THE HON’BLE MR JUSTICE L. NARASIMHA REDDY +W.P.No.8034 of 2009 % 17-12-2009 Between: The Church of South India Trust Association and others. …Petitioners And The Greater Hyderabad Municipal corporation and others …Respondents ! Counsel for Petitioners : Sri N.Subba Reddy ^ Counsel for Respondents : Sri D.Prakash Reddy < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.8034 of 2009 ORDER: The petitioner is Trust Association of Church of South India and in this writ petition, it is represented by its power of attorneys, namely , Dr.B.Vimal Sukumar and Sri Mantri Solamon Raj. The sixth respondent namely, St.Thomas (S.P.G.) Tamil Church Society (for short ‘the Church’), submitted an application to the Greater Hyderabad Municipal Corporation, the first respondent herein, with a request to grant permission for construction in the form of extension of existing Church with cellar, ground and mezzanine floors on the premises bearing No.7-1-4, near Secunderabad Railway Station. On a consideration of the application, the first respondent accorded permission on 19.06.2006. The petitioner challenges the said permission as illegal, arbitrary and contrary to the provisions of the Greater Hyderabad Municipal Corporation Act (for short ‘the Act’) and the building byelaws made thereunder. Briefly stated, the facts pleaded by the petitioner are that the society for propagation of Gospal (SPG) was incorporated under the Royal Charter of His Majesty King William III of England on 16.06.1701 and that under the auspices of that society, a Church was built at Secunderabad. It is stated that on the eve of independence of India, the society merged with the Church of South India with effect from 27.09.1947 and thereafter, a trust deed was executed on 22.03.1961. Petitioner contends that the Church, together with all its properties comprising of Acs.4.60 cents, school and other properties mentioned in the schedule stood vested in the petitioner Association. It is stated that over the period, the pastorate of the Church was divided into two entities, namely Tamil and Telugu Pastorates and both the congregations were undertaking worship in the respective languages according to their convenience. The Telugu pastorate of the Church filed O.S.No.143 of 1979 in the Court of the Chief Judge, City Civil Court, Hyderabad in relation to the administration of the properties of the Church. The suit was dismissed. In C.C.C.A.No.108 of 1981, filed against the same, a direction was issued to the effect that the properties of the Church can be administered by the petitioner herein. It is stated that the Tamil pastorate is being identified with different names, such as, St.Thomas SPG, Tamil Pastorate, Tamil Church, Tamil Church Society, Tamil Cathedral etc. Reference is made to certain proceedings that have ensued before various Courts and it is ultimately urged that though the sixth respondent does not have any right, title, control or possession over the Church, an application was made for making construction. The petitioner states that the first respondent was under obligation to examine the title of the applicant before permission was accorded and that the impugned permission cannot be sustained in law. The writ petition is opposed mainly by the sixth respondent. It has filed a detailed counter-affidavit. Various allegations made by the petitioner vis-à-vis the administration of the Church and of vesting of its properties in the petitioner are denied. Reference is made to several proceedings, including those mentioned by the petitioner. The sixth respondent contends that the findings recorded or observations made in C.C.C.A.No.108 of 2009 are not binding on it, since it was not made as a party to those proceedings, at any stage. It is stated that the petitioner and four others filed O.S.No.40 of 2002 against the sixth respondent and seven others in the Court of the I Additional Chief Judge, City Civil Court, Secunderabad, for the relief of recovery of possession of the very property, viz., the Church building, together with the cemetery, and in that view of the matter, the plea that the petitioner is in possession and control of the Church is untenable. The sixth respondent further stated that the petitioner was never in actual or effective control of the Church and that the writ petition is filed only with a view to cause harm to the persons, belong to a particular denomination, and in the process, the functioning of the Church is adversely affected. The work is said to be halfway through. They pleaded that the extension of the Church building would be in the interest of all and no person having genuine interest in the Church can object to the same. Sri N.Subba Reddy, learned Senior Counsel appeared for the petitioner. He submits that the Church is vested in the petitioner in all respects, under the registered document, dated 22.03.1961, and that it alone has the power to administer the Church. Learned counsel submits that in view of the specific orders passed by this Court in C.C.C.A.No.108 of 1981, little doubt that existed as to the right of the petitioner to administer the Church