- (1.) The extent of bar of jurisdiction of civil court under Section 80 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the BPT Act') is the question involved in this appeal which arises out of a judgment and order dated 21. 03.2003 passed by the High Court of Gujarat at Ahmedabad in S. A. No. 303 of 1986. background FACT:
(2.) The basic fact of the matter is not much in dispute. 2.1. In or about 1895, some American Missionaries established a religious institution (Church) at Valsad for propagation of protestant faith of Christian religion and to establish and manage the churches for the people professing that faith. The object of the 'brethren Church' was to propagate the work of the church of the brethren in western India in order to reveal Christ by means of evangelistic, educational, medical, literary, industrial school, social and charitable activities leading to the establishment of the kingdom of God. A Continuation Committee is said to have been appointed in the year 1930 by the representatives of the brethren Church and other churches in a round Table Conference held in New Delhi with a view to consider the modalities and other details for amalgamation of churches. The Committee is said to have worked out a broad basis for the unification of churches which was accepted by the participant churches whereupon a new committee came into being in the year 1951. The First district Church of the Brethren in India (Brethren Church) was registered as a religious society under the Societies registration Act, 1860 bearing registration no. 1202/44; the object whereof was to promote the work of the church of the brethren in Western India with the same object wherefor the church was established. Another Round Table Conference is said to have been held in the year 1951 at New delhi resulting in appointment of a new committee known as 'negotiating Committee' in order to continue deliberations for the union of churches; five other associations were included in the Committee, namely, The Council of the Baptist churches in North India, The Church of india, Pakistan, Burma and Ceylon, The methodist Church (British and Australian conference) , The Methodist Church in southern Asia and The United Church of northern India. The Brethren Church (First district Church of the Brethren) was registered as a public trust in Gujarat bearing no. E-643, Bharuch in terms of the BPT Act. The Negotiating Committee made its final recommendations which came to be known as the '4th Plan of the Union' which was published in a book entitled 'plan of Church union in North India and Pakistan' ; the principal recommendation of the Committee being that all the six uniting churches should be dissolved and united to become one church to be known as "the Church of northern India" (hereinafter referred to as "the CNI) which should be the legal continuation and successor of the united churches and all the properties, assets, obligations etc. thereof would vest in or devolve on CNI. The booklet of the 4th plan is said to have been circulated to the governing bodies of the uniting churches with a view to enable them to deliberate thereover and to take appropriate decision in that behalf. 2.2. On or about 17. 02.1970, a resolution bearing no. 70/08 is said to have been passed by the majority of members for effecting the dissolution as a society under the Societies Registration Act, 1860. The negotiating Committee thereafter on or about 29.11.1970 took a decision to formally inaugurate the CNI at Nagpur. The brethren Church allegedly placed the said resolution no. 70/08 at the altar wherein it was explicitly affirmed that the CNI shall be deemed to be the legal continuation and successor of the brethren church and the rights, titles, claims, estates and the interests of the church together with its privileges and obligations shall vest in the CNI as its legal heir on or from the date of inauguration. The Church of North India Trust association was registered as a company under the Companies Act, 1956, in the year 1976. The original defendant nos. 1 to 4 who were said to be initially part of the CNI and were parties to the resolution dated 17. 02.1970 raised a contention that the brethren Church continued to exist. They started obstructing the functioning of the cni, and in particular the worship in churches, and asserted that the First Brethren Church had not been dissolved and continued and they represented the same. 2.3. The original plaintiffs, namely, Ambelal okarial Patel, Shantilal Lakshmichand purani, Bishop T. L. Christachari and samuel Nagarji Bhagat (since deceased) said to be the former office bearers of the brethren Church filed a suit in the Court of the Civil Judge, Senior Division, Bharuch, marked as Civil Suit No. 72 of 1979. 2.4. The CNI was impleaded as defendant no. 5 therein, although no relief thereagainst was claimed contending that it was a necessary and/or a proper party. The Brethren Church were not made parties in the said suit. It is stated at the Bar that the said churches were impleaded at a later stage of the proceedings but the said applications were later on dismissed. The original defendant no. 4 in his written statement filed in the said suit took a categorical stand that there had been no dissolution of the Brethren church and their separate entity was not lost. According to the said defendant they were temporarily suspended till it was revived again and, thus, they were entitled to work for and on behalf of. the Brethren Church. In the said proceedings, certain interim orders were passed wherewith we are not concerned. However, with a view to complete the narration of facts, we may notice that the CNI filed an application for its registration before the Charity Commissioner in terms of the provisions of the BPT Act, which was granted by an order dated 12.5.1980 with effect from 19.11.1971. The CNI thereafter filed a change report before the Charity commissioner on or about 15.1.1981. Admittedly, the said application has not yet been disposed of. 2.5. While things stood thus, the Charity commissioner was impleaded as a party in the suit and in its written statement a plea was raised that the jurisdiction of the Civil court was barred in terms of Section 80 of the BPT Act contending : "4. In view of provisions of Bombay Public trusts Act, 1950, the question whether or not a trust of particular property is the property of such trust, is to be decided exclusively by the Deputy or Assistant Charity Commissioner appointed under the act, the Assistant Charity of the Brethren "as a public trust at no. E-643 (Bharuch) under the Bombay public Trusts Act, 1950. The decision of the assistant Charity Commissioner, Bharuch unless set aside as provided under the Act, is final and conclusive. It is further submitted that the jurisdiction of the Hon'ble Court is also barred under Section 80 of the Act. The plaintiffs are, therefore, not entitled to the reliefs as prayed for by them. The suit, deserves to be dismissed. " proceedings: 2.6. The learned Civil Judge by judgment and decree dated 31.3.1984 decreed the suit; findings in support whereof would be noticed a little later. 2.7. An appeal was preferred thereagainst on or about 4.5.1984 by the original defendants in the Court of the District Judge, bharuch, which was marked as RCA No. 72 of 1984. By judgment and decree dated 11.8.1986, the said appeal was allowed whereagainst the CNI (appellant herein) preferred a second appeal before the gujarat High Court, which was marked as second appeal no. 303 of 1986. On or about 29.3.2002, the Charity Commissioner is said to have filed a detailed affidavit in support of the Change Report No. 665/81. By reason of the impugned judgment and order dated 21.3.2003, the said second appeal was dismissed. 2.8. Hence the appellant is before us. contentions:
(3.) Mr. C. A. Sundaram, the learned senior counsel appearing on behalf of the appellant would submit that the Court of First appeal as also the High Court committed a manifest error in passing the impugned judgments insofar they failed to take into consideration the scope and purport of the suit. According to the learned counsel, the learned trial judge had rightly decreed the suit having taken into consideration the fact that the matter relating to formation of churches and their merger in the name of the CNI was not a matter which could be determined by the Charity Commissioner in exercise of his powers under the BPT act. The learned counsel would contend that the society and the trust are two separate entities. The society being not a juristic person although cannot own any property but manage the affairs of the trust which would be the owner of the property. According to the learned counsel the Court of First Appeal and the High Court misdirected themselves in passing the impugned judgments insofar as they proceeded on the premise that having regard to the fact that properties belonging to the Brethren church were registered in the books maintained by the Charity Commissioner under section 17 of the Act, any church affected thereby would fall within his jurisdiction and consequently the dissolution of the society and managing of the churches and consequently their merger would also come within the purview of the provisions of the BPT Act.;