1. As issue involved in both aforesaid First Appeals are arising out of the same impugned judgment and order and as the Appeals are also arising from the common judgment and order of the learned City Civil Judge, they are being heard together and are being decided by this common order.
2. The present First Appeals have been filed being aggrieved and dissatisfied with the common judgment and order passed by the Learned Judge, City Civil Court No.6, Ahmedabad in Civil Misc. Application Nos.470 of 2008 with 630 of 2008 dated 03.02.2009 on the grounds stated in the memo of Appeal contending inter alia that the Court below has failed to appreciate that the basic issue before him was to determine as to whether the Church of North India (for short “CNI”) is the successor and legal continuation of First District Church of Brethren (for short “FDCB”) or not. It is contended that inspite of framing the issue, the findings have not been given. It is also contended that the Court below failed to appreciate the fact that objections raised to the change report were not legal and valid as the Trust was not dissolved on account of any change. It is also contended that the Court below has failed to appreciate the provisions of Section 22 and other provisions of the Bombay Public Trust Act, 1950. It is contended that the Court below has failed to appreciate that the change report arise on account of the process of unification, which has been spread over all over the world and there have been unification of the church as stated in detailed in the ground. It is also contended that such unification and the decision to form CNI is taken by the Church of Brethren after due deliberations and discussion at various levels and minutes of such meeting of the Governing body have been recorded, the Resolutions passed by the local body of Church of Brethren have been recorded and it has also been signed by the office bearers, Ministers, Licentiate Preachers and Deacons of the Church of Brethren. It is, therefore, contended that the Court below has failed to approve merger of the Church of FDCB and the formation of CNI with Church of Brethren, USA. It is, therefore, contended that the Court below has failed to appreciate the ratio laid down in case of In re Faraker (1912) 2 Ch. 488 (495), which were sited before the Court below and the provisions of the Bombay Public Trust Act, particularly, Section 2(8), 2(13), 2(18), 10, 11, 12 and 13 of the said Act. It is contended that the Court below has failed to appreciate the Resolution nominating CNI as the successor entity of the Society and the dissolution/merger of the Society are in accordance with the Rules and Regulations and the provisions of Sections 12 and 13 of the Societies Registration Act, 1960. Therefore, it is legal and valid. It is contended that the Court below has failed to appreciate that the 'trust' has an obligation annexed with the ownership of the property would continue but would not be known by the name of Church of North India – Gujarat Diocese if the change is granted. It will also not be resulting in misappropriation of the funds or a breach of trust. It is further contended that the Court below has erred in holding that that the amalgamation can only be made in the manner provided under Section 50 of the Bombay Public Trust Act. It is contended that Section 50 of the said Act is empowering provision enabling the Charity Commissioner to amalgamate trust in the interest of proper management and administration. However, whether the instrument of the trust itself provides for amalgamation, recourse to Section 50 of the said Act would not be necessary and change report under Section 22 of the said Act can be considered. It is, therefore, contended that even after the change report, the FDCB would continue in PTR though for all practical purpose and only name has to be changed of merger. It is also contended that the Court below has failed to appreciate that the delisting of the properties is essentially a procedural matter of merging the PRT for due and proper administration of the trusts and it does not amount of alienation. It is, therefore, submitted that the Court below has failed to appreciate that the objections if accepted, impinge upon the fundamental rights guaranteed under Article 26 of the Constitution of India granting every religious denomination a right to manage its own affairs in matters of religion. It is, therefore, contended that the decision of unification by merging of six churches so as to form one church is ecclesiastical matter and it is a matter of religion and faith for the followers of a particular religion and the Court should not have accepted any such objections. It is, therefore, contended that the jurisdiction of the Charity Commissioner does not extend to such matters of religion as fundamentally decision blending or unification of the church and even after the unification or merger, the operation of the Brethren Church would be carried out in the same manner. It is contended that the Court below has failed to appreciate that the respondent/objectors were the members of the Society and also the member of the office bearers of the Managing Committee or others religion denomination and they have resolved and accepted merger with NIC and the Resolutions have been passed. It is, therefore, contended that they would be bound by the decisions, which has been taken at various meetings and now they have no locus or reason to challenge and/or to go back on their decision once Resolutions have been passed and accepted. It is, therefore, contended that such objections are taken belatedly only for the purpose of corporeal gain and are malafide. It is further contended that even after the formation of CNI, they have participated in the meeting of Gujarat Diocese of CNI and have acted as as office bearers and the property managed and administered by CNI Gujarat Diocese and taxes are also paid. Therefore, there is no priest functioning or administering the religious ceremony's and rituals but the Priest of CNI are administering the religious ceremonies and rituals since 1970. Therefore, the objections cannot be accepted at such belated stage. It is also contended that the Court below has failed to appreciate that not allowing the change report would frustrate the collective wish of the followers of Church of Brethren and members of FDCB and transfer of property is a consequential and it would not amount to divert of corpus without following due process of law. It is, therefore, contended that the present Appeal may be allowed.
3. Affidavitinreply has been filed by the respondent in Civil Application No.4701/2009 in First Appeal No.1536/2009, wherein it has been contended that FDCB is a Minority regional denomination of protestant Christian faith, which is duly registered as a religious Society bearing No.1202/1944 and is duly registered as public trust under th Bombay Public Trusts Act, 1950 bearing PTR NO.E/643/1690/BHARUCH. It is, therefore, contended that the Society is having its own Memorandum of Association, which is also the trust deed. It is contended that the properties of this religious denomination consists mainly on the Churches, cemeteries and Pastor houses. It is contended that accordingly DCB, Bharuch as per the fundamental rights guaranteed under Articles 25 & 26 of the Constitution of India has managed and it has every right to continue to manage its affairs. It is contended that in view of landmark judgment of the Hon'ble Apex Court regarding the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India, it give right to religious denomination with respect to their management and administration, are noteworthy in order to obtain right and rights guaranteed as fundamental rights cannot be waived or forfeited and it cannot be snatched away from management and administration of its properties and vest if any other body. It is, therefore, contended that it would otherwise amount to violation of Constitution of India and provisions and it would infringe such fundamental rights guaranteed under the Constitution of India. Reference is made to the judgment in case of Ratilal Panachand Gandhi V.s The State of Bombay & Ors., reported in 1954 AIR 388 & 1954 SCR 1035.
