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CASE NO.: Appeal (civil)  1260 of 2006

PETITIONER: Vinod Kumar Mathurseva Malvia & Anr

RESPONDENT: Maganlal Mangaldas Gameti & Ors

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No.24198 of 2005]

S.B. SINHA,  J :

       Leave granted.

       This appeal is directed against the judgments and orders dated  06.10.2005 and 10.10.2005 passed by a  learned Single Judge of the High  Court of Gujarat at Ahmedabad in First Appeal No. 988 of 2005 whereby  and whereunder the appeal preferred by the Appellants herein from a  judgment and decree dated 07.04.2005  passed by  the Extra Assistant Judge,   was dismissed.   

       The basic fact of the matter is  not in dispute.   

The Church of Brethren General Board (India) (CBGB) is a trust  registered under the Bombay Public Trust Act, 1950.   It has a scheme of  trust for administration, management including indicating mode of  succession for appointment of trustees.  In 1971 the Church  of Brethren  General Board (India) came into existence, which was registered in 1971.  A   public trust known as ’Church of North  India’ (CNI)  was also registered  before the Charity Commissioner in the year 1980-81. Yet another trust  known as ’First District Church of Brethren’ was registered under the  Societies Registration Act, 1860 as a public trust as also in terms of the  Bombay Public Trust Act.  Interpretation and application of  Clause 9 of the  scheme of  CBGB was the subject matter of dispute between the parties,  which reads as under :

"9.     Appointment of New trustees when  vacancies arise :        

       Trustee shall be appointed by the Church of the  Brethren General Board, Elgin, Illinois, USA by granting  Power of  Attorney to select individuals either American  or Indian.  Where there is a vacancy, nominations to fill  the post may be made to the Church of the Brethren  General Board by First District Church of the Brethren or  Second District Church of the Brethren or Second  District Church of the Brethren (India) or their  successors, whenever any Trustee, either original or  substituted under the Scheme shall during his tenure of  Trusteeship dies or is absent for more than six months  from India without leave of absence from the Charity  Commissioner or Assistant Charity Commissioner of the  region, or is convicted of a criminal offence involving

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moral turpitude or desires to be discharged from or  refuses or becomes unfit or incapable to act in the Trust  or to execute the powers in his reposed, the surviving or  continuing Trustees for the time being shall intimate to  the Church of the Brethren General Board to fill in the  said vacancy within three months from the date of the  receipt of the intimation; and if they fail to do so within  three months, the surviving or continuing trustees may  appoint any person or persons to be trustees in the place  or places of trustees so dying or convicted, as aforesaid,  or desiring to be discharged or refusing or becoming unfit  or incapable to act as aforesaid.  If any such vacancy  shall occur and no appointment in writing of a new  trustee or trustees shall be made by passing an unanimous  resolution in that behalf by all the surviving or continuing  trustees within six months from the happening of such  event, it shall be lawful for the Charity Commissioner at  any time after the expiration of such time by writing to  appoint a new Trustee or Trustees of this Trust as he may  think fit and proper and as circumstances may require."

       In between 1985 to 1991 five change notices were filed before the  Assistant Commissioner but no action was taken thereupon             A change notice was filed in terms of Section 22 of the Bombay  Public Trust Act before the Assistant Commissioner by the Respondent No.1   herein.  He,  despite the fact that in terms of the scheme, the trust was to  consist of not less than 5 and not more than 7 trustees,  was the sole  surviving trustee.   By reason of the said change notice a proposal was made  to delete the names of  (i) Bishop of Gujarat Rev. Christachari; and (ii) Mr.  Vithaldas N. Bhagat, as admittedly they were no more.  The Respondent  No.1 also proposed four other names for their appointment as trustees.   The  Assistant Charity Commissioner did not make any enquiry in relation  thereto.  The said change notice was approved.  The legality and/or validity  of the said order dated 03.08.1999 approving the said change notice was  questioned before the Appellate Authority, namely, the Joint Charity  Commissioner, Baroda,  in  Appeal No.7 of 1999.  The matter was remanded  to the Assistant Charity Commissioner for holding an enquiry and for  granting an opportunity of hearing to the interested parties.  The said order  of the Joint Charity Commissioner was questioned before the District Judge  purported to be in terms of Section 72 of the Bombay Public Trust Act and  the order of the Joint Charity Commissioner was set aside by the District  Judge by an order dated 07.04.2005.

       The claim of the Church of North India is that the First District  Church of Brethren has lost its entity and has been amalgamated therewith  and, thus, it has only the authority to recommend names of the trustees to the  parent body of USA.   The Church of North India with whom the other trusts   were said to have been merged also filed a change notice purported to be on  the strength of the authority given by the parent body at USA, wherein five  names : (i) Rt. Rev. Paul Chauhan, (ii) Francis G. Gameti, (iii) N.R.  Rajawadi, (iv) Jesing S. Bhagat, and (v) Rt. Rev. Malvia,  were proposed to  be included as trustees.  The said change notice was disputed by the then  trustees of the CBGB Trust before the Joint Charity Commissioner, Baroda,  and by order dated 20.09.1997 the matter was remitted to the Assistant  Charity Commissioner with a direction to frame issues as to whether the  First District Church of Brethren was amalgamated with CNI and whether  the Church of North India was the successor of the First District Church of  Brethren.  The said decision of the Joint Charity Commissioner was  impugned before the District Court.   

