Allahabad High Court
Most Rev. John Augustine Inre 406 M/S ... vs Christ Church Mcconaghy School Society ... on 12 July, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 13.05.2022 Delivered on 12.07.2022 Court No. - 1 Case :- SPECIAL APPEAL No. - 233 of 2015 Appellant :- Most Rev. John Augustine Inre 406 M/S 2015 Respondent :- Christ Church Mcconaghy School Society Lucknow And 3 Others Counsel for Appellant :- Prashant Singh Atal,Ankit Singh,Dr. L.P. Misra,Pooja Singh,Pranjal Krishna,Santosh Kumar Counsel for Respondent :- C.S.C.,Aniket Raj,Gaurav Mehrotra,Nadeem Murtaza,Rahul Srivastava,Saurabh Shankar Srivastav,Sudeep Seth Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(Per Ramesh Sinha, J.) (A) Introduction
1. The instant intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been preferred by Most Rev. John Augustine (appellant herein/respondent no.3 in writ petition), challenging the correctness of the judgment and order dated 28.05.2015 passed in Writ Petition No. 406 (M/S) of 2015 : Christ Church McConaghy School Society, Lucknow and another Vs. Registrar, Firms, Societies and Chits, Lucknow and others, whereby the learned Single Judge, while quashing the order dated 07.02.2015 passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow, by which the General Body of the writ petitioners' society (Christ Church Mc Conaghy School Society, Lucknow) was declared invalid and further directed the appellant herein (respondent no.3 in writ petition), to take action for re-constitution of the Committee of Management of Christ Church McConaghy School Society, Lucknow in accordance with bye-laws, allowed the writ petition in the following terms :-
"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."
B. Factual Matrix
2. The facts leading to the instant intra Court appeal, in a nutshell, are as under:-
3. A Society has been registered under the Societies Registration Act (XXI of 1860) (hereinafter referred to as "Act, 1860") in the year 1947 called ''Christ Church McConaghy School Society, Lucknow' (hereinafter referred to as ''Society'). The objects of the Society are :- to give Christian education among the people of Lucknow; to give 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; to maintain a Christian staff sufficient to preserve and strengthen the Christian character and purpose of the institution; to provide for the care of orphans and their education; to undertake any form of work which is directed to the improvement, increase and spread of education and is for the benefit of the people of India etc.
4. Rule-3 of the Rules and Regulations of the Society refers ex officio members of the Society, which is reproduced as under :-
(a) The Bishop of Lucknow for the time being.
(b) The Secretary of the Board of Education of the Lucknow Diocean Council for the time being.
(c) The Principal of Christ Church Mc Conaghy School, Lucknow for the time being.
(d) The Principal of La Martiniere College, Lucknow, for the time being.
(e) The civil Chaplain, Lucknow, for the time being.
(f) The priest in-charge of the Epiphany Church, Lucknow, for the time being.
(g) The Secretary of the Indian Board of the Lucknow Diocean Council for the time being.
(h) The Secretary of the Lucknow Diocesan Trust Association for the time being.
5. Rule 4 of the Rules and Regulations of the Society refers Members of the Society, according to which, there are three classes of Members of Society viz. (i) Life Members shall be those who subscribed a sum of not less than Rs.10,000/- to the Society, and who shall have been accepted to be Life Members of the Society by the Managing Committee; (ii) Ordinary Members shall be those who subscribed a sum of Rs.200/- to the Society as admission fee and thereafter a sum of Rs.5/- per month as monthly subscription which shall be payable either monthly or as the Managing Committee shall direct and who shall have been accepted to be Ordinary Members of the Managing Committee of the Society; (iii) Honorary Members shall be those who are ex officio members of the society and other individuals who may be elected as Members of the Managing Committee either by the Society at the Annual General Meeting, or by the Managing Committee, but such persons shall cease to be members of the Society when they cease to be members of the Managing Committee.
6. Rule 8 of the Rules and Regulations of the Society says that the business and affairs of the Society shall be managed by a Managing Committee of not less than five and not more than twelve members, elected by the Society at the Annual Meeting and at least three members of the Managing Committee shall be ex officio members of the Society.
7. As per Rule 9 of the Rules and Regulations of the Society, the aforesaid ex officio members of the Society shall be the first Managing Committee and they shall continue in office until after the first General Meeting of the Society. As per Rule 10 of the Rules and Regulations of the Society, the Office Bearers of the Society shall be a Chairman, a Vice-Chairman, a Secretary and a Treasurer and these shall be elected at the Annual Meeting of the Society. The Office Bearers shall be elected from among the members of the Society and they shall be members of the Managing Committee. The other members of the Managing Committee shall also be elected by the Annual Meeting of the Society. Nevertheless the Bishop of Lucknow, if willing to act, shall always be ex officio Chairman of the Society as per Rule 15 of the Rules and Regulations of the Society.
8. Rule 15 of the Rules and Regulations of the Society provides that the Bishop of Lucknow, if willing to act, shall be the ex officio Chairman of the Society, otherwise the Chairman shall be elected by the General Meeting of the Society. Rule 49 of the Rules and Regulations of the Society provides that in order that the Constitution, 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 from the time being.
9. After partition of India in 1947, the erstwhile Church of India, Burma and Ceylon (hereinafter referred to as ''CIBC') became Church of India, Pakistan, Burma and Ceylon (hereinafter referred to as ''CIPBC'), but no such amendment was made in the Rules and Regulations of the Society and in the Rules and Regulations of the Society, the Society has continued to refer CIBC.
10. On 27th November, 1970, six Churches including the erstwhile CIPBC merged into one entity and created ''the Church of India' (hereinafter referred to as ''CNI') under Indian Churches Act, 1927 and rules/regulations framed thereunder.
11. It appears that appellant herein, while claiming himself to be Metropolitan Church of India and Bishop of Diocese of Lucknow, had submitted an undated application to the Deputy Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow (hereinafter referred to as "Deputy Registrar"), which was received in the office of Deputy Registrar on 14.08.2014 (Annexure No.14 of the writ petition). In the aforesaid undated application, the appellant herein had prayed that in the light of Vinod Kumar M. Malviya and others Vs. Maganlal Mangaldas Gameti and others : (2013) 15 SCC 394, the present Managing Committee of the Society is illegal and, therefore, the approval/registration of the list of the members/office bearers of the Managing Committee of the writ petitioners' Society be cancelled and in its place the list of members and office bearers presented by CIPBC, be registered. In the aforesaid application, it has been admitted by the appellant that since 1970 (from the date of formation of CNI), respondent no. 1/writ petitioner no.1's Society is in control and management of the members of the CNI.
12. The Deputy Registrar, vide order dated 07.02.2015, declared the entire General Body of the writ petitioners' Society as invalid and directed the appellant herein (respondent no.3 in writ petition) to take action for re-constitution of the Committee of the Management of the petitioners' society in accordance with the bye-laws.
13. Feeling aggrieved by the aforesaid order dated 07.2.2015, the respondents no. 1 and 2/writ petitioners had approached this Court by filing writ petition No. 406 (M/S) of 2015, which was allowed by the learned Single Judge while quashing the order dated 07.02.2015 vide judgment and order dated 28.05.2015.
14. Hence the instant special appeal.
15. Pleadings have been exchanged between the parties.
C. Application for Impleadment filed by applicant-The Right Revd. Dr. Peter Baldev, Bishop Diocese of Lucknow (C.M. Application No. 109924 of 2019)
16. During the course of arguments, it has been pointed out by the learned Counsel for the parties that application for impleadment filed by the Right Revd. Dr. Peter Baldev, Bishop Diocese of Lucknow (C.M. Application No. 109924 of 2019) is pending and a Co-ordinate Bench of this Court, vide order dated 20.11.2019, observed that this application for impleadment be considered at the time of final hearing of the appeal. In these backgrounds, this Court proceeds to consider the application for impleadment.
17. Shri Anil Kumar Tewari, learned Senior Advocate assisted by Shri Vivek Kumar, appearing on behalf of the applicant-the Right Revd. Dr. Peter Baldev, Bishop Diocese of Lucknow, has argued that the applicant-the Right Revd. Dr. Peter Baldev is presently the Bishop of Diocese of Lucknow, Church of North India. As per Clause-3 and Clause-15 of the bye-laws of the Society, the applicant being the Bishop of Diocese of Lucknow is the ex officio Chairman of the Society and therefore, he is vested with certain powers. He argued that after passing the interim order with regard to maintaining status quo in the present appeal vide order dated 15.06.2015, the parties inter se CIPBC and CNI maintained status quo with regard to the governance of the Society and that consequently the Society was being managed by the CNI. He argued that after passing the interim order dated 15.06.2015, the respondent no.2 has wrongly interpreted the interim order dated 15.06.2015 and not convened the meeting of the Society in the garb of the interim order dated 15.06.2015 and subsequently wrote a letter to Mr. Ricardo Henry Soler with regard to the applicant not being the Chairman of the Society even inspite of attending the annual general meeting of the society in the year 2015 and 2016 under the Chairmanship of the applicant. Thus, the conduct of the respondent no.2 is not good. In these backgrounds, his submission is that the applicant being the Chairman has no faith in the intentions and integrity of the respondent no.2, hence the applicant be impleaded as respondent no.5 in the present appeal.