4. It is, therefore, contended that the present Appeal is arising out of an order passed under Section 22 of the Bombay Public Trust Act and though the present Appeal is termed as First Appeal in fact it is second Appeal in its nature and unless there is a substantial questions of law is raised or involved, same may not be entertained. It is contended that the appellants have failed to raise any substantial questions of law. Therefore, the present Appeal may not be entertained at all. It is contended that same photographs and the statements of accounts are being produced in this proceedings for the first time at appellate stage, which have not been produced in the proceedings before the Court below and, therefore, same cannot be taken into cognizance and it has been referred to at length. It is contended that when Civil Suit No.72/1979 was filed for the possession of the administration of the properties of FDCB, Bharuch and CNI, same was not even registered as public trust. Again reference is made to the observations made by the Hon'ble Apex Court in Civil Appeal No.9419/2003 in its judgment dated 03.05.2005, which has been quoted in detailed contending inter alia that CNI has been registered as trust only in the year 1980. It is, therefore, contended that the interim prayers prayers sought in interim relief in Civil Application in aforesaid Appeals are identical to those prayers prayed in the Civil Suit and will have application in view of the specific provisions of Bombay Public Trust Act, 1950. It is contended that the audited accounts of CNI have been filed only after year 1980 i.e. after a lapse of 14 years from the alleged date of merger in 1980. it is, therefore, contended that in fact, CNI was registered as trust in the year 1980 and, thereafter for four years, no audit accounts have been filed. It is, therefore, denied that CNI has been managing and administering the properties of FDCB and/or it has been incurring expenses since 1980 as alleged. Reference is also made to CMA No.181/2003 and submitted that CFDC is different from the Surat Church Council Trust, for which, accounts are produced and, therefore, it is misleading the Court. It is denied that the properties of FDCB Church are managed by CNI. It is denied that FDCB has become extinct and the Governing body of the FDCB has not held a single meeting since inauguration of CNI in the year 1970. It is denied that Local Organized Congregations of the FDCB are now the Pastorates of CNI and CNI has alleged that they are continue to manage and administer the affairs as per the Memorandum of Association of FDCB, Bharuch of the Trust Act or trust deed. It is also contended referring and quoting from the judgment of the Hon'ble Apex Court in Civil Appeal No.9419/2003 dated 03.05.2005 that “the records do not show that the said company had ever taken any decision as regard the control and management of the properties of the trust and/or had dealt with the properties belonging to the Brethren Church..........”. “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 out that even such alienation is prohibited in law......” It is, therefore, denied that CNI was in control or possession of the FDCB, Bharuch or it was administered during the pendency of Civil Suit No.72 of 1979. It is contended that the affairs are managed as per the provisions of the Public Trust Act and the change report are pending and also scheme of CBGB are pending in the Office of the Charity Commissioner.
5. It is contended that Maganbhai Gamit is the senior most duly ordained Priest and elder of the First District Church of the Brethren in India, who has dedicated his life for the service of the Society at large and any time to malign or blame his image by raising doubt in the integrity is malafide.
6. Learned counsel, Ms.Megha Jani referred to the past history and submitted that the amalgamation of the churches took place in 1970. She submitted that NIC came into existence by amalgamation by other churches in 1970 and no meeting or deliberation were held thereafter till 1980. She submitted that for about a decade, there was no difficulty or objection and in 1989, Suit being Special Civil Suit No.72/1979 before the Court of the Civil Judge (SD), Bharuch came to be filed by some persons for declaration that Church of North India is the successor and legal continuation of Church of Brethren, which was decreed, against which, Regular Civil Appeal No.72/1984 was filed and, thereafter, Second Appeal was preferred before this Court being Second Appeal No.303/1986 and the matter was carried before the Hon'ble Apex Court. She further submitted that there was also a trust for the Brethren Church and change reports were made in 1980 (Change Report No.44/1981) before the Charity Commissioner. Learned counsel, Ms.Jani submitted that the present Appeals arise out of these two change reports, which have been granted by the Charity Commissioner. She submitted that change reports, which have been allowed by the Charity Commissioner, have been set aside by the Civil Civil Court by the impugned judgment and order in Civil Misc. Application Nos.470 of 2008 with 630 of 2008.
7. Learned Sr. Counsel, Mr.Mihir Joshi has also made submissions and submitted that the proceedings have three facets; (1) religion; (2) administration by the Trust and (3) implication of the Society or the Trust and management of the property by the Trust and the Society. Learned Sr. Counsel, Mr.Joshi submitted that it is not in dispute that what is itself in the religion. Religion and obituary, secret principles, crid and sacrament are the same before the merger took place. Learned Sr. Counsel, Mr.Joshi submitted that therefore Union of Church of North India was formed with deliberation, consultation and approval of other churches including the Church of Brethren for better understanding and administration of the church and also for the better understanding and exposition of the religious faith, which is the basis. He submitted that by such merger of the trust in Union of North India Trust and/or formation of such Church of North India does not affect the faith and religious on any one including the respondents. He further submitted that such Union of Church have taken place world over and once such Union is formed, the member of other churches with a small trust ceased to exist as different such small churches had weaken the religious and the basic faith of the religion. Learned counsel, Mr.Joshi submitted that therefore, all aspects for amalgamation of the churches into CNI are considered and in fact, after deliberation, it has taken place in 1970 and since then, the Church of Brethren and other churches have ceased to exist. He emphasized that aspect of spirituality would cover within its swift religion and faith. Learned counsel, Mr.Joshi therefore submitted that assuming that there is some difference in the procedure or the aspect and the faith, how the person, who has different view regarding the administration of the church can join an issue regarding the unification of the church or the formation of the union church when the basic sacrament and the religion is the same. He referred to the judgment in case of Faraker (1912) 2 Ch. 488 (495) and submitted that it is ultimately the Charity Commissioner to decide. He has also referred to the judgment of this Court reported in 1962 GLR 117 to support his submission that the authority lies with the Charity Commissioner under the Bombay Public Trust Act and the scope of the inquiry or the interference would be very limited. He has referred to and relied upon other judgments including the judgment of the Deputy Charity Commissioner at Bombay. He has also referred to the judgment of the Bombay High Court in original jurisdiction in Company Appeal No.9 of 1997 to suggest that it was formed in a Company initially.
8. Learned Sr. counsel, Mr.Joshi, therefore, submitted that the Court is required to address the questions; (i) whether the Church of North India is successor and legal continuation of Church of Brethren and (ii) whether the Church of Brethren ceased to exist. He has referred to the documents as well as record and proceedings and other records including the booklet known as Plan of Church Union in North India and Pakistan published by Christian Literature Society. He has also referred to paper book–I produced on record and submitted that it refers to the different stages of negotiation and meeting, which were carried out before the North India Trust was formed by merger of the churches. He pointedly referred to the Appendix and Page Nos.95 and 96 and other minutes produced at Page No.106 of the Negotiating Committee. He also referred to Page Nos.100 and 102 of the Paper Book. He emphasized that the minutes of the meeting of Negotiating Committee of Church Union in North India & Pakistan was attended by the representatives of Church of Brethren and after detailed discussion and deliberation, he pointedly referred to Page No.109, which is AppendixA regarding the SubCommittee on Economic Assets and the Safeguarding of Trusts and submitted that it has been also discussed that even though this will involve the transferring the assets, it is desirable to do for political reasons and it has been stated that it was thought desirable to transfer the trustship to one Trust to another. Again he referred to minutes of such meeting of the Negotiating Committee and Church Union to emphasize that there was sufficient deliberation on every aspect and it was participated in the process of merger of Church with Union of Church of North India and after deliberation, when the Church of North India has been formed in 1970, such objections, which have been raised at such belated stage cannot be considered. He emphasized that they are made with oblique motive.
