Allahabad High Court
Christ Church Mcconaghy School Society ... vs Registrar, Firms Societies & Chits U.P. ... on 28 May, 2015
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED JUDGMENT. Reserved on 20.03.2015 Delivered on 28.05.2015 WRIT PETITION NO. 406 (MS) of 2015. Christ Church McConaghy School Society, Lucknow and another. ................................................Petitioners. Versus Registrar Firms, Societies and Chits, Lucknow and others. .............................................Respondents. Hon'ble Rajan Roy, J.
Challenge herein is to the validity of the order dated 07.02.2015 passed by the Deputy Registrar Firms, Societies and Chits, Lucknow. The question involved is as to whether he has exceeded his powers under Section 4 of the Societies Registration Act 1860 (hereinafter referred to as the Act 1860). The applicability of the pronouncement of the Supreme Court in the case of Vinod Kumar M. Malviya and others Vs. Magan Lal Mangaldas Gameti and others, reported in (2013)15 SCC 394, to the facts of the present case is also in issue. The factual matrix of the case is as under:
Petitioner no. 1 is a society under the name and style 'Christ Church McConaghy School Society, Lucknow' which was established and registered under the Societies Registration Act, 1860 in the year 1947. As per recitals contained in the bye-laws of the petitioner-society it was formed, inter alia, to give christian education and opportunities for teaching, witness and worship according to the faith, doctrine and practices of the Church of India, Burma and Ceylon, and more specially to the Christian staff and students (hereinafter referred to as CIBC). As per bylaw 49 the Constitution, in order that Canons and Rules of the Church of India, Burma and Ceylon and the Constitution, Rules and Regulations of the Diocese of Lucknow may be properly safeguarded, none of the proceedings or acts of the Society shall be valid without the assent of the Bishop of Lucknow for the time being. Bye-law 3 refers to the ex-officio members who were to constitute the first Managing Committee of the society and were to continue in office until the first general meeting of the society. As per bye-law 8 the Managing Committee which was to manage the business and affairs of the society was to comprise not less than 5 and not more than 12 members elected by the society at annual meeting. At least 3 members of the Managing Committee were to be ex-officio. Bye-law 4 refers to 3 classes of membership i.e. Life Members, Ordinary Members and Honorary Members. As per bye-laws 10 and 15 the office bearers of the society shall be a Chairman, a Vice Chairman, a Secretary and a Treasurer and these shall be elected from among the members of the society at the annual general meeting of the society, The other members of the Managing Committee shall also be elected at the annual meeting of the society. Nevertheless the Bishop of Lucknow, if willing to act, shall always be the Chairman of the Society. Otherwise the Chairman shall be elected by the general meeting of the Society.
After creation of Pakistan the erstwhile CIBC became Church of India, Pakistan, Burma and Ceylon (hereinafter referred to as CIPBC) but no such amendment was made in the bylaws of the society which continued to refer CIBC.
In the year 1970 six churches including the erstwhile churches of India, Burma and Ceylon merged into an entity, namely the Church of Northern India. Petitioner no. 2 and his associates indisputably are followers of the Church of North India and opposite party no. 3 i.e. rival claimant is the follower of the church of CIBC (the erstwhile church of India) and he is the Bishop of Lucknow Diocese. It is not in dispute that ever since the formation of Church of North India the petitioner no. 1-society is in the control and management of the members of the Church of North India. This fact is admitted by opposite party no. 3 in his application dated 14.08.2014.
In the year 2003 the opposite party no. 3 filed a suit for declaration and permanent injunction claiming himself to be Arch Deacoan of Lucknow and Attorney Holder of Indian Church Trustees, in the court of Civil Judge (Senior Division), Lucknow, which was registered as Regular Suit No. 104 of 2003, seeking a declaration that all the properties in dispute mentioned in schedule no. 1 to the plaint are the properties of the plaintiff and the defendants have got no right, title and interest in the same, as also a permanent injunction for restraining the defendants, their officers, members or any other person claiming or acting on behalf of the defendants from interfering into the enjoyment of the properties of the plaintiff indicated in schedule no. 1 to the plaint and also from alienating these properties in any manner whatsoever. The Church of North India Trust Association and Moderator of Church of North India Trust Association were the defendants in the said suit. Schedule 1 to the said plaint was in fact 2nd schedule to the Indian Church Act, 1927 wherein Christ Church was mentioned as a Church under Diocese of Lucknow and Saint Thomas Church of Gonda was also mentioned.
In the year 2004 the petitioners herein also filed a suit for permanent injunction against opposite party no. 3 for restraining him from interfering with their functioning and properties. It is not in dispute that by an order of the Supreme Court both the suits, including other suits wherein the question of validity of succession of CNI to CIBC is involved, stood transferred to Delhi High Court and are pending adjudication before it. It is claimed by opposite party no. 3 that on 24.02.2005 he was elected/enthroned as the Bishop of Lucknow Diocese and Metropolitan of India.
On 30.09.2013 the Supreme Court rendered a judgment in Vinod Kumar M. Malviya's case (supra) holding that merger of First District Church of brethren (hereinafter referred to as FDCB) vide resolution dated 17.02.1970 was not in accordance with the provisions for such merger/dissolution prescribed under the Societies Registration Act, 1860 and the Bombay Public Trust Act under which it was registered, and, therefore, was illegal. At best the said resolution indicated the intent to dissolve and nothing more. At this stage it is relevant to point out that out of 6 Churches which merged resulting in the formation of CNI in the year 1970, FDCB was a society registered under Act 1860 as also a trust registered under the Bombay Port Trust Act (hereinafter referred to as BPT Act), other 5 churches were neither societies nor trusts registered under the aforesaid Acts nor were they registered under any other statute. The erstwhile Church of India was creation of a statute consequent to the Indian Church Measure Act, 1927 by which the union between the erstwhile Church of England and the Church of England in India was severed/dissolved and the Church of India came into being, unfettered by any control by the Church of England or the Church of England in India. The Indian Church Act, 1927 was repealed by the British Statutes (Application to India) Repeal Act, 1960 in so far as it extended to and operated as part of law of India or any part thereof, subject however, saving its operation in relation to India and to persons and things in any way belonging to or connected with India in any country to which India (consequential provision) Act, 1947 extended. The Act of 1949 referred in Section 3 or 6 was repealed by the British Statutes (Repeal) Act, 2004 w.e.f. 23.02.2004 (hereinafter referred to as Act 2004).