18. Per contra, Shri Santosh Kumar, learned Counsel for the appellant, Shri Gaurav Mehrotra, learned Counsel for the respondent no.2 and Shri Nadeem Murtaza, learned Counsel for the respondent no.1 have vehemently opposed the aforesaid submissions of the learned Senior Counsel for the applicant and argued that as per the Memorandum, the business and affairs of the Society shall be managed by a Management Committee (Governing Body) of the Society. Clause-19 of the bye-laws explicitly provide that in any litigation etc., it is the Secretary of the Society who has to append his/her signature and above all necessary action on behalf of the Society. He argued that applicant-Right Revd. Dr. Peter Baldev, Bishop Diocese of Lucknow, was never a party either before the learned Single Judge during the writ proceedings nor was the applicant ever represented or was a party before the Deputy Registrar, Firms, Societies and Chits, U.P., Lucknow, by whom order dated 07.02.2015 was passed which was assailed in the writ petition filed by the respondent no.1/society and the Secretary of the respondent no.1/Society. Thus, applicant-Right Revd. Dr. Peter Baldev, Bishop Diocese of Lucknow has no locus standi to seek impleadment as a respondent before this Court. They argued that the Society is already impleaded as respondent no.1 in the instant intra Court appeal. The byelaws nowhere authorize the Chairman of the respondent no.1-Society to represent the respondent no.1-Society in any litigation, therefore, the impleadment application preferred by the applicant is absolutely frivolous and not maintainable and is liable to be rejected.
19. Having examined the submissions advanced by the learned Counsel for the parties and gone through the record, it is an admitted position that applicant was not a party before the Deputy Registrar nor before the learned Single Judge in a writ proceedings. Rule 19 of the Rules and Regulations of the Society clearly indicates that it is the Secretary, who shall sue and be sued on behalf of the Society and shall be the officer to execute all legal documents on behalf of the Society. It is not in dispute that presently, the respondent no.2 is the Secretary of the Society and managing the affairs of the Society.
20. On due consideration, this Court is of the view that the applicant is not the necessary party in the present special appeal. Accordingly, the application for impleadment filed on behalf of the applicant (C.M. Application No. 109924 of 2019) is hereby rejected.
D. Submissions of the parties on the Merit of the special appeal.
21. Heard Shri Santosh Kumar assisted by Shri Ankit Singh and Dr. Pooja Singh, learned Counsel for the appellant, Shri Gaurav Mehrotra, learned Counsel for the respondent no.2, Shri Nadeem Murtaza, learned Counsel for the respondent no.1 and Shri V.P. Nag, learned Standing Counsel for the State.
D.1. Submission on behalf of the appellant
22. Challenging the impugned order dated 28.05.2015 passed by the learned Single Judge, Shri Santosh Kumar, learned Counsel for the appellant argued that on 23.11.1927, the National Assembly of the Church of England approved the request for the dissolution of the union existing between the Church of England and the Church of England in India and accordingly, it passed the Indian Church Measure, 1927, providing for such dissolution and that after such severance, the Church of England in India would be free to manage its own affairs. It further mentioned that the ecclesiastical law of Church of England so far as it exists in India, shall in India cease to exist as law; and no proceeding by way of rehearing or appeal from any decision, judgment, sentence, decree or other order of any ecclesiastical court or official of the Indian Church shall be entertained, admitted, prosecuted, heard or determined in by or before any of His Majesty's Courts of Justice in India or elsewhere, any Court of Commissioners delegate in India or his Majesty in Council. On 22.12.1927, the British Parliament passed an Act, known as the ''Indian Church Act, 1927', by which union between Church of England and Church of England in India was dissolved and Church of England in India was free to manage its own affair. Later on, after creation of Pakistan from Indian mainland, the Church of England in India was succeeded by the Indian Church known as ''CIPBC'. The Christ Church was established within the jurisdiction of CIPBC for the purpose of imparting education through Christ Church School and Christ Church College.
23. Shri Santosh Kumar has argued that on 23.03.1948, Ministry of Defence of the Government of India addressed a letter to Metropolitan of India, Burma and Ceylon, Calcutta; the Secretary of Church of Scotland Colonial Chaplaincy, Board In India; Apostolic Delegate of East Indies in Banglore; and Roman Catholic Archbishop of Bombay, stating therein that all Anglican Churches included in the list of maintained Churches (Second Schedule to Indian Church Act, 1927), which will have the effect of vesting them in the Indian Church Trustees w.e.f. 04.01.1948 and the Anglican Churches being maintained at State expenses will not be maintained by the Government after wind up of ecclesiastical affairs and they will also be transferred to Indian Church Trustees w.e.f. 1st April, 1948.
24. Learned Counsel for the appellant argued that on 26.12.1960, the Indian Church Act, 1927 was repealed but in the saving clause, it was declared that the repeal shall not affect the operation of any such statute in relation to India or person(s) or things connected to India. According to him, allegedly on 27.11.1970, Church of North India (CNI) came into existence out of the union of six churches, namely, (i) the Council of Baptist Churches in Northern India, (ii) the Church of the Brethren in India, (iii) the Disciples of Christ, (iv) the Church of India (formerly known as the Church of India, Pakistan, Burma and Ceylon), (v) The Methodist Church (British and Australasian Conferences), (vi) the United Church of Northern time. His submission is that CNI is neither registered as a Society nor a Company in the present time and CNI was never empowered to manage the affairs of the Society.
25. Sri Santosh Kumar has argued that on 20.02.2004 Indian (Consequential Provision) Act, 1949 was repealed vide British Statutes (Repeal) Act, 2004 (Act 17 of 2004). His submission is that the effect of the enactments of British Statutes (Repeal) Act, 2004, the British Statutes (Application to India) Repeal Act, 1960 and the India (Consequential Provision) Act, 1949 is that by virtue of the Church of India known as CIPBC in view of the Section 6 of the General Clauses Act, 1897 is a statutory body having been created under the statute i.e. Indian Church Act, 1927. He argued that Section 6 of the General Clauses Act, 1897 provides that the repeal shall not affect the previous operation of any enactment so repealed; affect any right privilege, obligation or liability acquired/accrued under any enactment so repealed etc. Therefore, the provisions of Indian Church Act, 1927 remained in force because the operation of the Statute does not get affected even after the repeal of the Act.
26. It has been argued by the learned Counsel for the appellant that the Society (Christ Church McConaghy School Society) was registered under the Act, 1880 in Uttar Pradesh with the objective of imparting Christian education and opportunities for teaching witness and worship according to the faith, doctrine and practices of the CIBC (earlier CIPBC) and more especially to Christian staff and students as stated in its Memorandum of Association. His submission is that the Society is to be run and managed by CIPBC Lucknow Diocease. Section 49 of the bye-laws of the Society states that the acts of the Society shall be done with the assent of Bishop of Lucknow. However, the registration of the Society had expired and was not renewed since 1977. On 17.04.2002, the registration of the Society was renewed but without disclosing to the Deputy Registrar that as per the bye-laws of the Society, its affairs were to be managed by the CIPBC Lucknow Diocese. He argued that the said renewal was sought by furnishing fraudulent information and the list of the Society contained various irregularities, viz. the Committee of Management list of Society for the years 1977-1978 and 2001-2002 was not countersigned by the old members and whatever subsequent addition and alterations was made in the list thereon was also not countersigned by the old members which is major irregularity. He argued that till now, the Society had no connection with CNI. In these backdrops, his submission is that the Society has never been dissolved and no dissolution has at all taken place and, therefore, the affairs of the Society including the properties of the Society and the Institution have to be managed by the Church of CIPBC, Lucknow Diocease and none else and any other claimant is nothing but a usurper.
27. Learned Counsel for the appellant has contended that appellant had filed a suit, bearing Regular Suit No. 104 of 2003, before the Court of Civil Judge (Senior Division), Lucknow, seeking a decree of declaration to the effect that all the properties including the property in question are lawfully held by CIPBC and further restraining the defendants therein from administering and managing affairs of the property in question. The learned Civil Judge (Senior Division), Lucknow, vide order dated 28.05.2003, granted interim protection in favour of CIPBC. Thereafter, on 24.02.2005, the appellant was elected and enthroned as the Bishop of Lucknow by the Lucknow Diocesan Council as per the provisions of the Constitutions, Cannons and Rules of the CIPBC. The certificate of enthronement duly signed by the concerned authorities has been annexed as Annexure No. 3 to the instant special appeal.
28. Sri Santosh Kumar has further submitted that the question as to whether the CNI is a successor of the CIPBC is no more res integra and now it is a settled position that the CIPBC has not become non-existent and the CNI is not the successor of the affairs and properties of the CIPBC in view of the judgment of the Apex Court rendered in Church of North India Vs. Lavajibhai Ratanji Bhai and others : 2005 (10) SCC 760, Vinod Kumar Mathur Sewa Malavia Vs. Maganlal Mangal Das Gameti and others : 2006 (9) SCC 282, and Vinod Kumar M. Malvia etc. Vs. Maganlal Mangal Das Gameti and others : 2013 (15) SCC 394.
29. Learned Counsel for the appellant has argued that in the year 2008, the appellant had filed a transfer petition bearing no. 680/2008, before the Apex Court seeking transfer of the Regular Suit No. 104 of 2003 pending before the Civil Judge (Senior Division), Lucknow from Lucknow to New Delhi, which was allowed by the Apex Court. After transfer, the Regular Suit No. 104 of 2003 has been renumbered as CS (OS) 2685 of 2008 and is pending before the Hon'ble Delhi High Court. In the meanwhile, in view of the dictum of the Apex Court in Vinod Kumar M. Malvia etc. Vs. Maganlal Mangal Das Gameti and others (supra), the appellant being the Bishop of CIPBC filed a complaint to the Deputy Registrar against the Managing Committee of the respondents' Society along with documents on 14.08.2014. On 04.09.2014, the Deputy Registrar issued notice to the respondent no.2. In response thereof, the respondent no.2 filed reply to the complaint on 25.11.2014. On 05.12.2014, the appellant filed rejoinder along with documents. Thereafter, pleadings were exchanged between the parties. On 07.02.2015, the Deputy Registrar examined the entity of the two churches, namely, CIPBC and CNI as both claimed their control over the affairs of the Society and the Deputy Registrar, after examining the issue in detail, has declared the entire general body of the Society as invalid and while affirming that the appellant is the rightful Bishop of Lucknow Diocese, directed him to take action for reconstitution of the Committee of Management of the Society in accordance with bye-laws of the Society and submit a status report thereafter. Not satisfied by the order of the Deputy Registrar dated 07.02.2015, respondent no.1 and 2 herein approached this Court by filing Misc. Bench No. 406 of 2015, which was allowed by the learned Single Judge vide impugned judgment and order dated 28.05.2015 while setting aside the order dated 07.02.2015 on the ground that the Deputy Registrar has exceeded its jurisdiction in determining the validity of Churches and further remitted the matter back to the Deputy Registrar and directed him to take a decision afresh in the light of Sections 4, 4B and 25 (2) of the Act, 1860 in regards to the list of office bearers and members, submitted by the respondent no.2 for the year 2014-15. Feeling aggrieved, the appellant has filed the instant appeal.