9. Learned counsel, Ms.Jani referred to the papers at Page No.215, which refer to Plan of Church Union in North India and Pakistan prepared by the Negotiating Committee for Church Union in North India and Pakistan representative and submitted also made, which is produced in the Paper Book at Page No.221 and submitted that the name of this Church is the Church of India/Pakistan and Constitution provides for every aspect and basic fundamental principles about the faith or fundamental principles, on which, this Union has taken place. The fundamental principles referred “the Church of North India/Pakistan acknowledges that the Church is the Body of Christ and that its members are the members of His Body. Those are members according to the will and purpose of God, who are baptized into the name of the Father, and of the Son, and of the Holy Spirit, receive the calling and grace of God with repentance and faith, and continue steadfast therein.” There is reference of doctrine of churches. Learned counsel, Ms.Jani therefore submitted that Church of North India has acknowledged the Catholic faith done and has also referred to the Constitution of such Church as well as manner in which the faith has to be accepted. It also refers to what is baptism and, thereafter, it has a reference to the aspect of the management of the church. It provides that the ordained ministry of the Church of North India/Pakistan shall consist of bishops, presbyters and deacons. She referred to Page Nos.257 & 258, which has reference to the proceedings taken place regarding the union and the First District Church of Brethren Association in India till 1970 when it merged into Church of North India (CNI) and the basic underlying idea or the object. She pointedly referred to this aspect and again reiterated and submitted that it was all throughout deliberated upon by all concerned including the representative of the First Church of Brethren and the Union of the Church of North India was finally formed in 1970. Learned counsel, Ms.Jani submitted that it reveals that the process of such merger or Union has been with deliberation in detail and all concerned had participated at different levels, for which, minutes were drawn and committees were formed and on the basis of the reports and feedback given, finally it has been merged. She submitted that now some few people cannot raise any objection and they are being estopped from raising any such contention or objection with regard to CNI, which has been formed with the merger of such churches including the Church of Brethren. Learned counsel, Ms.Jani also referred to the Plan of Church Union with regard to merger of Church and it has been stated that the First District Church of Brethren has accepted the plan of Church Union in North India and Pakistan and that Resolution passed at the First District Church clearly establishes that finally the Church of North India has been formed and it came into existence with the merger of all Churches including the Church of Brethren, therefore, if such merger has taken place then, the different Churches including the Church of Brethren has ceased to exist. Learned counsel, Ms.Jani, therefore, submitted that it is too late now for the few people to raise any objection and in fact, they are estopped by their own conduct for going back on their decision as once they had participated and accepted this Union or the formation of the Church of North India now they cannot raise any objection. She submitted that it was a declaration made by all concerned and Churches had assisted to Union with Church of North India. She submitted that at different levels, meetings were made and, therefore, few people cannot raise any objection or question the formation of the Union and merger of Church into Church of North India, which has been formed after much deliberation. Learned counsel, Ms.Jani submitted that after the Union of Church of North India came into existence in 1970 with the merger of all other Churches, there has not been any meeting of the District Committee of Church of Brethren which itself would suggests that it has merged and the Church of Brethren has ceased to exist. She submitted that after 1970, all the administration of the Church by Gujarat Diocese was managed, however in 1979, Civil Suit was filed and again First Appeal No.1536 of 2009 was preferred and the order was passed by this Court. She referred to the order as well as order passed below Exh.5 in Civil Suit No.74/1984. She submitted that the matter was carried before this Court and this Court modified the order till final hearing of the Suit and some working arrangement was made. Learned counsel, Ms.Jani has therefore submitted that the Suit was decreed and Appeal No.72/1984 was preferred, against which, there was Second Appeal.
She pointedly referred to the consent terms and submitted that Second Appeal No.303/1986 filed by the North India was dismissed on 21.03.2003. She has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 10 SCC 760 and submitted that the judgment of the Hon'ble Apex Court was against the judgment of this Court delivered in Second Appeal No.303/1986, reported in (2003) 3 GLH 306 and pointedly referred to the observations made on Page No.763 that the Resolution adopted in the meeting held on 17.02.1970 for dissolution of Brethren Church and devolution of all its assets and interest of CNI allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act. It was further observed, in any case, the decision as regards dissolution of the churches and congregation of the Brethren Church had been taken by none other than the trustees of the Brethren Church Trust. She, therefore, submitted that point, which is required to be considered is whether the CNI can claim as a successor of the Church of Brethren Trust and whether all the Trusts or the property managed will stand transferred and vested in CNI. She has also relied upon the judgment of the Hon'ble Apex Court in case of Vinod Kumar Mathurseva Malvia & Anr. Vs Maganlal Mangaldas Gameti & Ors., reported in (2006) 9 SCC 282 and pointedly referred to Para No.17, wherein it has been observed that “In view of the aforementioned findings, 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 indisputable, in view of the decision of this Court, is required to be determined by the statutory authorities under the Bombay Public Trusts Act and not by the civil court. This Court held that the civil court had no jurisdiction; a fortiori no finding could have been arred at that the First District Church of Brethren did or did not cease to exist.” She has also stated that this judgment has a reference to earlier judgment between the same parties, reported in (2005) 10 SCC 760. She has therefore submitted that the present Appeal may be allowed.
