TaxTMI 
TaxTMI 
2005 (5) TMI 636
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....rary, 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, name....
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....dissolved and continued and they represented the same. 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. 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 concerne....
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....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 church....
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....sdiction within the four-corners thereof and the matters which do not come within the purview of the BPT Act must necessarily be left to the jurisdiction of the Civil Court. According to the learned counsel the provisions of Section 50 of the BPT Act do not show that requirements contained therein must be carried out even in a case where the Charity Commissioner may not have any jurisdiction. As regard interpretation of Section 31 of the BPT Act, the learned counsel would contend that the provision thereof bars hearing and decision in the suit and not the institution thereof. Although in the year 1979, the Appellant herein was not registered but as before hearing of the suit was taken up, it became registered in the year 1980, the Civil Judge had the jurisdiction to hear and decide the said suit even it involved dealing with the trust property. Mr. Huzefa Ahmadi, the learned counsel appearing on behalf of the contesting Respondents, on the other hand, would submit that for the purpose of determining the question as to whether the suit before the Civil Court was maintainable or not, the averments made in the plaint must be read as a whole and substratum thereof must be noticed. As....
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....ine the issues governing the same. Drawing our attention to the prayer (b) of the plaint, Mr. Ahmadi would argue that the same would squarely fall within the purview of Sections 50 and 51 of the BPT Act and, thus, would be barred as no permission of the Chief Commissioner was sought for and obtained. The learned counsel would contend that the plea that the suit related to the affairs of the society is merely a ruse or a camouflage. It was argued that the society itself is a religious trust and, thus, both stand on the same footing and in that view of the matter, the suit will not be maintainable. The learned counsel would further submit that a finding of fact had been arrived at by the Court of Appeal that the Brethren Church had not ceased to exist, this Court should not interfere therewith. Mr. M.N. Shroff, the learned counsel appearing on behalf of the Charity Commissioner, adopted the submission of Mr. Ahmadi and would further contend that the substantial issue before the learned Civil Judge was as to whether the Brethren Church which was registered as trust had ceased to exist and/or stood dissolved or not. SOCIETIES REGISTRATION ACT, 1860 The Societies Registration Act w....
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....bers shall have expressed a wish for such dissolution by their votes delivered in person or by proxy, at a general meeting convened for the purpose: Government consent Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the Government of the State of registration." BOMBAY PUBLIC TRUSTS ACT The BPT Act, on the other hand, was enacted to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. Section 2 is the interpretation clause. Section 2 (10) defines "person having interest" to include in the case of a society registered under the Societies Registration Act, 1860 any member of such society. Section 2(13) defines "public trust" to mean "an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act,....
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.... Such books, indices and registers would contain such particulars as may be prescribed. Section 18 imposes a duty upon the trustee of a public trust to make an application for the registration of the public trust in writing and would contain such particulars as mentioned in Sub-section (5) of Section 18. Clause (iii) of Sub-section (5) of Section 18 provides that the list of the movable and immovable trust property and such descriptions and particulars as may be sufficient for the identification thereof shall be stated as and when such application for registration of the trust is filed. Section 19 provides for an Inquiry for registration for the purpose of ascertaining: "(i) whether a trust exists and whether such trust is a public trust, (ii) whether any property is the property of such trust, (iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction, (iv) the names and addresses of the trustees and manager of such trust, (v) the mode of succession to the office of the trustee of such trust, (vi) the origin, nature and object of such trust, (vii) the amount of gross average annual income and expenditure of such ....
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....s: "31(1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. (2) The provisions of sub-section (1) shall apply to a claim of set off or other proceeding to enforce a right on behalf of such public trust." Chapter V provides for the Accounts and Audit. Section 36 bars alienation of immovable property of public trust without the previous sanction of the Charity Commissioner. In the event, such previous sanction is not granted, an appeal thereagainst is maintainable before the Gujarat Revenue Tribunal. Chapter VI provides for the control of the charitable or religious trusts and for the said purpose in terms of Section 37 the Charity Commissioner is empowered to: "(a) to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust; (b) to call for or inspect any extract from any proceedings of the trustees of any public trust and any books of accounts or documents in the possession, or under the control, of the trustees or any person on behalf of the trustees; (c) to call for any return, statement, account or report which he may think fit from the tr....