stood clarified and that the first respondent ought not to have entertained the application submitted by the sixth respondent for grant of permission to construct. He has also made a reference to O.S.No.1095 of 1997 filed by the Tamil group of the Church for injunction and dismissal of the same by the trial Court. He further submits that when an attempt was made by the sixth respondent to make unauthorized construction, the petitioner approached this Court by filing W.P.No.9306 of 2002 and in spite of pendency of that writ petition, permission was accorded. It is also his case that the first respondent was under obligation to verify the title of the applicant as provided under Section 429(aa) of the Act and without undertaking such a verification and ignoring the objections raised by the petitioner, the impugned permission was accorded. Sri D.Prakash Reddy, learned Senior Counsel appeared for the sixth respondent. He submits that the petitioner is neither in possession, nor in administration of the Church, and that it cannot maintain the writ petition. He submits that the petitioner and certain others filed O.S.No.40 of 2002 for the specific relief of recovery of possession of the Church and other properties and until the petitioner is successful in that suit and recovers the possession of the Church through the process of law, it cannot raise objection to the activities undertaken by the sixth respondent. Learned counsel further submits that during the course of trial of that suit, a specific admission was made to the effect that the Church is under the possession and control of the sixth respondent, and a totally different version is being projected in the writ petition. It is also urged that the work in progress is only to increase the facilities in the Church and the petitioner, in fact, should have felt happy for such developments. Learned Senior Counsel also submits that the nature of verification of title as provided for under Section 429 of the Act would depend upon the facts and circumstances of the case and it cannot be equated to the one, to be undertaken by a civil Court in a suit for declaration of title. The Church was established more than a century ago. There is a serious dispute as to the agency or individual who established it and the manner in which its administration has changed hands. According to the petitioner, the Church was established under a Royal Charter of His Majesty, King William III of England on 16.06.1701, and that in the year 1947, it has merged with the petitioner association. A trust deed, dated 22.03.1961, is said to have been executed. On the other hand, the sixth respondent contends that the Cantonment Magistrate, Secunderabad, recognized the title of Rev.A. Sebastian, through a document dated, 28.05.1877, in respect of the land, and that the Church was built by Rev.A.Sebastian. Thereafter, it is said to have been transferred in favour of the congregation members known as Secunderabad St.Thomas Mission. Several proceedings ensued between different groups particularly Tamil and Telugu groups, in relation to the administration and control of the Church. By itself, the petitioner did not institute independent proceedings till the year 2002. O.S.No.143 of 1979 was filed by certain individuals of Christian faith, in the Court of Chief Judge, City Civil Court, Hyderabad, under Section 92 of C.P.C., with a prayer to frame a scheme for administration of the Church. The petitioner was defendant No.2 in that suit, but the 6th respondent herein was not a party. The suit was dismissed on 20-07-1991. Thereupon, the plaintiffs filed C.C.C.A.No.108 of 1981. Cross-objections were also filed by some of the defendants therein, feeling aggrieved by certain observations made by the trial Court. A Division Bench of this Court “disposed of the appeal” (CCCA 108 of 1981), through its judgment dated 21-02- 1990. The following observations were made by the Division Bench: “…The owner of the properties is the Church, and how the properties have to be administered, is a matter for the Trust Board…”. The properties of St. Thomas Church shall be administered by the Association, the 2nd defendant, as is being done now, until final resolutions are passed by the appropriate authority, after taking into consideration, the representations of all parties concerned…” The relief claimed in the suit, i.e., framing of a scheme; under Section 92 of C.P.C., was not granted. The petitioner places heavy reliance upon the portion extracted above, and claims that it is entitled to administer the Church. The contention of the respondents, that the observation made by the Division Bench cannot be treated as a definite finding or ratio and at the most it can be treated as a pausing observation, or an obiter; cannot be brushed aside, as irrelevant. Be that as it may, there would have been substantial basis for the claim of the petitioner, if it is in uninterrupted possession and absolute control over the Church, as on the date of filing of the writ petition. There is intrinsic evidence to show that the petitioner is not in control of the Church, in any manner. The