10. Learned counsel, Mr.Merchant appearing for the respondent has submitted that Civil Application No.4502 of 2011 in First Appeal No.1535 of 2009 has been filed for raising preliminary issue for maintainability of the First Appeal and Civil Application No.5389 of 2009 for vacating stay was granted by this Court (Coram : K.S Jhaveri, J.). Learned counsel, Mr.Merchant submitted that contention made in the Civil Application No.4502/2011 for raising preliminary issue regarding the maintainability of the First Appeal filed by the appellant is required to be considered as per the provisions of Section 72(2) of the Bombay Public Trust Act. He submitted that First Appeal would not be maintainable at all. He submitted that the admission of the First Appeal is in exparte and, therefore, such application had to be filed. He emphasized that the provisions of Section 72(4) of the Act interpreted by the Courts in judicial pronouncement would suggest that the Appeal under Section 72 of the Act is in fact a Second Appeal and, therefore, it has to be considered as per the scope of Second Appeal under Section 100 of the Civil Procedure Code and would be subject to the same procedure and restriction or the limitations. Learned counsel, therefore, submitted that only substantial question of law is required to be considered and question and fact are not to be adjudicated in such Appeals. He, therefore, strenuously submitted that this aspect may be considered as preliminary issue as regards the maintainability of the First Appeal referring to the scope of the provisions of Section 72 of the Act. He, therefore, submitted that no substantial question of law arises in the matter and the entire Appeal has been filed challenging the impugned order passed by the Learned Judge, City Civil Court No.6, Ahmedabad in Civil Misc. Application Nos.470 of 2008 with 630 of 2008 dated 03.02.2009 on appreciation of the facts and material and evidence. He submitted that even considering that also, the Court below has clearly given the finding that the procedure under the provisions of the Bombay Public Trust Act has not been followed and, therefore, necessary permission has to be obtained and the procedure has to be followed. Further it has been contended that as reflected in the impugned order, the case of the respondent is that Resolutions were passed dated 14th, 16th, and 17th of February, 1970 by the District Meeting of the Brethren Church to merge the Society into CNI and CNI was formed by merger of six churches. However, learned counsel, Mr.Merchant strenuously submitted that as could be seen from the record, CNI had moved an application under Section 18 of the Act for registration of the public trust and the said application was accepted on 12.05.1980 by registering CNI as public trust bearing Registration No.'D17 Ahmedabad' though the effect was sought to be given from 1971. At the same time, Company known as Church of North Association in CNITA under the Companies Act, 1976 was formed and appointed as Trustee of the CNI in the year 1976. He made reference to the earlier round of limitation and submitted that Civil Suit No.72/1979 was instituted in the Court of Learned Civil Judge, Ahmedabad claiming that after the merger of six churches, properties vested in CNI as a successor, which has not been believed or accepted right upto the Hon'ble Supreme Court. Again he submitted that in all other proceedings, the Hon'ble Supreme Court has in both judgments observed that the question raised in the Suit falls beyond the scope of Civil Court and only authority empower to decide the issue is the Charity Commissioner under the Act. He submitted that the Charity Commissioner has decided and it is against his order, the aforesaid Misc. Civil Applications have been filed, by which, the Court below i.e. the Civil Court while passing the order in the aforesaid applications has clearly observed that “Nowhere, the Resolutions speak about the dissolution of the Society or the Trust.” It is further observed that all the records clearly indicate that the intention of the Society or the Trust was to continue and what all was accepted was the recommendation as to merger and in fact, nowhere the Resolution speaks about the actual dissolution of the Society. Learned counsel, Mr.Merchant has pointedly referred to the observations made in this order and submitted that in order to prove the dissolution, the Court has analyzed the facts which must emerge on record and gave finding that no such record emerges and there is no proof of dissolution of the Society. He submitted that the discussion has been made with regard to the fundamental rights guaranteed under Article 25 of the Constitution. Learned counsel, Mr.Merchant for the respondent has submitted that the Court is concerned with two Trusts i.e. (i) Church of North India (CNI) registered under the provisions of the Bombay Public Trust Act, 1950; and (ii) unification of six churches and these trusts or the churches merged into Church of Brethren Trust, which was initially registered as Society under the Societies Registration Act. He submitted that as per the memorandum of association, as it was incumbent upon it to register as public trust under the Bombay Public Trust Act providing for such Society also, same has been registered as Trust. 21 local congregations for the administration purpose have been there as provided under Article 26 of the Constitution. He submitted that right to use and administer the property acquired with the funds and follow processing in the faith is guaranteed under Article 26 of the Constitution of India and such right cannot be taken away. Learned counsel, Mr.Merchant submitted that if such a right is guaranteed under the Constitution by such Resolution or indirect method, it cannot be curtailed. He submitted that though it has been submitted that there is no basic difference in the faith or in the religion, in fact, the different churches have a difference with regard to (i) baptism; (ii) holy communion and (iii) Church operation. CNI canvasses the faith and apilopals, where the Bishop is the head of the church, wherein the Church of Brethren, local congregation is headed by priest. He pointedly referred to the evidence, which has been recorded in the proceeding and referring to the cross examination, he submitted that it is admitted that the rituals are different. He, therefore, submitted that the submission that by Resolution, there has been merger and the Church of Brethren Trust has ceased to exist and, therefore, the property automatically vest cannot be accepted. He submitted that the Bombay Public Trust Act does not provide for such. He submitted that in fact, he referred to Vol.1 of the Paper Book and submitted that the appellant is required to establish as to who has right to decide primafacie about any decision on behalf of the Trust. He submitted that Resolutions, which are relied upon and are said to have been passed by the District Meetings are all xerox copies, which have not been brought on record as per the Evidence Act and it may not have been any significance or it does not bear any signature or seal and it also does not give any clarification with regard to how it was passed and who remained present. In fact, it does not inspire any confidence and the Court below while passing the impugned order has referred to this aspect. Learned counsel, Mr.Merchant has referred to Sections 13 and 12 of the Societies Registration Act and submitted that the requirements of the Act are required to be fulfilled and it provides for the procedure, which is required to be followed, which has admittedly not been followed. He pointedly referred to the judgment of the Hon'ble Apex Court and submitted that CNI was the Church, which was being registered as Trust in the year 1980. He submitted that the Church of North India Gujarat Diocese has been registered as a public trust in the year 1980 and this would suggest that there are none of the trustees as a Church of North India Trust have been mentioned.
11. Therefore, the submission that there are other churches and CNI, which is claimed to have merged with Church like the respondent, Church of Brethren is ceased to exist cannot be believed. He submitted that if CNI is said to have come into existence and the Church of Brethren as Trust is ceased to exist since 1970, there could not have been meeting of the local body or the congregation in the year 1977. He, therefore, submitted that the provisions of Law like the Bombay Public Trust Act has admittedly not been followed. He submitted that the Court is required to consider the submissions and the change reports in light of the scope of Section 22 of the Bombay Public Trust Act. He submitted that the change report has been submitted beyond the scope of Section 22. Learned counsel, Mr.Merchant submitted that the change, which is sought to be recorded, has not taken place and it reference to the earlier period before the registration of CNI as a Trust and, therefore, it cannot be covered by Section 22. He pointedly referred to Sections 22 as well as 22A of the Act.
12. In rejoinder, learned counsel, Ms.Jani reiterated the contentions and submissions and submitted that one of the reasons has pointed out by learned counsel, Mr.Merchant that they do not want to continue there is difference in the rituals. She submitted that there are two aspects one baptism and holy communion. She submitted that CNI is headed by the Bishop and difference in the reverence and the rituals is misconceived. Learned counsel, Mr.Jani submitted that there is no foundation about the contentions and in fact in absence of specific pleadings, such contentions cannot be raised at this stage. She has also submitted that there is no oral as well as documentary evidence on this aspect.