30. Submission of the learned Counsel for the appellant is that learned Single Judge, while passing the impugned order dated 28.05.2015, has erred in not appreciating the fact that the list of office bearers of the Management Committee and the General Body members as submitted by the respondent no.2 was not in conformity with the bye-laws of the Society nor in consonance with Section 4 of the Act, 1860, which requires the counter signature of the outgoing office bearers. He further argued that the Deputy Registrar had lawfully exercised statutory jurisdiction vested in it while passing the order dated 07.02.2015 as the complaint filed by the appellant before the Deputy Registrar was within the ambit of inquiry under Section 4B of the Act, 1860. He argued that Section 4 of the Act, 1860 requires a regular annual general meeting of Society and filing of list of members with Registrar. Subsequently, by U.P. Act No. 25 of 1958, Section 4 of Act, 1860 was amended, by which words ''Registrar of Joint-stock Companies' were substituted by word ''Registrar'. Another amendment was made by U.P. Act No. 52 of 1975 and existing Section 4 was renumbered as sub-section (1) and thereafter sub-section (2) was inserted w.e.f. 10.10.1975. A further amendment was made by U.P. Act No. 11 of 1984 w.e.f. 30.04.1984 and in sub-section (1), a proviso was inserted i.e. if the managing body is elected after the last submission of the list, the counter-signatures of old members, shall, as far as possible, be obtained on the list. If the old office-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 specified period and shall decide all objections received within the said period. Thereafter, a new section i.e. 4-A was inserted by U.P. Act No. 52 of 1975 w.e.f. 10.10.1975. Subsequently, Section 4-B was inserted by U.P. Act No. 23 of 2013 published in U.P. Gazette Extra-ordinary dated 09.10.2013. He argued that the reason for insertion of Section 4-B mentioned in ''Statement of Objects and Reasons' of U.P. Act No. 23 of 2013 is that there is no provision of filing of list of General Body of Society and a large number of disputes in Societies are raised due to non-existence of correct list of General Bodies with Registrar. According to him, the list of members of General Body of the Society has to be filed at the time of registration or renewal of society and in the list, name, father's name and occupation of members must be mentioned. Thus, the Registrar is under a statutory duty to examine correctness of list of members of General Body of such Society on the basis of register of members of General Body and minutes thereof, cash book, receipt book of membership fee and Bank pass book of Society. If a member is not included in list, whether such non-inclusion also can be examined by the Registrar, is not very clear from sub-section (1) of Section 4-B of the Act, 1860 but this is made clear by sub-section (2) of Section 4-B of the Act, 1860, which provided that if there is any change of list of members of General Body of the Society referred to in sub-section (1) of Section 4-B of the Act, 1860 on account of induction, removal, registration or death of any member, a modified list of members of General Body shall be filed with Registrar within one month from the date of change.
31. It has been pointed out by the learned Counsel for the appellant that bare perusal of the aforesaid provisions shows that at the time of registration or renewal, a list of members of General Body of Society has to be filed by Assistant Registrar. Thereafter, whenever there is any change in the said list, same has to be informed to Registrar by submitting a modified list of members of General Body. When such a modified list is submitted to Registrar, examination allowed to be made by Registrar in respect of correctness of list of members of General Body in terms of sub-section (1) of Section 4-B of the Act, 1860, would also include removal of member(s) for the reason, when modified list is communicated to Registrar, whether modification is on account of induction or removal in any manner, both aspects and correctness thereof, can be examined by Registrar. The intendment of Legislature under Section 4 and Section 4B of the Act, 1860 is to empower the Registrar to examine correctness of any inclusion, alteration or change in the list of Membership of Society, particularly when an objection is raised. According to him, in the instant case, the Registrar in its order dated 07.02.2015 has examined the relevant records and has found the facts evident from record that list submitted by the respondents /writ petitioners' society for the year 2013-2014 is not in consonance with bye-laws of Society.
32. Learned Counsel for the appellant has argued that the Society remained unregistered from 1977 to 16.04.2002. The alleged Secretary of the Society had moved a letter dated 08.03.2002, requesting for renewal of Society from 27.10.1947 to March, 2002 and had thereby also filed a list of Committee of Management from the year 1977-1978 to 2001-2002 in haste and with a fraudulent intention, as the same was not countersigned by old members of the Society as mandated by law. Thereafter, the list of members submitted for the year 1981-82 had new members added in serial nos. 3, 4, 5 and 8 but the same was again not countersigned by old members. Further, in 1985, new names were added at serial no. 2, 3 and 7 of the list of members of the Society but again the same was not signed in accordance with Section 4 of the Act, 1860. Further, in 1986-87, the same irregularity was repeated. Moreover, the renewal of the registration of the Society in the the year 2002 was sought without disclosing to the Deputy Registrar that as per the bye-laws of the Society, the affairs of the same were to be run by CIPBC. Thus, the Deputy Registrar has lawfully declared the entire General Body of the respondent no.1's Society as illegal.
33. Learned Counsel for the appellant has further argued that no election of the Society was held till 2003, but the registration of the Society of the respondent no.2 was renewed on the basis of list of office bearers and proceedings of election on 16.04.2002. Further, the Secretary of the Society has submitted a list of 14 members to the Deputy Registrar and the Society's all ex officio members are related to CNI, which are both in clear contravention of the Rule 8 of the Rules and Regulations of the Society. However, the learned Single Judge, while passing the impugned order, has not paid any regards to the irregularities made by the respondents' Society.
34. Learned Counsel for the appellant has next argued that CNI has no role to play in the management of Society, which was formed in 1947 with the object of pursuing ideals of CIBC as mentioned in the Rules and Regulations of the Society in the wake of the judgment of the Apex Court in Vinod Kumar M. Malviya and others Vs. Maganlal Mangaldas Gameti and others (supra). Hence CNI does not have any locus poenitentiae in administration and running Chirst Church College but the learned Single Judge, while passing the impugned order, misinterpreted the judgment of the Apex Court rendered in Vinod Kumar M. Malviya and others Vs. Maganlal Mangaldas Gameti and others (supra) and also erred in appreciating the fact that CNI has ceased to have any legal existence whatsoever.
35. The next argument of the learned Counsel for the appellant that the CNI has continued to manage the Society under the assumption of validity of merger till it was declared otherwise. They are usurpers of office bearers by playing fraud. His submission is that fraud vitiates every solemn act, which cannot be validated even if continuing for a long period. To substantiate his submission, he has placed reliance upon the judgment of the Apex Court in A.V. Papayya Sastry & Ors Vs Government of Andhra Pradesh. & Others : 2007 (4) SCC 221 and Meghmala & Ors vs G. Narasimha Reddy & Ors : 2010 (8) SCC 383.
36. Learned Counsel for the appellant has next argued that CNI cannot be a successor of the Society and it cannot be successor of CIPBC as merger is illegal. He argued that the British Parliament enacted the Indian Church Act, 1927, wherein it dissolved the union between Church of England and the Church of England in India, whereby the Church of England in India was free to manage its own affairs. Thereafter, the Indian Church Act, 1927 created a body known as Church of India, which later came to be known as CIPBC after partition of Pakistan from India. The Indian Church Act, 1927 was then repealed on 26.12.1960, however, in Section 3 of the said Act, titled as ''Savings', it was declared that the repeal shall not affect the operation of any statute in relation to India and to persons and things in anyway belonging of any statute in relation to India and to person and things in anyway belonging to or connected with India. He pointed out that it is well settled law that ''saving' implies ''saving' of all right which the parties previously had and does not conferring any new rights upon the parties covered under the law being repealed. Moreover, Section 1 (1) of the India (Consequential Provision) Act, 1949 also stated that the pre-existing laws will, continue to operate until India, after becoming a Republic, passes a law to the contrary. Thereafter, India (Consequential Provision) Act, 1949 was repealed by British Statutes (Repealed) Act, 2004 (Act of 2004) w.e.f. 23.02.2004. The effect of repeal of British Statutes (Repealed) Act, 2004, British Statutes (Application to India) Repealed Act, 1960 and the Indian (Consequential Provision) Act, 1949 was that, CIPBC, in view of Section 6 of the General Clauses Act, 1897, was now a statutory body having been created under the Indian Church Act, 1926. His submission is that it can be easily inferred from the aforesaid that Indian Church Act, 1927 remained in force even after it was repealed, as the repeal did not affect the operation of the Statute. Hence, the CIPBC continued to exist. In these backdrops, his submission is that the learned Single Judge has erred in came to the conclusion that the CIPBC was in existence de facto, whereas there is sufficient proof to show that indeed CIPBC continues to exist and CNI has no existence in the eyes of law.
