ) THE third and last contention raised by Mr. Sen is that the impugned directions are bad in law firstly because the petitioner was given no opportunity of being heard in the matter before they were issued and secondly because the Charity Commissioner refused to furnish to the petitioner copies of the complaints which had received and which led to the issuance of the impugned directions. He has submitted that the Court ought to condemn all exercise of arbitrary authority. In his submission the impugned directions were issued in violation of principles of Natural Justice if they are quasi-judicial in character or in violation of the principles of Fair Play if they are administrative. He has invited our attention to certain decisions of the Supreme Court on this point to which we shall refer in course of this judgment. In his submission the impugned directions were issued in violation of principles of Natural Justice if they are quasi-judicial in character or in violation of the principles of Fair Play if they are administrative. He has invited our attention to certain decisions of the Supreme Court on this point to which we shall refer in course of this judgment. He has further argued that the impugned directions are administrative in character and that therefore the Charity Commissioner cannot review them. They must therefore be set aside. ( 39 ) THE learned Government Pleader has contended that the petitioner was not entitled to be heard and that he was not entitled to the copies of the complaints. He has invited our attention to the statutory provisions relating to the certified copies and contended that they do not provide for furnishing certified copies of such complaints. He has further contended that the very nature of the power which the Charity Commissioner may exercise under the impugned section does not affect any right of a trustee. A trustee is directed to do what he is otherwise obliged to do under the said Act. All that the impugned section enables the Charity Commissioner to do is to cast greater burden upon the trustee. Supposing the Charity Commissioner desires to issue a general direction to all public trust under Section 41a shall he hear all the trustees before doing so ? Power conferred by the impugned section is intended to prevent immediate to the trust it has been argued by the learned Government Pleader and its exercised may be immediately called for by the circumstances of a case. Section 41a does not contemplate any adjudication. The Charity Commissioner does not make any order or decision but he only issues directions. The petitioner had therefore no right to be heard. It is the Amils and not the Dai himself who manage the Gallas. Therefore no stigma is attached to the Dai if directions are issued. Complaints received by the Charity Commissioner cannot be disclosed because the disclosure of complainants names may lead to actions in defamation or to the wrath of the Dai who has the power to excommunicate a member of the denomination. ( 40 ) MR. Therefore no stigma is attached to the Dai if directions are issued. Complaints received by the Charity Commissioner cannot be disclosed because the disclosure of complainants names may lead to actions in defamation or to the wrath of the Dai who has the power to excommunicate a member of the denomination. ( 40 ) MR. Qureishi appearing for the 3rd respondent has supported learned Government Pleader and invited our attention to certain passages in Judicial Review of Administrative Actions (2nd Edition) by S. A. De Smith. . ( 41 ) SO far as the nature of directions contemplated by Section 41a is concerned on analysing its contents and comparing them with the provisions of Sections 32 to 41 of the said Act we have little doubt in our mind that they are administrative in character. They are intended to be issued for better and more efficient administration of a public trust. No question of adjudication of any controversy dispute or lis arises thereunder. The object of Section 41a as discussed earlier is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the said Act. Under these circumstances since they are not quasi-judicial directions the question of complying with principles of Natural Justice does not arise. We therefore cannot infer compulsion to hear a trustee before directions are issued to him under Section 41a as in the cases of quasi-judicial matters. ( 42 ) SINCE in our opinion they are administrative directions is it necessary to comply with the principles of Fair Play ? Supposing the Charity Commissioner intends to issue a general or common direction to. all public trusts under Section 41a in the name of the principles of Fair Play is he required to hear all the trustees ? If that is so the remedy will be worse than the disease. This argument advanced by the learned Government Pleader however does not appeal to us for the following reasons. It appears to us to be misconceived. The language of Section 41a does not contemplate issuance of general directions to all the trusts. A general direction which may be necessary to be issued to all public trusts will not ordinarily be left to the discretion of the Charity Commissioner. Its very nature will require it to be made the subjectmatter of a statutory rule under the said Act. A general direction which may be necessary to be issued to all public trusts will not ordinarily be left to the discretion of the Charity Commissioner. Its very nature will require it to be made the subjectmatter of a statutory rule under the said Act. Issuance of such a direction can hardly be left to the