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Rev. Fr. Farcisus Mascarenhas Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 521 of 1958
Judge
Reported in(1960)62BOMLR790
AppellantRev. Fr. Farcisus Mascarenhas
RespondentThe State of Bombay
DispositionAppeal Dismissed
Excerpt:
bombay public trusts act (bom. xxix of 1950), sections 2(13), 36-indian trusts act (ii of 1882), section 3-constitution of india, articles 13, 19, 25, 26-whether roman catholic parish churches public religions trusts as defined in s. 2(13)-constitutionality of act. ; the roman catholic parish churches are public religious trusts as defined in section 2(13) of the bombay public trusts act, 1950, and, therefore, it is necessary for these trusts to be? registered under the act.; in section 2(13) of the bombay public; trusts act, 1950. the word 'means' restricts the moaning of the word 'public trust' to express or constructive trusts for either public, religious or charitable purposes. the word 'includes' in section 2(73) of the act is a word of extension and, therefore, a temple, a math.....mudholkar, j. 1. this is an appeal from the judgment of the city civil court, dismissing the appellant's application under section 72 of the bombay public trusts act. 1950.2. the appellant is the acting vicar of the sacred heart church at worli situate in the archdiocese of bombay. the appellant made an application under protest under section 18 of the act for the registration of the trust. the vicars of several other roman catholic churches in the state had made similar applications under protest. it was contended by the appellant and the other applicants that the various churches do not constitute trusts, much less public trusts, and that consequently the bombay public trusts act does not apply to those churches. they further contended that the roman catholics all the world over are.....
Judgment:

Mudholkar, J.

1. This is an appeal from the judgment of the City Civil Court, dismissing the appellant's application under Section 72 of the Bombay Public Trusts Act. 1950.

2. The appellant is the acting Vicar of the Sacred Heart Church at Worli situate in the Archdiocese of Bombay. The appellant made an application under protest under Section 18 of the Act for the registration of the trust. The Vicars of several other Roman Catholic Churches in the State had made similar applications under protest. It was contended by the appellant and the other applicants that the various churches do not constitute trusts, much less public trusts, and that consequently the Bombay Public Trusts Act does not apply to those churches. They further contended that the Roman Catholics all the world over are governed by the Canon Law, which is their personal law, that this law provides for the appointment of ecclesiastical officers and also for the administration of church properties, and that under this law a Church, like any other individual owning property, has the exclusive right to acquire, hold and manage its property. Therefore, according to them, the Act was not applicable to the Roman Catholic churches and there was no necessity for registration of those churches as public trusts. A further contention was raised by the appellant and other applicants to the effect that even if it be assumed that the Roman Catholic Churches are public trusts, the Canon Law constitutes an 'instrument of trust.' The Deputy Charity Commissioner, before whom the applications were filed, rejected the contention of the appellant and the others to the effect that the Roman Catholic churches are not public trusts. They thereupon preferred appeals before the Charity Commissioner, who dismissed them. Thereafter, these persons prefered applications before the City Civil Court under s, 72 of the Act, which were heard by Mr. M.G. Chitale and dismissed by him. All these persons have, therefore, preferred appeals to this Court under Sub-section (4) of Section 72 of the Act. The appeal of the appellant alone was admitted while the, appeals of 96 other appellants, in which similar questions wore raised, have not yet been admitted. Since the questions involved in all theses appeals are the same, it was agreed at the hearing of this appeal that those appeals should not be placed on the. Board for admission till the expiry of two weeks after the judgment in this appeal is formally delivered in Court.

3. We heard this appeal at great length and declared at the end of the arguments-that we propose to dismiss the appeal and give our reasons for doing so later.

4. The contention of Mr. Pinto, who appears for the appellant, is that the properties neither of the Catholic; church nor of a Parish church constitute trusts. These properties are not held in trust but they are managed and dealt with in accordance with the principles of the Canon Law, which is binding on the conscience of the Roman Catholics all the world over. If any law interferes in this matter it would be ultra vires as being in conflict with the provisions of Articles 19, 25 and 26 of the Constitution.

