published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40842
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8800-8801 /2013
(Arising out of Special Leave Petition (Civil) Nos. 16575-16576 of 2012)
Vinodkumar M. Malavia etc.
… Appellants
Vs.
Maganlal Mangaldas Gameti & Ors. …
Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. These appeals are directed against the common judgment and order dated
April 23, 2012 (in First Appeal Nos. 1535 and 1536 of 2009) passed by the
High Court of Gujarat, affirming the order dated February 3, 2009 passed
by the City Civil Court (in Civil Misc. Application Nos. 470 of 2008 and
630 of 2008). The City Civil Court set aside the order dated May 23,
2008, passed by the Charity Commissioner. The said adjudication was made
by the Charity Commissioner pursuant to the order passed by this Court in
Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti and
Ors. [2006 (9) SCC 282] (being Civil Appeal No. 1260 of 2006, arising out
of SLP (Civil) No. 24198 of 2005, decided on February 24, 2006) in an
earlier ancillary dispute wherein this Court directed the Charity
Commissioner to adjudicate on all questions pertaining to the merger of
trust and other pending disputes as expeditiously as possible. Thus, the
Charity Commissioner adjudicated on the objections against Change Report
Nos. 44 of 1981 and 665 of 1981.
3. The facts of the case briefly are as follows :
1. The facts of the present case are not much in dispute and the
background of the same lies with the facts in the matter adjudicated
by this Court in Church of North India v. Lavajibhai Ratanjibhai &
Ors. [2005 (10) SCC 760] (being Civil Appeal No. 9419 of 2003 as
decided on May 3, 2005), therefore, the detailed background of the
parties and the organizations involved has not been mentioned and
only the facts pertinent to the dispute in question are stated.
2. The above mentioned Change Reports were filed by First District Church
of the Brethren (hereinafter referred to as ‘the FDCB’) a registered
religious society under the Societies Registration Act, 1860
(hereinafter referred to as ‘the SR Act’) bearing Registration No.
1202/44 and
later registered as public trust in Gujarat bearing No.E-
643/Bharuch, after the enactment of the Bombay Public Trusts Act,
1950 (hereinafter referred to as ‘the BPTA’) property of which is
vested with its ‘Property Committee’ and the Church of North India
(hereinafter referred to as ‘the CNI’), Gujarat Diocese.
The CNI is a
public trust registered by an application accepted on May 12, 1970
with effect of registration being given from 1971 and the trust being
formed on November 29, 1970 with Registration No. D-17/Ahmedabad.
3. These Change Reports were filed to give effect
to the unification of
six churches which included
the FDCB, an offshoot of the ‘Brethren
Church’ of USA (other Churches being The Council of the Baptist Churches in North India, The Church of India, Pakistan, Burma and Ceylon, The Methodist Church (British and Australian Conference),
The Methodist Church in Southern Asia and The United Church of Northern India) into a single entity,
‘The Church of North India’ (with the Gujarat Chapter being managed by the Church of North India, Gujarat, Diocese).
4. This unification is the result of a process which commenced from
1929. The negotiation meetings commenced from 1955 onwards which had
representatives from the uniting churches who discussed every aspect
of the emerging entity. A result of which was the Plan of Church
Union in 1965 called the 4th Revised Edition in the form of a printed
booklet published by the Negotiating Committee and widely circulated
and deliberated by the uniting Churches which adopted the same. The
plan traced the historic background leading to the creation of the
CNI and dealt with all aspects of the same. Part-II of the same
pertained to procedural details of the unification. The plan is a
result of the negotiations through various meetings convened in the
years 1955, 1956, 1957, 1961, 1964 and 1970. The Managing Committee
of the FDCB being the ‘District Committee’ initially participated in
these meetings as an observer, however, from 1956, it joined the
negotiation process. It is alleged that Resolution No. 70/08 was
passed on February, 17, 1970 pursuant to which the CNI was formed by
merging the six churches. FDCB being one of the six churches,
discussed the unification internally within its 21 Societies and put
the same to vote at different junctions and in the final decision,
the resolution was approved by 3/5th majority of the representatives
of the Governing Body. Allegedly, on November 29, 1970, the FDCB
merged with the other six churches to form CNI and accepted the same
as its legal continuation and successor and vested with the CNI its
rights, titles, claims and FDCB’s interests together with its
privileges and obligations.
5. In 1976, the Church of North India Trust Association (hereinafter
referred to as ‘the CNITA’) was formed under the Indian Companies
Act, 1956 and appointed as the trustee of CNI. It has been alleged
that the annual meetings of the FDCB were discontinued post 1971.
That certain members which had earlier given consent to Resolution
70/08 began to raise objections that FDCB continued to exist.
Subsequently, the original plaintiff (Shri A.O. Patel) filed Civil
Suit No. 72 of 1979 in the Court of the Civil Judge, Senior Division,
Bharuch for a declaration that FDCB has come to an end and that CNI
is the legal successor and continuation of the same. During the
pendency of the suit, CNI got itself registered retrospectively and
Change Report Nos. 44/81 and 665/81 were filed before the Charity
Commissioner to give effect to the changes resulting the unification.
The aforementioned suit, after an appeal before the District Judge,
Bharuch went before the Gujarat High Court as Second Appeal No. 303
of 1986, the same was dismissed and the matter came up before this
Court as Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra) (In Civil Appeal No. 9419 of 2003, decided on May 3, 2005).
Therein, the question which arose before this Court was: whether
Section 80 of the BPTA imposes a bar on the jurisdiction of the Civil
Court.
6. The present dispute, however, arises from objections arising out of the adjudication by the Charity Commissioner dated May 23, 2008 regarding Change Report Nos. 44/81 and 665/81.
The same proceeding
commenced post the direction of this Court in Vinod Kumar Mathurseva
Malvia & Anr. v. Maganlal Mangaldas Gameti & Ors. (supra) (Being
Civil Appeal No. 1260 of 2006, decided on February 24, 2006). The
same arose out of orders dated October 6, 2005 and October 10, 2005,
passed in First Appeal No. 988 of 2005 by the High Court of Gujarat
with regard to a trust application appointing a new trustee.
The
matter before this Court was regarding the interpretation and
application of Clause 9 of the scheme of Church of Brethren General
Board.
This Court referred to the earlier Church of North India v.
Lavajibhai Ratanjibhai & Ors. (supra) decision of this Court
applicable to the same set of facts and thereby directed the
concerned Charity Commissioner to adjudicate on all pending disputes.
7. The Charity Commissioner adjudicated on the disputes arising out of
the Change Report Nos. 44/81 and 665/81. The former was filed by Shri
A.O. Patel being the Reporting Trustee of the Brethren Trust
concerned with the dissolution of the constitution of the Brethren
Trust with its “Memorandum of Association” becoming “obsolete” and
ineffective (It should be noted that Shri A.O. Patel had died during
the pendency of the proceedings and appellant Nos. 1 and 2 were
joined in his place). The latter report was filed by CNI, Gujarat
Diocese Trust which requests for the change, that as the CNI Trust
has become the legal continuation and successor of the Brethren
Trust, its concerned movable and immovable property must be added to
CNI’s properties. The Change Reports were objected by Shri Nityanand
Thakore and other objectors filed similar objection applications.
These persons along with the respondents in this dispute being Shri
Shantilal Thakore and Shri Maganlal M. Gameti had earlier given
consent to the unification proceeding. The Charity Commissioner thus
adjudicated on the following questions:-
i) Whether the change is legal?
ii) Whether the said Change Reports or any of the Change Reports
are liable to be allowed?
The Charity Commissioner answered both in affirmative and dismissed the objections raised against the Change Reports, allowing the properties vested in FDCB to be vested in CNI.
8. Against the abovementioned order of the Charity Commissioner,
the objectors to the Change Reports preferred Civil Miscellaneous
Application Nos. 470 of 2008 and 630 of 2008 before the City Civil
Court, Ahmedabad under Section 72 of the BPTA.
The applications were
filed, alleging that there was no lawful merger of the Trust and the
property vested with the Property Committee continued to exist with
it. The questions which arose before the learned City Civil Judge are
as under:-
i) Whether the Society is dissolved and secondly, whether the
Trust, i.e., FDCB is also dissolved?
ii) Whether CNI is successor of the Trust, i.e., FDCB?
iii) Whether by mere merger of FDCB into various other Churches,
the properties are by rules and regulations of the Society
ipso facto vested in CNI, without having to perform any other
legal obligation or formality?
9. The learned Civil Court Judge, after analyzing the various aspects of
the BPTA and the SR Act, was of the opinion that the FDCB had not been
dissolved as there was no proper proof of the same. Furthermore, as a
trust and society are creations of statutes, they must be dissolved
accordingly and the question of merger is a factual one, wherein the
merging trust continues to exist unless specifically dissolved under the
statute. Furthermore, without following Section 50A of the BPTA which
deals with the dissolution of trust, the FDCB property cannot be vested
with CNI. Thus, the learned Civil Court Judge quashed and set aside the
order of the Charity Commissioner.
10. The appellants (wherein appellant No.1 was one of the respondents in
the above suit) preferred First Appeal Nos. 1535 of 2009 and 1536 of
2009 before the High Court of Gujarat. The basic issue before the
learned Single Judge was to determine
whether the CNI is the successor
and legal continuation of FDCB or not. The learned Single Judge while
adjudicating the same, referred to the earlier decisions of this Court
in the same factual matrix and based on the earlier findings, dismissed
the appeals and confirmed the order of the Civil Court.
11. It is from this order of the High Court the matter rests before us.
4. Mr. Mihir Joshi, learned senior counsel appearing on behalf of appellant
No.1 (in C.A. No. ___/2013 @ SLP (C) No.16575/2012), argued that the
unification of the six churches is pursuant to the choice exercised by
the uniting churches through various internal resolutions and the same is
a religious matter involving faith, and the courts below cannot
adjudicate on the same since such a choice is protected by Articles 25
and 26 of the Constitution. He further contended that the unification has
been a long drawn process which culminated on November 29, 1970 when CNI
was formed and since 1979, annual meetings of the same are being
conducted in which the respondents who had given consent to the
unification also participated. Mr Joshi further contended that the stand
taken by the respondents does not hold good as they are estopped from
raising objections owing to their earlier consent to the unification in
the internal resolutions passed by FDCB. Furthermore, as argued by Mr.