13. Learned counsel, Ms.Jani submitted that in fact, there is no difference in rituals also, for that purpose, she referred to Page No.215 of the Paper Book–II and there is a historical background referred to and there is mention of the Church of Brethren in India, which is specifically mentioned in this Plan of Church Union in North India and Pakistan. She submitted that it has a reference to the background and the ultimate object as stated in the historical statement. Again she referred to Page No.219, which refers to “simple statement of our approach to unity”. She submitted that ultimately there is full trust in “Holy Spirit”. Again she referred to Page No.224, which refers to “sacrament of the church”, which has reference to baptism. She emphasized that “Baptism is a sign of cleansing from sin, of engrafting into Christ, of entrance into the covenant of grace, of fellowship with Christ in His Death and Resurrection and of rising to newness of life.” Then she referred to Page No.225 “Holy Communion” and again referred to Ministry of Church and submitted that it is provided that Bishop shall be appointed and performed functions according to the constitution of the Church. There is also reference to synod. It was, therefore, submitted that there is also a body like Property Committee who would manage the property of the different trust of the Church, who are having District Meeting at the local level. She has also referred to the certificate of incorporation of the public trust as a First District Church of Brethren. She also referred to Vol. No.2 of Page Book at Page No.378, which refers to the certificate of incorporation of the Church of North India Association and other papers including the Resolutions passed and the draft document presented by the Gujarat Diocese Trust to emphasize that the Church of North India Trust has been registered and incorporated as Company and there would be a committee of Trustees or the Managers, who would be managing the Gujarat Diocese. She also referred to PTR produced on record. She has also referred to minutes of the meeting of the Managing Committee, 1977 to support her submission that all the charge was given to CNI Trust. She submitted that looking to such entire larger picture with regard to process of unification, which has been completed, no interference is called for with such unification at the instance of few persons, who have second thought at a belated stage. She submitted that the Church of Brethren had ceased to exit and merged with CNI.
14. In view of these rival submissions, which have been made at great length referring to integration or the unification of the Church and in furtherance and interest of not only religion but all concerned, the very basis for such unification or integration is for an advancement of the religious faith and cause of human and mankind and for spreading the Holy Spirit. However, one must have reference to the understanding and basic concept and the philosophy underlying Articles 25 and 26 of the Constitution of India.
15. The 'Dharma' is a samskrit expression of the widest important and there is no corresponding word in any other language. Our Constitution provides 'Dharma Nishargata' when it refers to secularism being a secular state. In other words, it also has a reference to basic fundamental principles for the society. Therefore, the words of 'Dharma' declare with one voice that 'Dharma' is what which sustain the world. At the same time, one must not get confused the 'Dharma' with religion. It is perodoxial that word 'Dharma' is being translated as 'religion' and viceversa though at times, word 'Dharma' is used for religion, word 'religion' would have been better expressed and translated as 'Sampraday Pantha Sect'. Therefore, the word 'Dharma' is much wider concept based on universal code of conduct of humanity, which guided welfare of the individual and the society. Therefore, the mandate of 'Dharma' is in respect for all religion sampraday and duty to protect the right of others. In other word, 'Dharma' is duty based and selfless. In the Mahabharat referring to Manava Kartavya Sastra (code of duties of human beings), reference is made to 'Dharma'. 'Dharma' has been explained to be that which helps the upliftment of living being. Therefore, it ensures the welfare of living beings is surely 'Dharma'. The learned reshis have declared that which sustains is 'Dharma'. In other words,'Dharma' regulates the mutual obligations of individual and the society. Rules of Dharma are meant to regulate the individual conduct, in such a way as to restrict the rights, liberty, interest and desires of an individual as regards all matters to the extent necessary in the interest of other individuals, i.e., the society and at the same time making it obligatory for the society to safeguard and protect the individual in all respects through its social and political institutions. 'Dharma' is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. The Dharma is promulgated in the form of commands.
16. It is in these background, the submissions, which have been made with regard to the merger and unification of Churches for the better administration of the Churches and religion faith of the 'Holy spirit' is required to be considered that the very basis of word 'Dharma' provides that it is secularism par excellence. The word secular has been amended by amendment in the Constitution to emphasize equal respect for all and it has been translated as 'Sarva Dharma Sambhavana'. This aspect has been provided in our Constitution, more particularly, under Articles 25 and 26 of the Constitution of India, which reads as under : “Art. 25. Freedom of conscience and free profession, practice and propagation of religion : Subject to public order, morality and health and to the order provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”
Therefore, it clearly provides that every religion denomination shall have right to manage all affairs and administer its own properties and maintain institution. It is in these backgrounds, if the submissions made by learned Sr. counsel, Mr.Mihir Joshi appearing with learned counsel, Ms.Megha Jani are required to be appreciated where he has stated three facet; (1) religion; (2) administration by the Trust and (3) implication on the Society and what has been canvassed is that such unification of the Church has been accepted world over and in fact, it is merely a matter of integration or unification or merger of Churches for the better administration and progress of the Christianity or the religion as well as for the better understanding of the members and tenets of the religion which has been imbibe by the Holy Spirit. This aspect even if are accepted at the face value cannot have any authority for imposing or taking away the rights of the basic religious faith vested in every citizen. In fact the submissions at length have been made to base the arguments that it is for the better understanding and spread of the religion and better administration of the Churches, but it does not have any basis or foundation for such unification. Had it been a voluntary act, it would not have led to such a litigations and that to repeated round of litigation i.e. upto the Hon'ble Apex Court. This itself suggests about the fact that there are different view and difference of opinions not only with regard to the unification of the merger of the Churches and even with regard to the basic faith rituals and other tenets, which are basis or genesis of the religion. The trusts are created for managing the affairs of the churches and the churches are established for the spread and understanding of the religion or the tenets of the religion as message of almighty. Entire focus repeatedly at length has been made to various Resolutions referring to the history as to what has transpired for many years and discussion and deliberation, which have been going on at different levels either at the local level in the meeting of the District Meeting or thereafter there is proposed constitution and, thereafter, the constitution of CNI Church. However, the fact remains that there is no basis or foundation or the legal or other frame work, which could be said to be binding and which could be relied upon by the appellant. All the appeals have been based on the socalled Resolutions, which have been passed and minutes of the deliberation at different levels but by such process of Resolutions deliberately, the people cannot be prevented from pursuing the religious faith of the choice nor any such Church or property of the Church or the Trust managing the affairs of the Church like Brethren Church can be said to have merged or vanished or it can be said to have been taken over. The word 'taken over' has more reference to the corporate world of acquisition of Company or acquisition of one Company by multinational company in other parts of the globe but for the spread of the religious or the understanding of the religious faith, it cannot have any such imposition or compulsion. In the guise of such merger or unification, what has been sought to be done is dealing the entire activity of the various Churches along with the properties as well as funds of the Churches or the Trust managing the affairs of various Churches, which is not permissible under the law of country. As stated above, it will run counter to the constitutional provisions permitting freedom to every individual to pursue to religion or faith of his or her choice and Article 26 of the Constitution specifically provides for a every religious denomination or section thereof to have a right to manage its own affairs in the matter of religious and also to own, acquire the movable and immovable property and administer such property in accordance