5. The first question to be considered is whether a church constitutes a trust. Now, the word 'trust' has not been defined in the Act, though the expression, 'public trust' has been defined. Under Clause (20) of Section 2 of the Act, the words and expressions used but not defined in this Act, and defined in the Indian Trusts Act, 1882, shall have the meanings assigned to them in that Act. Now, Section 3 of the Indian Trusts Act is as follows:-

'trust' is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.' The expression 'public trust' is defined thus in Clause (13) Section 2 of the Act:--public trust' means an express or constructive trust for either a public religious or charitlable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or. charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.

Now, according to Mr. Pinto, this definition, will exclude a church for two reasons. The first reason is that though a temple, a math and a wakf are expressly included therein, the church is not so included under the definition clause. The second reason is that a Roman Catholic church is under no obligation to any one with regard to the properties it holds and that its ownership over the properties does not arise out of any confidence reposed in the church and accepted by it for the benefit of another. Mr. Pinto further pointed out that for a trust to be constituted there must be an author of the trust, who reposes and declares confidence. There must then be a trustee, who accepts the confidence, and there must be a beneficiary for whose benefit the confidence is accepted. Further, according to him, there mast also be an instrument of trust. The aforesaid requirements are undoubtedly referred to in Section 3 of the Trusts Act. But these are all requirements of an express trust.

6. Undoubtedly, there is no express trust so far as the Roman Catholic Church or a parish church constituted under the Canon Law is concerned. In this appeal we are concerned only with the latter. The word 'Church' is defined in the Catholic Encyclopaedic Dictionary, which is an authoritative publication. The relevant part of the definition runs thus:-

A church building is one sot apart for ever for public Christian worship, namely for the offering up of the holy Sacrifice of the Mass, the singing of the Divine Office, the administration of the sacraments, and for the use of the faithful generally.

It may be noted that this definition makes it clear that the church exists for the benefit of the faithful.

7. It will be of advantage to consider briefly the provisions of the Canon Law, which deal with the creation of a Parish church, its property and its management.

8. Canon 1161 defines a church. According to it:

By the term 'church' is understood a sacred structure devoted to divine worship for the principal purpose of being used by all the faithful for public divine worship.' For erecting a church the permission of the Ordinary, that is of the Bishop, is essential and this is clear from Canon 1162. That Canon further provides:The Ordinary shall not give his consent unless he prudently foresees that the necessary fluids for the building and upkeep of the new church, for the support of its personnel, and for the other expenses of worship will be forthcoming.

Two things thus follow from this. The first is that the church is a place where the public, that is, the faithful have a right of worship and the second thing is that the church must be furnished with the wherewithal for the support of the necessary ministers and for meeting the expenditure of the cult. This is because it will be impossible for the religious services to be conducted unless provision is made for the -the person, who represents the legally living church to which all citizens belong. The church and its funds cannot, however, be regarded as a private property of the incumbent of the pariah or of any one else. This would be clear from the observations of Greer J. in Commissioners of Church Temporalities in Wales v. Gustard [1923] 1 K.B. 640. There one of the questions to be considered was whether tithes or tithe rent charge were the personal property of any individual. Dealing with this question the learned Judge observed:-.In the old pre-Reformation days, when the right to tithe originated and became firmly satablished, tithes were regarded not as the property of the individual rector or vicar who received them, but rather as the portion of the fruits of the earth devoted by divine law to the service of religion, it being impossible that religious services could be conducted throughout the country unless provision was made for the person or parson who represented locally the living Church to which all citizens belonged. I think that at the time when the powers of the Commissioners were created, tithes, which could only be held by ecclesiastical persons, were treated in law as a special form of property devoted to pious uses, and they were not dealt with as the individual property of the incumbent of the pariah.