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....rther or other relief as the nature of the case may require; Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof: Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled." Sections 51, 79 and 80 read as under: "51(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent to the institution of the suit under sub- section (1) the persons applying for such consent may file an appeal to the Bombay Reve....
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....s no longer res integra. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code of Civil Procedure. In Dhulabhai and Others vs. The State of Madhya Pradesh and Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the following principles relating to the exclusion of jurisdiction of civil courts : (a) Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, h....
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.... (1995) 5 SCC 75, Dwarka Prasad Agarwal vs. Ramesh Chand Agarwal - (2003) 6 SCC 220, Sahebgouda vs. Ogeppa (2003) 6 SCC 151, Dhruv Green Field Ltd. vs. Hukam Singh (2002) 6 SCC 416 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors, [2005 (4) SCALE 116]. The same, however, would not mean that in a given case if the court has the jurisdiction to determine a part of the relief claimed, it will not confine itself thereto and reject the plaint in its entirety. For the purpose of determination of question as to whether the suit is barred, the averments made in the plaint are germane. [See Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137] ANALYSIS OF BPT ACT: The BPT Act is a special law. It confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the Parliament in public interest to safeguard the properties vested in the trusts as also control and management thereof so that the trust property may not be squandered or the object or purport for which a public trust is created may not be defeated by the persons having control thereover. A society may be cre....
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....cal churches or congregations which desired to function on the basis of the old constitution were at liberty to do so till the 3rd Ordinary Synod of C.N.I. which was to be held in 1977. According to the plaintiffs, most of the churches or congregations under the Gujarat Diocesan Council implemented the said chapter. The church or congregation at Valsad although decided to adopt the said constitution, but it is contended that in the intervening period the property Committee (Property Trust Board) of the former Brethren Church continued to manage the properties, estate, etc. of Valsad Church as an agent of and on behalf of the Gujarat Diocesan Council. The defendant Nos. 1 to 4 who were residents of Valsad and Navsari; took exceptions to the decision of the Synod to terminate the interim period with effect from 7th October, 1977 and held a meeting on 12th November, 1978. A resolution had been adopted by the said defendants along with others asserting that their independent unit would hold all the movable and immovable properties, deposit in a bank and cash in hand of the church in its properties wherefor a special committee was constituted. The defendant Nos. 2 to 4 are said to t....
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....ing under and in accordance with the said decisions and resolutions of the Gujarat Diocesan Council and the constitution of Synod violate and infringe the legal rights of these persons to do so and are illegal. The Appellant herein was joined as defendant No. 5 in the said suit, although no relief had been claimed against the original defendant No. 5 who is the Appellant before us. The status of the defendant No. 5 has not been disclosed in the plaint. The legal status of Church of North India has not been disclosed in the plaint. It is accepted that the defendant No. 5 Appellant has got itself registered as a trust only in the year 1980. It also stands admitted that a change report has been filed by the Appellant before the Commissioner of Charity in the year 1981. We have noticed hereinbefore that as regard the correctness or otherwise of functioning of the congregation of Ankleshwar and Valsad had been the subject matter of complaints before the authorities under the BPT Act. One of the causes of action for instituting the suit is said to be constitution of a special committee by the defendant Nos. 1 to 4; resolution dated 12th November, 1978 was passed and the o....
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....h 2 of the plaint it is accepted that the Church which was registered as a society under the Societies Registration Act was a public trust as defined under Section 2(13) of the BPT Act. The ownership of movable and immovable properties at the places mentioned in the plaint is referable to the congregations under the Brethren Church. It is not alleged that whereas the properties belong to the trust it was managed by the society. The plaint furthermore does not disclose that the decision as regard dissolution of the churches and congregation of Brethren Church had been taken by anybody other than the trustees. The committees constituted for the aforementioned purpose, viz., Continuation Committee and Negotiating Committee, evidently were represented by the authorities of the congregations and not of any society. A decision, as would appear from the averments made in paragraph 6 of the plaint, to dissolve six uniting Churches and merge the same into one, viz., the Church of Northern India (C.N.I.) so as to make the latter a legal continuation and successor of the United Churches and all the properties, assets, obligations, etc. of these uniting churches would vest in or dissolve on C.....
