Vinod Kumar Mathurseva Malvia vs Maganlal Mangaldas Gameti

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 170

2006(2) Supreme 442
Supreme Court of India
(From Gujarat High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
Vinod Kumar Mathurseva Malvia & Anr. —Appellants
versus
Maganlal Mangaldas Gameti & Ors. —Respondents
Civil Appeal No. 1260 of 2006
(Arising out of SLP (C) No. 24198 of 2005)
Decided on 24-2-2006
Counsel for the Parties :
For the Appellants : Vinod A. Bobde, Sr. Advocate, Shashank Kumar, Mayank Bughani and T. Mahipal, Advocates.
For the Respondents : Hazefa Ahmadi, Ejaj Maqbool, Nakul Dewan, Vikas Singh, Taruna Singh and Abhijit Sinha, Advocates.

Headnote:Bombay Public Trust Act, 1950—Section 22—Societies Registration Act, 1860—Appointment of trustees—Change notice—Proposal made to delete names of two trustees as they were no more—Respondent 1 also proposed four other names for their appointment as trustees—Legality and/or validity of order approving the change notice was questioned—Claim of Church of North India that First District Church of Brethren has lost its entity and has been amalgamated therewith and, thus, it has only the authority to recommend names of trustees to the parent body of USA—Five names were proposed to be included as trustees—A civil suit was filed by one ‘A’ against trustees—Suit was decreed holding that all the six uniting churches including the First District Church of Brethren were dissolved and united in one church i.e. the Church of North India—Jurisdiction of Civil Court questioned—All these questions must be determined by the Charity Commissioner himself.
       Held : It is beyond any doubt or dispute that the Assistant Charity Commissioner did not follow the procedure before approving the change notice filed by the First Respondent. It is on that premise that the Joint Charity Commissioner directed the Assistant Charity Commissioner to consider the change notice in terms of the rules. However, that order was set aside by the District Court. The High Court although noticed that the matter is subjudice before the Charity Commissioner and, thus, the said issue has to be resolved upon giving an opportunity of hearing to all the parties, erroneously proceeded to hold that this Court had already adjudicated upon the said issue. The aforementioned two findings of the High Court are contradictory and inconsistent. The High Court in its judgment noticed that the Assistant Charity Commissioner was required to follow the procedure laid down in the Act in terms whereof enquiry into the matter was mandatory. It has further noticed the long battle about amalgamation of trusts raised in the above suit. (Para 13)
       We are of the opinion that the High Court arrived at a wrong conclusion that the First District Church of Brethren did not cease to exist. Such a question indisputably, in view of the decision of this Court, is required to be determined by the statutory authorities under the Bombay Public Trust Act and not by the civil court. This Court held that the civil court had no jurisdiction; a fortiori no finding could have been arrived at that the First District Church of Brethren did or did not cease to exist. (Para 16)
       As noticed hereinbefore, although the orders of remand passed by this Court and that of the Joint Commissioner pertained to two different matters, we are of the opinion that the interests of justice require that all the questions must be determined by the Charity Commissioner himself. The Charity Commissioner shall also determine all the pending disputes including the change notices filed in the years 1985 and 1991, if they have not already been disposed of. The Charity Commissioner shall give notice of hearing to all concerned. If the parties intend to file additional pleadings, they may be allowed to do so. We have no doubt that keeping in view the urgency, the Charity Commissioner will consider the desirability of disposing of the matter as expeditiously as possible and preferably within a period of four months from the date of receipt of a copy of this order. (Paras 20 & 21)

Judgment

S.B. Sinha, J.—Leave granted.

2. This appeal is directed against the judgments and orders dated 06.10.2005 and 10.10.2005 passed by a learned Single Judge of the High Court of Gujarat at Ahmedabad in First Appeal No. 988 of 2005 whereby and whereunder the appeal preferred by the Appellants herein from a judgment and decree dated 07.04.2005 passed by the Extra Assistant Judge, was dismissed.

3. The basic fact of the matter is not in dispute.

The Church of Brethren General Board (India) (CBGB) is a trust registered under the Bombay Public Trust Act, 1950. It has a scheme of trust for administration, management including indicating mode of succession for appointment of trustees. In 1971 the Church of Brethren General Board (India) came into existence, which was registered in 1971. A public trust known as "Church of North India" (CNI) was also registered before the Charity Commissioner in the year 1980-81. Yet another trust known as `First District Church of Brethren’ was registered under the Societies Registration Act, 1860 as a public trust as also in terms of the Bombay Public Trust Act. Interpretation and application of Clause 9 of the scheme of CBGB was the subject matter of dispute between the parties, which reads as under :

"9. Appointment of New trustees when vacancies arise :

Trustee shall be appointed by the Church of the Brethren General Board, Elgin, Illinois, USA by granting Power of Attorney to select individuals either American or Indian. Where there is a vacancy, nominations to fill the post may be made to the Church of the Brethren General Board by First District Church of the Brethren or Second District Church of the Brethren or Second District Church of the Brethren (India) or their successors, whenever any Trustee, either original or substituted under the Scheme shall during his tenure of Trusteeship dies or is absent for more than six months from India without leave of absence from the Charity Commissioner or Assistant Charity Commissioner of the region, or is convicted of a criminal offence involving moral turpitude or desires to be discharged from or refuses or becomes unfit or incapable to act in the Trust or to execute the powers in his reposed, the surviving or continuing Trustees for the time being shall intimate to the Church of the Brethren General Board to fill in the said vacancy within three months from the date of the receipt of the intimation; and if they fail to do so within three months, the surviving or continuing trustees may appoint any person or persons to be trustees in the place or places of trustees so dying or convicted, as aforesaid, or desiring to be discharged or refusing or becoming unfit or incapable to act as aforesaid. If any such vacancy shall occur and no appointment in writing of a new trustee or trustees shall be made by passing an unanimous resolution in that behalf by all the surviving or continuing trustees within six months from the happening of such event, it shall be lawful for the Charity Commissioner at any time after the expiration of such time by writing to appoint a new Trustee or Trustees of this Trust as he may think fit and proper and as circumstances may require."

4. In between 1985 to 1991 five change notices were filed before the Assistant Commissioner but no action was taken thereupon.

5. A change notice was filed in terms of Section 22 of the Bombay Public Trust Act before the Assistant Commissioner by the Respondent No.1 herein. He, despite the fact that in terms of the scheme, the trust was to consist of not less than 5 and not more than 7 trustees, was the sole surviving trustee. By reason of the said change notice a proposal was made to delete the names of (i) Bishop of Gujarat Rev. Christachari; and (ii) Mr. Vithaldas N. Bhagat, as admittedly they were no more. The Respondent No. 1 also proposed four other names for their appointment as trustees. The Assistant Charity Commissioner did not make any enquiry in relation thereto. The said change notice was

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