The genesis of pronouncement in Vinod Kumar M. Malviya's case (supra) was a dispute challenging the said merger of FDCB by filing objections by members of FDCB Gujrat Chapter before the Charity Commissioner regarding change of reports, before the Charity Commissioner under the Bombay Port Trusts Act the questions before the Charity Commissioner were (i) whether the change was legal, (ii) whether the said change reports or any of the change reports are liable to be allowed. The Charity Commissioner answered both the questions in affirmative and dismissed the objections raised against the change reports, allowed the properties vested in FDCB to be vested in CNI. Against the order of the Charity Commissioner the objectors preferred an application before the City Civil Court, Ahmedabad under Section 72 of the BPT Act 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 were 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?
The learned City Civil Court opined that 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 50-A of the BPT Act which deals with the dissolution of trust, FDCB property cannot be vested with CNI. Thus, the learned Civil Court Judge quashed and set aside the order of the Charity Commissioner. First appeals were filed before the High Court of Gujrat. The basic issue before the learned Single Judge was to determine whether CNI is the successor and legal continuation of FDCB or not. The Gujrat High Court dismissed the appeal and confirmed the order of the Civil Court. It is from this order of the Gujrat High Court that the matter went up to the Supreme Court which was eventually decided in Vinod Kumar M. Malviya's case (supra). As per paragraph 13 of the said judgment the primary issue for consideration before the Supreme Court was 'whether the alleged unification of the First District Church of Brethren with Church of North India is correct or not and the same would answer all the ancillary issues raised before the Supreme Court'. The Supreme Court held that FDCB being a society registered under the Societies Registration Act as also a trust under the BPT Act it could only be dissolved/merged as per the provisions of the said Acts and not otherwise. It also held that unless the properties vested in FDCB are divested in accordance with the provisions of the Societies Registration Act and BPT Act, merely by filing change reports CNI cannot claim merger of trust and thereby the properties would vest in them. The passing of the resolution in the year 1970 in this regard was nothing but an indication to show the intention to merge and nothing else. The Supreme Court upheld the judgment of the City Civil Court and the High Court on the ground that there was no dissolution of the society and further the merger was not carried out in accordance with the provisions of law. It further held that the society and the trust being creatures of the statute, have to resort to the modes provided by the statute for amalgamation and the so called merger cannot be treated or cannot be given effect to the dissolution of the trust without taking any steps in accordance with the provisions of law, the effect of resolutions or deliberations is not acceptable in the domain of law.
Within one month of the aforesaid pronouncement dated 30.09.2013 i.e. on 30.10.2013 the opposite party no. 3 claims to have held the election of the general body of petitioner no.1-society comprising all the followers of the erstwhile Church of India (CIBC and thereafter CIPBC) but he did not submit any list of the committee of management of its office bearers nor of the members of general body before the Deputy Registrar, Lucknow under Section 4 and 4-B of the Act 1860. It is noteworthy that Section 4-B was inserted in the Act 1860 by way of amendment dated 09.10.2013 requiring intimation of list of members of general body at the time of registration/renewal of the society or if there was any change in the list of members of the general body on account of induction, removal, resignation or death or any member. It is said that on 20.07.2014 a meeting of general body of the society was convened which authorized opposite party no. 3 herein to submit the proceedings of the election dated 30.10.2013. The list of office bearers of the committee of management/governing council and the list of members of general body were submitted before the Deputy Registrar along with application dated 14.08.2014. Obviously the lists submitted by opposite party no. 3 did not bear the signatures of the outgoing members and office bearers as required under Section 4 and 4-B of the Act 1860. The Deputy Registrar issued notice to the petitioners herein on 04.09.2014 on the said application. The petitioners filed their objections on 25.11.2014. The opposite party no. 3 filed replication on 05.12.2014 annexing therewith a modified list of members of general body. While the earlier list which was submitted along with application dated 14.08.2014 comprised 12 members, the subsequent list comprised 18 members including petitioner no. 2 as ex-officio member. Thereafter the proceedings were held before the Deputy Registrar which culminated in passing of the impugned order dated 17.02.2015 which is the subject matter under challenge in this writ petition.
It is not out of place to mention here that the election to Committee of Management of petitioner-society are said to have been held on 29.11.2014 and the list of officer-bearers for 2014-15 along with the list of members of general body were submitted by petitioner no. 2 in November, 2014 before the Deputy Registrar under Section 4, 4-B of the Act 1860.
The Deputy Registrar, Lucknow, while exercising his powers under Sections 4 and 4-B of the Act 1860 considered the genesis of the Churches right from the period prior to Promulgation of the Indian Churches Acts of 1927, Churches of England in India Act and the British Statutes (Application to India) Repeal Act, 1960 etc. He also considered pronouncement of the Supreme Court in Vinod Kumar M. Malviya's case (supra) and opined that as per the said pronouncement the formation of CNI was declared illegal and its occupation over the immovable properties of Church of India had ceased consequent to the said dictum and the provisions/rules of CNI are not applicable to the petitioner-society. Therefore Church of India (subsequently CIBC and thereafter CIPBC) which was still in existence, in view of saving clause 3 of the Act 1860, was entitled to control and manage the affairs of the petitioner no.1 - society in view of the contents of its bylaws which refer CIBC but nowhere refer CNI. He also referred to the object of the petitioner no. 1- society as mentioned in the bylaws the provisions contained therein, in paras 10, 15, 49 etc. wherein the Bishop of Lucknow was to be its ex-officio Chairman. He further opined that opposite party no. 3 was the Bishop of Lucknow Diocese of the CIPBC, and his election/appointment thereon was valid, therefore, he was entitled to function as Chairman of petitioner no. 1- society. Consequently he accepted the lists submitted by him and rejected those submitted by petitioner no. 2. The rejection of the list submitted by petitioner no. 2 was based on deficiencies therein as they were not in conformity with the provisions of the bylaws. According to him the list of office bearers submitted by petitioner no. 2 for the years 2007-08, 2008-09 and 2009-10 mentioned 13, 14 and 14 members respectively whereas the bylaws permitted only a maximum of 12 members. The inclusion of Vinod B. Lal Legal Advisor and Daniel Subhan as ex-officio members was contrary to bylaw 3, therefore, he did not accept the list submitted by petitioner no. 2. By means of the impugned order the Deputy Registrar has directed the opposite party no. 3 to constitute the committee of management of the petitioner society as per its bylaws and submit the same.