37. Learned Counsel for the appellant has further argued that as per the judgment and order dated 23.04.2012 passed by the High Court of Gujarat in First Appeal Nos. 1535 and 1536 of 2009 and the judgment of the Apex Court in Vinod Kumar M. Malavia etc. Vs. Maganlal Mangaldas Gameti & Ors (supra), there has been only resolutions in regard to the union of the six churches but such resolutions cannot affect the composition of the Church of India (CIPBC) created under the Indian Church Act, 1927. Further, the resolutions were neither exhibited nor proved in accordance with law. His submission is that the Rules and Regulations of the Society were never amended and in view of the same, CIPBC continued to be its governing body and the affairs, were still attributed to the Bishop of Lucknow, which is the appellant himself in the present case. In support of his submission, he has relied upon CNI Vs. Lavaji Ratanji Bhai : 2005 (10) SCC 760 and Vinod Kumar Mathursewa Malavia vs. Maganlal Mangaldas Gameti & Ors : 2006 (9) SCC 282.
38. Learned Counsel for the appellant has also argued that if the edifice or foundation of action falls, the superstructure would automatically falls. In support of his submission, he relied upon Chairman-cum-Managing Director Coal India Ltd. Vs. Ananta Shah and others : 2011 (5) SCC 142 and Kalabharti Advertising Vs. Hemant Vimal Nath Naricharma and others : 2010 (9) SCC 437.
39. Learned Counsel for the appellant has also argued that CNI is not entitled to manage the affairs of the Society. The bye-laws of the Society unequivocally shows that Bishop of diocease of Lucknow shall be Chairman of Society. According to him, the appellant was enthroned as the Bishop of Diocease of Lucknow on 24.02.2005 by the Lucknow Dioceasan Council as per the provisions of the Constitution, Canons and rules of the CIPBC at Christ Church, Hazratganj, Lucknow by Bishop's of the CIPBC. A certificate of enthronment has also been issued to the appellant which is duly signed by the concerned authorities. Moreover, the enthronement of the appellant as the Bishop of Lucknow Diocease has not been contested by the respondents' Society. In fact the order dated 07.02.2015 was passed by the Deputy Registrar while considering this fact only. This fact has also not been disputed by the respondents' Society. His submission is that a bare perusal of the Memorandum of Association and Rules and Regulations of the Society makes it clear that the Society is to be run by CPIBC and the Bishop of Lucknow has to be its Chairman alone.
40. Learned Counsel for the appellant, therefore, argued that the observation of the learned Single Judge that CNI was in control of management of the Society since past 34 years does not hold good as long continuation in management is not a ground for perpetuating illegality. Moreover, CIPBC had filed a Regular Suit No. 104 of 2003,, which was subsequently transferred to Delhi High Court and marked as CS (OS) No. 2685 of 2008, in which an interim injunction was granted by the Court in favour of CIPBC, in respect of the properties owned and lawfully held by the CIPBC including the Christ Church Lucknow property, and the same is still operative. The learned Single Judge has passed the impugned order dated 28.05.2015 without considering the operative interim injunction.
41. Lastly, learned Counsel for the appellant has argued that the observation of the learned Single Judge that CNI was in control of management of the Society since past 34 years does not hold good as long as continuation in management is not a ground for perpetuating illegality. Thus, the impugned order is liable to be quashed.
D.2 Submission of the respondent no.2
42. Shri Gaurav Mehrotra, learned Counsel for the respondent no.2, while supporting the impugned judgment and order dated 28.05.2015, has argued that respondent no.1 herein is a Society under the Act, 1860, which was established and registered under the Act, 1860, in the year 1947. As per recitals contained in the bye-laws of the respondent no. 1's 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 ''CIBC' and more specially to the Christian staff and students. After creation of Pakistan, the erstwhile CIBC became CIPBC but no such amendment was made in the bye-laws of the respondent no. 1's Society, which continued to refer CIBC.
43. Learned Counsel for the respondent no.2 has argued that in the year 1970, six Churches including the erstwhile CIBC merged into an entity, namely, CNI. The respondent no.2 and his associates indisputably are followers of the CNI and the appellant i.e. the rival claimant, is the follower of the CIBC and he is the Bishop of Lucknow Diocease. It is not disputed that ever since the formation of CNI, the respondent no.1's Society is in control and management of members of the CNI. This fact has also been admitted by the appellant in his application/complaint dated 14.08.2014.
44. Shri Gaurav Mehrotra has argued that on 30.09.2013, the Apex Court has passed the order in Vinod Kumar Malviaya etc. Vs. Maganlal Mangaldas Gameti and others (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 Act, 1860 and the Bombay Public Trust Act (hereinafter referred to as "BPTA") under which it was registered and, therefore, was illegal. He argued that out of six churches, which merged resulting in the formation of CNI in the year 1970, FDCB was a society registered under the Act, 1860 as also a trust registered under BPTA and other five churches were neither societies nor trusts registered under the aforesaid four Acts nor were they registered under any other statute. His submission is that erstwhile CNI 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 Act, 1972 was repealed by the British Statutes (Application to India) Repeal Act, 1960 (hereinafter referred to as "Act, 1960") insofar 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 the country to which India (Consequential Provision) Act, 1947 (hereinafter referred to as "Act, 1947") extended. The Act, 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").
45. Learned Counsel for the appellant has argued that the genesis of pronouncement of Vinod Kumar M. Malviya (supra) was a dispute challenging the said merger of FDCB by filing objections by members of FDCB Gujarat Chapter before the Charity Commissioner regarding change of reports, before the Charity Commissioner under the BPTA. The question 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 question in affirmative and dismissed the objections against the change reports, allowed the properties vested in FDCB to be vested in CNI.
46. Shri Mehrotra argued that against the order of the Charity Commissioner, the objectors preferred an application before the City Civil Court, Ahmedabad under Section 72 of the BPTA alleging that there was no lawful merger of the trust and the property vested with the Property Committee continued to exist with it. He argued that the questions which arose before the learned City Civil Judge were (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 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 the 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 BPTA 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 Charity Commissioner.
47. It has been argued by the learned Counsel for the appellant that against the aforesaid order of learned Civil Court Judge, first appeals were filed before the High Court of Gujarat, wherein the basic issue before the learned Single Judge was to determine whether CNI is the successor and legal continuation of FDCB or not. The Gujarat High Court dismissed the appeal and confirmed the order of the Civil Court. Thereafter, the matter went up to the Apex Court, which was eventually decided in Vinod Kumar M. Malviya (supra).
48. Shri Mehrotra has argued that as per paragraph-13 of Vinod Kumar M. Malviya (supra), the primary issue for consideration before the Apex Court was ''whether the alleged unification of the First District Church of Brethern with Church of North India is correct or not'. The Apex Court held that FDCB being a society registered under the Act, 1860 as also a trust under the BPTA. 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 Act, 1860 and BPTA, merely by filing change reports CNI cannot be 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. In these backdrops, the Apex Court upheld the judgment of the City Civil Court and the High Court of Gujarat 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 was further held that the Society and the trust being creatures of the Statute, have to resort to the modes provided by the statute six 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. Thus, facts and circumstances of Vinod Kumar M. Malviya (Supra) is entirely different from the facts and circumstances of the instant case, hence the learned Single Judge has rightly observed that Vinod Kumar M. Malviya (Supra) is not applicable in the facts and circumstances of the instant case.
49. Shri Gaurav Mehoratra, learned Counsel for the respondent no.2 argued that after about ten months of the judgment of the Apex Court in Vinod Kumar M. Malviya (Supra), the appellant preferred an undated application/complaint before the Deputy Registrar on 14.08.2014, enclosing therewith the list of alleged members of the Governing Body of the respondent no.1-Society for the year 2013-14 and 2014-15 as also an alleged list of General Body containing 12 names. He argued that the lists submitted by the appellant did not bear the signatures of the outgoing members and office bearers as required under Section 4 of the Act, 1860. However, the Deputy Registrar issued notice to the respondents no. 1 and 2 on 04.09.2014 on the aforesaid application/complaint preferred by the appellant. In response thereof, the respondents no. 1 and 2/writ petitioners filed their objections on 25.11.2004. Thereafter, the appellant filed replication on 05.12.2014 annexing therewith a modified list of members of general body. He argued that while the earlier list which was submitted along with application 14.08.2014 comprised 12 members, the subsequent list comprised 18 members including the respondent no.2 as ex officio member.
50. Shri Mehrotra has pointed out at this stage that the election of the Committee of Management of respondent no.1-Society in the meanwhile were held on 29.11.2014 and the list of office bearers for the year 2014-15 along with the list of members of general body were submitted by the respondent no.2 in November, 2014 before the Deputy Registrar under Section 4 and 4-B of the Act, 1860. The Deputy Registrar, while passing the order dated 07.02.2015, exercised his powers under Section 4 of the Act, 1860 and considered the genesis of the Act, 1927 and Act, 1960 etc. The Deputy Registrar also considered the judgment of the Apex Court rendered in Vinod Kumar M. Malviya (supra) and opined that as per the decision of the Apex Court in Vinod Kumar M. Malviya (supra), the formation of CNI was declared illegal and its occupation over the immovable properties of CNI had ceased consequent to the aforesaid dictum of the Apex Court and the provisions/rules of CNI are not applicable to the respondent no.1-Society. Therefore, CNI (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 respondent no.1-Society in view of the contents of its bye-laws which refer CIBC but nowhere refer CNI. The Deputy Registrar has also referred to the object of the respondent no.1-Society as mentioned in the bye-laws. The Deputy Registrar has further opined that the appellant/respondent 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 respondent no.1-Society. Consequently, the Deputy Registrar had accepted the lists submitted by the appellant and rejected those lists submitted by the respondent no.2/writ petitioner no.2. The rejection of the list submitted by the respondent no.2 was based on deficiencies therein as they were not in conformity with the provisions of the bye-laws. According to the Deputy Registrar, the list of the office bearers submitted by the respondent no.2 for the year 2007-08, 2008-09 and 2009-10 mentioned 13, 14 and 14 members, respectively, whereas the bye laws permitted only a maximum of 12 members. The Deputy Registrar has further opined that the inclusion of Vinod B. Lal Legal Advisor and Daniel Subhan as ex officio members was contrary to byelaws 3, therefore, he did not accept the list submitted by respondent no.2. Vide order dated 07.02.2015, the Deputy Registrar has directed the appellant to constitute the Committee of Management of respondent no.1 society as per its byelaws and submit the same.