human weakness of the Charity Commissioner. Section 41a therefore in our opinion contemplates cases of individual trusts which may be suffering on account of the human weaknesses or lapses of the trustees. Section 41a is to be brought into play where some exceptional unforeseen unexpected or peculiar situation has arisen in the administration of a public trust which is required to be cured by a remedial direction or where circumstances have arisen foreboding such a situation which requires a preventive measure in the form of a direction. We therefore think that this argument of the learned Government Pleader flowing from imaginary apprehensions is misconceived. In this connection we also cannot overlook the fact that failure to comply with directions issued under Section 41a is visited upon by penal consequences under Section 67 of the said Act. ( 43 ) IN S. G. Jaisinghani v. Union of India and Others A. I. R. 1967 Supreme Court 1427 the Supreme Court was considering the constitutional validity of the Seniority Rule in regard to Income-tax Service Class I Grade II along with the improper implementation of the quota recruitment to that service. Dwelling upon the essence of rule of law Mr. Justice Ramaswami speaking for the Court has observed that. . the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law discretion when conferred upon executive authorities must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey Law of the Constitutional -Tenth Edn. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey Law of the Constitutional -Tenth Edn. Introduction ex.): Law has reached its finest moments stated Douglas J. in United States v. Wunderlich (1951) 342 US 98 when it has freed man from the unlimited discretion of some ruler. . . . Where discretion is absolute man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in the case John Wilkes (1770) 4 Burr 2528 at p. 2539 means sound discretion guided by law. It must be governed by rule not by humour: it must not be arbitrary vague and fanciful. ( 44 ) IN A. K. Krapak and Others v. Union of India and Others AIR (1970) Supreme Court 150 a similar question arose for the consideration of the Supreme Court while it was examining vires of Section 3 of All India Services Act 1951 Mr. Justice Hegde speaking for the Court has observed that the dividing line between an administrative power and a quasijudicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look at the nature of the power conferred the person or persons on whom it is conferred the framework of the law conferring that power the consequences ensuing from the exercise on that power and the manner in which that power is expected to be exercised. In a Welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a Welfare State like ours it is inevitable that the Jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting juducially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting juducially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercises of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. After reviewing some foreign decisions it has been further observed as under:with the increase of the power of the administrative bodies it has become necessary to provide guide-lines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selection of that basis. Discussing the question of the applicability of the principles of natural justice to administrative proceedings it been observed as under:this takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are concerned in these cases. According to the learned Attorney-General those principles have no bearing in determining the validity of the impugned selections. In support of his contention he read to us several decisions. It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizen of natural justice is constantly expanding. After reviewing the case law on the subject the following conclusion has been stated. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate only in areas not covered by any law validity made. The horizen of natural justice is constantly expanding. After reviewing the case law on the subject the following conclusion has been stated. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate only in areas not covered by any law validity made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem ). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquires must be held in good faith without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act juducially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala Civil Appeal No. 990 of 1968 D/-15-7-1968 = ( AIR 1969 SC 198 ) the rules of natural justice are not embodied rules. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala Civil Appeal No. 990 of 1968 D/-15-7-1968 = ( AIR 1969 SC 198 ) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. ( 45 ) IN the D. F. O. South Kheri and Others v. Ram Soneni Singh Civil Appeal No 1638 of 1969 decided by the Supreme Court on 16/01/1970 - ( AIR 1973 SC 205 ) a similar question arose for the consideration of the Supreme Court. At an auction held by the Forest Officer the respondent had purchased the right to cut timber for one year from certain forest lots. Subsequently in respect of certain timber cut by the respondent the Divisional Forest Officer made an order against him on the ground that it was cut in November 1966 - that is to say - after the expiry of the period of contract. The respondent had all along contended that he had cut it on October 29 1966 that is to say before the expiry of the contract period. The Divisional Forest