This Court on 19.02.2015 had directed the parties to maintain status quo and the said order is continuing. The original records pertaining to the society in question were produced before this Court and were perused by it.
Sri S. K. Kalia, learned senior counsel, appearing for the petitioners submitted that the order of Deputy Registrar was without jurisdiction. A perusal of the application dated 14.08.2014 as also the impugned order leaves no doubt that the dispute raised by opposite party no. 3 was regarding continuance of the existing committee of management consequent to pronouncement of the Supreme Court in Vinod Kumar M. Malviya's case (supra) which according to him had declared the formation of CNI as illegal. There were two lists before the Deputy Registrar filed by the rival claimants claiming management of the society, therefore, the option open for the Deputy Registrar was to refer the matter to the Prescribed Authority under Section 25 (1) of Act 1860 as he did not have any authority to decide such a list, but the Deputy Registrar exceeded his jurisdiction and decided the entitlement of the existing committee of management to continue as also the opposite party no. 3's entitlement to take over the management of the society. The very subject of the application dated 14.08.2014 moved by the opposite party no. 3 was disapproval/cancellation of the existing committee of management which left no doubt as to the nature of the dispute. The Deputy Registrar was specifically informed vide objection dated 25.11.2014 about pendency of suits before the Delhi High Court wherein opposite party no. 3 and the Church of North India were also a party. There being a question of validity of succession of CNI to CIPBC, it was a dispute purely of civil nature which could only be adjudicated by the civil court but the Deputy Registrar ignored the said aspect and passed the impugned order.
The Deputy Registrar has misread and mis-interpretted the judgment in Vinod Kumar M. Malviya's case. The said judgment nowhere declares the formation of CNI as being illegal. The dispute therein was regarding the merger of FDCB which was a Society and Trust registered under the relevant Acts, with CNI. The merger of CIBC with CNI was not involved in the said proceedings nor any pronouncement has been made by any court in this regard in those proceedings. The dispute therein arose under the Bombay Port Trust Act. The Deputy Registrar, apart from the fact that he should not have ventured to consider these issues, failed to appreciate that out of 6 Churches which merged with CNI only one i.e. FDCB was a Society and Trust registered under the relevant Acts. The other 5 Churches were not registered bodies under any enactment. Therefore, the proposition and analogy referred in Vinod Kumar M. Malviya's case (supra) was not attracted to their merger.
No dispute was ever raised regarding merger of CIBC with CNI. Indisputably the CNI is in control and management of the petitioner no.1-society since 1970. The lists of officer-bearers submitted by it have been accepted by the Deputy Registrar in the earlier years. Opposite party no. 3 was a total stranger. He was not even a member of the society. Only the members of the petitioner no.1- society could be said to be aggrieved persons under Section 4 of Act 1860 and not a stranger. Indisputably, inspite of the alleged election and enthronement of opposite party no. 3 as Bishop of Lucknow Dioceses (CIBC) as claimed by him on 24.02.2015, he never raised any dispute nor claimed himself to be ex-officio Chairman of the society. It is only after the pronouncement of the judgment by the Supreme Court on 30.09.2013 that he cooked up a story and set up an election alleged to have been held on 30.10.2013. The fact that no consequential action was taken by him till 14.08.2014 i.e. for a period of about 10 months itself raises serious doubt about the story of opposite party no. 3. The opposite party no. 3 claims that on 20.07.2014 in a meeting of the general body he was authorised to submit the proceedings dated 30.10.2014 before the Deputy Registrar. If the election was held way back on 30.10.2013 it is inexplicable as to why he and his associates waited for more than 10 months to submit the same before the Deputy Registrar. It all indicates that opposite party no. 3 has cooked up and concocted a false story based on the judgment of the Supreme Court in Vinod Kumar M. Malviya's case (supra) for usurping the society of which he is habitual as is evident from the orders passed by this Court in the writ petitions filed at Allahabad where similar attempts by him were thwarted by this Court.
The Church of India came into existence consequent to the Indian Churches Merger Act, 1927 and Indian Church Act, 1927. The same was repealed by the British Statutes (Application to India) Repeal Act of 1960. The saving clause contained in Section 3 thereof does not save the repeal of Indian Church Act, 1927. The India (Consequential Provision) Act, 1949 relied upon by opposite party no. 3 and the Deputy Registrar itself has been repealed in the year 2004. No such entity like Church of India or CIBC/CIPBC exists in this country. After the merger of CIBC with CNI consequent to the unanimous resolution dated 04.01.1970 passed by 2/3rd majority of the Dioceses Council, the general council of CIBC (the erstwhile Church of India) it ceased to exist with effect from 29.11.1970. The office of Metropolitan CIBC became extinct. After the pronouncement of the Supreme Court dated 30.09.2013, the opposite party no. 3 who is a habitual usurper having a long criminal record, saw an opportunity to usurp the petitioner-society and with this object he concocted a story and presented the application dated 14.08.2014. The CNI was not a denomination but a Union of Churches. Various High Courts including Bombay and Gujrat High Courts have upheld the unification of the United Church of North India Association and others with CNI. The SLPs against the same have also been dismissed. The Deputy Registrar has acted illegally and arbitrarily.