Joshi, the objections have no substance since the respondents are not
prevented from practising their faith and there is no change in the
practices followed by CNI which is a result of amalgamation of the
uniting churches. He further contended that as per the scope of inquiry
under Section 22, the Charity Commissioner’s decision must not be set
aside as the Act is a complete Code; that Section 50A of the BPTA is only
administrative in nature but in the present case the matter is of choice
exercised by a community as a whole.
5. Mr. K.V. Vishwanathan, learned senior counsel appearing on behalf of
appellant No. 2 (in C.A. No. ___/2013 @ SLP (C) No. 16576/2012), in
addition to Mr. Joshi’s arguments, contented that the right to unify is
an inherent right exercised by the community promised under Articles 25
and 26. Furthermore, the respondents have not challenged the unification.
Therefore, the view of the High Court is incorrect and the Charity
Commissioner rightly accepted the Change Reports effecting the
unification.
6. It is the case of the respondents that the unification did not dissolve
FDCB as the procedure laid down in the Societies Registration Act and the
BPTA was not adhered to. Furthermore, under Articles 25 and 26, they are
entitled to object to the unification as their faith is being impinged
upon and, therefore, they cannot be bound by estoppel. Mr. Bhatt, learned
senior counsel appearing on behalf of the respondents, has contended that
there is no question of merger and subsequent transfer of trust property
as the resolutions, which have been relied upon by the appellants, do not
have any legal sanctity and they cannot be placed above the law of the
land.
7. Mr. Joshi further supplemented his submissions and has submitted that
the High Court’s determination that the said resolutions have interfered
with Articles 25 and 26 as they impose religious faith and tenets on FDCB
is incorrect, firstly, because such consideration is beyond the scope of
inquiry under Section 22 and beyond the scope of the BPTA as it entails
adjudication on religious affairs; secondly, the same is not an ordinary
question fit to be decided by the Charity Commissioner and one which
attracts the jurisdiction of the Civil Court which is not ousted in this
aspect by the BPTA, in fact the question is beyond the scope of the BPTA.
Further, pointed out that the inquiry under Section 22 is only regarding
the legality of the charge and does not extend to adjudicating rights of
parties under general law, therefore the Charity Commissioner has
correctly held that unifications is a religious process; furthermore
unification happened in 1970 and has not been challenged by the objectors
who were a part of the process and the High Court has, thus, overlooked
that the right to merge is a religious matter and the statute must be
interpreted accordingly. Further, submitted that the Resolutions are not
contrary to the BPTA as no provision provides for prior permission of the
Charity Commissioner and even if there existed one same would have been
unconstitutional, also Section 50A is only an enabling Section and the
power vested under the same is for better administration of trusts, which
is not the reason presently; secondly, the only procedure required to be
followed was that under Section 22, being recording of unification due to
resolutions; thirdly, as there is no dissolution, the obligation attached
to the property is same and after merger only the administrative
machinery has been changed; lastly, there is no transfer of property and
obligations remain the same, albeit in a different name. It was further
submitted that the contention that CNI came into existence in 1980 is
misconceived as Registration is only acknowledgment of trust and is not
related to incorporation of any company. Further, submitted that the
finding that procedure under the SR Act must be followed is untenable as
assets had not been vested in the society and the same need not be
examined; moreover the resolutions were passed by members and the Charity
Commissioner had no jurisdiction to examine the SR Act and such
objections should not have been raised before him; in addition but
without prejudice to the same also submitted that the 3/5th majority
requirement under the SR Act was complied with and no dispute had been
raised under Section 13 of the SR Act. Further, contended that the High
Court’s finding that unification amounts to imposition of tenets is not
correct as after the merger the same religious practice existed, a fact
accepted by the Civil Court as well; moreover as CNI was an amalgamated
body, there is no question of imposition or taking over. Also contended
that the rejection of the Change Reports by the High Court is untenable
as all documents exhibited before the Charity Commissioner have been
proved in the Civil Court and also strict rules of evidence do apply to
such proceedings. It is submitted that the finding of the High Court that
objectors are not barred by estoppels is incorrect as the objections lack
bonafide. Lastly, he submitted that the contention that the issue had
been decided in Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra) does not hold good in the light of the subsequent decision in
Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti & Ors.
(supra).
8. Appellant No. 2 in his written submissions settled by Mr. Vishwanathan,
has further supplemented and submitted that the issue of merger of
churches is not amenable to jurisdiction of courts and is independent of
the BPTA as it is a religious or ecclesiastical matter not subject to
judicial scrutiny; that they have placed sufficient evidence before the
Charity Commissioner to prove the factum of merger which has been upheld
by the City Civil Court as well; that sub-section (2) of Section 50A of
the BPTA comes into play when the Charity Commissioner is of the opinion
that trusts must be merged due to mismanagement, however in the present
matter the merger is due to religious and ecclesiastical reasons, and,
therefore sub-section (2) of Section 50A is not applicable; that Section
13 of the SR Act is not applicable as it is not a case of dissolution of
churches but a merger, furthermore, the BPTA is a complete code and
merger of trust registered under the BPTA cannot be contingent on the
requirements under Section 12 of the SR Act, furthermore, the
applicability of both the statutes creates an anomalous situation; one of
the objectors himself was the trustee when the Change Reports were filed
and only a miniscule faction have objected to the Change Reports; that
the resolutions for merger of FDCB with CNI passed by the internal bodies
of FDCB have not been assailed or challenged by anybody (including the
respondents) before the Civil Court, therefore these resolutions continue
to bind all the members of the FDC including the respondents; and lastly,
that the Charity Commissioner under Section 22 of the BPTA conducts an
enquiry into the factum and legality of change and in this light, the
Charity Commissioner has, therefore, passed a reasoned order.
9. Per contra, the respondents have submitted that there are many
unexplained lapses in the entire formation of CNI, first being that the
Change Reports have been filed eleven years after the occurrence of the
alleged changes in violation of Section 22 of the BPTA which requires
that a change is to be mandatorily reported after 90 days of its
occurrence; secondly, CNITA being the trustee of CNI, was formed six
years after the alleged formation of CNI which was registered in 1980,
thereby creating a situation where the CNI trust did not have a trustee
for six years and did not have any legal status till its registration in
1980; thirdly, CNI only submitted its audited books of accounts prior to
1984; lastly, CNI was registered after ten years of unexplained delay and
the same was ex-parte, furthermore, as per the appellants, CNI was the
successor of FDCB; however, at the time of subsequent registration, the
properties of FDCB were not shown in the registration form as properties
of CNI. In this background, the present Change Reports are incorrect and
in violation of Section 22 as they seek to effect a change which took
place prior to the registration of the trust, furthermore in the light of
the above, the claim of the appellants that CNI is the legal successor of
FDCB since its formation on November 29, 1970 till date does not hold
good. The respondents further submitted that, admittedly, the FDCB was
first registered under the SR Act and then under the BPTA when it came
into force and is, therefore, governed by both which are regulatory in
nature; that in addition to the above, the present Change Reports seeking
alienation of the properties of a registered trust are not in compliance
with Section 36 and/or Sections 50A, 51, 50 of the BPTA and that the
trust which exists in perpetuity does not stand dissolved by the
declaration of a Charity Commissioner who has declared the same without
resorting to Section 13 of the SR Act; that even the other denominations
which merged with CNI continue to exist and own the property; that the
resolutions placed by the appellants only speak about merger and there is
nothing on record which indicates the intent of dissolution of trust or
society; that a society stands dissolved only after the procedure under
Section 13 of the SR Act is followed and the dissolution of a society
does not ipso facto mean that properties of the trust are also adjusted;
that many persons objected to the unification and M.M. Gameti is only the
principal objector who never held any post or signed any documents and
even such documents are without any legal consequence; and lastly, that
the unification is the secular part ancillary to religious practice and
is, therefore, subject to judicial scrutiny.
10. Having heard the rival contentions and after considering the written
submissions, we are of the opinion that the primary issue which needs to
be answered is : whether the alleged unification of the First District
Church of Brethren with the Church of North India is correct or not, and
the same answers all the ancillary issues raised before us.
11. Regarding the issue of unification, we are of the opinion that the
questions regarding the validity of the unification process have been
answered in the observations made by this Court in Church of North India
v. Lavajibhai Ratanjibhai & Ors. (supra), wherein the matter was
regarding the bar of jurisdiction of the Civil Court under Section 80 of
the BPT Act. This Court in the aforementioned matter delineated the
jurisdiction of the authorities and the Civil Court under the BPT Act and
under what circumstances which body has jurisdiction. While reaching to
its conclusion, this Court at great length discussed the provisions of
the SR Act and the BPTA and the relationship between the two and
determined that :
“61. There is nothing on record to show that the churches concerned
were being managed by the societies registered under the Societies
Registration Act. In any event, it stands accepted that the dispute as
regards dissolution of societies and adjustment of their affairs
should have been referred to the Principal Court of original civil
jurisdiction.
62. The suit in question also does not conform to the provisions of
Section 13 of the Societies Registration Act.
63. Section 20 of the Act provides that the societies enumerated
therein can only be registered under the said Act.
64. Unless a suit is filed in terms of Section 13 of the Act, the
society is not dissolved. Even assuming that the society stands
dissolved in terms of its memorandum of association and articles of
association, the same would not ipso facto mean that the properties
could be adjusted amongst the members of the society in terms of the
provisions of the said Act. Concededly, the properties of the trust
being properties of the religious trust had vested in such trust. Such
a provision, we have noticed hereinbefore, also exists in the BPT Act.
Thus, only because the society has been dissolved, ipso facto the
properties belonging to the trust cannot be said to have been
adjusted. The appellants, thus, we have noticed hereinbefore, have
averred in the plaint that the suit relates to the property of the
trust and their administration. If the properties of the churches did
not belong to the society, the appellant herein cannot claim the same
as their successor. …”
(emphasis supplied)
12. It has been alleged by the appellants that under Articles 25 and 26 of
the Constitution, they are entitled to manage their affairs and the
question of unification of churches is a religious decision over which
the courts have no jurisdiction. We are of the opinion that the
unification has no legal foundation whatsoever. The FDCB is a religious
society registered under the Societies Registration Act and its property
vests with a Trust regulated by the BPTA. As per the BPTA, a public trust
being religious in nature, may also be a society under the Societies
Registration Act. It is a well accepted principle that a body created by
a statute must conform to the provisions of the regulating statute. In
the present case, the procedure for dissolution of FDCB has not conformed
to the requirements set out in Section 13 of the SR Act and the procedure
as laid down in the BPT Act as noted in Church of North India v.