with law. Again it has to be subject to the necessary procedure and approval as required under the law and should not be inconsistent with public order or any other restriction imposed under Articles 25 & 26. Therefore, when the constitution provides the freedom of such religious faith subject to the restriction, which are termed as reasonable restriction and there is a specific law governed, such affairs of the trust established under the Bombay Public Trust Act, it has to have a procedure to be followed and complied with as provided in Bombay Public Trust Act. It is in this background, the procedure adopted by the respondentCNI Church in the name of unification merger etc. without having obtained necessary permission, without having placed on record the requirements for consideration of the Charity Commissioner, which is the authority established under the Bombay Public Trust Act, cannot be kept aside. If the submissions made by learned counsel, Ms.Jani are to be accepted, it will amount to accepting that such Resolutions or deliberation are above the law and the law that any such Resolution passed anywhere will have more binding force then the law created by the Sovereign Authority of India like the Bombay Public Trust Act as well as the provisions of the constitution under Articles 25 and 26 of the Constitution of India. In fact, Article 26 which provides for the freedom of the religious faith and Article 26 which provides for the freedom of acquiring and administering the property or the Trust in accordance with law, meaning thereby, the provisions of the Bombay Public Trust Act, which has been created, would have no application again in the guise of such Resolution. Even the Transfer of Property Act will have no bearing and properties of various Trust or the Churches would get automatically transferred or vested without any requirement of law being fulfilled without any document, without any registration, stamp etc. Therefore, it would be a rather over simplification to accept the submission that it was merely a Resolution for a merger or unification of various Churches for better understanding and advancement of cause of religion and faith and the Court should not examine this aspect even though there is a strong protest which has led to repeated round of litigations before the Courts upto the Hon'ble Apex Court. The underlying object or the purpose even if it is assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land. Therefore, the submission made on the ground of estoppel that once having accepted the Resolutions or having participated at the time of discussion on Resolution or unification, same people have backed out. Therefore, they are estopped from now changing their stand is without any basis and misconceived. There is no question of having changed the stand or faith but it is a question which is required to be considered whether one sect like the Church of Northern India can impose religion faith, acquire the trust and its property and take away total state of affairs for the managing of such Trust, which have been established for management of the various Churches at different levels. The principles of estoppel or promissory estoppel in such cases has no application. One fails to understand how such preposition can be advanced, which curtails the freedom guaranteed to the Constitution. Therefore as discussed above, if one has a freedom of faith and religion, one may have also freedom to have a fresh look and thinking at any time and cannot be bound by any such rules of estoppel. The estoppel would be attributed if there is any promise held out whereas in the case, it is mere a matter of faith and belief or the trust for an understanding of the philosophy of religion or the tenets. Therefore, there is no question of any promise made out, for which, the estoppel could come into play. In fact, even if it is assumed that some of the people had initially participated at some stage with regard to merger or unification of the Church of Brethren Trust into the Church of North India, one can still have a relook or fresh thinking at the entire episode and have have a different opinion at later stage, which cannot be prohibited. The constitutional provision under Articles 25 & 26, which is the genesis for such freedom has granted such right, which cannot be taken away or curtailed on the ground of estoppel.
17. One another facet, which is required to be focused is based on some of the procedural aspect and the impugned order has considered the same. There is a special reference to the fact that CNI was formed and in fact, it was registered as a Company under the Companies Act and appointed Trustee of CNI in the year 1976, thereafter, CNI was formed in the year 1980 and the application was moved by CNI under Section 18 of the Bombay Public Trust Act for registration of the public trust. The said application was accepted on 12.05.1980 for registering CNI as a public trust. It is required to be mentioned that though for the first time, the trust is brought into existence and it has been registered in 1980, it is sought to be given an effect of registration from 1971 and it is said to have been formed in 1980 when at the relevant time, it was registered and incorporated under the Indian Companies Act, 1976. It is because of such aspect, reference has been made to acquire of the Company and holding of the subsidiary Company for the purpose of analogy. It cannot be permitted in case of such matter of religious trust or the Society. It is in this background in the impugned order passed in Civil Misc. Application Nos.470 of 2008 with 630 of 2008, the Court below has observed that unless the Society which was entrusted with the property is not dissolved in accordance with Section 13 of the Societies Registration Act and unless and until the properties are vested in the trust are vanished in accordance with the provisions of the Societies Registration Act by merely filing of the change report on the basis of the socalled merger based on some resolutions, automatically property cannot get vested and/or transferred into CNI Trust as sought to be canvassed. There is a deliberation and discussion on this aspect, which has been discussed in Para No.8 of the impugned judgment and order. There is a reference to the Societies Registration Act, Bombay Public Trust Act and necessary permission as required under the law including the Trust and the property of the Trust. Therefore, unless the provisions of the Societies Registration Act, Bombay Public Trust Act and the procedure as required has been followed, there would not be a cause for any change report or socalled merger or vanishing the existence of the Brethren Trust and the Churches. The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exit by any such process of thinking or deliberation or the Resolution, which does not have any force of law. In fact, any such idea is running counter to the express provisions of law like the Societies Registration Act, Transfer of Property Act, Bombay Public Trust Act and also very basis or foundation permitting the freedom of such religious faith under Articles 25 & 26 of the Constitution. The discussion has been made with regard to the change report and again there is specific question, which has been addressed by the Court below whether such Society can be said to have been dissolved and whether the trust can be said to have been vanished and the disposal and settlement or the trust, such trust based on any such Resolution and the finding is clear that nowhere the Resolution even speaks about the dissolution of the Society or the trust (Brethren Church). In fact as discussed in detailed accepting the said deliberation and the Resolutions on the basis of which the claim for unification or merger is based by learned counsel, Ms.Jani for the appellant are taken at the face value even then all the Resolutions only resolved to accept the recommendation of joining the unification but it does not refer to dissolution of their existence or the Society or the trust in the CNI trust. At the same time, it does not refer to the transfer or vesting of the property. Therefore, all the Resolutions considered only referred to aspect of unification for the better cause or undertaking of the religious faith maintaining their own individual identity without anything further. Therefore, much emphasize based on the Resolutions referring to the deliberation are misconceived. Further as discussed above, the local provisions and the procedure cannot be set at naught by such deliberation or Resolutions and cannot be placed above such laws, which are enacted by Sovereign Authority of India and even the constitutional mandate under Article 25 & 26 of the Constitution. In the name of mere change report, the indirect apparent object is to control and acquire of the Churches, the trusts, which have been managing the affairs of the Churches and also their properties and the funds, which cannot be permitted. The documents, which have been made that if such unification or the merger is not allowed, it would violate Article 25 and 26 of the Constitution on the contrary suggests that if it is allowed, it would negate and violate the fundamental rights guaranteed under Articles 25 & 26 of the Constitution by ignoring the wish and desire of the people, who want to continue their existence. Again though the submissions have been made at length relying upon various deliberations and the Resolutions at different level, no such documents have been part of the record or having accepted before the authority or before the Court below, which would have permitted to raise several such contentions with regard to even validity or genuineness of any such Resolutions or the deliberation.
