D. N. Jha, J. - (1.) THE petitioner Krishna Nand Singh is the Managing Trustee of Swami Sukhdeo Nand Ashram Trust (hereinafter to be referred as the Trust). He has filed this petition for quashing of the Notification No. 312/XXXVI-2-83- 51-T-77 dated 6-12-1983, contained in Annexure 1-A and for quashing of the order of Commissioner, Varanasi Division, Varanasi dated 27-12-86, contained in Annexure-2 and for quashing of the order of respondent no. 3 dated 14-3-87, contained in Annexure-4. It is also prayed that the proceedings consequent thereupon pending before the Sub-Divisional Officer, Duddhi, District Mirzapur, may also be quashed.
(2.) THE facts giving rise to this petition are that the Trust is situated in the District Mirzapur. District Mirzapur lies within the jurisdiction of respondent no. 2 Sri D. S Bagga, Commissioner, Varanasi Division, Varanasi. Sri Bagga was appointed as Commissioner under the U. P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962 ; (hereinafter to be referred as the Act). This appointment was made on 6th December, 1983 by the Government in exercise of powers under sub-section (1) of Section 4 of the said Act and in supersession of all previous Notifications issued in this behalf. THE Commissioners were appointed for purposes of the said Act for the Area over which they exercise jurisdiction as Divisional Commissioners. THE notification is attached as annexure 1/A to the petition. THE Commissioner on 27-12-1986, passed an order appointing the Sub-Divisional Officer, Duddhi, District Mirzapur (respondent no. 3) as Investigation Officer. THE petitioner, in fact, was aggrieved by this order and in order to challenge the validity of this order investigations were made by him and it then transpired that Sri D. S. Bagga, respondent no. 2, was professing Sikh religion and hence was not qualified for being appointed as Commissioner under the Act and thus the notification appointing him issued on 6-12-1983 has also been challenged. It also transpires from the perusal of the writ petition that the Sub-Divisional Officer, Duddhi, had issued a notice to the petitioner and the petitioner on 6-3-87 filed his objection before him raising question of jurisdiction. A copy of this objection dated 6-3-87 is attached as Annexure-3. This objection was rejected by the Sub Divisional Officer, Duddhi, on 14-3-87. This order is Annexure 4. The petitioner had approached the Commissioner, Varanasi Division, Varanasi, on 30th of March, 1987 through his pairokar with his objection requesting him to recall his order dated 27-12-86 as the same was without jurisdiction but it was not entertained and he expressed his helplessness to do anything in the matter because the Sub-Divisional Officer, Duddhi, was seized of the matter and could deal with the same. This is how this petition is before us. We have heard the learned counsel for the petitioner at length and gone through the averments. The learned counsel pointed out that the object of the Trust is to promote and offer teaching and sermons for development of character and spiritual values ; to construct temples and other places of worship ; to help the poor and needy ; to remove or mitigate human sufferings both mental and physical ; to help and promote educations ; to establish and maintain Dharmashalas, Charitable Dispensaries and Public Halls and the like in any part of India ; to give monetary aid or other help for relief from natural calamities like floods, cyclone, tempest or otherwise to promote and establish and maintain or help by monetary gifts or otherwise, welfare centre including recreation grounds, swiming baths, public gardens as also sporting institutions which are non-communal and for the benefit of the public ; to establish, maintain and support or help by monetary gifts or otherwise public charitable institutions serving one or more of the aforesaid objects ; to construct new wells and maintain and repair existing wells, tanks and other sources of water for the benefit of the public or to give monetery help for the same ; to advance any other charitable object of general public utility not involving the carrying on of any activity for profit.
(3.) LEARNED counsel maintained that since respondent no. 2 was professing ' Sikh religion ' he was not qualified for being appointed as Commissioner under the Act. We do not find ourselves in agreement with the submission of the learned counsel for the petitioner; The Act defines " Hindu " and the said definition provided therein is as under :- " " Hindu " means persons who are Hindus by religion in any of its forms or developments, including Virashaivas, Lingayata and followers of the Brahma, Prarthana or Ary Samaj and includes the Buddhists. Jains and Sikhs. " This definition appears to be in consonance with the provisions of Article 25 of the Constitution, though in a different context, which reads as under : " 25. Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propogate religion. (2) 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 ; (b) providing for social welfare and reform of the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.-The wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh Religion. Explanation II.--In sub-clause (b) of clause (2), the preference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. " The learned counsel for the petitioner vehemently urged that Sri Bagga may be a ' Hindu ' but he could not be said to be professing ' Hindu ' religion as he professes Sikh religion. In order to give strength to his argument he relied on section 5 of the Act which provides for the appointment of a Commissioner. The relevant section of the Act reads as under : " 5. Commissioner, etc., to be Hindus. The Commissioner, Assistant Commissioner and Investigation Officer shall be a person professing the Hindu religion. " ;