Case: Vinodkumar M Malavia  Vs. Maganlal Mangaldas Gameti

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 abovementioned Change Reports were filed by First District Church of the Brethren (hereinafter referred to as ‘thea registered religious society under the Societies Registration Act, 1860 (hereinafter referred to as ‘the SRbearing 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 ‘theproperty of which is vested with its ‘Propertyand the Church of North India (hereinafter referred to as ‘theGujarat 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 ‘Brethrenof 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(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 ‘Districtinitially 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 andinterests together with its privileges and obligations.5. In 1976, the Church of North India Trust Association (hereinafter referred to as ‘thewas 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 itsand 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 toproperties. 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.

Reasoning: 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 hasare of the opinion that thereliance 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 Articleanalysing 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.