51. Shri Mehrotra has further submitted that aforesaid order of the Deputy Registrar dated 07.02.2015 was challenged by the respondent no.1 and 2/writ petitioners before this Court in Misc. Single No. 406 of 2015. The learned Single Judge ultimately allowed the writ petition vide judgment and order dated 28.05.2015. He argued that the learned Single Judge, while passing the impugned order dated 28.05.2015, had framed two issues i.e. (i) whether the Deputy Registrar exceeded his powers as provided under Act, 1860; (ii) the applicability of pronouncement of the Apex Court in the matter of Vinod Kumar M. Malviya (supra). The learned Single Judge considered the provision contained in Section 4 of the Act, 1860 and also the scope of Section 4 of the Act, 1860. After considering the aforesaid, the learned Single Judge has rightly came to the conclusion that the Deputy Registrar had exceeded its jurisdiction as vide order dated 07.02.2015, the Deputy Registrar decided certain issues, which were clearly beyond the pale of Section 4 of the Act, 1860 as under Section 4 of the Act, 1860, the Deputy Registrar was not empowered to decide any lis pertaining to control and management of the respondent no.1-Society nor the validity or continuance of the Committee of Management in control since 1970 or its office bearers or their election.
52. Sri Mehrotra has drawn our attention to the subject of the application preferred by the appellant before the Deputy Registrar dated 14.08.2014 and argued that the subject of the said application was disapproval/cancellation of the ''existing illegal Committee of Management and registration of the Committee of Management and its members/office bearers as presented by CIPBC. Thus, from the heading of the application as also its contents it was evident that appellant/respondent no.3 claiming himself to be part of CIPBC and its Bishop of Lucknow was laying claim to the management of the respondent no.1/society solely based on the judgment of the Hon'ble Supreme Court of India in Vinod Kumar M. Malviya (supra) and nothing else. The learned Single Judge, while appreciating the fact that appellant/respondent no.3 that the appellant in his application had admitted the fact that respondents nos. 1 and 2 herein/writ petitioners were in control of the management of the respondent no.1/society since 1970, has rightly opined that it was not a case where two lists of the office-bearers had been submitted by the rival groups of the Society but a case of submission of a list of office bearers by persons including the appellant/respondent no.3 herein, who are strangers to the respondent no.1/society. Further, learned Single Judge has opined that prior to 14.08.2014, appellant/respondent no.3 never laid any claim to the management or membership of the respondent no.1/society and it was not their case that they were original members of the respondent no.1/society prior to 1970, hence the appropriate course for the appellant/respondent no.3 herein and his associates was to get their rights to manage the aforesaid respondent no.1/society declared by appropriate forum either under Section 25 (1) of the Act, 1860 or better in regular proceedings by a civil Court and the Deputy Registrar should not have initiated the proceedings on the basis of the application of the appellant/respondent no.3. His submission is that these findings recorded by the learned Single Judge is in accordance with law and also in accordance with Act, 1860.
53. Sri Mehrotra has further argued that the learned Single Judge has rightly placed reliance upon A.P. Aboobaker Musaliar Vs. District Registrar (G) Kozhikode and others : (2004) 11 SCC 247 and has rightly remanded back the matter to the Deputy Registrar to take a decision afresh in the light of Section 4 and 4-B of the Act, 1860 keeping in mind the ratio laid down in A.P. Aboobaker Musaliar (supra).
54. Sri Mehrotra, learned Counsel for the respondent no.1 has next argued that the appellant is habitual of committing such frauds, with the intention of illegally and unauthorizedly usurping the Management of the Societies related to various Christian organizations. The aforesaid is evident from the fact that earlier also in the year 2010, an application was moved by the appellant/respondent no.3 in respect of the Society at Allahabad, namely, The Allahabad High School Society' duly registered under the Act, 1860. Vide the aforesaid application dated 12.04.2012, the respondent no.3 had made an attempt to illegally get the proceedings initiated before the Assistant Registrar, Firms, Chits and Societies at Allahabad with an intention to usurping the Management of the afore-named Society, although the issue pertaining to the Management of the aforesaid Society had attained finality till the level of the Hon'ble Supreme Court of India. On the aforesaid application dated 12.04.2012, the Registrar, Firms, Societies and Chits, Lucknow, vide its order dated 14.05.2012 sought report from the Assistant Registrar, Allahabad Region, Allahabad. Against the aforesaid order of Registrar, Firms, Societies and Chits, a Writ Petition, bearing Writ-C No. 31962 of 2012 was preferred by the Allahabad High Court Society, in which this Court, vide order dated 05.07.2012, issued direction for keeping the aforesaid dated 14.05.2012 in abeyance.
55. Sri Mehrotra has pointed out that in view of the grounds urged in Ground ''Q' and Ground ''U' of the memo of the appeal and averments contained in paragraphs 49 and 59 of the affidavit in support of the application for interim relief, the instant special appeal is not maintainable and the remedy of the appellant/respondent no.3 would lie in filing appropriate application for review before the learned Single Judge. In support of this submission, he has relied upon Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd. and others : 2003 (12) SCC 111 and State of Maharashtra Vs. Ramdas Srinivas Naik : (1982) 2 SCC 463.
56. Learned Counsel for the respondent no.2 has further argued that appellant/respondent no.3 claiming himself to be Arch Diocesan of Lucknow and Attorney Holder of Indian Church Trustees had filed a suit for declaration and permanent injunction in the Court of Civil Judge (Senior Division), Lucknow, which was registered as Regular Suit No. 104 of 2003. In this suit, the appellant has sought a declaration that the properties in dispute mentioned in Schedule No.1 to the plaint are the properties of the plaintiff and the defendants have 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 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. He pointed out that the Church of North India Trust Association and Moderator of Church of North India Trust Association were the defendants in the said suit. Schedule No.1 to the said plaint was in fact Schedule no.2 to the Act, 1927, wherein Christ Church was mentioned as Church under Diocese of Lucknow and Saint Thomas Church of Gonda was also mentioned. He argued that vide order dated 20.10.2008 passed by the Apex Court in Transfer Petition (Civil) No. 680 of 2008 filed by the appellant/respondent no.3, the aforesaid suit was transferred in the Hon'ble High Court of Delhi at New Delhi and after transfer, the aforesaid suit was re-numbered as CS (OS) No. 2685 of 2008 : Church of India and another Vs. Church of North India Trust Association and others and the same is pending consideration before the Hon'ble Court of Delhi. In the meanwhile, various other frivolous suits were filed with respect to succession and control of Church properties of Church of North India situated in various places including the diocese of Lucknow, out of which a majority of suit vide orders passed by the Hon'ble Apex Court have been transferred to the Hon'ble Delhi High Court for determination of issue of succession of Church of India wherein the appellant himself is a party in some of the suits. The Hon'ble High Court of Delhi is now ceased with the aforesaid suits and is hearing the matter. The matter after being listed on several dates was at the stage of evidence. In the meanwhile, an interlocutory application bearing IA No. 10822 of 2017 under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 was filed by the plaintiffs seeking the amendment of the plaint. He pointed out that a perusal of prayer no. ii, which has been sought by means of the aforesaid amendment application under Order VI Rule 17 read with Section 151 C.P.C. would reveal that the plaintiffs of the aforesaid suit are intar alia seeking categorical declaration by means of the amendment in prayers to the effect that the Act of Unification of six churches held in November, 1970 into Church of North India (CNI) be declared illegal, null and void and inoperative. He pointed out that plaintiff no.2 in the aforesaid civil suit, bearing No. CS (OS) No. 2685 of 2008 is ''Vulnerable and Father John Augustine, aged about 40 years, son of Late Dr. Z. Augustine, resident of St. Mary's Para Road, Rajajipuram, Lucknow i.e. the appellant in the instant Special Appeal, who was impleaded as respondent no.3 in the writ petition No. 406 (M/S) of 2015 and the same was decided by the learned Single Judge vide order dated 28.05.2015. Thus, it is quite clear that after the order dated 28.05.2015 (Supra), the appellant has choosen to seek an appropriate declaration, seeking declaration of the unification of six Churches into the Church of North India, as ''illegal, null and void and inoperative'.
57. Sri Mehrotra has argued that the appellant, who is plaintiff no.2 in the aforesaid suit, bearing No. CS (OS) No. 2865 of 2008, has consciously sought to amend the plaint seeking declaration of unification of six Churches of India into the Church of North India as ''illegal, null, void and inoperative' as the appellant is aware that such a declaration is explicitly required and the same does not flow from the judgment of the Apex Court passed in Vinod Kumar N. Malviya and others Vs. Mangan Lal Mangal Das Gameti and others (supra). He further argued that the appellant is further aware that such declaration would require leading of evidence which is not generally permissible in the writ proceedings before this Court in exercise of extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India as also in the intra Court appeal before the Division Bench, which is continuation of such extra ordinary jurisdiction of this Court. Thus, it is not open for the appellant to allege contrary prior to the declaration, as has been sought by seeking to amend the plaint of the Civil Suit pending before the Hon'ble Delhi High Court at New Delhi.
58. Sri Mehrotra has, thus, argued that all the arguments which are being sought to be raised by the appellant, have already been settled by specific findings recorded by the learned Single judge by the impugned judgment and order dated 28.05.2015 after due discussion and consideration on each point. Hence, the instant special appeal is devoid of merits and same is liable to be dismissed with exemplary costs.
D.3. Submission on behalf of Respondent no.1
59. Shri Nadeem Murtaza, learned Counsel for the respondent no.1 has supported the aforesaid arguments advanced by Sri Gaurav Mehrotra, learned Counsel for the respondent no.2 and argued that he has nothing to add further more.