He submitted that the dispute in question is regarding validity of succession by the CNI to CIBC which is already pending consideration before the Delhi High Court in the suits filed by the parties including opposite party no. 3, the same having been transferred by the Supreme Court to the said High Court. The Deputy Registrar had no jurisdiction over the matter. The alleged violation of the bylaws by the petitioners were rectifiable and not fatal. The list submitted by opposite party no. 3 along with his application dated 14.08.2014 itself did not confirm to the bylaws but the Deputy Registrar did not consider this aspect of the matter and tacitly accepted improvement of the same by opposite party no. 3 along with his replication dated 05.12.2014 which clearly shows arbitrary and biased attitude of the Deputy Registrar. There is no provision under which an ex-officio member/Chairman could be asked to constitute the committee of management and submit the list of its officer-bearers. The Deputy Registrar has traveled beyond the scope of Section 4 to hold that opposite party no. 3 is the Bishop of Lucknow and has been validly appointed. Such appointment is not under the Societies Registration Act, therefore, he could not have decided its validity.
Further, the validity of the impugned order, according to Sri Kalia, is to be considered on the basis of the pleadings before the Deputy Registrar and new things cannot be allowed to be set up by the opposite party no. 3 before this Court. The Deputy Registrar has erred in accepting the list of the members of general body submitted by the opposite party no. 3 ignoring the fact that these alleged members have never participated in the functioning of the society since 1970, therefore, there was no basis for the claim set up by opposite party no. 3. The list of officer-bearers and members of general body submitted by opposite party no. 3 on 14.08.2014 did not include the ex-officio members and they were subsequently included, but the Deputy Registrar ignored these deficiencies. The bylaws of the society should have been amended in the year 1970 to incorporate CNI therein but this cannot be a ground to hold that the petitioner is not a validly constituted committee of management since 1970 as even the alleged CIPBC is not mentioned in the bylaws. The Church of India has ceased to exist after 1970. The Act of 1927 was repealed by the Act of 2004. The petitioner-society does not own any property. It has been registered on the property of Indian Church Trust which runs two schools i.e. Christ Church at Lucknow and Saint Thomas School at Gonda, both of whom are situated on the property of Indian Church Trust.
In support of his contentions Sri Kalia relied upon the decisions reported in (2006)11 SCC 696, (2004) 13 SCC 575, (2002)10 SCC 101, AIR 1958 SC 687, (2013) 4 SCC 463, AIR 1988 All 236, 2000(2) AWC 1086, 2004 (2) AWC 1658, 2004 (22) LCD 1689, (2009) 14 SCC 85, (2007) 6 SCC 220, (2013) 15 SCC 394, (2006) 9 SCC 282 and (2005)10 SCC 760.
On the other hand Dr. L. P. Misra, learned counsel appearing for opposite party no. 3, submitted that the Deputy Registrar has passed the impugned order strictly in conformity with the provisions of Section 4 of the Act 1860 and has not exceeded his powers in any manner. He was entitled to look into the fact as to whether the lists submitted by the petitioner were in conformity with its bylaws and the requirements of Section 4 of the Act 1860. He was also entitled to see as to whether the list had been submitted by validly elected committee of management. The formation of CNI having been declared illegal the occupation of the immovable properties and churches by it is also rendered illegal. After the judgment of the Supreme Court dated 30.09.2013 CNI has no role to play in the management of the petitioner-society which was formed in 1947 with the object of pursuing ideals of CIBC as is mentioned in the bylaws of the society itself, specially bylaw nos. 1 and 49 thereof. The CNI continued to manage the society only under the assumption of validity of merger till it was declared otherwise. They are usurpers of the office-bearers of the committee of management by playing fraud. The Supreme Court held that there was no merger of the Churches with the Church of North India. The resolution passed in the year 1970 was at best an intention to merge but there was no merger in the eye of law. The Church of India was a creature of statute i.e. the Act of 1927. It could not have been merged with CNI in the manner it was done in the year 1970. Long continuation of management cannot be a ground for perpetuating the illegality. The Deputy Registrar has not recognized any rival committee of management. The real issue before the Deputy Registrar was whether as per terms of the bylaws the CNI and its Bishop or officer-bearers could be members of the general body or the committee of management or not? Whether the society is to be managed by CNI or CIBC? The status of CNI having been determined by the Supreme Court it cannot participate in the functioning of the general body or the committee of management of the society in question which was created for following the objectives of CIBC in the year 1947 but was usurped by the CNI on the basis of illegal merger.
The lists of officer-bearer of the committee of management and the members of general body as submitted by petitioner no. 2 were not in conformity with the bylaws nor in consonance with Section 4 which requires counter signature of the outgoing officer-bearers. The maximum permissible number of officer-bearers in the committee of management as per bylaws is only 12 but the list submitted by petitioner no. 2 exceeded the said number. It included the names of certain persons as ex-officio members which was in violation of bylaw 3 of the bylaws. The enthronement of opposite party no. 2 as Bishop of Lucknow Dioceses was not contested by any one else, therefore, it was not in dispute as such to say that the Deputy Registrar has decided its validity is misconceived. There was no dispute in the first place. The Deputy Registrar has not decided the validity of the list of officer-bearers of the committee of management but has only considered the list of members of general body submitted by opposite party no. 3 under Section 4-B of the Act 1860.
He also invited attention of the Court to the original records to show that prior to 27.10.1977 the registration of the society was not renewed though the provision in this regard was inserted in the Act 1860 in the year 1975 itself. In fact its registration was not renewed upto the year 2002 when it was renewed enblock on the basis of the lists of officer-bearers and proceedings of election submitted by petitioner no. 2 on 16.04.2002. No election of the committee of management was held till 2003. He also pointed out the criminal record of petitioner no. 2.