Lavajibhai Ratanjibhai & Ors. (supra). Furthermore, the case of the
appellants is based on the resolutions and deliberations which it has put
on record in support of its claim of dissolution and subsequent
unification. However, as per the finding of the lower courts, no such
resolution or minutes of such deliberations comply with the procedure as
laid down in the statutes. All the material on record as per the lower
court only talks about amalgamation and there is no reference to
dissolution of FDCB as required under the Societies Registration Act.
Therefore, the High Court has rightly opined that :
“….. However, the fact remains that there is no basis or foundation or
the legal or other frame work, which could be said to be binding and
which could be relied upon by the appellant.”
Resolution 70/08 on which the case of the appellants is built whether
complying with or not with the requirements under the SR Act, does not
dissolve the FDCB Trust. Therefore, it would be improper if the religious
society being FDCB stands dissolved on the basis of the material produced
before the lower court. Therefore, in light of the aforementioned judgment
of this Court, the High Court and the lower court are correct in holding
the same.
13. The property of a Society under Section 5 of the SR Act, if not vested
in trustees, then only shall vest for the time being with the governing
body of such society. The properties of FDCB vested with public trust,
being No.E-643/ Bharuch. It was also recognized by this Court in Church
of North India v. Lavajibhai Ratanjibhai & Ors. (supra) wherein it was
observed thus :
“60. We are not oblivious of the fact that the resolution adopted in
the meeting held on 17-2-1970 allegedly fulfilled all the requirements
for such resolution as provided in the Societies Registration Act but
it is now beyond any controversy that the society having not owned any
property, their transfer in favour of a new society was impermissible
in law. In terms of Section 5 of the Societies Registration Act, all
properties would vest in the trustees and only in case in the absence
of vesting of such properties in the trustees would the same be deemed
to have been vested for the time being in the governing body of such
property. In this case, it is clear that the properties have vested in
the trustees and not in the governing body of the society.”
The resolutions produced and the deliberations made in the internal
meetings of FDCB only talk about amalgamation of FDCB with the other
churches and the intent to dissolve the society and the registered trust is
not conveyed and cannot be read into the same. On the basis of these
resolutions and deliberations, the claim of the appellants that CNI is the
successor of the property of the FDCB, which vests with the registered
trust, does not hold good.
14. As observed by this Court in the aforementioned judgment, while
analyzing various provisions of the BPTA, the alienation of movable
property of the trust without previous sanction of the Charity
Commissioner is barred under Section 36. This Court in its judgments in
Church of North India v. Lavajibhai Ratanjibhai and Ors. (supra) and
Vinod Kumar Mathurseva Malvia and Anr. v. Maganlal Mangaldas Gameti and
Ors. (supra) has clearly stated that the BPTA is a complete code.
Furthermore, in Church of North India (supra), this Court has observed
thus :
“69. We have noticed hereinbefore that the BPT Act provides for
finality and conclusiveness of the order passed by the Charity
Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and
79(2).”
The statute provides for a proper procedure for the claimants to adopt for
the transfer of the property and the same has not been observed. The case
of the appellants is that the dissolution of the society automatically
dissolves the trust and vests the property of trust with CNI, designated as
the successor of the same which is based on the resolutions etc. placed on
record. However, the procedure for the amalgamation of a trust scheme
stemming out from Section 50A BPTA, which is a complete code, has been
disregarded. Therefore, the High Court while referring to the judgment of
the Civil Court has correctly observed that:
“…it has been clearly observed with regard to merger that such society
being a Trust registered under the Bombay Public Trust Act is required
to follow the procedure for amalgamation or merger as contemplated
under the Section 50A(2) of the Bombay Public Trust Act. Further,
since the Society and the Trust being the creation of the Statute,
they have to comply with the modes provided in the Statute for
amalgamation and necessary procedure including the approval of the
Charity Commissioner has to be there before such merger takes place. A
useful reference can be made to Section 50A(2) of the Bombay Public
Trust Act. It is required to be mentioned that mere expression or
desire to merger by passing Resolution by the Brethren Church would
result into merger unless it is approved with the procedure followed
under the Bombay Public Trust Act. Further, the properties, which are
vested in the committee of such Church, which is registered as FDCB,
would be managing the affairs of the Trust and the corpus of the Trust
cannot be transferred along with the property without following
procedure or approval of the Charity Commissioner under the Bombay
Public Trust Act.”
(emphasis supplied)
Furthermore, as the statute has only provided for Section 50A, persons
governed by the same must act within the four corners of the legislation
and should not question the legislative wisdom on the grounds that as
certain aspects have not been provided in a statute so they have no bearing
on them.
15. In addition to the above, there are evident lapses in the formation of
CNI which have been observed by the High Court in paragraph 17 of its
judgment and we also concur with the view of the High Court wherein:
Firstly, it is alleged that CNI was formed on November 26, 1970 post
Resolution 70/08 dated February 17, 1970, however the same was sought to
be registered in 1980 and given registration with effect from 1971. The
same is contrary to the requirements as laid down in Section 18 of the
BPTA which requires registration of a public trust within three months of
a creation as per clause (b) of sub-section (4). The Act is also silent
about the registration with retrospective effect. But the dispute is not
regarding the interpretation of the procedure of registration under the
BPTA, therefore, we refrain from going further into the details of the
same. The second lapse which exists is that in 1976, the Church of North
India Trust Association (CNITA) was formed under the Indian Companies
Act, 1956 and appointed as the trustee of CNI; a trust allegedly existing
since 1971 which succeeded FDCB in 1970 which was allegedly dissolved and
its annual meetings discontinued since 1971. A suit for declaration of
CNI as the successor of FDCB was filed in 1979 (held not to be
maintainable in Church of North India (supra)). During the pendency of
the 1979 suit, Change Report Nos. 44 of 1981 and 665 of 1981 were filed
in 1980. This situation created a scenario where FDCB simply vanished
after the 1970 resolutions and who managed its properties till CNITA is
an unresolved question, identified by this Court in Church of North India
(supra) which stated that “….Furthermore, there is nothing on record to
show the mode and manner of the management and control of the trust
property.” Subsequently this Court in the abovementioned case discussed
the procedure under the BPTA which is reproduced as under:
“70…..The BPT Act provides for express exclusion of the jurisdiction
of the civil court. In various provisions contained in Chapter IV, a
power of inquiry and consequently a power of adjudication as regards
the list of movable and immovable trust property, the description and
particulars thereof for the purpose of its identification have been
conferred. In fact, the trustee of a public trust is enjoined with a
statutory duty to make an application for registration wherein all
necessary descriptions of movable and immovable property belonging to
the trust including their description and particulars for the purpose
of identification are required to be furnished. Section 19 provides
for an inquiry for registration with a view to ascertaining inter alia
the mode of succession to the office of the trustee as also whether
any property is the property of such trust. It is only when the
statutory authority satisfies itself as regard the genuineness of the
trust and the properties held by it, is an entry made in the registers
and books, etc. maintained in terms of Section 17 of the Act in
consonance with the provisions of Section 21 thereof. Such an entry,
it will bear repetition to state, is final and conclusive. Changes can
be brought about only in terms of Section 22 thereof.”
The above facts clearly show non-compliance with the procedure under BPTA.
The argument that as per Article 254 of the Constitution, the Societies
Registration Act overrides the BPTA or that the Societies Registration Act
and BPTA are in conflict, does not stand either, since both the statutes
are not in conflict with each other. On the contrary, they are in
consonance with each other regarding the administration and regulation of
public and religious trusts.
16. Therefore, we are of the opinion that the claim of the appellants that
following unification of FDCB with CNI after the purported resolution
resulted in the dissolution of FDCB making CNI its legal successor and
controller of its properties, does not hold good and cannot be accepted.
The High Court has rightly observed that :
“….. The trust which has been created as public trust for a specific
object and the charitable or the religious nature or for the bonafide
of the Society or any such institution managed by such trusts for
charitable and religious purpose shall continue to exist in perpetuity
and it would not cease to exist by any such process of thinking or
deliberation or the Resolution, which does not have any force of law.”
17. Since the FDCB trust never stood dissolved, the properties of the same
will not vest with CNI. Earlier also, this Court in Church of North India
(supra) has observed the same and stated that :
“…the purported resolutions of the churches affiliated to the
Brethren Church and merger thereof with the appellant, having regard
to the provisions of the Act was required to be done in consonance
with the provisions thereof. It is not necessary for us to consider as
to whether such dissolution of the churches and merger thereof in the
appellant would amount to alienation of immovable property but we only
intend to point out that even such alienation is prohibited in law.”
18. Objections have been raised regarding the jurisdiction of the Charity
Commissioner and the courts impinging on the freedoms guaranteed under
Articles 25 and 26 of the Constitution. It has been alleged that a
refusal to allow the change in trust nullifies the choice exercised by
the community in a matter which is purely religious, of faith and
ecclesiastical; especially considering the fact that the newly created
entity follows the same religion. Furthermore, the issue of estoppel has
been raised in the light of the same in relation to the objections to the
unification raised by the respondents who had earlier consented to the
same.
19. Firstly, we would answer the issue of the jurisdiction of the Charity
Commissioner and lower courts. The choices of the community herein are
the purported resolutions and deliberations. These resolutions are an
attempt to effect a change in management and ownership of the FDCB trust
properties in a manner which is against the law of the land. However, it
is the case of the appellants that as per Articles 25 and 26, they are
free to manage their own affairs and have relied on judgments of this
Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282] and
Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors. [AIR 1954 SC
388].