Officer had made the impugned order without hearing the respondent. Mr. Justice Shah delivering the judgment of the Court has on the applicability of the principles of Natural Justice observed as under. It is unnecessary to consider whether the order of the Divisional Forest Officer is made on irrelevant grounds because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent and gave him no hearing. . . . It is unnecessary to consider whether the order of the Divisional Forest Officer is made on irrelevant grounds because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent and gave him no hearing. . . . Granting that the order was administrative and not quasi-judicial the order had still to be made in the manner consonant with the rule of Natural Justice when it affected the respondents right to property. ( 46 ) IN State of Orissa v. Dr. (Miss) Binapani Dei and Others AIR (1967) S. C. 1269 Mr. Justice Shah speaking for the Court gave eloquent expression to this concept in the following words. It is true that the order is administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice alter informing the first respondent of the case of the State the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. ( 47 ) AN attempt has been made by the learned Government Pleader to distinguish the latest decision of the Supreme Court in the case of the D. F. O. South Kheri and Others (supra) on the ground that the principles of natural justice were applied therein because a citizens right to property was involved and that the petitioner in this case has no such right as the trustee. He has invited our attention to two unreported decisions of this Court. One is in Special Civil Application No. 1392 of 1962 with Special Civil Application Nos. 1366 1394 1436 and 1393 of 1968 decided by the learned Chief Justice and Mr. Justice Vakil on 6/03/1969. One of the contentions raised in that case was that the State Government ought to have heard the petitioners in that case before deciding whether there was a public purpose for acquiring their land. Relying upon the decisions of the Supreme Court which were rendered until then this Court has held that the violation of the principles of natural justice cannot be invoked to challenge the validity of an administrative act. But while appreciating the ratio of that decision. we cannot overlook certain factors. Firstly the concept has since then been embracing ever expanding horizons. But while appreciating the ratio of that decision. we cannot overlook certain factors. Firstly the concept has since then been embracing ever expanding horizons. The Division Bench did not have before it the latest decisions of the Supreme Court to which we have referred. Secondly the following observation with regard to the principle of Failplay is apposite. We may add that it is well settled that even where the act is an administrative act the principle of Fair Play must be observed. Thirdly it has been observed in that decision that the petitioners there had the opportunity to make a full dress representation to the authority. That decision therefore has no application to the present case. ( 48 ) ANOTHER unreported decision of this Court to which our alternation has been invited by the learned Government Pleader is in Second Appeal No. 595 of 1961 decided by Mr. Justice Sarela and Mr. Justice Patel on 1st 2/07/1969. The question which arose in that case was whether orders of the City Deputy Collector and Collector made in a matter under Resumption Rules were quasi-judicial or administrative. The Division Bench held that they were administrative. Before making the impugned orders the City Deputy Collector and Collector had not heard the aggrieved party. The contention relating to the violation of the principles of natural justice was negatived by this Court on the ground that the impugned orders in that case were administrative. No attempt in that case was made to invite the attention of the Division Bench to several decisions of the Supreme Court on the question. We are bound to follow the principles laid down by the Supreme Court. ( 49 ) THE learned Government Pleader has then invited our attention to the decision of Court of Appeal in England in B. Johnson and Co. (Builders) Ltd. v. Minister of Health (1947) 2 All England Reports 395. The principle which has been laid down in that decision is that it is not obligatory for an executive authority to make available to the concerned party material which may have come into its possession before making an order which is essentially an administrative act. In view of the clear principles laid down by our Supreme Court we think it unnecessary to delve deep into the applicability or otherwise of this decision to the instant case. ( 50 ) MR. In view of the clear principles laid down by our Supreme Court we think it unnecessary to delve deep into the applicability or otherwise of this decision to the instant case. ( 50 ) MR. Qureishi appearing for the 3rd respondent has invited our attention to Chapter 4 in Judicial Review of Administrative Actions by S. A. De Smith (2nd Edition ). The learned author has dealt therein with Natural Justice: The Right to a hearing. He has in particular laid stress upon the exceptions to the audi alteram partem Rule and contended that the application of this rule is excluded in ten cases: (i) Where the functions of the competent authority are held to be non-judicial; (ii) Where the authority in which is vested the the power to decide is entrusted with a wide discretion; (iii) Where legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirement for other purposes; (iv) Where the action taken constitutes denial of a privilege as distinct from interference with a right; (v) Where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest; (vi) Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action especially action of a preventive or remedial nature; (vii) Where for any other reason it is impracticable to give prior notice or opportunity to be heard; (viii) Where appropriate substitutes for prior notice ant opportunity to be heard are available; (ix) Where the matter in issue or the monetary value of the interest at stake is too trivial to justify an implication that the notice or opportunity to be heard be afforded before action is taken; and (x) Where the power exercised is disciplinary. In the first place we are bound by the principles laid down by our Supreme Court. Secondly in the view which we are taking we do not think that ordinarily if the Charity Commissioner hears a party before issuing directions to him under Section 41a it will obstruct the taking of a prompt action by him to prevent the occurrence of an unwholesome situation or to remedy it. ( 51 ) BEARING these principles in mind let us approach Section 41a again. It enables the Charity Commissioner inter alia to issue direction for the proper administration of a trust. ( 51 ) BEARING these principles in mind let us approach Section 41a again. It enables the Charity Commissioner inter alia to issue direction for the proper administration of a trust. When therefore the Charity Commissioner decides to issue directions to a trustee it presupposes that there is no proper administration of the trust. Next Section 41 does not confer upon the Charity Commissioner the power to issue directions if in his opinion there is no proper administration of a trust etc. Absence of such an expression if in his opinion indicates that the issuance of directions under Section 41a has not been left to the unfettered discretion and to his subjective satisfaction. In addition to what the said Act and rules made thereunder prescribe if any further obligations are to be imposed upon a trustee he must reach the decision on objective facts. Next any directions which he may issue must be subject to the provisions of the said Act. Their ambit is fettered by the provisions of the said Act and by the matters specified in the impugned section. Lastly any directions which he may issue have got to be complied with on the pain of penal consequences (vide Sec. 67 ). Though the directions which the Charity Commissioner may issue under Section 41a constitute an administrative act on his part in view of the attendant factors which we have set out above the Charity Commissioner ought to afford to the concerned party an opportunity of being heard unless there is some imminent danger to the trust. Directions which he may issue may cast a refl reflection upon the management of the trust by a trustee or they may cast an aspersion or shadow of suspicion on him. No trustee without being heard in his defence should be dogged even by a silhouette of suspicion. Such a situation is likely to damage his public character. We are therefore of the opinion that the Charity Commissioner ought to hear a trustee or any other concerned person before issuing directions to him under Section 41a unless there is an apprehension of an imminent danger to the public trust. Such a situation is likely to damage his public character. We are therefore of the opinion that the Charity Commissioner ought to hear a trustee or any other concerned person before issuing directions to him under Section 41a unless there is an apprehension of an imminent danger to the public trust. ( 52 ) IF a trustee is to be heard it follows as a logical corollary therefrom that he cannot have an effective right of hearing unless he knows the nature of the information or material on which the Charity Commissioner is going to act. The Charity Commissioner is not expected to lay open his files for inspection by a trustee. To that extent we accept the principle laid down by the Court of Appeal in England (1947) 2 All E R 395. But in order to give an effective hearing to the party concerned he ought to disclose to him the purport of the information or the material in his possession on which he proposes to act or where there is no such information or material before him the reasons which may be prompting him to issue directions under Section 41a. He may not however disclose the name of his informant if he thinks that it is likely to lead to unnecessary complications. In our opinion the rule of law requires reasonable and fair exercise of power under Section 41a. We think the aforesaid sageguard will produce the desired result. ( 53 ) SINCE in the instant case the Charity Commissioner did not give the petitioner any opportunity of being heard before issuing the impugned directions they are bad in law and are liable to be struck down. We therefore uphold the last contention raised by Mr. Sen. ( 54 ) IN the result we allow the petition and make rule absolute. A Writ of mandamus shall issue directing respondents No. 1 and 2 to desist and forbear from enforcing against the petitioner the directions issued under Section 41a of the Bombay Public Trusts Act 1950 in connection with (i) the public trust registered at No. B- 189/ahmedabad (ii) the public trust registered at No. B-20/surat and (iii) the public trust registered at B/g-568/baroda and impugned in this petition. In the circumstances of the case there shall be no order as to costs. (RPV) Petition allowed. .