In support of his contentions Dr. L. P. Misra relied upon the decisions reported in (2013) 2 UPLBEC 1144, (2009)2 UPLBEC 1198, 2006 (1) ESC 493 (all), (2009) 5 ESC 3675 (All), (2004)2 UPLBEC 1816, (1999) 1 ESC 13 ((All), (2006) 4 ESC 2819 (All), (1994) 2 UPLBEC 800, (2005) 1 0 SCC 760, (2006) 0 SCC 282, (2013)15 SCC 394, (2011) 7 SCC 397, (2007)4 SCC 221, (2010)8SCC 383, Civil Appeal No. 1322 of 2015, (2011)5 SCC 142 and (2010) 9 ACC 437.
Learned Chief Standing Counsel also defended the impugned order making arguments on the same line as have been made by Dr. L. P. Misra.
The primary question involved in this case is as to whether the decision of the Deputy Registrar is permissible within the fore-corners of Section 4 of the Act 1860, therefore, it is necessary to refer to the said provision, which is being quoted hereinbelow:--
"4. Annual list of managing body to be filed (1) Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the societies is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of the names, addresses and occupations of the governors, council, director, committee, or other governing body then entrusted with the management of the affairs of the society.
Provided that if the managing body is elected after the last submission of the list, the counter signatures of the old members, shall, as far as possible, be obtained on the list. If the old officer-bearers do not countersign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period.
(2) Together with list mentioned in sub-section (1) there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension, or abridgment of purposes made under Section 12 and of the rules of the society concerned up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance sheet for the preceding year of account."
As per aforesaid provision once in every year on or before the 14th day succeeding the day on which, according to the rules of the society, the annual general meeting of the societies is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of the names, addresses and occupations of the governors, council, director, committee, or other governing body then entrusted with the management of the affairs of the society; provided that if the managing body is elected after the last submission of the list, the counter signatures of the old members, shall, as far as possible, be obtained on the list. If the old officer-bearers do not countersign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period. As per sub-section (2) together with list mentioned in sub-section (1) there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension, or abridgment of purposes made under Section 12 and of the rules of the society concerned up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance sheet for the preceding year of account.
The list of office bearers has to be submitted under Section 4 by a validly elected committee of management of the society as per its bylaws.
The scope of Section 4 of the Act 1860 has been considered by this Court in a catena of judgments. This Court has held that the exercise envisaged in the said provision is a sort of administrative enquiry by the Registrar/Deputy Registrar for his own administrative purpose. The proceedings are summary in nature. The Deputy Registrar is not entrusted with the duty to act judicially though he must act fairly while exercising his power thereunder. The Deputy Registrar does not have any power to decide any lis relating to continuance of a committee of management or its office bearers or its election. He can, at best, go into the question only with a view to ascertain as to whether the dispute raised during the proceedings under Section 4 is a genuine and bona fide dispute which requires a reference of the same for adjudication by the Prescribed Authority under Section 25 (1) of the Act 1860. If he finds that the dispute raised is a frivolous one, such as in a case where a person raising the dispute is not even a member of the society, he is not bound to refer the same for adjudication under Section 25 (1). The concern of the Deputy Registrar under Section 4 is regarding the acceptance of the list of officer-bearers of the Committee of Management/Governing Council of the society and not a dispute relating to its management. In the event a dispute is raised before him in this regard and two rival lists are submitted claiming management over the society, he has to see as to what is the dominant dispute i.e. whether the election or continuance of officer-bearers is the dominant dispute or it is confined to the list of office bearers. In the former case a reference has to be made under Section 25 but in the latter a decision can be taken by him under Section 4.
It is trite that Sections 4 and 25 (1) of Act 1860 operate in different fields. If a dispute of the nature covered under Section 25 (1) is raised before the Deputy Registrar in connection with submission of annual list under Section 4(1), the same must be referred to the Prescribed Authority under Section 25 subject to the aforesaid enquiry. Only genuine and bona fide disputes are required to be referred, not frivolous one. The proceedings under Sections 4 and 25 are summary in nature. They are always subject to regular proceedings before the civil court where parties can adduce oral and documentary evidence in support of their case. Reference may be made in this regard to the pronouncement of the Supreme Court in the case of A.P.Aboobaker Musaliar Vs. District Registrar (G) Kozhikode and others, reported in (2004) 11 SCC 247 wherein two rival claimants submitted two separate lists of officer-bearers of the Committee of Management of a society and the Deputy Registrar accepted the list of members of the governing body filed by one of the claimants stating that he was filing the lists for previous years also and if the other party was claiming on the basis that he was competent to file the list, he has to establish the same. The decision of the Deputy Registrar was challenged before the High Court. The learned Single Judge took the view that the Registrar has no power to adjudicate the controversy under Section 4. The matter went up in appeal before a Division Bench of the High Court which observed as under:--
"Thus in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body."
Being aggrieved by the decision of the Division Bench of the High Court an appeal was preferred before the Supreme Court wherein their Lordships held as under:--
"It is clear from what is stated above by the Division Bench that the enquiry made by the Registrar and the decision taken did not become final and the party could take up the matter before a competent court as to who were the members of the governing body. When there were two lists, the District Registrar, prima facie, on being satisfied, accepted the list filed by E. K. Aboobaker as he was filing the lists for the previous years also. The District Registrar has only taken into consideration the limited question of accepting the list of members of the governing body. The Division Bench of the High Court was right in taking the view that the list accepted by the District Registrar did not become final; if the appellant was aggrieved , it was open to him to establish his claim in a competent court/forum. To us, it appears even the District Registrar did not adjudicate any dispute as such. It was only a question of accepting, prima facie, the list of members of the governing body. If the appellant's claim was right and justified, merely because the District Registrar accepted the list of the governing body of members given by E.R. Aboobaker, it did not prevent him from establishing his claim in a competent court."