20. We are of the opinion that the appellants’ reliance on the
abovementioned two judgments is misplaced. In The Commissioner, Hindu
Religious Endowments, Madras (supra), this Court while adjudicating upon
the validity of Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the
Madras Hindu Religious and Charitable Endowments Act, 1951 against
Articles 19(1)(f), 25 and 26 of the Constitution of India and examining
the distinction between tax and fee, held that the Sections were ultra
vires and Section 76 (1) of the Madras Hindu Religious and Charitable
Endowments Act, 1951 was void. It was also held that a levy under this
section does not attract Article 27 as it was for the maintenance of the
religious trust despite being a tax. While deciding on the above, this
Court delved into many questions regarding the scope of religion and
recognized the reservations to the freedom of religion under Article
25(2) and that the State is empowered to legislate on the secular
activities ancillary to practice of religion and that the courts are
empowered to decide whether the same is an integral part of religious
practice or a secular part. In Ratilal Panachand Gandhi (supra), the
validity of Section 44 and levy under Section 58 of the BPTA was
questioned against Articles 25 and 26. As per this Court, Section 44 was
held to be unconstitutional. However, the levy under Section 58 was
termed as a fee and was allowed. While deciding on the same, this Court
once again reiterated on the power of the Government to legislate on
regulating the secular aspects of religious practice as allowed under
clause (2) of Article 25. In light of the same, the High Court while
disregarding the unification procedure, has rightly observed that :
“…it will amount to accepting that such Resolutions or deliberation
are above the law and the law that any such Resolution passed anywhere
will have more binding force then (sic) the law created by the
Sovereign Authority of India like the Bombay Public Trust Act as well
as the provisions of the Constitution under Articles 25 and 26 of the
Constitution of India. In fact, Article 26 which provides for the
freedom of the religious faith and Article 26 which provides for the
freedom of acquiring and administering the property or the Trust in
accordance with law, meaning thereby, the provisions of the Bombay
Public Trust Act, which has been created, would have no application
again in the guise of such Resolution. Even the Transfer of Property
Act will have no bearing and properties of various Trust or the
Churches would get automatically transferred or vested without any
requirement of law being fulfilled, without any document, without any
registration, stamp etc. therefore, it would be rather over
simplification to accept the submission that it was merely a
Resolution for a merger or unification of various Churches for better
understanding and advancement of cause of religion and faith and the
Court should not examine this aspect even though there is a strong
protest which has led to repeated round of litigations before the
Courts upto the Hon’ble Apex Court. The underlying object or the
purpose even if it assumed that it is only for better administration,
still it cannot have any predominance or the constitutional provision
or the law of land”
21. Regarding the issue of estoppels raised by the appellants, we feel that
there is no need to interfere or clarify the views of the High Court
which are as under:
“…Therefore, the submission made on the ground of estoppel that once
having accepted the Resolutions or having participated at the time of
discussion on Resolution or unification, same people have backed out.
Therefore, they are stopped from now changing their stand is without
any basis and misconceived. There is no question of having changed the
stand or faith but it is a question which is required to be considered
whether one sect like the Church of Northern India can impose religion
faith, acquire the trust and its property and take away total state of
affairs for the managing of such Trust, which have been established
for management of the various Churches at different levels. The
principles of estoppel or promissory estoppel in such cases have no
application.”
Furthermore, the Court has rightly opined that:
“….. Therefore, there is no question of any promise made out, for
which, the estoppel could come into play. In fact, even if it is
assumed that some of the people had initially participated at some
stage with regard to merger or unification of the Church of Brethren
Trust into the Church of North India, one can still have a re-look or
fresh thinking at the entire episode and have a different opinion at
later stage, which cannot be prohibited. The constitutional provision
under Articles 25 & 26, which is the genesis for such freedom has
granted such right, which cannot be taken away or curtailed on the
ground of estoppel.”
Thus, the High Court has precisely concluded that:
“…the focus has to be on the ultimate freedom of faith, religion and
persuasion of such faith and belief as one likes, which cannot be
curtailed. As a matter of fact, by the aforesaid procedure and the
litigations, which have been repeated, it is reflected that in the
name of unification or merger, it is aimed that there is total control
of not only properties and the churches but it will also have an
ultimate effect of imposing particular faith or belief, which is not
permissible.”
22. On the issue of jurisdiction of civil courts: whether Section 80
imposes a complete bar or not and in what circumstances is the
jurisdiction shared between the Charity Commissioner and the civil
courts, we are of the opinion that these issues have been adequately
answered by this Court in Church of North India (supra), wherein this
Court discussed the jurisdiction under the BPTA at length after referring
to many prominent cases including Dhulabhai and Ors. v. The State of
Madhya Pradesh and Anr. [1968 (3) SCR 662]. This Court thus observed that
:
“82. The provisions of the Act and the Scheme thereof leave no manner
of doubt that the Act is a complete code in itself. It provides for a
complete machinery for a person interested in the trust to put forward
his claim before the Charity Commissioner who is competent to go into
the question and to prefer appeal if he feels aggrieved by any
decision. The bar of jurisdiction created under Section 80 of the Act
clearly points out that a third party cannot maintain a suit so as to
avoid the rigours of the provisions of the Act. The matter, however,
would be different if the property is not a trust property in the eye
of law. The civil court's jurisdiction may not be barred as it gives
rise to a jurisdictional question. If a property did not validly vest
in a trust or if a trust itself is not valid in law, the authorities
under the Act will have no jurisdiction to determine the said
question.”
Furthermore, this Court concluded its observation by holding that:
“98. ….The Civil Court will have no jurisdiction in relation to a
matter where over the statutory authorities have the requisite
jurisdiction. On the other hand, if a question arises, which is
outside the purview of the Act or in relation to a matter, unconnected
with the administration or possession of the trust property, the Civil
Court may have jurisdiction. In this case, having regard to the nature
of the lis, the jurisdiction of the Civil Court was clearly barred.”
In the present dispute also, the respondents approached the Civil Court
under Section 72(1) of the Act and the Civil Court correctly exercised
jurisdiction over the same.
23. The question regarding the admissibility of evidence adduced before the
Charity Commissioner has been adequately addressed by the High Court and
we do not find any reason to interfere with the same. The observations of
the High Court in this regard are as under :
“21…It is well accepted that though the Charity Commissioner is not
the Court, the procedure is to be followed like the Civil Court. The
procedure as provided in the Civil Procedure Code would mutatis
mutandis apply. In other words, though the Charity Commissioner has
discretion to have evolved his own procedure, normal procedure under
the Civil Procedure Code is followed in such matter. It is required to
be mentioned that even though strictly Civil Procedure Court (sic) may
not be applicable, still the procedure is required to be followed in
order to provide fair opportunity to other side to contest on every
issue including the documents, which are sought to be produced and
also to decide the probative value after it is exhibited as per the
Evidence Act. Therefore, it is necessary that all such Resolutions
etc. ought to have been placed on record, which has not been done.
Therefore, what was not forming the part of the record in the original
proceedings cannot be permitted to be supplemented by way of
explanation in appeal.”
The appellants in this regard cited this Court’s decision in R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr.
[2003 (8) SCC 752], wherein this Court held that the High Court was
incorrect in rejecting the photocopies of documents as they were not
originals. In this light, since the Charity Commissioner is not required to
strictly adhere to the procedure under the Code of Civil Procedure, 1908
and the Evidence Act, 1872, the evidence submitted before the Charity
Commissioner may be admissible unless they are against the basic principles
of Evidence Law.
24. Finally answering the question raised by the appellants regarding the
scope of inquiry of the Charity Commissioner under Section 22 of the Act,
this Court in Church of North India (supra) very aptly provided a bird’s
eye view of Section 22 which is provided as under :
“….Section 22 provides for the change which may occur in any of the
entries recorded in the register kept under Section 17 to make an
appropriate application within 90 days from the date of the occurrence
of such change. Sub-section (1A) of Section 22 reads thus:
“(1A) Where the change to be reported under sub- section (1) relates
to any immovable property, the trustee shall, alongwith the report,
furnish a memorandum in the prescribed form containing the particulars
(including the name and description of the public trust) relating to
any change in the immovable property of such public trust, for
forwarding it to the sub-registrar referred to in sub- section (7) of
section 18.”
31. Sub-section (2) of Section 22 empowers a Deputy or Assistant
Charity Commissioner to hold an inquiry for the purpose of verifying
the correctness of the entries in the register kept under Section 17
or ascertaining whether any change has occurred in any of the
particulars recorded therein. In the event, a change is found to have
occurred in any of the entries recorded in the register kept under
Section 17, the Deputy or Assistant Charity Commissioner is required
to record a finding with the reasons therefore to that effect. Such an
order is appealable to the Charity Commissioner. By reason of changes
which have been found to have occurred, the entries in the register
are required to be amended. Such amendment on the occurrence of change
is final and conclusive.”
25. After analysing the facts and the law in the matter, we have noticed
that
it is the duty of the society to take steps in accordance with
Section 13 of the SR Act for its dissolution.
We have further noted that
unless the properties vested in the Trust are divested in accordance with
the provisions of the SR Act and in accordance with the BPTA, merely by
filing the Change Report/s, CNI cannot claim a merger of churches and
thereby claim that the properties vested in the Trust would vest in them.
In our opinion, it would only be evident from the steps taken that the
passing of resolutions is nothing but an indication to show the intention
to merge and nothing else.
In fact, the City Civil Court has correctly
held, in our opinion, which has been affirmed by the High Court, that
there was no dissolution of the society and further merger was not
carried out in accordance with the provisions of law.
In these
circumstances, we hold that the society and the Trust being creatures of
statute, have to resort to the modes provided by the statute for its
amalgamation and the so-called merger cannot be treated or can give
effect to the dissolution of the Trust.
In the matrix of the facts, we
hold that without taking any steps in accordance with the provisions of
law, the effect of the resolutions or deliberations is not acceptable in
the domain of law.
The question of estoppel also cannot stand in the way
as the High Court has correctly pointed out that the freedom guaranteed
under the Constitution with regard to the faith and religion, cannot take
away the right in changing the faith and religion after giving a fresh
look and thinking at any time and thereby cannot be bound by any rules of
estoppel.
Therefore, the resolution only resolved to accept the
recommendation of joint unification but does not refer to dissolution.
26. Having analysed the facts and the law in the matter, we are of the
opinion that the High Court and the City Civil Court have rightly
adjudicated on the matter in question and correctly set aside the order
passed by the Charity Commissioner.
27. Accordingly, we affirm the order passed by the High Court.
28. For the reasons aforementioned, we do not find any merit in the present
appeals and the same are dismissed accordingly.
………………………..J.
(Surinder Singh Nijjar)
New Delhi;
….…………………….J.
September 30, 2013.