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....administration. If the properties of the churches did not belong to the society, the Appellant herein cannot claim the same as their successor. The plaint has to be read meaningfully. So done, it leads to the only conclusion that the dispute was in relation to the management of the churches as religious trust and not as a society. Even if it is contended that the administration of the property would mean the properties of the Brethren Church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable. It is interesting to note that the Appellants themselves in grounds 1, 2, 4, 5 and 6 have categorically stated that both the society registered under the Societies Registration Act and the trust registered under the BPT Act is only one entity and that upon dissolution of a society the trust automatically ceases and all that remains is to carry out the registration under the BPT Act wherefor applications have been made before the Charity Commissioner. The stand taken by the Appellants herein is unequivocal in nature. The Trial Court also appears to have proceede....
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....more, there is nothing on record to show the mode and manner of the management and control of the trust property. [See Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. State of Delhi (Now Delhi Administration) and another, AIR 1962 SC 458, Dharam Dutt and Others Vs. Union of India and Others, (2004) 1 SCC 712, para 52 and Illachi Devi (Dead) By LRs. and Others Vs. Jain Society, Protection of Orphans India and Others, (2003) 8 SCC 413, paras 21 and 22] In Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar [AIR 1965 SC 338], this Court did not permit a new question to be raised. In this case also, a new contention has been raised contrary to the pleadings that the society and the trust are different entities. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). In view of the decision of this Court in Dhulabhai (supra) such finality clause would lead to a conclusion that civil court's jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit. In this case, we are n....
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....onclusive. Even a power exists for holding a further inquiry. Section 31 bars a suit to enforce a right on behalf of a public trust. C.N.I. got itself registered as a public trust in the year 1981. A suit evidently was filed by the plaintiffs in the year 1980 because C.N.I. was not then entitled to file a suit. It may be true that the suit was filed under Order 1, Rule 8 of the Code of Civil Procedure but therein the question as to whether the Appellant herein, being a registered trust became entitled to the properties of Brethren Church could not have been gone into. What is prohibited is to enforce a right on behalf of a public trust. When the plaintiffs intended to enforce a right on behalf of the Appellant, the suit was evidently not maintainable. Furthermore, the purported resolutions of the churches affiliated to the Brethren Church and merger thereof with the Appellant, having regard to the provisions of the Act was required to be done in consonance with the provisions thereof. It is not necessary for us to consider as to whether such dissolution of the churches and merger thereof in the Appellant would amount to alienation of immovable property but we only intend to point....
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....lant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of the BPT Act. If the question as regard recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal. Yet again the question as regard existence of a trust is a matter which squarely falls within the purview of Section 79 of the Act. We have no doubt in our mind that the Charity Commissioner was impleaded as a party at a later stage of the suit only with a view to fulfill the requirements of Sub-section (3) of Section 50 of the Act. In Virupakshayya Shankarayya Vs. Ne....
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....t a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in t....
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....ontained in the Industrial Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the civil court will have no jurisdiction as enumerated in paragraph 35. In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others [(2003) 6 SCC 151] the allegations made in the plaint showed that the only right claimed by the Appellants was that of being ancestral pujaris of the temple. They did not claim to be the trustees of any trust. No declaration regarding the existence or otherwise of the trust or any particular property is the property of such trust had been claimed and in that view of the matter, it was held that the reliefs so claimed do not come within the purview of Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity Commissioner will have the exclusive jurisdiction to hold an inquiry and give a decision. Ramesh Chand Ardawatiwa Vs. Anil Panjwani [(2003) 7 SCC 350] has no application in the present case as therein the Charity Commissioner took a specific objection that the civil court's jurisdiction is barred whereupon several additional issues were framed and determined. In NDMC Vs. Satish Chand (Deceased) By LR. Ram Chand [(2003) 10 SCC 3....
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....t and in that situation it was held that Section 80 would operate. In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High Court held that a civil suit cannot be entertained only because a complicated questions of title has been raised. In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani and Others [AIR 1973 (Bom) 130] the question was as to whether the author of a trust was the lawful owner of the property of which he has created the trust. The Full Bench of Bombay High Court held that the author of the trust has no title over the property and Section 80 would not operate as a bar. In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a co-trustee to delegate a matter relating to grant or determination of lease to another co-trustee keeping in view of Section 47 of the Act which deprives the trustee from delegating his office or any of his duties to a co-trustee or a stranger unless conditions mentioned therein are complied with. The principle enunciated in each of the decision laid down relate to the fact sit....