18. Though the contentions have been raised by the appellant, same issues have been considered by the Hon'ble Apex Court in earlier round of litigation before the Hon'ble Apex Court. The Hon'ble Apex Court in a judgment in case of Church of North
merger where the properties can vest in the CNI or whether the succession, administration and management of property owned by church which was both a registered Society and registered trust is required to follow the procedure under the Bombay Public Trust Act. The appellantCNI had earlier filed Suit for declaration as to the succession of the BC Trust and injunction in respect of the properties. The observations have been made by the Hon'ble Apex Court that filing of Suit without consent of the Charity Commissioner was not proper and it has been specifically observed that “The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision.........” Since the Bombay Public Trust Act provides remedy to do what the civil courts would normally do in a suit, the jurisdiction of the Civil Court validly and efficiently in respect of the matter covered under Section 80 of the Act. In respect of this very issue, whether the Brethren Church can be said to have merged or dissolved and all the assets and the interest would vest in CNI, the Hon'ble Apex Court observed that “Even assuming that the society stands dissolved in terms of its Memorandum of Association and Articles of Association, the same would not ipso facto mean that the properties could be adjusted amongst the members of the society in terms of the provisions of the said Act. Concededly, the properties of the trust being properties of the religious trust had vested in such trust. Such a provision, we have noticed hereinbefore, also exist in the BPT Act. Thus, only because the society has been dissolved, ipso facto the properties belonging to the trust cannot be said to have been adjusted. The Appellants, thus, we have noticed hereinbefore, have averred in the plaint that the suit relates to the property of the trust and their 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.” The Resolutions adopted in the meeting held on 17.02.1974 for the dissolution of the Brethren Church and dissolution of its assets and interest of CNI allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act but the Brethren Church Society having not owned any Society, the transfer of property in favour of new Society was permissible in law. It is not necessary to consider as to whether such dissolution of Churches and merger thereof in the appellant (CNI) would amount to alienation of immovable property and such alienation of property without sanction of the Charity Commissioner is prohibited under Section 36 of the Bombay Public Trust Act. The issue involved was also addressed by the Hon'ble Apex Court and there is discussion in Para No.65, which was addressed by the trial court as to whether the Brethren Church was dissolved and ceased to exist as a separate entity as alleged in the Suit filed by the CNI and the Hon'ble Apex Court has clearly opined and observed that the findings of the learned trial judge on that count is apparently wrong. The Hon'ble Apex Court, therefore, confirmed the view of the High Court that the Suit filed by the CNI was not maintainable. Therefore, it would support the contentions raised by learned counsel, Mr.Merchant that necessary procedure as required under the Bombay Public Trust Act has to be fulfilled. There is subsequent development arising out of another litigation with regard to the same issue and in another round before the Hon'ble Apex Court, the Hon'ble Apex Court has also remanded the matter to the Charity Commissioner for adjudication of all the disputes.
19. The Hon'ble Apex Court in a judgment in case of Vinod Kumar Mathurseva Malvia & Anr. Vs. Maganlal Mangaldas Gameti & Ors., reported in (2006) 9 SCC 282 had occasion to consider what would be the effect if the procedure as required under the BPT Act is not followed. The CNI asserting amalgamation of Brethren Church with it and thereby claiming itself to be the successor of the Brethren Church and the sole authority to recommend names of new trustees etc. The Hon'ble Apex Court referring to the earlier judgment in case Church of North India (supra) again quoted “The provisions of the Act and the scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question, and to prefer appeal if he feels aggrieved by any decision.” The Hon'ble Apex Court further observed that “In view of the aforementioned findings, 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.” It is pursuant to this judgment, the matter was remanded to the Charity Commissioner for deciding and the applications were preferred being Civil Misc. Application Nos.470 of 2008 & 630 of 2008 against the decisions of the Joint Charity Commissioner, which is assailed in the present appeals. While deciding the aforesaid applications under Section 72(1) of the BPT Act with regard to the change report specifically focusing in the change report about the properties of the First District Church Brethren, which is said to have been vested in the CNI, the learned Judge, City Civil Court considering two change reports being No.44/1981 & 665/1981 has observed that in order to prove dissolution, the following acts must emerge on record, (1) Dissolution of various Committees constituted under the rules and regulations of the Society; (2) Dissolution of the District Meeting and (3) Dealing with the properties and other aspects in terms of S.13 of the S.R. Act. The Civil Court found and observed that no such record emerges in the instant case and therefore there is no proof as to dissolution of the Society. Therefore, it was clearly observed with regard to merger that such Society being a Trust registered under the Bombay Public Trust Act is required to follow the procedure for amalgamation or merger as contemplated under Section 50A(2) of the Bombay Public Trust Act. Further, since the Society and the Trust being the creation of the Statute, they have to comply with the modes provided in the Statute for amalgamation and necessary procedure including the approval of the Charity Commissioner has to be there before such merger takes place. A useful reference can be made to Section 50A(2) of Bombay Public Trust Act. It is required to be mentioned that mere expression or desire to merger by passing Resolution by the Brethren Church would not result into merger unless it is approved with the procedure followed under the Bombay Public Trust Act. Further, the properties, which are vested in the committee of such Church, which is registered as FDCB, would be managing the affairs of the Trust and the corpus of the Trust cannot be transferred along with the property without following procedure or approval of the Charity Commissioner under the Bombay Public Trust Act. Therefore, it has been clearly observed by the Court in exercise of its jurisdiction under Section 72 of the Bombay Public Trust Act that the Brother Churches (Trust) cannot be said to have dissolved and the change report cannot be accepted.