(Pinaki Chandra Ghose)
-----------------------
34
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8800-8801 /2013
(Arising out of Special Leave Petition (Civil) Nos. 16575-16576 of 2012)
Vinodkumar M. Malavia etc.
… Appellants
Vs.
Maganlal Mangaldas Gameti & Ors. …
Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. These appeals are directed against the common judgment and order dated
April 23, 2012 (in First Appeal Nos. 1535 and 1536 of 2009) passed by the
High Court of Gujarat, affirming the order dated February 3, 2009 passed
by the City Civil Court (in Civil Misc. Application Nos. 470 of 2008 and
630 of 2008). The City Civil Court set aside the order dated May 23,
2008, passed by the Charity Commissioner. The said adjudication was made
by the Charity Commissioner pursuant to the order passed by this Court in
Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti and
Ors. [2006 (9) SCC 282] (being Civil Appeal No. 1260 of 2006, arising out
of SLP (Civil) No. 24198 of 2005, decided on February 24, 2006) in an
earlier ancillary dispute wherein this Court directed the Charity
Commissioner to adjudicate on all questions pertaining to the merger of
trust and other pending disputes as expeditiously as possible. Thus, the
Charity Commissioner adjudicated on the objections against Change Report
Nos. 44 of 1981 and 665 of 1981.
3. The facts of the case briefly are as follows :
1. The facts of the present case are not much in dispute and the
background of the same lies with the facts in the matter adjudicated
by this Court in Church of North India v. Lavajibhai Ratanjibhai &
Ors. [2005 (10) SCC 760] (being Civil Appeal No. 9419 of 2003 as
decided on May 3, 2005), therefore, the detailed background of the
parties and the organizations involved has not been mentioned and
only the facts pertinent to the dispute in question are stated.
2. The above mentioned Change Reports were filed by First District Church
of the Brethren (hereinafter referred to as ‘the FDCB’) a registered
religious society under the Societies Registration Act, 1860
(hereinafter referred to as ‘the SR Act’) bearing Registration No.
1202/44 and
later registered as public trust in Gujarat bearing No.E-
643/Bharuch, after the enactment of the Bombay Public Trusts Act,
1950 (hereinafter referred to as ‘the BPTA’) property of which is
vested with its ‘Property Committee’ and the Church of North India
(hereinafter referred to as ‘the CNI’), Gujarat Diocese.
The CNI is a
public trust registered by an application accepted on May 12, 1970
with effect of registration being given from 1971 and the trust being
formed on November 29, 1970 with Registration No. D-17/Ahmedabad.
3. These Change Reports were filed to give effect
to the unification of
six churches which included
the FDCB, an offshoot of the ‘Brethren
Church’ of USA (other Churches being The Council of the Baptist Churches in North India, The Church of India, Pakistan, Burma and Ceylon, The Methodist Church (British and Australian Conference),
The Methodist Church in Southern Asia and The United Church of Northern India) into a single entity,
‘The Church of North India’ (with the Gujarat Chapter being managed by the Church of North India, Gujarat, Diocese).
4. This unification is the result of a process which commenced from
1929. The negotiation meetings commenced from 1955 onwards which had
representatives from the uniting churches who discussed every aspect
of the emerging entity. A result of which was the Plan of Church
Union in 1965 called the 4th Revised Edition in the form of a printed
booklet published by the Negotiating Committee and widely circulated
and deliberated by the uniting Churches which adopted the same. The
plan traced the historic background leading to the creation of the
CNI and dealt with all aspects of the same. Part-II of the same
pertained to procedural details of the unification. The plan is a
result of the negotiations through various meetings convened in the
years 1955, 1956, 1957, 1961, 1964 and 1970. The Managing Committee
of the FDCB being the ‘District Committee’ initially participated in
these meetings as an observer, however, from 1956, it joined the
negotiation process. It is alleged that Resolution No. 70/08 was
passed on February, 17, 1970 pursuant to which the CNI was formed by
merging the six churches. FDCB being one of the six churches,
discussed the unification internally within its 21 Societies and put
the same to vote at different junctions and in the final decision,
the resolution was approved by 3/5th majority of the representatives
of the Governing Body. Allegedly, on November 29, 1970, the FDCB
merged with the other six churches to form CNI and accepted the same
as its legal continuation and successor and vested with the CNI its
rights, titles, claims and FDCB’s interests together with its
privileges and obligations.
5. In 1976, the Church of North India Trust Association (hereinafter
referred to as ‘the CNITA’) was formed under the Indian Companies
Act, 1956 and appointed as the trustee of CNI. It has been alleged
that the annual meetings of the FDCB were discontinued post 1971.
That certain members which had earlier given consent to Resolution
70/08 began to raise objections that FDCB continued to exist.
Subsequently, the original plaintiff (Shri A.O. Patel) filed Civil
Suit No. 72 of 1979 in the Court of the Civil Judge, Senior Division,
Bharuch for a declaration that FDCB has come to an end and that CNI
is the legal successor and continuation of the same. During the
pendency of the suit, CNI got itself registered retrospectively and
Change Report Nos. 44/81 and 665/81 were filed before the Charity
Commissioner to give effect to the changes resulting the unification.
The aforementioned suit, after an appeal before the District Judge,
Bharuch went before the Gujarat High Court as Second Appeal No. 303
of 1986, the same was dismissed and the matter came up before this
Court as Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra) (In Civil Appeal No. 9419 of 2003, decided on May 3, 2005).
Therein, the question which arose before this Court was: whether
Section 80 of the BPTA imposes a bar on the jurisdiction of the Civil
Court.
6. The present dispute, however, arises from objections arising out of the adjudication by the Charity Commissioner dated May 23, 2008 regarding Change Report Nos. 44/81 and 665/81.
The same proceeding
commenced post the direction of this Court in Vinod Kumar Mathurseva
Malvia & Anr. v. Maganlal Mangaldas Gameti & Ors. (supra) (Being
Civil Appeal No. 1260 of 2006, decided on February 24, 2006). The
same arose out of orders dated October 6, 2005 and October 10, 2005,
passed in First Appeal No. 988 of 2005 by the High Court of Gujarat
with regard to a trust application appointing a new trustee.
The
matter before this Court was regarding the interpretation and
application of Clause 9 of the scheme of Church of Brethren General
Board.
This Court referred to the earlier Church of North India v.
Lavajibhai Ratanjibhai & Ors. (supra) decision of this Court
applicable to the same set of facts and thereby directed the
concerned Charity Commissioner to adjudicate on all pending disputes.
7. The Charity Commissioner adjudicated on the disputes arising out of
the Change Report Nos. 44/81 and 665/81. The former was filed by Shri
A.O. Patel being the Reporting Trustee of the Brethren Trust
concerned with the dissolution of the constitution of the Brethren
Trust with its “Memorandum of Association” becoming “obsolete” and
ineffective (It should be noted that Shri A.O. Patel had died during
the pendency of the proceedings and appellant Nos. 1 and 2 were
joined in his place). The latter report was filed by CNI, Gujarat
Diocese Trust which requests for the change, that as the CNI Trust
has become the legal continuation and successor of the Brethren
Trust, its concerned movable and immovable property must be added to
CNI’s properties. The Change Reports were objected by Shri Nityanand
Thakore and other objectors filed similar objection applications.
These persons along with the respondents in this dispute being Shri
Shantilal Thakore and Shri Maganlal M. Gameti had earlier given
consent to the unification proceeding. The Charity Commissioner thus
adjudicated on the following questions:-
i) Whether the change is legal?
ii) Whether the said Change Reports or any of the Change Reports
are liable to be allowed?
The Charity Commissioner answered both in affirmative and dismissed the objections raised against the Change Reports, allowing the properties vested in FDCB to be vested in CNI.
8. Against the abovementioned order of the Charity Commissioner,
the objectors to the Change Reports preferred Civil Miscellaneous
Application Nos. 470 of 2008 and 630 of 2008 before the City Civil
Court, Ahmedabad under Section 72 of the BPTA.
The applications were
filed, alleging that there was no lawful merger of the Trust and the
property vested with the Property Committee continued to exist with
it. The questions which arose before the learned City Civil Judge are
as under:-
i) Whether the Society is dissolved and secondly, whether the
Trust, i.e., FDCB is also dissolved?
ii) Whether CNI is successor of the Trust, i.e., FDCB?
iii) Whether by mere merger of FDCB into various other Churches,
the properties are by rules and regulations of the Society
ipso facto vested in CNI, without having to perform any other
legal obligation or formality?
9. The learned Civil Court Judge, after analyzing the various aspects of
the BPTA and the SR Act, was of the opinion that the FDCB had not been
dissolved as there was no proper proof of the same. Furthermore, as a
trust and society are creations of statutes, they must be dissolved
accordingly and the question of merger is a factual one, wherein the
merging trust continues to exist unless specifically dissolved under the
statute. Furthermore, without following Section 50A of the BPTA which
deals with the dissolution of trust, the FDCB property cannot be vested
with CNI. Thus, the learned Civil Court Judge quashed and set aside the
order of the Charity Commissioner.
10. The appellants (wherein appellant No.1 was one of the respondents in
the above suit) preferred First Appeal Nos. 1535 of 2009 and 1536 of
2009 before the High Court of Gujarat. The basic issue before the
learned Single Judge was to determine
whether the CNI is the successor
and legal continuation of FDCB or not. The learned Single Judge while
adjudicating the same, referred to the earlier decisions of this Court
in the same factual matrix and based on the earlier findings, dismissed
the appeals and confirmed the order of the Civil Court.
11. It is from this order of the High Court the matter rests before us.
4. Mr. Mihir Joshi, learned senior counsel appearing on behalf of appellant
No.1 (in C.A. No. ___/2013 @ SLP (C) No.16575/2012), argued that the
unification of the six churches is pursuant to the choice exercised by
the uniting churches through various internal resolutions and the same is
a religious matter involving faith, and the courts below cannot
adjudicate on the same since such a choice is protected by Articles 25
and 26 of the Constitution. He further contended that the unification has
been a long drawn process which culminated on November 29, 1970 when CNI
was formed and since 1979, annual meetings of the same are being
conducted in which the respondents who had given consent to the
unification also participated. Mr Joshi further contended that the stand
taken by the respondents does not hold good as they are estopped from
raising objections owing to their earlier consent to the unification in
the internal resolutions passed by FDCB. Furthermore, as argued by Mr.