There being no direct authority on the point, the learned Judge then referred to the

Magna Carta and observed:-.This appears to me to indicate that ecclesiastical benefits such as tithes were not treated as part of the property of the ecclesiastical person answerable for his obligations. In any case I am prepared, to base my judgment on the opinion expressed in the third. Lecture, of Callis on Sewers, 4th ed., p. 156, and adopted in Comyns' Digest, tit. Sewers, E. 5, and in Woolrych on Sewers, 3rd ed., p. 111. I also agree with the opinion expressed by Callis that tithes in the hands of laymen are liable to be rated. If, as I think, the exemption from rateability arose by reason of the fact that tithes in the hands of the clergy were regarded as devoted to the uses of religion, and wore not personal benefits to the ecclesiastical person in whom they were vested, it seems to follow that once they got into lay hands and ceased to be devoted to religious purposes, they became, like any other property in this hands of a lay person, liable to be treated as part of his property for the purpose of rating under any statute which imposes rates upon such lay person in respect of his property.

9. For erecting a church either funds have to be allocated by the Ordinary or collections made by the faithful in a particular locality. As has been pointed out by Story J. in The Town of Pawlet v. Daniel Clark (1815) 13 U.S.R. 292, 3 Law. ed. 735-a church cannot be consecrated without an endowment and that until consecration it has no legal entity as a church. This, according to him, was also the position in the Canon Law and we think that that must be so, for Canon 1165 provides-

Divine (worship) services cannot be held in a new church before it has been devoted to divine worship by solemn consecration or at least by blessing.

10. It would follow, therefore, that the church starts functioning as an institution only after it is consecrated and it can be consecrated only after it is endowed with worldly goods. The endowment is not for the benefit of any particular individual but Mr. Pinto contends that it is for the benefit of the church alone which under the Canon Law is a moral and a juridical person. Now, upon the question whether the Roman Catholic church is a moral and a juridical person, the view has been taken both in England and the United States that it is not a juridical person capable of acquiring and owning properties. It has also been held that the Canon Law, which regards it as a moral and juridical person, cannot be recognised. We would, however, assume for the purposes of this case that just as an idol in a, Hindu temple is recognised here as a juridical person according to the concept of the Hindu religion, the Roman Catholic Church, as an institution, as well as parish churches are moral and juridical persons. The origin and reason for this concept are to be found in the following passage from Savigny's Jural Relations, which is quoted at pages 9 and 10, Ghosh's Law of Endowments (First ed.):-

Since, then, under the Government of Christian princes, Church Institutions appeared as juristical persons, what is the precise point to which we have here to ascribe the personality, or how are we to form an. accurate conception of the subject-matter of the Rights of Property existing in them? Above all, the following contrast to the earlier period is here unmistakable. The ancient Gods were coneaivad as individual 'persons' resembling individual visible men that one seos around one, and nothing was more natural than that each of them should have his own personal property, while it was only a further development of the same thought when the God who was venerated in a particular temple was represented as a Juristical Person and indeed even granted paraonal privileges. The Christian Church, on the other hand, rests on the belief in One God and it is united together by this common belief and by the distinct revelation of that one God to one Church. It was an easy matter, therefore, to import the same principle of unity also into property-relations and this conception in fact finds expression in wholly different periods of time, as well in the teachings of writers as in the sentiments and mode of expression of the individual Founders of Endowments. Thus it happened quite commonly that at times Jesus Christ, at other tirnes the Universal Christian Church or, her visible head, the Pope was designated as the Proprietor of the Church Estate.' Canons 99 to 102 which deal with this topic are as follows:-Canon 99: There are in the Catholic Church besides physical also so-called moral or legal parsons, that is to say bodies of men, instituted by the public authority of the Church, which persons are distinguished into collegiate bodies and non-collegiate, for instance, churches, seminaries, benefices, etc. Canon 100; The Catholic Church and the Apostolic See have the nature of a legal-person by Divine ordinance. The other, inferior, legal persons got their personality either by law, or by special concession of the competent ecclesiastical superior through a formal decree for the purpose of religion or charity. Unless there are at least three individuals, there can be no collegiate moral parson. Moral persons, both collegiate and non-collegiate, are held equal to minors.

Canon 101: The actions of collegiate legal bodies in the Church are subject to the following rules.