The proposition referred hereinabove have been laid down in the decisions of this Court reported in 1981 UPLBEC 308, 1987(1) UPLBEC 333, 1988 (1) UPLBEC 515, AIR 1988 Alld 236, 1991 (18) ALR 319, 1993 (2) UPLBEC 890, 1994 HBD Alld, Vol. 3, 389, 1997 (30) ALR 601, 1997 (1) UPLBEC 258, 1995 (2) UPLBEC 124, 1998 (34) ALR 444, 2003 (61) ALR 74 and 1998 (3) AWC 2311.
It is also said that renewal of the registration of the society is for the benefit of all the members and officer-bearers of the society. Merely because renewal has been granted on the application of a party it does not by itself preclude the other party from raising a dispute referable under Section 25 nor does it enure to the benefit of the applicant in this regard except to the extent a dispute is not raised under Section 25 (1) of the Act, 1860, as renewal is for the benefit of all the members.
Section 25 of Act 1860 is attracted when registration of the society and its renewal is intact and there is no dispute in this regard.
Considering against the aforesaid back drop the Deputy Registrar while taking the decision impugned under Section 4 has decided certain issues which were clearly beyond the pale of the said provision. He has exceeded his jurisdiction in respect to these issues.
Under Section 4 the Deputy Registrar was not empowered to decide any lis pertaining to control and management of the petitioner-society nor the validity or continuance of the committee of management in control since 1970 or its officer-bearers or their election. The proceedings were initiated by him on the application of opposite party no. 3 dated 14.08.2014. The subject of the said application, as mentioned therein, was disapproval/cancellation of the "existing" illegal committee of management and registration of the committee of management and its members/officer-bearers as presented by CIPBC. Thus from the very heading of the application as also its contents it was evident that opposite party no. 3 claiming himself to be part of CIPBC and its Bishop of Lucknow, was laying claim to the management of the petitioner-society based on the judgment of the Supreme court in Vinod Kumar M. Malviya's case (supra). There was no other basis for the claim. It was admitted by opposite party no. 3 that the petitioners were in control of the management of the society since 1970 and he was not. It was not a case where two lists of officer-bearers had been submitted by the rival groups of the same society but a case of submission of a list of office bearers by persons including the opposite party no. 3 who were strangers to the society since 1970. They claimed to belong to CIPBC which was admittedly not in control of the management of the society. The only basis for their claim was the judgment of the Supreme Court dated 30.09.2013 in Vinod Kumar M. Malviya's case (supra). Prior to 14.08.2014 they never laid any claim to the management or membership of the aforesaid society. It was not their case that they were original members of the society prior to 1970. Against the aforesaid factual position the appropriate course for opposite party no. 3 and his associates was to get their rights to manage the aforesaid society declared by appropriate forum either under Section 25 (1) of the Act 1860 or better in regular proceedings by a civil court. The Deputy Registrar should not have initiated the proceedings on the basis of the application of opposite party no. 3.
The Deputy Registrar has misread and misinterpreted the judgment in Vinod Kumar M. Malviya's case (supra). The merger of Church of India (CIBC) and validity of the formation of CNI were not in issue in the said case nor did the Supreme Court declare the creation of CNI to be illegal. Out of 6 Churches which merged to form CNI only one i.e. FDCB was a society as also a trust, therefore, it could only be dissolved and merged after following the procedure prescribed under the Act of 1860 and BPT Act, not otherwise. In absence of dissolution of FDCB as per law its properties could not vest in CNI. This was the only issue which was involved and decided by the Supreme Court in the said case. Neither the status of the petitioner-society nor the validity of merger of Church of India/CIBC with CNI was an issue nor was it decided by the Supreme Court. The Deputy Registrar wrongly presumed that the Supreme Court had declared the creation of CNI as illegal. In fact the aforesaid issue is pending consideration before Delhi High Court in various suits transferred to it by the Supreme Court, including the suits filed by opposite party no. 3 and the petitioner, as referred in the earlier part of the judgment. Copy of the plaint relating to the suit filed by opposite party no. 3 is on record. The relief claimed therein has already been mentioned earlier in the judgment. CNIT which manages the properties of CNI is a party to the suit and relief of declaration of title over the properties mentioned in schedule to the plaint and permanent injunction has been claimed. A perusal of the plaint clearly shows that the opposite party no. 3 herein is claiming right over the properties mentioned in schedule-I thereof which, in fact, is a verbatim reproduction of schedule-2 of the Indian Church Act, 1927 and includes Christ Church, Lucknow and Saint Thomas Church, Gonda. Para 9 of the plaint specifically states "at no time they ever agreed to transfer their (plaintiffs) properties to the defendants (CNI) nor the defendants have got the authority to claim as such". In para 16 it has been averred that the defendants have no right, title or interest of any kind whatsoever (over the properties in question) and they are threatening forcible possession of the same and also that they have denied the title of the plaintiffs, hence the relief of declaration of title. Thus clearly the validity of succession of CNI to CIBC is an issue involved therein. In spite of repeated queries neither of the parties were able to inform the Court about the stage of the suit and whether issues had been framed therein but the plaint speaks for itself.
The factum of pendency of the suits between the parties before the Delhi High Court was specifically mentioned by the petitioners in their objection dated 25.11.2014 but surprisingly the Deputy Registrar did not take note of the same. He appears to have proceeded on the assumption that the Supreme Court had declared the formation of CNI to be illegal which was apparently erroneous as already discussed earlier.
Neither Dr. Misra nor the State counsel could point out violation of any statutory provision in the merger of CIBC/CIPBC with CNI so as to apply the ratio in Vinod Kumar M. Malviya's case (supra) In any event the validity of succession of CNI to CIBC was not an issue which the Deputy Registrar could have considered or decided under Section 4 of the Act 1860. He has clearly travelled into forbidden area on this count under a misconception of the ratio in Vinod Kumar M. Malviya's case (supra).
