# Most Rev. John Augustine Inre 406 M/S 2015 v. Christ Church Mcconaghy School Society Lucknow & Ors

- **Citation:** (2022) 7 ILRA 317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Special Appeal No. 233 of 2015
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/most-rev-john-augustine-inre-406-m-s-2015-v-christ-church-mcconaghy-school-48887
- **Pages:** 31

## Headnote

A. Special Law -Chapter VIII Rule 5 of the
Rules of the Allahabad High Court Rules,
1952-Societies Registration Act, 1860 -
Section 4 & 4B - Saving Clause in British
Statutes(Application to India) Repeal Act,
1960, the learned Single Judge opined
that the British Statutes(Repeal) Act,
2004 received the assent of the President
of India on 20.02.2004 and con-joint
reading of the provisions of Section 3 of
Repeal Act, 1960, sub-sections (1) (2)(3)
and (4) of section 1 of the Act, 1949 as
well as Repeal Act, 2004 shows that what
was saved by Section 3 of the Act, 1960
was
the
application
of
any
statute
repealed by it in relation to India and to
persons and things in any way belonging
to or connected with India, in any country
to which India (Consequential Provision)
Act, 1949 extended, therefore, assuming
that
the
said
provision
saved
the
application of the Indian Church Act,
1927, the same stood repealed w.e.f.
20.02.2004 but this aspect of the matter
was
not
considered
by
the
Deputy
Registrar-Moreover the Deputy Registrar
did no at all consider the question as to
whether the CIBC was in existence
defacto or not and further neither the
appellant nor any other person claiming
under CIBC or CIPBC had staked any claim
to the management of the society since
1970, hence their defacto existence was
318 INDIAN LAW REPORTS ALLAHABAD SERIES
seriously
questionable-These
findings
recorded by learned Single Judge have
substance for proper adjudication of the
case and the Deputy Registrar has erred in
not considering the aforesaid fact-Thus, the
learned Single Judge rightly remanded back
the matter to the Deputy Registrar to take a
decision afresh in the light of Section 4 and
4-B of the Act, 1860 keeping in mind the
directions of the Apex Court-Therefore, the
plea of the appellant has no substance and
is rejected.(Para 1 to 80) (E-6)

List of cases cited:

## Text

_Characters 0–39,930 of 110,685. This is a partial read: ask again with offset=39930 for what follows._

7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
317
valuable rights of the parties and must also
work
serious
injustice
to
the
party
concerned:
(vi) On the other hand, orders passed in the
course of the proceedings of a routine
nature, would not constitute a judgment
even if they result in some element of
inconvenience or hardship to one party or
the other. Routine orders which are passed
by a Single Judge to facilitate the progress
of a case may cause some element of
inconvenience or prejudice to a party but
do not constitute a 'judgment' because they
do not finally determine the rights or
obligations of the parties. Procedural orders
in aid of the progression of a case or to
facilitate a decision are not judgments."

11. Now considering the impugned
orders dated 16.12.2020 and 10.3.2022
against which the present appeal has been
preferred, we are of the opinion that the
orders cannot in any manner be said to
touch the merits of the controversy or the
dispute between the parties so as to be
deemed to be judgment or deemed to have
been issued in exercise of powers conferred
under Article 226 of the Constitution of
India and thus, making them amenable to
an Intra-Court Appeal under Chapter VIII
Rule 5 of the Rules of the Court.

12. In view of the above discussion,
the Intra-Court Appeal under Chapter VIII
Rule 5 of the Rules of the Court is held to
be not maintainable and is, accordingly,
dismissed.
----------
(2022)07ILR A317
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Special Appeal No. 233 of 2015

Most Rev. John Augustine Inre 406 M/S
2015 ...Appellant
Versus
Christ Church Mcconaghy School Society
Lucknow & Ors. ...Respondents

Counsel for the Appellant:
Prashant Singh Atal, Ankit Singh, Dr. L.P. Misra,
Pooja Singh, Pranjal Krishna, Santosh Kumar

Counsel for the Respondents:
C.S.C., Aniket Raj, Gaurav Mehrotra, Nadeem
Murtaza, Rahul Srivastava, Saurabh Shankar
Srivastav, Sudeep Seth