Unless either the common law or particular statutes prescribe otherwise, it shall be the rule that the absolute majority of votes of all those who have & right to vote, and actually do vote (not counting invalid votes), decides a question, and if in the two first votings no majority was obtained, the relative majority of votes in the third voting decides. If in the third voting the votes are even, the president of the election can, by giving his vote to one of the parties, decidie the matter; if the president does not want to do this and there is question of elections, the senior in ordination, in first profession or in age, is to be considered elected.

Those mutters that touch each one individually, must be approved by all. If there is a question of the actions of non-collegiate legal persons, the particular statutes and the norms of the common law regarding such persons are to be followed.

Canon 102: A legal person is of its very nature perpetual. It may be extinguished by suppression by the legitimate authority, or by having ceased to exist for a space of one hundred years. If at least one individual of a collegiate legal person remains, the rights of all rest with that individual.

11. On the question of supercession of a church at one stage an argument was advanced by Mr. Pinto that a parish church can be superseded by the Ordinary at his discretion, but eventually he withdrew the contention and said that he does not wish to obtain any decision regarding the validity of this contention. Now, according to Mr. Pinto, a church being a legal person and by its very nature being perpetual can acquire and hold property. We will accept his contention that a church is capable of acquiring and holding property, but this fact is not sufficient to justify the conclusion that its property can under no circumstances be regarded as being held in trust for any one.

12. He then referred to Canons 1495, 1496 and 1497 which run thus:-

Canon 1495: The Catholic Church and the Apostolic See have by their very nature the right freely and independently of the civil power to acquire, retain and administrate temporal goods for the prosecution of their proper purposes.

Individual churches, and other moral persons, constituted legal persons by the authority of the Church, have the right to acquire, retain and administrate temporal goods according to the sacred Canons.

Canon 1496: The Church has also the right independently of the civil authorities to demand of the faithful the necessary means for the conducting of Divine worship, the maintenance of the elergy and of others working for the church, and for all other purposes proper to the end for which the Church is established.

Canon 1497: The temporal goods, both movable and immovable, and. the temporal rights which belong either to the universal Church, Or to the Apostolic See, or to another legal person in the Church, are ecclesiastical goods.

These goods are called sacred, if they have been destined for Divine worship by consecration or blessing; precious, if they have great value either on account of art, or history, or material.

13. On the basis of these Canons Mr. Pinto urged that the temporal goods belonging oven to a parish church are sacred goods and in the matter of dealing with such goods and administering them, there can be no interference by the State. We may at once point out that such an argument is wholly untenable. The Canon Law is not the law of the land. It can at best be regarded as the personal law applicable to those professing the Roman Catholic faith. In so far as that law deals with matters pertaining to religious beliefs and religious practices, Articles 25 and 26 of the Constitution protect it from interference by the State, but as is made clear by Article 23.. Clause (2) of the Constitution,

Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.

Further, art 26 grants freedom to every denomination or section thereof to manage its religious affairs. The right to administer its property is subject to this condition that it must be in accordance with the law of the country. It is urged by Mr. Pinto by referring to various provisions of the Canon Law that the powers conferred upon the Ordinary that is the Bishop in the matter of appointment of the Clergy, their transfers, the administration of church properties and so on are very wide and that such powers are in effect governmental powers and cannot be interfered with by the State. What we have said above would also apply to the exercise of these powers by the Ordinary. Apart from that we are here concerned not so much with the question as to the degree of control which the Charity Commissioner would be able to exercise over the parish churches, but with the question as to whether a parish church is a public trust and is consequently registrable under the Act. After the parish church is registered as a trust and any action is taken by the Charity Commissioner under any of the provisions of the Act, an occasion will arise for considering whether that particular action is in conflict with the Canon Law.

14. Now, the learned Judge of the Court below has held that since no church can be erected without the explicit permission in writing from the Ordinary and Divine worship cannot be held therein till it is consecrated or at least blessed by the Ordinary, the church must be deemed to have been constituted by virtue of an express trust. We find it difficult to accept his conclusion that where a church comes into existence in this manner an express trust is constituted because, clearly, all the conditions sot out in Section 3 of the Trusts Act are not satisfied. We would, therefore, proceed on the basis that a Roman Catholic parish church is not an express trust.