20. One more aspect, which has been focused by learned counsel, Mr.Merchant with regard to the procedure followed both before the Charity Commissioner as well as while deciding the application before the Civil Court under Section 72 of the Bombay Public Trust Act is that no material document, which could be said to have been relied upon has been proved. If the necessary Resolutions were placed on record, the genuineness or authenticity of such documents could have been examined and, therefore, unless all such materials have been placed on record, other side would have availed opportunity of examining the witnesses with regard to the authenticity, genuineness and/or purpose and it cannot be straightway exhibited. As rightly contended by learned counsel, Mr.Merchant, whatever material, which was required or relied upon by the appellant herein ought to have been placed on record and it should have been proved or exhibited as required under the provisions of the Evidence Act. If it was proved and brought on record, other side would have opportunity to meet with it and also would have opportunity to examine the witnesses, who have been examined for the purpose of accepting such document like Resolution. It is required to be mentioned that whole claim of the appellant is based on the various Resolutions at various stages, on the basis of which, the claim is made, which has no sanction or any force of law nor it is supported by any legal principles or Rules. Therefore, if the Resolutions are the basis, it was required to be proved and exhibited then, it could have been opened for the other side to crossexamine and to challenge the same including the questioning its genuineness and also background in which the said Resolution is passed. Therefore, as no such material has been placed on record, in fact it could not have been considered at all.
21. It is well accepted that accepting the document is one thing and probative value of the document is different altogether. The document is required to be proved and established under the Evidence Act by the testimony of the witnesses. The Hon'ble Apex Court in a judgment in case of H. Siddiqui (Dead) by Lrs. Vs. A. Ramalingam, reported in 2011 (2) GLR 1429 has observed that the trial court had admitted the document as secondary evidence merely because the respondent had admitted his signature thereon. Criticising such an approach, the Hon'ble Apex Court has observed that “The trial court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the Power of Attorney and did not admit the contents thereof. More so, the Court should have borne in mind that admissibility of a document or contents thereof may not necessarily lead to drawing any inference unless the contents thereof have some probative value.” Therefore, the submission made by learned counsel, Mr.Merchant that when no such material or document has been placed on record, which could have given opportunity to other side to establish his case requires consideration. In this judgment, the Hon'ble Apex Court has made observation with regard to the approach to be adopted by the first Appellate Court and it has been observed that “Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.” Therefore admittedly no such evidence has been placed on record like the Resolutions, which is the basis for the appellants. It is well accepted that though the Charity Commissioner is not the Court, the procedure is to be followed like the Civil Court. The procedure as provided in the Civil Procedure Code the mutates mutandis apply. In other words, though the Charity Commissioner has discretion to have evolved his own procedure, normal procedure under the Civil Procedure Code is followed in such matter. It is required to be mentioned that even though strictly Civil Procedure Court may not be applicable, still the procedure is required to be followed in order to provide fair opportunity to other side to contest on every issue including the documents, which are sought to be produced and also to decide the probative value after it is exhibited as per the Evidence Act. Therefore, it is necessary that all such Resolutions etc. ought to have been placed on record, which has not been done. Therefore, what was not forming the part of the record in the original proceedings cannot be permitted to be supplemented by way of explanation in appeal.
22. Reliance has been placed by learned counsel, Mr.Merchant on the judgment in case of Church of North India Vs. Laljibhai Ratanjibhai & Ors., reported in case of (2005) 10 SCC 670, which clearly suggests that the merger has not been effected. The Hon'ble Apex Court in this very judgment has observed as under : “46. The records do not show that the said company had ever taken any decision as regard control and management of the Trust and/ or had dealt with the properties belonging to the Brethren Church.
47. It is also not in dispute that local 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.
52. In the aforementioned context, the plaintiffs had questioned the actions and/ or activities of the defendant Nos. 1 to 4 and other dissidents insofar as they tend to prevent or hinder the plaintiffs and other members of the Pastorate from acting 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.
64. Unless a suit is filed in terms of Section 13 of the Act, the Society is not dissolved. Even assuming that the society stands dissolved in terms of its Memorandum of Association and Articles of Association, the same would not ipso facto mean that the properties could be adjusted amongst the members of the society in terms of the provisions of the said Act. Concededly, the properties of the trust being properties of the religious trust had vested in such trust. Such a provision, we have noticed hereinbefore, also exist in the BPT Act. Thus, only because the society has been dissolved, ipso facto the properties belonging to the trust cannot be said to have been adjusted. The Appellants, thus, we have noticed hereinbefore, have averred in the plaint that the suit relates to the property of the trust and their 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. ”
23. The Hon'ble Apex Court has also made observation referring to the prayers, which reads as under : “74. Prayer (a) in the plaint is for a declaration. Such declaration cannot be granted by a civil court as regard succession of the District Church of Brethren as the same was a religious trust registered under the BPT Act.
75. Prayer (b) of the plaint also could not have been granted, as the question as to whether the applicant is the legal continuation and successor of the First District Church of Brethren is a matter which would fall for exclusive determination of Charity Commissioner keeping in view the provisions of the deed of trust as regard its succession.”
24. A useful reference can also be made to the observations made by the Hon'ble Apex Court in the judgment in case of A.S. Narayana Deekshituli Vs. State of A.P. & Ors., reported in (1996) 9 SCC 548, where the Hon'ble Apex Court has considered the meaning and scope of 'religion' and 'dharma' and had discussed with reference to the Articles 25 and 26 of the Constitution of India. The Hon'ble Apex Court has observed that “The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a communitylife and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order.” The Hon'ble Apex Court has further observed that “the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion whichis subject to legislation by the State limiting or regulating any activity economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State.” ...... “therefore, while interpreting Articles 25 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest to the community.” It has also been observed that “There is a difference between secularism and secularisation. Secularisation essentially is a process of decline in religious activity, belief, ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may not accept any religion as the basis of State action or as the criteria of dealing with citizens, the Constitution of India seeks to synthesis religion, religious practice or matters of religion and secularism.”
25. It is in view of the aforesaid discussion with regard to the issues, which have also been discussed and dealt with by the Hon'ble Apex Court, the focus has to be on the ultimate freedom of faith, religion and persuasion of such faith and belief as one likes, which cannot be curtailed. As a matter of fact, by the aforesaid procedure and the litigations, which have been repeated, it is reflected that in the name of unification or merger, it is aimed that there is total control of not only properties and the churches but it will also have an ultimate effect of imposing particular faith or belief, which is not permissible.
26. In the circumstances, the present First Appeals are hereby dismissed. The impugned judgment and order passed by the Learned Judge, City Civil Court No.6, Ahmedabad in Civil Misc. Application Nos.470 of 2008 with 630 of 2008 dated 03.02.2009 is hereby confirmed. Interim relief, if any, stands vacated.
/patil FURTHER ORDER
(RAJESH H.SHUKLA, J.)
After the judgment was pronounced, learned counsel, Ms.Megha Jani strenuously requested for extension of the interim relief stating that it may otherwise have a bearing on the law and order situation and the position as prevailing may continue. For that purpose, she has also referred to the order of this Court dated 23.12.2010 (Coram : K.S. Jhaveri, J.). However, in view of the detailed findings given by this Court in this very proceedings referring to the earlier two round of litigations, the interim relief as prayed cannot be extended even for a moment. Hence, the request is turned down.
(RAJESH H.SHUKLA, J.)
/patil