A. Special Law -Chapter VIII Rule 5 of the
Rules of the Allahabad High Court Rules,
1952-Societies Registration Act, 1860 -
Section 4 & 4B - Saving Clause in British
Statutes(Application to India) Repeal Act,
1960, the learned Single Judge opined
that the British Statutes(Repeal) Act,
2004 received the assent of the President
of India on 20.02.2004 and con-joint
reading of the provisions of Section 3 of
Repeal Act, 1960, sub-sections (1) (2)(3)
and (4) of section 1 of the Act, 1949 as
well as Repeal Act, 2004 shows that what
was saved by Section 3 of the Act, 1960
was
the
application
of
any
statute
repealed by it in relation to India and to
persons and things in any way belonging
to or connected with India, in any country
to which India (Consequential Provision)
Act, 1949 extended, therefore, assuming
that
the
said
provision
saved
the
application of the Indian Church Act,
1927, the same stood repealed w.e.f.
20.02.2004 but this aspect of the matter
was
not
considered
by
the
Deputy
Registrar-Moreover the Deputy Registrar
did no at all consider the question as to
whether the CIBC was in existence
defacto or not and further neither the
appellant nor any other person claiming
under CIBC or CIPBC had staked any claim
to the management of the society since
1970, hence their defacto existence was
318 INDIAN LAW REPORTS ALLAHABAD SERIES
seriously
questionable-These
findings
recorded by learned Single Judge have
substance for proper adjudication of the
case and the Deputy Registrar has erred in
not considering the aforesaid fact-Thus, the
learned Single Judge rightly remanded back
the matter to the Deputy Registrar to take a
decision afresh in the light of Section 4 and
4-B of the Act, 1860 keeping in mind the
directions of the Apex Court-Therefore, the
plea of the appellant has no substance and
is rejected.(Para 1 to 80) (E-6)

List of cases cited:

1. Vinod Kumar M. Malviya & ors. Vs Maganlal
Mangaldas Gameti & ors. (2013) 15 SCC 394

2. Church of North India Vs Lavajibhai Ratanji
Bhai & ors. (2005) 10 SCC 760

3. Vinod Kumar Mathur Sewa Malavia Vs
Maganlal Mangal Das Gameti & ors. (2006) 9
SCC 282

4. A.Vs Papayya Sastry & ors. Vs Govt. of A.P. &
ors. (2007) 4 SCC 221

5. Meghmala & ors. Vs G. Narasimha Reddy &
ors. (2010) 8 SCC 383

6. Chairman-cum-Managing Dr. Coal India Ltd.
Vs Ananta Shah & ors. (2011) 5 SCC 142

7. Kalabharti Advertising Vs Hemant Vimal Nath
Naricharma & ors. (2010) 9 SCC 437

8. A.P. Aboobaker Musaliar Vs Distt. Registrar(G)
Kozhikode & ors. (2004) 11 SCC 247

9. Bhavnagar University Vs Palitana Sugar Mills
Pvt. Ltd. & ors. (2003) 12 SCC 111

10. St. of Mah. Vs Ramdas Srinivas Naik (1982)
2 SCC 463
(Delivered by Hon'ble Ramesh Sinha, J.)

(A) Introduction

1. The instant intra Court appeal
under Chapter VIII Rule 5 of the Allahabad
High Court Rules, 1952 has been preferred
by Most Rev. John Augustine (appellant
herein/respondent no.3 in writ petition),
challenging the correctness of the judgment
and order dated 28.05.2015 passed in Writ
Petition No. 406 (M/S) of 2015 : Christ
Church
McConaghy
School
Society,
Lucknow and another Vs. Registrar, Firms,
Societies and Chits, Lucknow and others,
whereby the learned Single Judge, while
quashing the order dated 07.02.2015 passed
by the Deputy Registrar, Firms, Societies
and Chits, Lucknow, by which the General
Body of the writ petitioners' society (Christ
Church Mc Conaghy School Society,
Lucknow) was declared invalid and further
directed the appellant herein (respondent
no.3 in writ petition), to take action for reconstitution
of
the
Committee
of
Management of Christ Church McConaghy
School Society, Lucknow in accordance
with bye-laws, allowed the writ petition in
the following terms :-

"Having pondered over the issue as to
whether the dispute needs to be referred to
prescribed authority under Section 25 (1) of
Act 1860 the Court is of the view that it is
not a fit case for such reference as the
opposite party no. 3 has set up his claim
based on a separate general body belonging
to CIBC distinct from the one existing at
present. Thus the dispute is a fundamental
one and the membership of the opposite
party no. 3 and his associates in the existing
general body itself is disputed. Therefore,
considering the complicated questions of
fact and law involved, the summary
proceedings under Section 25(1) would not
be suited for resolution of the same. The
opposite party no. 3 and his associates
would also find it difficult to take recourse
to Section 25(1) as they would not be able
to muster 2/3rd members of the existing
general body as they are basing their claim
7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
319
on a different general body. In the facts and
circumstances the appropriate remedy for
opposite party no. 3 would be to get his
rights declared in regular proceedings of a
suit, whether pending or a fresh one. Till
then he has no locus to interfere in the
functioning of the petitioner-society nor to
raise any dispute or objection with regard
to it.
As far as the list of officerbearers and members of general body
submitted by petitioner no. 2 for the year
2014-15 is concerned, the matter is
remanded back to Deputy Registrar to take
a decision afresh in the light of Section 4
and 4-B of Act 1860 keeping in mind the
directions of the Supreme Court in the case
of A.P. Aboobaker Musaliar Vs. District
Registrar (G) Kozhikode and others (supra)
and the observations made hereinabove,
subject to any order or declaration by any
court in favour of opposite party no. 3 in a
pending or fresh suit, if filed by him or his
associates.