Joshi, the objections have no substance since the respondents are not
prevented from practising their faith and there is no change in the
practices followed by CNI which is a result of amalgamation of the
uniting churches. He further contended that as per the scope of inquiry
under Section 22, the Charity Commissioner’s decision must not be set
aside as the Act is a complete Code; that Section 50A of the BPTA is only
administrative in nature but in the present case the matter is of choice
exercised by a community as a whole.
5. Mr. K.V. Vishwanathan, learned senior counsel appearing on behalf of
appellant No. 2 (in C.A. No. ___/2013 @ SLP (C) No. 16576/2012), in
addition to Mr. Joshi’s arguments, contented that the right to unify is
an inherent right exercised by the community promised under Articles 25
and 26. Furthermore, the respondents have not challenged the unification.
Therefore, the view of the High Court is incorrect and the Charity
Commissioner rightly accepted the Change Reports effecting the
unification.
6. It is the case of the respondents that the unification did not dissolve
FDCB as the procedure laid down in the Societies Registration Act and the
BPTA was not adhered to. Furthermore, under Articles 25 and 26, they are
entitled to object to the unification as their faith is being impinged
upon and, therefore, they cannot be bound by estoppel. Mr. Bhatt, learned
senior counsel appearing on behalf of the respondents, has contended that
there is no question of merger and subsequent transfer of trust property
as the resolutions, which have been relied upon by the appellants, do not
have any legal sanctity and they cannot be placed above the law of the
land.
7. Mr. Joshi further supplemented his submissions and has submitted that
the High Court’s determination that the said resolutions have interfered
with Articles 25 and 26 as they impose religious faith and tenets on FDCB
is incorrect, firstly, because such consideration is beyond the scope of
inquiry under Section 22 and beyond the scope of the BPTA as it entails
adjudication on religious affairs; secondly, the same is not an ordinary
question fit to be decided by the Charity Commissioner and one which
attracts the jurisdiction of the Civil Court which is not ousted in this
aspect by the BPTA, in fact the question is beyond the scope of the BPTA.
Further, pointed out that the inquiry under Section 22 is only regarding
the legality of the charge and does not extend to adjudicating rights of
parties under general law, therefore the Charity Commissioner has
correctly held that unifications is a religious process; furthermore
unification happened in 1970 and has not been challenged by the objectors
who were a part of the process and the High Court has, thus, overlooked
that the right to merge is a religious matter and the statute must be
interpreted accordingly. Further, submitted that the Resolutions are not
contrary to the BPTA as no provision provides for prior permission of the
Charity Commissioner and even if there existed one same would have been
unconstitutional, also Section 50A is only an enabling Section and the
power vested under the same is for better administration of trusts, which
is not the reason presently; secondly, the only procedure required to be
followed was that under Section 22, being recording of unification due to
resolutions; thirdly, as there is no dissolution, the obligation attached
to the property is same and after merger only the administrative
machinery has been changed; lastly, there is no transfer of property and
obligations remain the same, albeit in a different name. It was further
submitted that the contention that CNI came into existence in 1980 is
misconceived as Registration is only acknowledgment of trust and is not
related to incorporation of any company. Further, submitted that the
finding that procedure under the SR Act must be followed is untenable as
assets had not been vested in the society and the same need not be
examined; moreover the resolutions were passed by members and the Charity
Commissioner had no jurisdiction to examine the SR Act and such
objections should not have been raised before him; in addition but
without prejudice to the same also submitted that the 3/5th majority
requirement under the SR Act was complied with and no dispute had been
raised under Section 13 of the SR Act. Further, contended that the High
Court’s finding that unification amounts to imposition of tenets is not
correct as after the merger the same religious practice existed, a fact
accepted by the Civil Court as well; moreover as CNI was an amalgamated
body, there is no question of imposition or taking over. Also contended
that the rejection of the Change Reports by the High Court is untenable
as all documents exhibited before the Charity Commissioner have been
proved in the Civil Court and also strict rules of evidence do apply to
such proceedings. It is submitted that the finding of the High Court that
objectors are not barred by estoppels is incorrect as the objections lack
bonafide. Lastly, he submitted that the contention that the issue had
been decided in Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra) does not hold good in the light of the subsequent decision in
Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti & Ors.
(supra).
8. Appellant No. 2 in his written submissions settled by Mr. Vishwanathan,
has further supplemented and submitted that the issue of merger of
churches is not amenable to jurisdiction of courts and is independent of
the BPTA as it is a religious or ecclesiastical matter not subject to
judicial scrutiny; that they have placed sufficient evidence before the
Charity Commissioner to prove the factum of merger which has been upheld
by the City Civil Court as well; that sub-section (2) of Section 50A of
the BPTA comes into play when the Charity Commissioner is of the opinion
that trusts must be merged due to mismanagement, however in the present
matter the merger is due to religious and ecclesiastical reasons, and,
therefore sub-section (2) of Section 50A is not applicable; that Section
13 of the SR Act is not applicable as it is not a case of dissolution of
churches but a merger, furthermore, the BPTA is a complete code and
merger of trust registered under the BPTA cannot be contingent on the
requirements under Section 12 of the SR Act, furthermore, the
applicability of both the statutes creates an anomalous situation; one of
the objectors himself was the trustee when the Change Reports were filed
and only a miniscule faction have objected to the Change Reports; that
the resolutions for merger of FDCB with CNI passed by the internal bodies
of FDCB have not been assailed or challenged by anybody (including the
respondents) before the Civil Court, therefore these resolutions continue
to bind all the members of the FDC including the respondents; and lastly,
that the Charity Commissioner under Section 22 of the BPTA conducts an
enquiry into the factum and legality of change and in this light, the
Charity Commissioner has, therefore, passed a reasoned order.
9. Per contra, the respondents have submitted that there are many
unexplained lapses in the entire formation of CNI, first being that the
Change Reports have been filed eleven years after the occurrence of the
alleged changes in violation of Section 22 of the BPTA which requires
that a change is to be mandatorily reported after 90 days of its
occurrence; secondly, CNITA being the trustee of CNI, was formed six
years after the alleged formation of CNI which was registered in 1980,
thereby creating a situation where the CNI trust did not have a trustee
for six years and did not have any legal status till its registration in
1980; thirdly, CNI only submitted its audited books of accounts prior to
1984; lastly, CNI was registered after ten years of unexplained delay and
the same was ex-parte, furthermore, as per the appellants, CNI was the
successor of FDCB; however, at the time of subsequent registration, the
properties of FDCB were not shown in the registration form as properties
of CNI. In this background, the present Change Reports are incorrect and
in violation of Section 22 as they seek to effect a change which took
place prior to the registration of the trust, furthermore in the light of
the above, the claim of the appellants that CNI is the legal successor of
FDCB since its formation on November 29, 1970 till date does not hold
good. The respondents further submitted that, admittedly, the FDCB was
first registered under the SR Act and then under the BPTA when it came
into force and is, therefore, governed by both which are regulatory in
nature; that in addition to the above, the present Change Reports seeking
alienation of the properties of a registered trust are not in compliance
with Section 36 and/or Sections 50A, 51, 50 of the BPTA and that the
trust which exists in perpetuity does not stand dissolved by the
declaration of a Charity Commissioner who has declared the same without
resorting to Section 13 of the SR Act; that even the other denominations
which merged with CNI continue to exist and own the property; that the
resolutions placed by the appellants only speak about merger and there is
nothing on record which indicates the intent of dissolution of trust or
society; that a society stands dissolved only after the procedure under
Section 13 of the SR Act is followed and the dissolution of a society
does not ipso facto mean that properties of the trust are also adjusted;
that many persons objected to the unification and M.M. Gameti is only the
principal objector who never held any post or signed any documents and
even such documents are without any legal consequence; and lastly, that
the unification is the secular part ancillary to religious practice and
is, therefore, subject to judicial scrutiny.
10. Having heard the rival contentions and after considering the written
submissions, we are of the opinion that the primary issue which needs to
be answered is : whether the alleged unification of the First District
Church of Brethren with the Church of North India is correct or not, and
the same answers all the ancillary issues raised before us.
11. Regarding the issue of unification, we are of the opinion that the
questions regarding the validity of the unification process have been
answered in the observations made by this Court in Church of North India
v. Lavajibhai Ratanjibhai & Ors. (supra), wherein the matter was
regarding the bar of jurisdiction of the Civil Court under Section 80 of
the BPT Act. This Court in the aforementioned matter delineated the
jurisdiction of the authorities and the Civil Court under the BPT Act and
under what circumstances which body has jurisdiction. While reaching to
its conclusion, this Court at great length discussed the provisions of
the SR Act and the BPTA and the relationship between the two and
determined that :
“61. There is nothing on record to show that the churches concerned
were being managed by the societies registered under the Societies
Registration Act. In any event, it stands accepted that the dispute as
regards dissolution of societies and adjustment of their affairs
should have been referred to the Principal Court of original civil
jurisdiction.
62. The suit in question also does not conform to the provisions of
Section 13 of the Societies Registration Act.
63. Section 20 of the Act provides that the societies enumerated
therein can only be registered under the said Act.
64. Unless a suit is filed in terms of Section 13 of the Act, the
society is not dissolved. Even assuming that the society stands
dissolved in terms of its memorandum of association and articles of
association, the same would not ipso facto mean that the properties
could be adjusted amongst the members of the society in terms of the
provisions of the said Act. Concededly, the properties of the trust
being properties of the religious trust had vested in such trust. Such
a provision, we have noticed hereinbefore, also exists in the BPT Act.
Thus, only because the society has been dissolved, ipso facto the
properties belonging to the trust cannot be said to have been
adjusted. The appellants, thus, we have noticed hereinbefore, have
averred in the plaint that the suit relates to the property of the
trust and their administration. If the properties of the churches did
not belong to the society, the appellant herein cannot claim the same
as their successor. …”
(emphasis supplied)
12. It has been alleged by the appellants that under Articles 25 and 26 of
the Constitution, they are entitled to manage their affairs and the
question of unification of churches is a religious decision over which
the courts have no jurisdiction. We are of the opinion that the
unification has no legal foundation whatsoever. The FDCB is a religious
society registered under the Societies Registration Act and its property
vests with a Trust regulated by the BPTA. As per the BPTA, a public trust
being religious in nature, may also be a society under the Societies
Registration Act. It is a well accepted principle that a body created by
a statute must conform to the provisions of the regulating statute. In
the present case, the procedure for dissolution of FDCB has not conformed
to the requirements set out in Section 13 of the SR Act and the procedure
as laid down in the BPT Act as noted in Church of North India v.