E. Analysis
60. It is pertinent to mention that during the course of the arguments, learned Counsel for the respondent no.2 has vehemently opposed the Ground ''Q' and Ground ''U' taken in the instant appeal as well as averments contained in paragraphs ''49' and ''59' of the affidavit filed in support of the application for interim relief by the appellant and argued that these types of the averments cannot be permitted to be made while assailing the order passed by the learned Single Judge in intra Court appeal.
61. Shri Santosh Kumar, learned Counsel for the appellant has submitted that he does not want to press the averments contained in Ground ''Q' and Ground ''U' in the instant appeal as well as averments contained in paragraphs ''49' and ''59' of the affidavit filed in support of the application for interim relief and the same may be treated as not pressed.
62. Considering the aforesaid, averments contained in Ground ''Q' and Ground ''U' in the instant appeal as well as averments contained in paragraphs ''49' and ''59' of the affidavit filed in support of the application for interim relief are hereby treated as not pressed.
63. The instant controversy starts from the undated application submitted by the appellant before the Deputy Registrar contained in Annexure No.14 to the writ petition (page no. 259 of the instant special appeal). This undated application was received in the office of the Deputy Registrar on 14.08.2014 and the same is reproduced as under :-
"lsok esa] Jheku~ fMIVh jftLVz~kj] QElZ] lkslkbVht ,oa fpV~l] y[kuÅ e.My] y[kuÅA fo"k; %& dzkbLV ppZ eSdkusxh Ldwy lkslkbVh dh orZeku voS/k izcU/klfefr dks fujLRk djrs gq;s ppZ vkWQ bf.M;k ¼CIPBC½ }kjk izLrqr izca/k lfefr ,oa lnL; @inkf/kdkfj;ksa dh lwph dks iathd`r djus ds lEcU/k easA egksn;] dzkbLV ppZ eSdkusxh Ldwy lkslkbVh Qkby la0 1 3167] iathdj.k la0&96@1947&48 dh LFkkiuk fnukad 27-10-1947 dks dh xbZ FkhA bldk eq[; mn~ns'; ppZ vkWQ baXyS.M ds bZlkbZ ewY;ksa] fo'okl] fl)kUr ,oa mikluk i)fr ds vk/kkj ij f'k{kk dk izpkj&izlkj vkfn djuk FkkA dzkbLV ppZ Ldwy m0iz0 dh jkt/kkuh y[kuÅ vR;kf/kd ljkguh; #i ls dk;Zjr gS] ijURkq 1970] ls rFkkdfFkr ,d ppZ ;wfu;u ÞppZ vkQ ukFkZ bf.M;kß uke dh ,d u;s bZlkbZ er dh laLFkk us dzkbLV ppZ dkyst dk lapkyu ,oa izca/ku voS/k #i ls dCtk dj fy;kA ;gka ;g fo'ks"k #i ls mYys[kuh; gS fd ppZ vkWQ bf.M;k dh LFkkiuk bf.M;u ppZ ,DV 1927 ds }kjk dh xbZ Fkh] blls iwoZ bldks ppZ vkWQ baXyS.M bu bf.M;k ds uke ls tkuk tkrk FkkA bl ,DV ds ikfjr gksus ds mijkUr vaxzsth lkezkT; }kjk ;k ppZ vkWQ baXyS.M }kjk LFkkfir lHkh /keZizkUr ¼Mk;fll½ dh lHkh vpy lEifRr;ka tSls&Ldwy] ppZ ,oa vU; lHkh izdkj ds lapkyu] izcU/ku ,oa vkf/kiR; ppZ vkWQ bf.M;k esa fufgr gks x;sA y[kuÅ /keZizkURk ¼Mk;fll½ dh LFkkiuk lu~ 1893 esa gqbZ tksfd Lo;eso ppZ vkWQ bf.M;k dk fgLlk cu x;kA blfy, y[kuÅ /keZizkUr ¼Mk;fll½ dk fc'ki ,oa lnL; dzkbLV ppZ dkyst dh izca/klfefr ;k lkekU; lHkk dk lnL; gksrk gS tks fd ugha gSA ppZ vkWQ bf.M;k dk fo'okl] n'kZu ,oa mikluk i)fr vU; fdlh Hkh bZlkbZ laLFkk ls lqesfyr ;k fefJr ugha gS vFkkZr ,dne fHkUu gS vkSj u gh bl laLFkk dk foy; fdlh vU; laLFkk esa gks ldrk gSA ijURkq dqN LokFkhZ rRoksa ds O;fDRkxr LokFkZ ds dkj.k lu~ 1970 ppZ ;wfu;u ds uke ij xfBr laLFkk ppZ vkWQ ukFkZ bf.M;k ls ppZ vkWQ bf.M;k ;k bldk y[kuÅ /keZizkURk ¼Mk;fll½ dk dksbZ lEcU/k ugha gSA ftl O;fDRk us ppZ ;wfu;u ;k ppZ vkWQ ukFkZ bf.M;k dh lnL;rk xzg.k dh] mldh lnL;rk ppZ vkWQ bf.M;k ls Lor% lekIr gks xbZA bl ?kVUkkdze ds vk/kkj ij xSj&laLFkk ds yksx@lnL; bl laLFkk ds izca/k rU= ij dkfct gks x;s rFkk vkt rd vizkf/kd`r #i ls dkfct gSA bl izdkj dzkbLV ppZ eSdkusxh Ldwy lkslkbVh] y[kuÅ /keZizkURk ¼Mk;fll½] ppZ vkWQ bf.M;k dh ,d v/khuLFk laLFkk gS vkSj blds lgh lapkyu gsrq bl laLFkk esa ewy lnL; ,oa fc'ki dk lnL; gksuk vfuok;Z gSA mijksDRk ?kVukdze ls u dsoy ppZ vkWQ bf.M;k ds vuq;kf;;ksa dk ?kksj vkfFkZd uqdlku gks jgk gS vfirq xSj&bZlkbZ leqnk; ds ,sls yksxksa dk Hkh /kkfeZd fodkl ,oa vkLFkk] J)k vo#) gks jgh gS] ftudk fo'okl ppZ vkWQ bf.M;k er ij vk/kfjr gSA ;gh ugha] cfYd dzkbLV ppZ dh orZeku izca/klfefr us dkyst izcU/ku ls vkf/kiR; lekIr gksus ds Hk; ls ,d lkFk dwV jfpr rjhds ls lu~ 1970 ls lu~ 2010 rd dh leLRk vkSipkfjdrkvksa@dk;Zokfg;ksa dk uohuhdj.k djk fy;k tks fd lkslkbVh vf/kfu;e dh ewy Hkkouk ds fo#) gSA budh lnL;@inkf/kdkfj;ksa dh lwph esa ,sls O;fDr Hkh lfEefyr djds n'kkZ;s x;s gSa tksfd rRrle; thfor Hkh ugha FksA vHkh foxr o"kZ dh fnukad 30-10-2013 dks ekuuh; mPPkre U;k;ky; us vius ,d egRoiw.kZ fu.kZ; flfoy vihy la0 8800&8801@2013 ¼fouksn dqekj ,e0 ekyoh; vkfn cuke exuyky eaxynkl xesVh ,oa vU;½ esa ppZ vkWQ ukFkZ bf.M;k ds xBu dks voS/kkfud ?kksf"kr dj fn;k gSA ekuuh; loksZPp U;k;ky; ds mDRk fu.kZ; ls ppZ vkWQ ukFkZ bf.M;k ¼lh0,u0vkbZ0½ dk u dsoy gtjrxat] y[kuÅ fLFkr dzkbLV ppZ dkyst ls fof/kr% vkf/kiR; lekIr gks x;k gS cfYd lEiw.kZ Hkkjro"kZ esa fLFkr ppZ vkWQ bf.M;k (CIPBC) ds vkf/kiR; esa gksus okyh leLr vpy lEifRr;ksa ij ls ppZ vkWQ ukFkZ bf.M;k ds vizkf/kd`r dCts Hkh eqDr fd;s tkus ;ksX; gks x;s gSaA pawfd ekuuh; loksPPk U;k;ky; ds mDRk fu.kZ; ls ppZ vkWQ ukFkZ bf.M;k ds xBu dks voS/kkfud ?kksf"kr dj fn;k x;k gS blfy, dzkbLV ppZ dkyst] y[kuÅ ij ls bl laLFkk dk foxr lu~ 1970 ls pyk vk jgk vizkf/kd`r dCtk Lor% lekIRk gks x;k gS vkSj lokZf/kd egRoiw.kZ fof/kd rF; ;g gS fd dzkbLV ppZ eSdkusxh Ldwy lkslkbVh ds ewy mifof/k;ksa (Bye-Laws) ds vuqlkj ppZ vkWQ bf.M;k ¼cekZ ,oa lhyksu½ tks fd vc ppZ vkWQ bf.M;k ¼ikfdLrku] cekZ] lhyksu½ dgk tkrk gS] dk nkok ,oa vf/kdkj lfdz; gks x;k gSA vr% dzkbLV ppZ eSdkusxh Ldwy lkslkbVh dh orZeku voS/k izca/klfefr dks fujLr djrs gq, ppZ vkWQ bf.M;k (CIPBC) }kjk izLrqr izca/klfefr ,oa lnL;
inkf/kdkfj;ksa dh lwph dks iathd`r djus dh d`ik djsaA
egku d`ik gksxhA
fnukad %& izkFkhZ
laYkXud % gLrk{kj viBuh;
1- izca/klfefr dh lwph o"kZ
2013&14 ,oa 2014&15 ¼eks0 jsOg tkWu vkWxLVhu½
2- pquko dk;Zokgh dh izfrfyfi v/;{k
3- ''kiFk i= esVªksiksfyVu ppZ vkWQ bf.M;k
4- lk/kkj.k lHkk dh lwph (CIPBC)
5- ttesUV dh izfrfyfi fc'ki y[kuÅ Mk;fll
64. A bare perusal of the aforesaid undated application reflects that the ''subject' of the aforesaid application as well as ''prayer' of the aforesaid application is to disapprove/cancel the existing Committee of Management and to register the list of members of the Committee of Management submitted by the CIPBC. In the aforesaid application, the appellant had admitted the fact that since the formation of CNI i.e. since 1970, the respondent no.1/Society has been controlled and managed by the members of the CNI.