The Deputy Registrar has also exceeded his jurisdiction in considering and deciding the issue as to the existence or otherwise of the Church of India (CIBC) based on various provisions of the Act 1927, 1960 etc. and holding that it was very much in existence as per law and was entitled to control and manage the petitioner-society. This was clearly beyond the scope of Section 4. Such issues involving complicated questions of fact and law could not have been decided by him while exercising his power under Section 4, more so as these issues were already pending adjudication in civil suits before the Delhi High Court. The Deputy Registrar has referred to the provisions of Section 3 of the British Statute (Application to India) Repeal Act, 1960 to arrive at the conclusion that the existence of the Church of India (CIBC) was saved by the said provisions. The Indian Church Act 1927 stood repealed in its application to India by the British Statutes (Application to India) Repeal Act, 1960, Section 3 thereof containing saving clause reads as under:--
"3. Savings. For the removal of doubts, it is hereby declared that the repeal by this Act of any British statute shall not effect the operation of any such statute in relation to India and to persons and things in any way belonging to or connected with India in any country to which the India (Consequential Provision) Act, 1949 (12, 13 and 14 Geo VI, c.92), extends."
The Act 1949 referred to in Section 3 above was enacted by the King of England on the advice of Lords Spiritual and Temporal, and Commons assembled in the British Parliament which was published in the Gazette of India on 13.01.1950 keeping in view the impending event of India becoming republic on 26.01.1950 while remaining the member of Commonwealth. Sub-Sections (1), (2), (3), and (4) of Section 1 of the Act 1949 read as under:--
" 1. Operation of existing law in relation to India in view of India's becoming a Republic.-- (1) On and after the date of India's becoming a Republic, all existing law, that is to say, all law which, whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force thereafter, shall until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub-section (3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a Republic.
(2) This Act extends to law of, or of any part of, the United Kingdom, a colony, a protectorate or a United Kingdom trust territory, and also, but so far only as concerns law which cannot be amended by a law of the Legislature thereof, to law of Southern Rhodesia or of any part thereof.
The references in this sub-section to a colony, to a protectorate and to a United Kingdom trust territory shall be construed as if they were references contained in the British Nationality Act, 1948.
(3) His Majesty may be order in Council make provision for such modification of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India's becoming a Republic while remaining a member of the Commonwealth, and sub-section (1) of this section shall have effect in relation to any such law as modified by such an Order save in so far as the contrary intention appears in order.
An Order in Council under this section--
(a) may be made either before or after India becomes a Republic and may be revoked or varied by a subsequent Order in Council; and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(4) Any increase attributable to an Order in Council under this section in sums payable out of moneys provided by Parliament or out of the Consolidated Fund of the United Kingdom or the growing procedure thereof shall be defrayed out of moneys so provided, or out of that Fund or the growing produce thereof, as the case may be."
The Act of 1949 was repealed by the British Statute Repeal Act, 2004 which reads as under:--
"The British Statutes (Repeal) Act, 2004 (No. 17 of 2004).
An Act to repeal the British Law Ascertainment Act, 1859, The Foreign Law Ascertainment Act, 1861, the Colonial Probates Act, 1892, in so far as they apply to India, and the India (Consequential Provision) Act, 1949.
Be it enacted by Parliament in the Fifty-fifth Year of the Republic of India as follows:--
1. Short title.-- This Act may be called the British Statutes (Repeal) Act, 2004.
2. Definition.-- In this Act "British Statutes" means the British Law Ascertainment Act, 1859 (22 and 23 Vict. C. 63), the Foreign Law Ascertainment Act, 1861 (24 and 25 Vict. C.11), the Colonial Probates Act, 1892 (55 and 56 Vict. C.6) in so far as they apply to India and the India (Consequential Provision) Act, 1949 (12, 13 and 14 Geor. VI C. 92).
3. Repeal.-- The British Statutes are hereby repealed."
The aforesaid Act received the assent of the President of India on 20th February, 2004. The conjoint reading of the aforesaid provisions shows that what was saved by Section 3 of Act 1960 was the application of any statute repealed by it in relation to India and to persons and things in any way belonging to or connected with India, in any country to which India (consequential provision) Act, 1949 extended. Assuming that the said provision saved the application of the Indian Church Act, 1927, the same stood repealed with effect from 20.02.2004. This aspect of the matter was not considered by the Deputy Registrar. Thus the finding recorded by the Deputy Registrar is without sound legal basis and is, therefore, unsustainable. Moreover, the Deputy Registrar did not at all consider the question as to whether the Church of India (CIBC) was in existence defacto. He merely presumed its defacto existence based on the aforesaid statutory provisions that too in ignorance of the Act 2004, which is not sustainable. He failed to appreciate that neither the opposite party no. 3 nor any other person claiming under CIBC or CIPBC had staked any claim to the management of the petitioner-society since 1970, therefore, their defacto existence was seriously questionable. He also failed to go into the question as to whether the CIBC or CIPBC was actually functional in India after its General Council passed the resolution on 29.11.1970 for its merger with and formation of CNI, specially as there was no order or decree of any court nullifying such merger or creation. In fact these issue were beyond the scope of an inquiry under Section 4. The dispute in question was predominantly related to election and continuance of officer-bearers of the committee of management of the petitioner-society and not pertaining to the list of officer-bearers. The claim of opposite party no. 3 was to the management of petitioner-society. The Deputy Registrar should not have ignored the admitted fact that opposite party no. 3 and his associates had not been in control and management of the petitioner-society for the last 34 years. He was neither an ordinary nor a life member of the society whether prior or after 1970. He claimed to be Bishop of Lucknow Dioceses and ex-officio Chairman of petitioner-society as per its bye-laws. He claimed to have been elected or enthroned as Bishop of Lucknow way back in the year 2005 but he never raised any claim or expressed any willingness to function as ex-officio Chairman of the petitioner-society. This was a very relevant fact which should have weighed with the Deputy Registrar for the purpose of registration/acceptance of the list of officer-bearers or members of the society submitted by opposite party no. 3 but he failed to take it into account. He also failed to appreciate that the list submitted by opposite party no. 3 along with application dated 14.08.2014 was also not in conformity with the bye-laws of the society as he did not include ex-officio members in it. The list of general body submitted therewith contained the names of only 12 members. He also failed to appreciate that the modified list submitted by opposite party no. 3 along with his application dated 15.12.2014 contained the names of 18 members of the general body, including petitioner no.2 himself, who had set up a rival claim in his objection dated 25.11.2014, which was at variance with the earlier list, yet the Deputy Registrar accepted the list of general body as also the list of officer-bearers submitted by opposite party no. 3 ignoring the aforesaid glaring facts. Furthermore he directed the opposite party no. 3 to constitute a committee of management and submit a list before him accordingly. It was clearly beyond the pale of Section 4 of the Act 1860. To ask the ex-officio Chairman to constitute the committee of management was itself unjustified.
