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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 The Act, 1972 was repealed by the British Statutes (Application to India) Repeal Act, 1960 (hereinafter referred to as "Act, 1960") insofar as it extended to and operated as part of law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 The Act, 1949 referred in Section 3 or 6 was repealed by the British Statutes (Repeal) Act, 2004 w.e.f. 23.02.2004 (hereinafter referred to as "Act, 2004").

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.

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.

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.