15. The question then is whether it is a constructive trust. In Halsbury's Laws of England, the word 'trust' is defined as a confidence reposed in a person with respect to the property in his possession or over which he can exercise any power for the benefit of some other person or for a particular object.

16. Now, it has been pointed out in Laxmanrao v. Govindrao A.I.R.[1950] Nag. 215, that in order to constitute a constructive trust, it is enough if an obligation is annexed to the property in favour of religious or charitable objects of public nature and the person having the custody of the property is legally and morally responsible for the administration of such property. Now, a church being a moral and a juridical person, has a right to hold property and the question is whether it is free to dispose of that property in any way it likes. It seems to us that it is not free to do so because there are several conditions attached to the ownership of that property. As already pointed out, the very object of bringing a church into existence is to enable the faithful to offer prayers and conduct divine worship. Now, in addition to this right, the Canon Law confers some more rights on the public with respect to the churches. The faithful have a right to go to a church for baptising their children. Similarly, Canon 1154 recognises their right of burial in the sacred places, which are consecrated for that purpose. They are also entitled to have the dead bodies taken to the church for the purpose of certain religious rites. It would thus follow from this that the rights of the faithful are annexed to the ownership of the property and consequently a constructive trust must be deemed to have resulted in favour of the faithful.

17. Apart from our view that, a parish church can be deemed to be a constructive trust in favour of the faithful, it seems to us that a parish church is at least a religious or a charitable endowment and thus falls within the definition contained under Sub-section (13) of Section 2. It is urged before us on the authority of a decision of the Division Bench in State of M.P. v. M.S. Convent School : AIR1958MP362 , that the existence of a 'public trust' is a sine, qua non for a temple, math, mosqua, church or wakf, or a religious or charitable endowment to fall within the definition of 'public trust' contained in Section 2(13) of the Act. The learned Judges in that case were called upon to construe a somewhat similar definition of public trust contained in the Madhya Pradesh Public Trusts Act-There also the opening words of the definition were as here: 'Means an express or constructive trust for a public, religious or charitable purpose' and were follower by the world 'includes a temple, a math etc....' Indeed even the word church was included in that definition though it is not included in the definition contained in the Bombay Act. In the course of the judgment, Hidayatullah, C.J., who was one of the Judges constituting the Bench, observed (p. 365):-.The word 'includes' is unfortunate. While it is not open to me to correct the language of the legislature, I feel that what was really meant was not something imperative which the words 'means and includes', when used, indicate; see Dilworth v. The Commissioner of Stamps (1899) A.C. 99. In any event, the existence of a public trust is, in my opinion, the sine qua nan, of action in respect of temples, 'maths', mosques, churches and wakfs or societies formed for religious or charitable purposes.

It would appear that Bhutt J., who was the other Judge constituting the Division Bench, did not go to the same extent as Hidayatullah C. J. went. He observed {p.366):-

The definition of public trust is doubtless inclusive, and the word 'includes' is a phrase of extension and not of restriction.

In our opinion, the decision to which reference was made by Hidayatullah C.J. does not at all support his conclusion. It has been held in a number of cases that the words 'shall include' are words of extension and further that they are not equivalent to 'shall mean'. Some of these cases are cited at 1415 and 1416 of Vol. II of Stroud's Judicial Dictionary, 3rd.edn. In Dilworth v. Commissioner of Stamps [1890] A.C. 99 Lord Watson no doubt pointed out that the word 'include' is susceptible of another construction which may become imperative if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. The word 'include' in the circumstances of the case was construed by him as equivalent to 'mean and Include.' But these observations, in our opinion, cannot be availed of for construing the definition contained in the M.P. Act in the manner suggested by the learned Chief Justice. In the case which was before the House of Lords the word 'means' did not precede the word 'include'. Here as in the case before the learned Chief Justice the word 'means' precedes the word 'includes.' Now, since the Legislature has used both these words we must give the fullest effect to each of them. By using the word 'means' the Legislature clearly intended to restrict the meaning of the word 'public trust,' to express or constructive trusts for either public, religious or charitable purposes. Having done that, the Legislature intended to enlarge the scope of the definition and for that purpose it used the woid 'includes' which is quite plainly a word of extension. Now, where the Legislature acts in this manner, it cannot be deemed to be imposing qualitative limitations on matters which are clearly included by it. A temple or a math or a wakf may or may not be a public trust. If it is a public trust, then it was not necessary to say that the definition includes a temple or a math or a wakf. The fact that the Legislature has specified those institutions as also 'any other religious or charitable endowments and society' may show either that they have been specified by way of illustration or by way of extension. They cannot be said to be included by way of illustration for the simple reason that a temple or a math or a wakf or a charitable endowment is not necessarily a public trust. It would, therefore, follow that these institutions wore specified in the definition of public trust with the specific object of including them within that definition even though ordinarily they do not fall within that definition. With great respect, therefore, we cannot accept the view of the learned Judge.