petitioner filed O.S.No.40 of 2002 in the Court of Additional Chief Judge, City Civil Court, Secunderabad against the 6th respondent. In a plaint running into 20 typed pages, the petitioner narrated the brief history of the Church and the developments, that have taken place till the suit was filed. Ultimately it prayed for the following relief. “ 1 . Granting a Mandatory Injunction, directing all the Defendants Nos. 1 to 8 and their heirs, executors, administrators, management-in-charge, successors, transferees-in-interest and all the persons holding or claiming control through them, including their dependants elected representatives and servants to hand over the keys of St.Thoman (S.P.G._ Church Building, its Parsonage, Parish Hall and main gate bearing Municipal Door Nos.7-1-1 and 7-1-2 to 7-1-6 situated at near and Opposite to Secunderabad Railway Station, Secunderabad, and hounded on: NORTH BY : Newly built Phase II Church Commercial Complex and Abdullah Street Road EAST BY : Alpha Hotel Building and Petrol Bunk WEST BY : Old existing Phase I Church Commercial Complex and Road SOUTH BY : Subhash Road along with Cemetery gate keys, to enable the first plaintiff to administer and manage the suit schedule property, directly under its control through its Attorneys and Staff of Medak Diocese, Diocesan Office, Old Lancer Lines, Secunderabad in a way it (First Plaintiff) likes it, in order to implement the Hon’ble High Court of Andhra Pradesh directions, dated 21-02-1990, in C.C.C.A.No.108 of 1981, effectively and fully. 2. Granting future damages at the rate of Rs.1,00,000-00 (Rupees one lakh only) per day against the Defendants from the date of filing the suit on –02-2002 till the date of their handing over the keys of suit schedule property to the Plaintiff No.1. 3. Granting costs of the suit”. At more places than one, in the plaint, the petitioner admitted that the defendants therein, are in possession and control of the Church and its ancillary units. Unless and until the suit is decreed, the petitioner cannot assume the possession and control of the Church. Therefore, the petitioner cannot claim to be in possession and control of the administration of the Church. It is true that under Section 450 of the Hyderabad Municipal Corporation Act, the 1st respondent is under obligation to verify the title of an applicant, over the land upon which, construction is proposed to be made. However, the nature of verification cannot be similar to the one, in a suit for declaration of title. Much would depend upon the nature of property, as well as the nature of rights claimed by the applicant. If it is a private property, and title is claimed by an individual, the Corporation can insist on production of title deeds. Here again, if the ancestral property has devolved upon an individual, by way of succession, or in a family partition, or a settlement, the nature of verification would be some-what different. A substantial different picture would emerge, if the property partakes the public or social character. It is difficult to expect existence of an absolute title, as provided for under the Transfer of Property Act, in matters of this nature, particularly, when the institution is in existence for more than a century. The reason is that the property has passed through various legal regimes and the manner in which it has accrued to or devolved upon any one, under a regime, cannot be compared or equated with the one, under a subsequent regime. Recognition of an individual or agency as having the actual control and administration over the property, by the persons concerned with the institution, becomes relevant. The construction to be made in respect of such religious institutions would not be for the benefit of an individual. Since the community, as a whole, would be benefited, the approach of the 1st respondent is bound to be a bit different, subject, however to the condition that the construction must invariably accord with the bye- laws. Viewed in this context, the permission accorded by the 1st respondent to the 6th respondent, cannot be said to be unlawful or illegal. The petitioner cannot be said to have suffered any loss or detriment, on account of the proposed construction, since it is only to provide additional accommodation for the visitors of the Church. The building is very old, and naturally needed additions, or repairs. As the things stand now, the petitioner undertake such works. It would be possible for them to take up the works only when the suit filed by them is decreed, and the decree is executed, after it become final. In this scenario, the petitioner must feel happy, since the expansion of the Church is taking place with considerable expenditure. If the petitioner is successful in the suit, filed by it, the construction being made, would also accrue to its benefit. The interest of the persons belonging to the faith, is the paramount consideration. Viewed from any angle, the petitioner cannot be granted any relief in this writ petition. It is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.17-12-2009. Note: L.R copy to be marked. (B/O) KDL/KO*