65. The Deputy Registrar, Lucknow, had considered undated application submitted by the appellant and while exercising his powers under Section 4 and 4-B of the Act, 1860, the Deputy Registrar had 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. and also considered the judgment of the Apex Court rendered in Vinod Kumar M. Malviya (supra) and opined that as per the dictum of Vinod Kumar M. Malviya (supra), 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 provisions/rules of CNI are not applicable to the respondent no.1/Society, hence the 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 respondent no.1/Society in view of the contents of its bylaws which refer CIBC but nowhere refers CNI. The Deputy Registrar had also referred the object of the Society as enumerated in the bylaws and the provisions contained therein, wherein the Bishop of Lucknow was to be its ex officio Chairman, and further opined that appellant 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 the Society and accordingly, the Deputy Registrar accepted the lists submitted by the appellant and and rejected those lists submitted by the respondent no.2. It appears that the rejection of the list submitted by the respondent no.2 was based on deficiencies therein as they were not in conformity with the provisions of the bylaws as lists of office bearers submitted by the respondent no.2 for the year 2007-08, 2008-09 and 2009-2010 mentioned 13, 14 and 14 members, respectively, whereas bylaws permitted only a maximum of 12 members and the inclusion of Vinod B. Lal Legal Advisor and Deniel Subhan as ex officio members was contrary to bylaw 3. In these backgrounds, the Deputy Registrar directed the appellant to constitute the Committee of Management of the Society as per its bylaws and submit the same vide order dated 07.02.2015.
66. The aforesaid order of the Deputy Registrar dated 07.02.2015 was challenged by the respondents no. 1 and 2 by filing Misc. Single No. 406 of 2015. The learned Single Judge, after hearing the learned Counsel for the parties and gone through the record, allowed the writ petition vide judgment and order dated 28.05.2015 by quashing the order of the Deputy Registrar dated 07.02.2015, which is impugned in the instant special appeal.
67. The first limb of argument of the learned Counsel for the appellant is that the Deputy Registrar has lawfully exercised statutory jurisdiction vested in it as the complaint filed by the appellant was within the ambit of enquiry under Section 4B of the Act, 1860 and the Deputy Registrar has rightly passed the order dated 07.02.2015 but the learned Single Judge erred in arriving its conclusion that the Deputy Registrar, while adjudicating the application of the appellant, had exceeded its jurisdicion. According to him, no election was held in the Society till 2003 and the registration of the Society was renewed on the basis of list of office bearers and proceedings of election on 16.04.2002 but the learned Single Judge did not consider the matter in this aspect and erred in allowing the writ petition by means of the impugned order.
68. It is pertinent to mention that forming a Society for collectively promoting some cause with a common object is a voluntary act of any member of the Society at large. The Societies Registration Act, 1860 has been enacted by Central Legislature not with a view to create any control or supervision or superintendence over the functions of a Society by the State or its authorities. Purpose of such a legislation is only to provide aid to the members of the Society so that objects of the Society are achieved and the Society functions smoothly. With this object alone there are certain powers and functions vested in the Registrar (which includes the Deputy Registrar as well) under the Societies Registration Act, 1860. The relevant provisions which concern this matter contained in the Societies Registration Act, 1860 are Sections 4, 4-A, 4-B and 25, which are reproduced as under :-
"4. Annual List of managing body to filled:- (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 society is held, or; if the rules do not provide for an annual meeting, in the month of January, a list shall be filled with the Registrar, of the names, addresses and occupations of the Governor's council, directors, 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 office 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 abridgement of purposes made under Section 12, and of the rules of the society corrected 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.
4A. Charges etc., in rules to be intimated to Registrar.- A copy of every changes made in rules of the society and intimation of every change of address of the society, certified by not less than thee of the members of the governing body shall be sent to the Registrar within thirty days of the change."
4-B. (1) At the time of registration/renewal of a society, list of members of General Body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar shall examine the correctness of the list of members of the General Body of such society on the basis of the register of members of the General Body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society.
(2) If there is any change in the list of members of the General Body of the society referred to in sub-section (1), on account of induction, removal, resignation or death of any member, a modified list of members of General Body, shall be filed with the Registrar, within one month from the date of change.
(3) The list of members of the General Body to be filed with the Registrar under this section shall be signed by two office-bearers and two executive members of the society.
12. Societies enabled to alter, extend or abridge their purposes.- Whenever it shall appear to the governing body of any Society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within the meaning of this Act, or to amalgamate such society either wholly or partially with any other Society, such governing body may submit the proposition to the members of the society in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the society;
but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the Society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting.
25. Disputes regarding election of office-bearers:- The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office bearer of such society, and may pass such orders in respect thereof as it deems fit.
Provided that the election of an office bearer shall be set aside where the prescribed authority is satisfied.
(a) that any corrupt practice has been committed by such office bearer; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non compliance with the provisions of any rules of the society.
Explanation I.-A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person:
(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat or injury, any elector, to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate the election.
(ii) With a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;
(iii) Abets (within the meaning of the Indian Penal Code) the doing of any of the Acts specified in Clauses (i) and (ii);
(iv) Induces or attempts to induce a candidate or elector to believe that he, or any person in who he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;
(v) Canvases on grounds of caste, community, sect or religion;
(vi) Commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II- A 'promise of individual advantage or profit to a ' person' includes a promise for the benefit of the person himself, or of any one in whom he is interested.
Explanation III- The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.
(2) Where by an order made under Sub-section (1), an election is set aside or an office-hearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office bearer of a society has not been held within the time specified in the rules of that society, he may call a meeting of the general body of such society for electing such office bearer or office bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
(3) Where a meeting is called by the Registrar under Sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office bearer of the society.
Explanation:-For the purposes of this section, the expression prescribed authority means an office or Court authorized in this behalf by the State Government by notification published in the official Gazette"
69. Section 4 of the Act provides and obligate for filing annual list of managing body to be filled 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 society is held, and if the rules do not provide for an annual meeting, in the month of January, a list is to be filled with the Registrar, giving therein the names, addresses and occupations of the incumbents entrusted with the management of the affairs of the society. A proviso has been added to the Section provided that if the managing body is elected after the last submission of the list, counter signatures of the old office 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. Section 4A obligates that every changes made in rules of the society has to be informed within thirty days of the change.
70. Section 4-B of the Act, 1860 has been enacted by the State Legislature with an object of avoiding a situation where the membership of a Society becomes subject matter of a dispute on account of non-existence of correct list of the members of the General Body of the Society with the Registrar. Object of this amendment further is to check that illegal persons are not able to claim themselves to be the members or office bearers of such Society. In order to avoid these situations, Section 4-B of the Act, 1860 has been enacted. Section 4-B of the Act, 1860 requires filing of list of members of the General Body with the Registrar at the time of registration and also at the time of renewal. It further mandates that on filing of the list of the members of the General Body of the Society, the Registrar shall examine the correctness of the list of the members of such Society on the basis of certain documents and records mentioned therein. Sub-section (2) of Section 4-B further requires that if there is any change in the list of members of the General Body of the Society on account of various exigencies, namely, induction, removal, registration or death of any member, a modified list of members is to be filed with the Registrar within one month from the date of change. Sub-section (3) of Section 4-B mandates that list of members of the General Body to be filed with the Registrar needs to be signed by two office bearers and two executive members of the Society.
71. The object and purpose of Section 25 of the Act, 1860 is to provide for forum to decide disputes regarding election of office-bearers of registered Societies. A careful reading of Section 25(1) of the Societies Registration Act reveals that the Prescribed Authority envisaged therein assumes jurisdiction to decide any doubt or dispute in respect of the election or continuance in office of an office-bearer of a Society only in two situations i.e. (1) on a reference to be made to it by the Registrar and (2) on a reference to be made to the Prescribed Authority by at least one-fourth members of the Society. In absence of any of the aforesaid two modes of references, the Prescribed Authority or Sub Divisional Officer even in terms of the Notification dated 28.10.1975, will have no jurisdiction to entertain any application from any one in relation to any doubt or dispute as referred to in Section 25(1) of the Societies Registration Act. The very assumption of the jurisdiction by the Prescribed Authority/Sub Divisional Officer under Section 25(1) of the Societies Registration Act is dependent on either of the two conditions or situations enumerated therein i.e. to say, the Prescribed Authority will assume jurisdiction to proceed under Section 25(1) of the Societies Registration Act only in case of availability of reference before him from the Registrar or in a case of reference to be made by one-fourth members of the Society. In absence of fulfillment of either of these two conditions, the Prescribed Authority/Sub Divisional Officer cannot assume jurisdiction on his own on a mere application made by any member of a Society provided such application/reference is not made by one-fourth members of the Society.
72. Sub-Section (2) of Section 25 of the Act, 1860 comes into operation after the election is set aside, or an office bearers is held no longer entitled to continue in office. The satisfaction of the Registrar that any election of office bearers of Society has not been held within the time specified to the Rules of that Society is to be arrived in accordance with the provisions in Bye-laws of the Society, to which the members have subscribed. If there is no provision in the Bye-laws for holding the elections after the expiry of the tenure of the executive committee or office-bearers, the Registrar may intervene to fill in the gap and to provide for such any eventuality by calling the meeting of the general body of the Society for electing office-bearers. Where the election of the office-bearers of the Society has been set aside under sub-section (1) and the time limit of holding election has expired the Registrar may step in and provide for holding elections. However in cases where the Bye-laws of the Society do not provide for any such eventuality the Registrar does not get authority to call any meeting of the general body of the Society to elect executive committee or office-bearers and to preside over such meeting or to authorizes any officer in that behalf. The Rules of the Society have to take precedence, except where they are inconsistent of the provision of the Act.