18. For all the aforesaid reasons we hold, agreeing with the Court below that a Roman Catholic parish church falls within the definition of a 'public trust' contained in Section 2(13) of the Act.

19. It was next contended that the Bombay Public Trusts Act, particularly Section 36 thereof, is ultra vires the Constitution because it offends Articles 13, 19, 25 and 26 of the Constitution. According to Mr. Pinto the Canon Law which is the customary law of the Roman Catholics lays down a complete code for the administration of the church properties for the purpose of practice and propagation of the Christian religion. Some of the provisions of the Act interfere with the administration and management of church properties and, therefore, they must be held to offend Articles 13, 19, 25 and 26 of the Constitution. In our opinion, there is no substance in this argument.

20. Clause (1) of Article 13 deals with 'existing law,' that is, law which had been enacted before the inauguration of the Constitution, and is, therefore, not relevant for the purpose of deciding the question raised here. Clause (2) of Article 13 leads as follows:--

The State shall not make any law which takes away orabridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Part III of the Constitution deals with fundamental rights and amongst those fundamental rights are rights comprised in Articles 19, 25 and 26 of the Constitution. It would follow from this that neither a State Legislature nor Parliament is empowered to make a law which would be inconsistent with the provisions of Articles 19, 25 and 26 of the Constitution. Sub-clause (1) of Clause (1) of Article 19 recognises the right of every citizen to acquire, hold and dispose of property. Article 25 recognises the right of every person to freedom of conscience and to free profession, practice and propagation of religions. Article 26 recognises the right of every religious denomination or section thereof to manage its religious affairs.

21. Clause (5) of Article 19 empowers the State to make any law imposing reasonable restrictions on the exercise of the rights conferred by sub-cl. (1) of Clause (1) of Article 19 in the interests of the general public. The object of the Public Trusts Act is to regulate and to make better provisions for the administration of public religious and charitable trusts and the various provisions of the Act are intended to secure this object. If, therefore, the Roman Catholic parish churches are public religious trusts, the State is competent to make laws for rogulating and for making better provisions for the administration of such trusts. Though the Public Trusts Act places certain restrictions with regard to the right of the churches to acquire, hold and dispose of properties, that will not be unconstitutional unless it is shown that the restrictions so imposed are unreasonable It was not suggested at any stage during the argument that any of the provisions of the Act places unreasonable restrictions on the rights of the churches to acquire; hold and dispose of properties.

22. It was not urged before us that provisions of the aforesaid Act interfere with the the religious practices of the faithful. That being be, it is difficult to understand how the Act or any of its provisions offends the provisions of Article 25 of the Constitution. Indeed, it may be pointed out that sub-cl. (2) of Article 25 entitles the State to make any law'regulating cr restricting any economic, financial, political or other secular activity which may be associated with religious practice.' This will itself show that in so far as the exercise of secular rights are concerned, they are made subject to the regulatory power of the State. We are, therefore, clear that the Act does not offend the provisions of Article 25 of the Constitution.

23. Article 26 of the Constitution reads thus:-

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Now, Clause (d) of this article, while recognising the right of every religious denomination to administer its property, clearly provides that the administration of its property must be in accordance with the law and the Public Trusts Act is a law of this kind. We may point out that Canon 1529 itself recognises the authority of the civil law. So long as such law does not interfere with religious practices, the faithful are enjoined upon respecting it. Canons 1523 and 1529 provide that the faithful and the churches shall abide by the civil law of the land. It will, therefore, follow that the Act does not offend the provisions of Article 26 of the Constitution at all.