The merger of CIBC/CIPBC with CNI on 29.11.1970 not being in dispute, though its validity being disputed by opposite party no. 3, considering the indisputable fact that CNI being in control of the petitioner-society since then, the absence of amendment in bye-laws replacing the reference to CIBC by CNI is not very material specially as CIBC itself subsequently became CIPBC which is also not mentioned in the bye-laws by way of any amendment.
The finding recorded by the Deputy Registrar that the appointment of opposite party no. 3 as Bishop of Lucknow was valid is also without jurisdiction. He had no power under Section 4 to give such a declaration. The General Council of alleged Church of India or CIBC or CIPBC which was the highest body had not staked any such claim. It was only opposite party no. 3 who claiming himself to be Metropolitan of India had raised such a dispute, that too after 34 years of the creation of CNI and more than 9 years after his alleged appointment as Bishop of Lucknow and Metropolitan of India. His entitlement could only be considered before the civil court. Even the proceedings under Section 25 (1) could not have been resorted to by him as he could not have mustered the requisite 2/3rd majority of the members of the existing general body of the petitioner-society as he was claiming a separate general body who belong to the Church of India (CIBC) and not CNI.
For the aforesaid reasons the acceptance by the Deputy Registrar of the list of officer-bearers and members of general body submitted by opposite party no. 3 cannot be sustained nor can the direction to the said opposite party to constitute the committee of management of the petitioner-society be sustained.
As far as deficiency in the list submitted by petitioner nos 1 and. 2 is concerned the Deputy Registrar could have very well pointed out the same to petitioner no. 2 and could have called for their explanation and after being satisfied could have taken further steps. The petitioners have been managing the society since 1970 or at least since 2002, therefore, considering the fact that they had been submitting the list of officer-bearers under Section 4 for the last so many years, it would have been appropriate for him to have accepted the list after rectification of the deficiency, if any, in keeping with the pronouncement of the Supreme Court in the case of A.P.Aboobaker Musaliar Vs. District Registrar (G) Kozhikode and others(supra) but there was absolutely no occasion for him to call upon the opposite party no. 3, who was an absolute stranger, to constitute the committee of management of the society and place it before him. The deficiencies, if any, were not fatal. If instead of twelve the list of office bearers contained 14 members, it could be rectified. It contained the names of certain persons who could not be an ex-officio members, the same could be rectified, but this could certainly not form the basis for ousting the existing management and installing another management. Nobody had raised any dispute regarding the election held by the petitioners in November, 2014. There was no rival claimant nor any list of officer-bearers had been submitted by any rival group within the society based on a separate election.
The proceedings under Section 4 of Act 1860 pertaining to the years prior to 2014-15 were not in issue before the Deputy Registrar though he has referred to them, nor was the renewal of registration of the petitioner no.1-society in issue as the remedy in this regard, if any, was under Section 12-D and not Section 4 of Act 1860. The earlier lists of officer-bearers submitted by the petitioners, though they may have suffered from some discrepancies as borne out from the perusal of the original records, had been accepted by the Deputy Registrar. Subsequent to it fresh elections had been held. There was no occasion for the Deputy Registrar to indulge in digging of old graves. The proceedings in question were initiated on the application of opposite party no. 3 dated 14.08.2014 and petitioners' list of officer-bearers etc. pertaining to the year 2014-15.
In view of the facts and reasons discussed hereinabove, the arguments of Dr. L. P. Misra and the decisions relied upon by him do not sustain the impugned order dated 07.02.2015 and the same is accordingly quashed. Consequences to follow accordingly.
Having pondered over the issue as to whether the dispute needs to be referred to prescribed authority under Section 25 (1) of Act 1860 the Court is of the view that it is not a fit case for such reference as the opposite party no. 3 has set up his claim based on a separate general body belonging to CIBC distinct from the one existing at present. Thus the dispute is a fundamental one and the membership of the opposite party no. 3 and his associates in the existing general body itself is disputed. Therefore, considering the complicated questions of fact and law involved, the summary proceedings under Section 25(1) would not be suited for resolution of the same. The opposite party no. 3 and his associates would also find it difficult to take recourse to Section 25(1) as they would not be able to muster 2/3rd members of the existing general body as they are basing their claim on a different general body. In the facts and circumstances the appropriate remedy for opposite party no. 3 would be to get his rights declared in regular proceedings of a suit, whether pending or a fresh one. Till then he has no locus to interfere in the functioning of the petitioner-society nor to raise any dispute or objection with regard to it.
As far as the list of officer-bearers and members of general body submitted by petitioner no. 2 for the year 2014-15 is concerned, the matter is remanded back to Deputy Registrar to take a decision afresh in the light of Section 4 and 4-B of Act 1860 keeping in mind the directions of the Supreme Court in the case of A.P.Aboobaker Musaliar Vs. District Registrar (G) Kozhikode and others(supra) and the observations made hereinabove, subject to any order or declaration by any court in favour of opposite party no. 3 in a pending or fresh suit, if filed by him or his associates.
It is made clear that the discussions made hereinabove are only for the purpose of adjudicating the validity of the order of the Deputy Registrar and any observations made shall not prejudice the rights of the parties pending adjudication in any proceedings before any court.
The writ petition is allowed in the aforesaid terms.
28.05.2015
Shaakir/
WP406(MS)-2015 (Rajan Roy,J.)