Lavajibhai Ratanjibhai & Ors. (supra). Furthermore, the case of the
appellants is based on the resolutions and deliberations which it has put
on record in support of its claim of dissolution and subsequent
unification. However, as per the finding of the lower courts, no such
resolution or minutes of such deliberations comply with the procedure as
laid down in the statutes. All the material on record as per the lower
court only talks about amalgamation and there is no reference to
dissolution of FDCB as required under the Societies Registration Act.
Therefore, the High Court has rightly opined that :
“….. However, the fact remains that there is no basis or foundation or
the legal or other frame work, which could be said to be binding and
which could be relied upon by the appellant.”
Resolution 70/08 on which the case of the appellants is built whether
complying with or not with the requirements under the SR Act, does not
dissolve the FDCB Trust. Therefore, it would be improper if the religious
society being FDCB stands dissolved on the basis of the material produced
before the lower court. Therefore, in light of the aforementioned judgment
of this Court, the High Court and the lower court are correct in holding
the same.
13. The property of a Society under Section 5 of the SR Act, if not vested
in trustees, then only shall vest for the time being with the governing
body of such society. The properties of FDCB vested with public trust,
being No.E-643/ Bharuch. It was also recognized by this Court in Church
of North India v. Lavajibhai Ratanjibhai & Ors. (supra) wherein it was
observed thus :
“60. We are not oblivious of the fact that the resolution adopted in
the meeting held on 17-2-1970 allegedly fulfilled all the requirements
for such resolution as provided in the Societies Registration Act but
it is now beyond any controversy that the society having not owned any
property, their transfer in favour of a new society was impermissible
in law. In terms of Section 5 of the Societies Registration Act, all
properties would vest in the trustees and only in case in the absence
of vesting of such properties in the trustees would the same be deemed
to have been vested for the time being in the governing body of such
property. In this case, it is clear that the properties have vested in
the trustees and not in the governing body of the society.”
The resolutions produced and the deliberations made in the internal
meetings of FDCB only talk about amalgamation of FDCB with the other
churches and the intent to dissolve the society and the registered trust is
not conveyed and cannot be read into the same. On the basis of these
resolutions and deliberations, the claim of the appellants that CNI is the
successor of the property of the FDCB, which vests with the registered
trust, does not hold good.
14. As observed by this Court in the aforementioned judgment, while
analyzing various provisions of the BPTA, the alienation of movable
property of the trust without previous sanction of the Charity
Commissioner is barred under Section 36. This Court in its judgments in
Church of North India v. Lavajibhai Ratanjibhai and Ors. (supra) and
Vinod Kumar Mathurseva Malvia and Anr. v. Maganlal Mangaldas Gameti and
Ors. (supra) has clearly stated that the BPTA is a complete code.
Furthermore, in Church of North India (supra), this Court has observed
thus :
“69. We have noticed hereinbefore that the BPT Act provides for
finality and conclusiveness of the order passed by the Charity
Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and
79(2).”
The statute provides for a proper procedure for the claimants to adopt for
the transfer of the property and the same has not been observed. The case
of the appellants is that the dissolution of the society automatically
dissolves the trust and vests the property of trust with CNI, designated as
the successor of the same which is based on the resolutions etc. placed on
record. However, the procedure for the amalgamation of a trust scheme
stemming out from Section 50A BPTA, which is a complete code, has been
disregarded. Therefore, the High Court while referring to the judgment of
the Civil Court has correctly observed that:
“…it has been clearly observed with regard to merger that such society
being a Trust registered under the Bombay Public Trust Act is required
to follow the procedure for amalgamation or merger as contemplated
under the Section 50A(2) of the Bombay Public Trust Act. Further,
since the Society and the Trust being the creation of the Statute,
they have to comply with the modes provided in the Statute for
amalgamation and necessary procedure including the approval of the
Charity Commissioner has to be there before such merger takes place. A
useful reference can be made to Section 50A(2) of the Bombay Public
Trust Act. It is required to be mentioned that mere expression or
desire to merger by passing Resolution by the Brethren Church would
result into merger unless it is approved with the procedure followed
under the Bombay Public Trust Act. Further, the properties, which are
vested in the committee of such Church, which is registered as FDCB,
would be managing the affairs of the Trust and the corpus of the Trust
cannot be transferred along with the property without following
procedure or approval of the Charity Commissioner under the Bombay
Public Trust Act.”
(emphasis supplied)
Furthermore, as the statute has only provided for Section 50A, persons
governed by the same must act within the four corners of the legislation
and should not question the legislative wisdom on the grounds that as
certain aspects have not been provided in a statute so they have no bearing
on them.
15. In addition to the above, there are evident lapses in the formation of
CNI which have been observed by the High Court in paragraph 17 of its
judgment and we also concur with the view of the High Court wherein:
Firstly, it is alleged that CNI was formed on November 26, 1970 post
Resolution 70/08 dated February 17, 1970, however the same was sought to
be registered in 1980 and given registration with effect from 1971. The
same is contrary to the requirements as laid down in Section 18 of the
BPTA which requires registration of a public trust within three months of
a creation as per clause (b) of sub-section (4). The Act is also silent
about the registration with retrospective effect. But the dispute is not
regarding the interpretation of the procedure of registration under the
BPTA, therefore, we refrain from going further into the details of the
same. The second lapse which exists is that in 1976, the Church of North
India Trust Association (CNITA) was formed under the Indian Companies
Act, 1956 and appointed as the trustee of CNI; a trust allegedly existing
since 1971 which succeeded FDCB in 1970 which was allegedly dissolved and
its annual meetings discontinued since 1971. A suit for declaration of
CNI as the successor of FDCB was filed in 1979 (held not to be
maintainable in Church of North India (supra)). During the pendency of
the 1979 suit, Change Report Nos. 44 of 1981 and 665 of 1981 were filed
in 1980. This situation created a scenario where FDCB simply vanished
after the 1970 resolutions and who managed its properties till CNITA is
an unresolved question, identified by this Court in Church of North India
(supra) which stated that “….Furthermore, there is nothing on record to
show the mode and manner of the management and control of the trust
property.” Subsequently this Court in the abovementioned case discussed
the procedure under the BPTA which is reproduced as under:
“70…..The BPT Act provides for express exclusion of the jurisdiction
of the civil court. In various provisions contained in Chapter IV, a
power of inquiry and consequently a power of adjudication as regards
the list of movable and immovable trust property, the description and
particulars thereof for the purpose of its identification have been
conferred. In fact, the trustee of a public trust is enjoined with a
statutory duty to make an application for registration wherein all
necessary descriptions of movable and immovable property belonging to
the trust including their description and particulars for the purpose
of identification are required to be furnished. Section 19 provides
for an inquiry for registration with a view to ascertaining inter alia
the mode of succession to the office of the trustee as also whether
any property is the property of such trust. It is only when the
statutory authority satisfies itself as regard the genuineness of the
trust and the properties held by it, is an entry made in the registers
and books, etc. maintained in terms of Section 17 of the Act in
consonance with the provisions of Section 21 thereof. Such an entry,
it will bear repetition to state, is final and conclusive. Changes can
be brought about only in terms of Section 22 thereof.”
The above facts clearly show non-compliance with the procedure under BPTA.
The argument that as per Article 254 of the Constitution, the Societies
Registration Act overrides the BPTA or that the Societies Registration Act
and BPTA are in conflict, does not stand either, since both the statutes
are not in conflict with each other. On the contrary, they are in
consonance with each other regarding the administration and regulation of
public and religious trusts.
16. Therefore, we are of the opinion that the claim of the appellants that
following unification of FDCB with CNI after the purported resolution
resulted in the dissolution of FDCB making CNI its legal successor and
controller of its properties, does not hold good and cannot be accepted.
The High Court has rightly observed that :
“….. The trust which has been created as public trust for a specific
object and the charitable or the religious nature or for the bonafide
of the Society or any such institution managed by such trusts for
charitable and religious purpose shall continue to exist in perpetuity
and it would not cease to exist by any such process of thinking or
deliberation or the Resolution, which does not have any force of law.”
17. Since the FDCB trust never stood dissolved, the properties of the same
will not vest with CNI. Earlier also, this Court in Church of North India
(supra) has observed the same and stated that :
“…the purported resolutions of the churches affiliated to the
Brethren Church and merger thereof with the appellant, having regard
to the provisions of the Act was required to be done in consonance
with the provisions thereof. It is not necessary for us to consider as
to whether such dissolution of the churches and merger thereof in the
appellant would amount to alienation of immovable property but we only
intend to point out that even such alienation is prohibited in law.”
18. Objections have been raised regarding the jurisdiction of the Charity
Commissioner and the courts impinging on the freedoms guaranteed under
Articles 25 and 26 of the Constitution. It has been alleged that a
refusal to allow the change in trust nullifies the choice exercised by
the community in a matter which is purely religious, of faith and
ecclesiastical; especially considering the fact that the newly created
entity follows the same religion. Furthermore, the issue of estoppel has
been raised in the light of the same in relation to the objections to the
unification raised by the respondents who had earlier consented to the
same.
19. Firstly, we would answer the issue of the jurisdiction of the Charity
Commissioner and lower courts. The choices of the community herein are
the purported resolutions and deliberations. These resolutions are an
attempt to effect a change in management and ownership of the FDCB trust
properties in a manner which is against the law of the land. However, it
is the case of the appellants that as per Articles 25 and 26, they are
free to manage their own affairs and have relied on judgments of this
Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282] and
Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors. [AIR 1954 SC
388].