In the meanwhile, a civil suit was filed by one Ambalal Onkarlal  

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against the trustees. The said suit was decreed holding that all the six uniting  churches including the First District Church of Brethren were dissolved and  united in one church i.e. the Church of North India.  A First Appeal was  preferred thereagainst being Regular Civil Appeal No. 72 of 1984 and the  Assistant Judge, Surat,  by a judgment and decree dated  11.08.1986 allowed  the said appeal holding that the First District Church of Brethren was not  dissolved and had not ceased to exist.  It was further held that the civil court  had no jurisdiction to entertain the said suit.  The judgment and decree of the  Assistant Judge came to be questioned in Second Appeal before the High  Court being Second Appeal No.303 of 1986, which was dismissed.  The  matter ultimately came up before this Court in Church of India v. Lavajibhai  Ratanjibhai & Ors. [(2005) 10 SCC 760], wherein it was held that the Civil  court has no jurisdiction in such matters.  While arriving at the said finding  the Court invariably had to deal with various contentions raised by the  parties.  It was  stated :

"With a view to determine the question as regards  exclusion of jurisdiction of the civil court in terms of the  provisions of the Act, the court has to consider what, in  substance, and not merely in form, is the nature of the  claim made in the suit and the underlying object in  seeking the real relief therein. If for the purpose of grant  of an appeal, the court comes to the conclusion that the  question is required to be determined or dealt with by an  authority under the Act, the jurisdiction of the civil court  must be held to have been ousted. The questions which  are required to be determined are within the sole and  exclusive jurisdiction of the authorities whether simple or  complicated. Section 26 of the Act must be read in that  context as it specifically refers to those questions  wherewith a court of competent jurisdiction can deal with  and if the same is not expressly or impliedly barred. Once  a decision is arrived at, having regard to the nature of the  claim as also the reliefs sought for, that the civil court has  no jurisdiction, Section 26 perforce will have no  application whatsoever."

The High Court relying on or on the basis of the said decision, inter  alia, opined that the First District Church of Brethren did not cease to exist.   It further came to the conclusion that this Court had held that the property of  the society vested in the trust and not in the governing body of the society.    On the aforementioned premise it was directed :

"\005It is seen that the Joint Charity Commissioner  remanded the matter to the Assistant Charity  Commissioner only on the assumption that CNI was  interested party and was required to be heard, but as per  the decision and conclusion of the Apex Court, the  reasons for the remand would not stand any further and it  would not be necessary at all to remand the matter to the  Assistant Charity Commissioner to decide the issue  which is already decided by the Apex Court.  It may be  true and on merits at the relevant juncture when the Joint  Charity Commissioner passed the orders in Appeal NO. 7  of 1999, the decision of  the Apex Court was not  pronounced and Joint Charity Commissioner might have  found that CNI was an interested party.  The cause at this  juncture to remand the matter back for decision of the  Assistant Charity Commissioner, according to my  humble view, would not be surviving after the decision  of the Apex Court in the matter of Church of North India  vs. Lavajibahi Ratanbhai (supra).

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As regard the change notice filed by the Church of North India, it was  opined :

"Now the question of postponement of appointing  trustees as proposed by the Change Report No.329 of  1999 is concerned, true it is that, as decided by the Apex  Court. The issue of merger between churches is required  to be decided by the Charity Commissioner, and such  issue is subjudice.  In fact, as aforesaid, the decision of  the Joint Charity Commissioner to decide the same after  framing of the issue that whether the churches are  merged, the challenged before the District Court and is  pending.  The scheme of the Bombay Public Trust Act  undoubtedly reveals only objective of betterment and  proper administration of public as well as religious trusts.   It is on record that only surviving trustee of  C.B.G.B.  Trust is Opponent No.1 herein is aged about 90 years.   There are no other trustees except proposals are made for  appointment of trustees, highly contested and are pending  at various hierachal levels.   In these circumstances as  well as in view of what is decided by the Apex Court in  the matter of Church of North India Vs. Lavajibhai  Ratanbhai (supra), it is considered that the postponement  of the decision of present change report NO. 329 of 1999  would not serve the object  of the Bombay Public Trust  Act, 1950 would be served more if the proposed by  change report no. 329 of 1999 and administration of  public religious trust is well taken care of.  So when these  appointments sought by Change Report No. 329 of 1999,  prima facie, appears to be in consonance with the  Scheme of C.B.G.B.  Trust particularly Clause \026 9, it  would not serve the interest of justice, if the issue of  appointment of trustees as per Clause \026 9 is postponed till  the issue of merger of churches is decided finally at  various levels which is ultimately affect the  administration of public religious trust."  