24. Now, so far as Section 36 is concerned, the argument advanced is that it places a restriction on the power of the church and other ecclesiastical authorities to alienate or lease church properties inasmuch as it requires the previous sanction of the Charity Commissioner for such transactions. It is sufficient to say that this section does not empower the Charity Commissioner to alienate or lease any of the church pro-parties, nor does it prohibit the alienation or lease of such properties by the church or ecclesiastical authority. All that it requires is the approval of the Charity Commissioner to such a transaction. The object of requiring such an approval is to ensure that no transaction would be entered into without sufficient reason or without, adequate consideration. This requirement is 'quite patently for the benefit and in the interests of the faithful and is, therefore, perfectly reasonable. In this connection, reference may be made to the decision of the Supreme Court in Ratilal Panachand v. State of Bombay : [1954]1SCR1055 , wherein it has been observed (p. 1189):-

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 tinder act. 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 269(d) of the Constitution.

The validity of Section 36 of this very Act was challenged before their Lordships and their Lordships observed at page 1191 that-

There is nothing wrong in s, 36 of the Act. Immovable trust properties are inalienable by their very nature and a provision that they could be alienated only with the previous sanction of the Charity Commissioner seems to us to be a perfectly salutary provision

These observations were made with regard to a temple but on principle they would apply equally to a church and particularly so because the Canon Law itself recognises similar restrictions on the alienation of the immovable properties of the churches. No doubt, according to the Canon Law, the power of restricting alienation of immovable properties is vested in the superior ecclesiastical authorities, whereas now the approval of the Charity Commissioner is also required. No doubt under the Act the Charity Commissioner is empowered to restrict alienation, The result of this only is, as already stated that before an alienation could be made, not only the approval of some superior ecclesiastical authority but also of the Charity Commissioner has to be obtained. It does not mean that an alienation can be made without the assent of the superior ecclesiastical authority. Apart from that, the alienation of property is purely a secular matter and, therefore, both under Article 25 and Article 26 the State can make a law regulating it.

25. For these reasons we have no hesitation in holding that it does not offend the provisions of Articles 13, 19, 25 and 26 of the Constitution.

26. The only question which remains to be considered is whether the Canon Law can be regarded as an 'instrument of trust.' The expression 'instrument of trust' is not defined in the Act and, therefore, under sub-cl. (20) of Section 2 we have to go to the Indian Trusts Act, 1882, and have resort to Section 3 thereof. Amongst other things it provides that 'an instrument, if any, by which the trust is declared is called the 'instrument of trust.' ' Now, the word 'instrument' is nowhere defined. In legal parlance this word means some writing executed by a party in a formal manner. It is not suggested that the Canon Law is a document of this kind. Indeed the argument is that the Canon Law can be altered at any time by the Pope. It cannot, therefore, be regarded as an instrument and certainly not as an instrument of trust. No doubt the Canon Law lays down the procedure for appointing ecclesiastical authorities and also the principles on which the church property is to be administered but these principles are based upon custom and practice observed and followed by the ecclesiastical authorities for centuries. On this ground also it will have to be said that the Canon Law is not an instrument of trust in the sense in which the term is understood in the Indian Trusts Act. We, therefore, agree with the learned Charity Commissioner that the Canon Law is not an instrument of trust. Even though it is not an instrument of trust, the Roman Catholic churches are public religious trusts because the existence of an instrument of trust is not a sine qua non for the constitution of a trust.

27. To sum up, we are of the opinion that the Roman Catholic churches are public religious trusts as defined in Sub-section (13) of Section 2 of the Bombay Public Trusts Act; that the Act is not unconstitutional and that consequently it is necessary for these trusts to be registered under the Bombay Public Trusts Act. Affirming the decision of the learned Charity Commissioner, we, therefore, dismiss this appeal. The appellant will bear his costs. The costs of the Charity Commissions will come out of the trusts properties while the State will bear its own costs.


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