73. The expression "Prescribed Authority" has been defined in the explanation appended to Sub-section (3) of Section 25 of the Societies Registration Act to mean an officer or court authorized in this behalf by the State Government by notification to be published in the Official Gazette. The State Government by means of notification published in the Official Gazette dated 28.08.1975 has authorized the Sub Divisional Officers within their respective jurisdictions to act as ''Prescribed Authority'. The Prescribed Authority is, thus, a creation of the Act, 1860 for the purposes of exercising his jurisdiction under Section 25(1) of the Act, 1860. Any statutory authority created under an enactment or Legislation has to act within the four-corners or bounds of the enactment or the Legislation under which it is created. Such statutory authority is empowered to exercise his jurisdiction only in accordance with the provisions contained in the Act or the Legislation which confers such jurisdiction. Accordingly, the Prescribed Authority being creation of the Societies Registration Act is also empowered to exercise his jurisdiction only in accordance with the provisions contained in Societies Registration Act, more specifically Section 25 of the said Act and not otherwise. It is the Statute or the Legislation which confers the nature of jurisdiction to be exercised by a statutory authority. In any circumstance, such a statutory authority conferred with certain statutory functions cannot be permitted to go beyond the prescriptions available in the Statute. Accordingly, the Prescribed Authority under Section 25 of the Act, 1860 is also bound by the statutory prescriptions available therein.
74. From the aforesaid provisions, it is quite clear that the object and scope of the provisions of Section 4 and 25 of the Act, 1860 are quite separate and distinct.
75. In the instant case, the controversy starts from the undated application of the appellant, which was received in the office of the Deputy Registrar on 14.08.2014, as reproduced hereinabove. It reflects that the appellant and his associates had neither been in control and management of the respondent no.1/Society for the last 34 years nor the appellant was an ordinary or a life member of the respondent no.1/Society either prior to or after 1970. The ''subject' of the aforesaid application as well as ''prayer' made therein shows that the appellant sought relief before the Deputy Registrar to disapprove/cancel the ''existing' illegal Committee of Management and to register the Committee of Management and its members/officer-bearers as presented by CIPBC. To substantiate his claim, the appellant presented himself before the Deputy Registrar as part of CIPBC and its Bishop of Lucknow and claimed the management of the respondent no.1/society in the light of the dictum of the Apex Court in Vinod Kumar M. Malviya (Supra). It was not the case of the appellant before the Deputy Registrar through the aforesaid application that rival groups of the same society had submitted two lists of office bearers of the Society but the appellant and his associates putforth his claim before the Deputy Registrar by enclosing the alleged list of office bearers, who appears to be not members of the Society since 1970 by claiming the members of CIPBC. It is an admitted fact that prior to filing the aforesaid application i.e. 14.08.2014, the appellant and his associates never laid any claim to the management or membership of the respondent no.1/Society. The claim of the appellant, through the aforesaid application, was not the case before the Deputy Registrar that he and his associates were original members of the respondent no.1/society prior to 1970. In these backgrounds, the learned Single Judge has rightly opined that appropriate course for the appellant/respondent no.3 and his associates was to get their rights to manage the respondent no.1/Society declared by appropriate forum either under Section 25 (1) of the Act, 1860 or better in regular proceedings by a civil Court and the Deputy Registrar should not have initiated the proceedings on the basis of the application of appellant as the appellant appears to be a stranger.
76. As stated hereinabove, the entire claim of the appellant as enumerated in the aforesaid application was based on the dictum of Vinod Kumar Malviya (supra). The learned Single Judge, after going through the facts and circumstances of the Vinod Kumar Malviya's case, has opined that 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 Apex Court declare the creation of CNI to be illegal. This Court is of the opinion that dictum of Vinod Kumar Malviya's case is not applicable in the instant case and the learned Single Judge has rightly rejected the plea of the appellant by observing that the merger of CIBC and validity of formation of CNI were not in issue in the said case nor did the Apex Court declare the creation of CNI to be illegal and the Deputy Registrar has wrongly interpreted the aforesaid judgment of the Apex Court.
77. The learned Single Judge also noted the fact that the issue of the validity of succession of CNI to CIBC is pending consideration before Hon'ble Delhi High Court in various suits transferred to it by the Apex Court including the suits filed by the appellant and CNI, which manages the properties of CNI is a party to the suit and the relief of declaration of title over the properties mentioned in Schedule to the plaint and permanent injunction has been claimed. Therefore, the learned Single Judge recorded finding that the Deputy Registrar, while passing the order dated 07.02.2015, did not consider aforesaid fact and erred in proceeding on the assumption that the Apex Court had declared the formation of CNI to be illegal which was apparently erroneous as already discussed earlier. In these backdrops, the learned Single Judge has rightly opined that the Deputy Registrar has exceeded its jurisdiction in considering and deciding the issue as the issue as to the existence or otherwise of the CIBC based on various provisions of Act, 1927, 1960 etc. and holding that it was very much in existence as per law and was entitled to control and manage the respondent no.1/society. This finding, in our view, has rightly been recorded by the learned Single Judge as under Section 4-B of the Act, 1860, the Registrar is not supposed to make adjudication of dispute of correctness of membership like a Court but whenever a list is submitted or there is any change in the list of members and any objection is raised or otherwise, the Registrar has to prima facie satisfy himself that change has been made in accordance with the provisions of bye-laws and prima facie genuine. For this purpose, the Registrar may examine agenda, minutes of meeting and other relevant steps taken by the Society. To this extent, an inquiry can be made by the Registrar to find out whether list of members or change in list of members is correct or not. If the dispute in respect of the elections of the office bearers or their continuance, qua a registered Society, such dispute must necessarily be referred to the Prescribed Authority under Section 25(1) of the Act, 1860, and therefore, the Registrar, Firms, Societies and Chits, Lucknow could not have interfered in the matter.
78. So far as the plea of the appellant that CNI has no role to play in the management of the respondent no.1/Society in view of the dictum of the Apex Court in Vinod Kumar M. Malviya (supra) and further the CNI is not the successor of Society and also not entitled to manage the affairs of the Society, are concerned, it transpires from the judgment of Apex Court in Vinod Kumar M. Malviya (Supra) that the genesis of the Vinod Kumar M. Malviya (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?; and (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. The matter went to the High Court of Gujarat. The basic issue before the learned Single Judge of the Hon'ble High Court of Gujarat 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. In these backdrops, the matter went up to the Supreme Court which was decided in Vinod Kumar M. Malviya's case (supra). The primary issue enumerated in paragraph 13 of the said judgment for consideration before the Apex 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 Apex Court held that FDCB being a Society registered under Act, 1860 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 Act, 1860 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. Thus, from the facts and circumstances of the instant case, it is quite clear that the dictum of the Apex Court in Vinod Kumar M. Malviya (supra) is not applicable in the instant case and the learned Single Judge had rightly came to the conclusion that neither the status of the respondent no.1/Society nor the validity of merger of Church of India (CIBC) with CNI was an issue nor was it decided by the Apex Court, hence the Deputy Registrar wrongly presumed that the Apex Court declared the creation of CNI as illegal. In fact the aforesaid issue is pending consideration before the Hon'ble Delhi High Court in various suits including the suit filed on behalf of the appellant. Hence the plea of the appellant in this regard has no substance and it is rejected accordingly.
79. In regard to the plea of the Saving Clause in British Statutes (Application to India) Repeal Act, 1960, the learned Single Judge has opined that the British Statutes (Repeal) Act, 2004 received the assent of the President of India on 20.02.2004 and con-joint reading of the provisions of Section 3 of Repeal Act, 1960, sub-sections (1), (2), (3) and (4) of Section 1 of the Act, 1949 as well as Repeal Act, 2004 shows that what was saved by Section 3 of the 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, therefore, assuming that the said provision saved the application of the Indian Church Act, 1927, the same stood repealed w.e.f. 20.02.2004 but this aspect of the matter was not considered by the Deputy Registrar. Moreover, the Deputy Registrar did not at all consider the question as to whether the CIBC was in existence defacto or not and further neither the appellant nor any other person claiming under CIBC or CIPBC had staked any claim to the management of the respondent no.1/society since 1970, hence their defacto existence was seriously questionable. In our view, these findings recorded by the learned Single Judge have substance as the aforesaid points are relevant for proper adjudication of the case and the Deputy Registrar has erred in not considering the aforesaid fact. Thus, the learned Single Judge has rightly remanded back the matter to the Deputy Registrar to take a decision afresh in the light of Section 4 and 4-B of the Act, 1860 keeping in mind the directions of the Apex Court in case of the A.P. Aboobaker Vs. District Registrar (G) Kozhikode and others : (2004) 11 SCC 247 and the observations made in the body of the judgment subject to any order or declaration by any court in favour of appellant in a pending or fresh suit, if filed by him or his associates.
80. The learned Single Judge has also clarified that the discussions made in the impugned judgment are only for the purpose of adjudicating the validity of the order of the Deputy Registrar and any observations made shall be prejudice the rights of the parties pending adjudication in any proceedings before any Court. Thus, the plea of the appellant that the observation of the learned Single Judge that the appellant was a stranger and if this finding of the learned Single Judge is not set-aside, the appellant shall suffer irreparable loss in a pending issue, has no substance and is also rejected.
(F) Conclusion
81. In view of the aforesaid discussions, this Court is of the considered opinion that there is no illegality or infirmity in the impugned judgment and order dated 28.05.2015 passed by the learned Single Judge.
82. The intra Court appeal lacks merit and is, accordingly, dismissed.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 12th July, 2022
Ajit/-