       Mr. Vinod A. Bobde, the learned Senior Counsel appearing on behalf  of the Appellants, pointed out that in respect of change notices filed in the  years 1985 to 1991, the Assistant Charity Commissioner took no action  whereas on the change notice filed by the Respondent No.1 herein approval  was accorded within five days.  

It was contended that whereas this Court held that the civil court in  such matters would have no jurisdiction, the High Court misread and  misinterpreted the judgment of this Court in arriving at a finding that this  Court had held that the First District Church of Brethren did not cease to  exist.  It also read the judgment of this Court wrongly opining that the  merger between the churches is required to be  decided by the Charity  Commissioner and the said issue is subjudice.   

It was pointed out that the High Court itself noticed that the issue of  merger between the churches is required to be decided by the Charity  Commissioner and as the said issue is subjudice,  presumably in view of the  change notice filed by the Church of North India whereby and whereunder   names of five persons were proposed as trustees of the trust.   

It is beyond any doubt or dispute that the Assistant Charity  Commissioner did not follow the procedure before approving the change

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notice filed by the First Respondent.  It is on that premise that the Joint  Charity Commissioner directed the Assistant Charity Commissioner to  consider the change notice in terms of the rules.  However, that order was set  aside by the District Court.  The High Court although noticed that the matter  is subjudice before the Charity Commissioner and, thus, the said issue has to  be resolved upon giving an opportunity of hearing to all the parties,  erroneously proceeded to hold that this Court had already adjudicated upon  the said issue.  The aforementioned two findings of the High Court  are  contradictory and inconsistent.  The High Court in its judgment noticed that  the Assistant Charity Commissioner was required to follow the procedure  laid down in the Act in terms whereof enquiry into the matter was  mandatory.  It has further noticed the long battle about amalgamation of  trusts raised in the above suit.

This Court in Church of North India (supra) held :

"Prayer (a) in the plaint is for a declaration. Such  declaration cannot be granted by a civil court as regards  succession of the District Church of the Brethren as the  same was a religious trust registered under the BPT Act. Prayer (b) of the plaint also could not have been  granted, as the question as to whether the applicant is the  legal continuation and successor of the First District  Church of the Brethren is a matter which would fall for  exclusive determination of the Charity Commissioner  keeping in view the provisions of the deed of trust as  regards its succession. It would necessarily follow that a  declaration whether the first appellant became a legal  successor of the properties held by the First District  Church of the Brethren could not also have been granted.  The decision and resolution purported to have been  adopted by the Synod and the Gujarat Diocesan Council  are binding on all churches or not would again be a  question which could have been gone into by the Charity  Commissioner as the same had direct bearing not only on  the administration and management of the Church  registered with it but also related to the properties held by  it. Such a decision of the Charity Commissioner is again  final and conclusive subject to the decision of the  Appellate Authority viz. the Bombay Revenue Tribunal."

In Church of North India (supra), it was further held that the change  notices are required to be determined by the statutory authorities.  This Court   opined :

                "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\005"

In view of the aforementioned findings, we are of the opinion that the  High Court arrived at a wrong conclusion that the First District Church of  Brethren did not cease to exist.  Such a question indisputably, in view of the  decision of this Court, is required to be determined by the statutory  authorities under the Bombay Public Trust Act and not by the civil court.   This Court held that the civil court had no jurisdiction; a fortiori no finding  could have been arrived at that the First District Church of Brethren did or  did not cease to exist.  

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We have furthermore noticed hereinbefore that the High Court had  arrived at a contradictory and inconsistent finding.

In this view of the matter, the impugned judgment of the High Court  and the District Judge cannot be sustained.  

Mr. Hazefa Ahmadi, the learned counsel appearing on behalf of the  Respondents, however, has rightly pointed out that this Court directed that  the matter relating to dissolution of trust would fall for consideration by the  Charity Commissioner alone.     

As noticed hereinbefore, although the orders of remand passed by this  Court and that of the Joint Commissioner pertained to two different matters,  we are of the opinion that the interests of justice require that all the questions  must be determined by the Charity Commissioner himself. The Charity  Commissioner shall also determine all the pending disputes including the  change notices filed in the years 1985 and 1991, if they have not already  been disposed of.  

The Charity Commissioner shall give notice of hearing to all  concerned.  If the parties intend to file additional pleadings, they may be  allowed to do so.   We  have no doubt that keeping in view the urgency,  the   Charity Commissioner will consider the desirability of disposing of the  matter as expeditiously as possible and preferably within a period of four  months from the date of receipt of a copy of this order.  

We would, however, direct the Charity Commissioner, keeping in  view the existing scheme, consider also the desirability of appointing an  Administrator/Receiver for managing the properties and other affairs of the  trust.  However, till such appointment is made, the First Respondent herein  shall continue to act as a trustee.

The appeal is disposed of with the aforementioned directions and   observations.  However, in the facts and circumstances of the case, there  shall be no order as to costs.