( 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. 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