20. We are of the opinion that the appellants’ reliance on the
abovementioned two judgments is misplaced. In The Commissioner, Hindu
Religious Endowments, Madras (supra), this Court while adjudicating upon
the validity of Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the
Madras Hindu Religious and Charitable Endowments Act, 1951 against
Articles 19(1)(f), 25 and 26 of the Constitution of India and examining
the distinction between tax and fee, held that the Sections were ultra
vires and Section 76 (1) of the Madras Hindu Religious and Charitable
Endowments Act, 1951 was void. It was also held that a levy under this
section does not attract Article 27 as it was for the maintenance of the
religious trust despite being a tax. While deciding on the above, this
Court delved into many questions regarding the scope of religion and
recognized the reservations to the freedom of religion under Article
25(2) and that the State is empowered to legislate on the secular
activities ancillary to practice of religion and that the courts are
empowered to decide whether the same is an integral part of religious
practice or a secular part. In Ratilal Panachand Gandhi (supra), the
validity of Section 44 and levy under Section 58 of the BPTA was
questioned against Articles 25 and 26. As per this Court, Section 44 was
held to be unconstitutional. However, the levy under Section 58 was
termed as a fee and was allowed. While deciding on the same, this Court
once again reiterated on the power of the Government to legislate on
regulating the secular aspects of religious practice as allowed under
clause (2) of Article 25. In light of the same, the High Court while
disregarding the unification procedure, has rightly observed that :
“…it will amount to accepting that such Resolutions or deliberation
are above the law and the law that any such Resolution passed anywhere
will have more binding force then (sic) the law created by the
Sovereign Authority of India like the Bombay Public Trust Act as well
as the provisions of the Constitution under Articles 25 and 26 of the
Constitution of India. In fact, Article 26 which provides for the
freedom of the religious faith and Article 26 which provides for the
freedom of acquiring and administering the property or the Trust in
accordance with law, meaning thereby, the provisions of the Bombay
Public Trust Act, which has been created, would have no application
again in the guise of such Resolution. Even the Transfer of Property
Act will have no bearing and properties of various Trust or the
Churches would get automatically transferred or vested without any
requirement of law being fulfilled, without any document, without any
registration, stamp etc. therefore, it would be rather over
simplification to accept the submission that it was merely a
Resolution for a merger or unification of various Churches for better
understanding and advancement of cause of religion and faith and the
Court should not examine this aspect even though there is a strong
protest which has led to repeated round of litigations before the
Courts upto the Hon’ble Apex Court. The underlying object or the
purpose even if it assumed that it is only for better administration,
still it cannot have any predominance or the constitutional provision
or the law of land”
21. Regarding the issue of estoppels raised by the appellants, we feel that
there is no need to interfere or clarify the views of the High Court
which are as under:
“…Therefore, the submission made on the ground of estoppel that once
having accepted the Resolutions or having participated at the time of
discussion on Resolution or unification, same people have backed out.
Therefore, they are stopped from now changing their stand is without
any basis and misconceived. There is no question of having changed the
stand or faith but it is a question which is required to be considered
whether one sect like the Church of Northern India can impose religion
faith, acquire the trust and its property and take away total state of
affairs for the managing of such Trust, which have been established
for management of the various Churches at different levels. The
principles of estoppel or promissory estoppel in such cases have no
application.”
Furthermore, the Court has rightly opined that:
“….. Therefore, there is no question of any promise made out, for
which, the estoppel could come into play. In fact, even if it is
assumed that some of the people had initially participated at some
stage with regard to merger or unification of the Church of Brethren
Trust into the Church of North India, one can still have a re-look or
fresh thinking at the entire episode and have a different opinion at
later stage, which cannot be prohibited. The constitutional provision
under Articles 25 & 26, which is the genesis for such freedom has
granted such right, which cannot be taken away or curtailed on the
ground of estoppel.”
Thus, the High Court has precisely concluded that:
“…the focus has to be on the ultimate freedom of faith, religion and
persuasion of such faith and belief as one likes, which cannot be
curtailed. As a matter of fact, by the aforesaid procedure and the
litigations, which have been repeated, it is reflected that in the
name of unification or merger, it is aimed that there is total control
of not only properties and the churches but it will also have an
ultimate effect of imposing particular faith or belief, which is not
permissible.”
22. On the issue of jurisdiction of civil courts: whether Section 80
imposes a complete bar or not and in what circumstances is the
jurisdiction shared between the Charity Commissioner and the civil
courts, we are of the opinion that these issues have been adequately
answered by this Court in Church of North India (supra), wherein this
Court discussed the jurisdiction under the BPTA at length after referring
to many prominent cases including Dhulabhai and Ors. v. The State of
Madhya Pradesh and Anr. [1968 (3) SCR 662]. This Court thus observed that
:
“82. The provisions of the Act and the Scheme thereof leave no manner
of doubt that the Act is a complete code in itself. It provides for a
complete machinery for a person interested in the trust to put forward
his claim before the Charity Commissioner who is competent to go into
the question and to prefer appeal if he feels aggrieved by any
decision. The bar of jurisdiction created under Section 80 of the Act
clearly points out that a third party cannot maintain a suit so as to
avoid the rigours of the provisions of the Act. The matter, however,
would be different if the property is not a trust property in the eye
of law. The civil court's jurisdiction may not be barred as it gives
rise to a jurisdictional question. If a property did not validly vest
in a trust or if a trust itself is not valid in law, the authorities
under the Act will have no jurisdiction to determine the said
question.”
Furthermore, this Court concluded its observation by holding that:
“98. ….The Civil Court will have no jurisdiction in relation to a
matter where over the statutory authorities have the requisite
jurisdiction. On the other hand, if a question arises, which is
outside the purview of the Act or in relation to a matter, unconnected
with the administration or possession of the trust property, the Civil
Court may have jurisdiction. In this case, having regard to the nature
of the lis, the jurisdiction of the Civil Court was clearly barred.”
In the present dispute also, the respondents approached the Civil Court
under Section 72(1) of the Act and the Civil Court correctly exercised
jurisdiction over the same.
23. The question regarding the admissibility of evidence adduced before the
Charity Commissioner has been adequately addressed by the High Court and
we do not find any reason to interfere with the same. The observations of
the High Court in this regard are as under :
“21…It is well accepted that though the Charity Commissioner is not
the Court, the procedure is to be followed like the Civil Court. The
procedure as provided in the Civil Procedure Code would mutatis
mutandis apply. In other words, though the Charity Commissioner has
discretion to have evolved his own procedure, normal procedure under
the Civil Procedure Code is followed in such matter. It is required to
be mentioned that even though strictly Civil Procedure Court (sic) may
not be applicable, still the procedure is required to be followed in
order to provide fair opportunity to other side to contest on every
issue including the documents, which are sought to be produced and
also to decide the probative value after it is exhibited as per the
Evidence Act. Therefore, it is necessary that all such Resolutions
etc. ought to have been placed on record, which has not been done.
Therefore, what was not forming the part of the record in the original
proceedings cannot be permitted to be supplemented by way of
explanation in appeal.”
The appellants in this regard cited this Court’s decision in R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr.
[2003 (8) SCC 752], wherein this Court held that the High Court was
incorrect in rejecting the photocopies of documents as they were not
originals. In this light, since the Charity Commissioner is not required to
strictly adhere to the procedure under the Code of Civil Procedure, 1908
and the Evidence Act, 1872, the evidence submitted before the Charity
Commissioner may be admissible unless they are against the basic principles
of Evidence Law.
24. Finally answering the question raised by the appellants regarding the
scope of inquiry of the Charity Commissioner under Section 22 of the Act,
this Court in Church of North India (supra) very aptly provided a bird’s
eye view of Section 22 which is provided as under :
“….Section 22 provides for the change which may occur in any of the
entries recorded in the register kept under Section 17 to make an
appropriate application within 90 days from the date of the occurrence
of such change. Sub-section (1A) of Section 22 reads thus:
“(1A) Where the change to be reported under sub- section (1) relates
to any immovable property, the trustee shall, alongwith the report,
furnish a memorandum in the prescribed form containing the particulars
(including the name and description of the public trust) relating to
any change in the immovable property of such public trust, for
forwarding it to the sub-registrar referred to in sub- section (7) of
section 18.”
31. Sub-section (2) of Section 22 empowers a Deputy or Assistant
Charity Commissioner to hold an inquiry for the purpose of verifying
the correctness of the entries in the register kept under Section 17
or ascertaining whether any change has occurred in any of the
particulars recorded therein. In the event, a change is found to have
occurred in any of the entries recorded in the register kept under
Section 17, the Deputy or Assistant Charity Commissioner is required
to record a finding with the reasons therefore to that effect. Such an
order is appealable to the Charity Commissioner. By reason of changes
which have been found to have occurred, the entries in the register
are required to be amended. Such amendment on the occurrence of change
is final and conclusive.”
25. After analysing the facts and the law in the matter, we have noticed
that
it is the duty of the society to take steps in accordance with
Section 13 of the SR Act for its dissolution.
We have further noted that
unless the properties vested in the Trust are divested in accordance with
the provisions of the SR Act and in accordance with the BPTA, merely by
filing the Change Report/s, CNI cannot claim a merger of churches and
thereby claim that the properties vested in the Trust would vest in them.
In our opinion, it would only be evident from the steps taken that the
passing of resolutions is nothing but an indication to show the intention
to merge and nothing else.
In fact, the City Civil Court has correctly
held, in our opinion, which has been affirmed by the High Court, that
there was no dissolution of the society and further merger was not
carried out in accordance with the provisions of law.
In these
circumstances, we hold that the society and the Trust being creatures of
statute, have to resort to the modes provided by the statute for its
amalgamation and the so-called merger cannot be treated or can give
effect to the dissolution of the Trust.
In the matrix of the facts, we
hold that without taking any steps in accordance with the provisions of
law, the effect of the resolutions or deliberations is not acceptable in
the domain of law.
The question of estoppel also cannot stand in the way
as the High Court has correctly pointed out that the freedom guaranteed
under the Constitution with regard to the faith and religion, cannot take
away the right in changing the faith and religion after giving a fresh
look and thinking at any time and thereby cannot be bound by any rules of
estoppel.
Therefore, the resolution only resolved to accept the
recommendation of joint unification but does not refer to dissolution.
26. Having analysed the facts and the law in the matter, we are of the
opinion that the High Court and the City Civil Court have rightly
adjudicated on the matter in question and correctly set aside the order
passed by the Charity Commissioner.
27. Accordingly, we affirm the order passed by the High Court.
28. For the reasons aforementioned, we do not find any merit in the present
appeals and the same are dismissed accordingly.
………………………..J.
(Surinder Singh Nijjar)
New Delhi;
….…………………….J.
September 30, 2013.
(Pinaki Chandra Ghose)
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