It is made clear that the discussions
made hereinabove are only for the purpose
of adjudicating the validity of the order of
the Deputy Registrar and any observations
made shall not prejudice the rights of the
parties
pending
adjudication
in
any
proceedings before any court.

The writ petition is allowed in the
aforesaid terms."

B. Factual Matrix

2. The facts leading to the instant intra
Court appeal, in a nutshell, are as under:-

3. A Society has been registered under
the Societies Registration Act (XXI of 1860)
(hereinafter referred to as "Act, 1860") in the
year 1947 called ''Christ Church McConaghy
School
Society,
Lucknow'
(hereinafter
referred to as ''Society'). The objects of the
Society are :- to give Christian education
among the people of Lucknow; to give
opportunities for teaching, witness, and
worship according to the faith, doctrine and
practices of the Church of India, Burma and
Ceylon, and more specially to the Christian
staff and students; to maintain a Christian
staff sufficient to preserve and strengthen the
Christian character and purpose of the
institution; to provide for the care of orphans
and their education; to undertake any form of
work which is directed to the improvement,
increase and spread of education and is for
the benefit of the people of India etc.

4. Rule-3 of the Rules and Regulations
of the Society refers ex officio members of
the Society, which is reproduced as under :-

(a) The Bishop of Lucknow for the time
being.

(b) The Secretary of the Board of
Education of the Lucknow Diocean Council
for the time being.

(c) The Principal of Christ Church Mc
Conaghy School, Lucknow for the time
being.

(d) The Principal of La Martiniere
College, Lucknow, for the time being.

(e) The civil Chaplain, Lucknow, for the
time being.

(f) The priest in-charge of the Epiphany
Church, Lucknow, for the time being.

(g) The Secretary of the Indian Board of
the Lucknow Diocean Council for the time
being.

(h) The Secretary of the Lucknow
Diocesan Trust Association for the time
being.

5. Rule 4 of the Rules and
Regulations of the Society refers Members
of the Society, according to which, there
are three classes of Members of Society
viz. (i) Life Members shall be those who
subscribed a sum of not less than
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.10,000/- to the Society, and who shall
have been accepted to be Life Members of
the Society by the Managing Committee;
(ii) Ordinary Members shall be those who
subscribed a sum of Rs.200/- to the Society
as admission fee and thereafter a sum of
Rs.5/- per month as monthly subscription
which shall be payable either monthly or as
the Managing Committee shall direct and
who shall have been accepted to be
Ordinary Members of the Managing
Committee of the Society; (iii) Honorary
Members shall be those who are ex officio
members
of
the
society
and
other
individuals who may be elected as
Members of the Managing Committee
either by the Society at the Annual General
Meeting, or by the Managing Committee,
but such persons shall cease to be members
of the Society when they cease to be
members of the Managing Committee.

6. Rule 8 of the Rules and
Regulations of the Society says that the
business and affairs of the Society shall be
managed by a Managing Committee of not
less than five and not more than twelve
members, elected by the Society at the
Annual Meeting and at least three members
of the Managing Committee shall be ex
officio members of the Society.

7. As per Rule 9 of the Rules and
Regulations of the Society, the aforesaid ex
officio members of the Society shall be the
first Managing Committee and they shall
continue in office until after the first General
Meeting of the Society. As per Rule 10 of the
Rules and Regulations of the Society, the
Office Bearers of the Society shall be a
Chairman, a Vice-Chairman, a Secretary and
a Treasurer and these shall be elected at the
Annual Meeting of the Society. The Office
Bearers shall be elected from among the
members of the Society and they shall be
members of the Managing Committee. The
other members of the Managing Committee
shall also be elected by the Annual Meeting
of the Society. Nevertheless the Bishop of
Lucknow, if willing to act, shall always be ex
officio Chairman of the Society as per Rule
15 of the Rules and Regulations of the
Society.

8. Rule 15 of the Rules and Regulations
of the Society provides that the Bishop of
Lucknow, if willing to act, shall be the ex
officio Chairman of the Society, otherwise the
Chairman shall be elected by the General
Meeting of the Society. Rule 49 of the Rules
and Regulations of the Society provides that
in order that the Constitution, canons and
Rules of the Church of India, Burma and
Ceylon and the Constitution, Rules and
Regulations of the Diocese of Lucknow may
be properly safeguarded, none of the
proceedings or acts of the Society shall be
valid without the assent of the Bishop of
Lucknow from the time being.

9. After partition of India in 1947, the
erstwhile Church of India, Burma and Ceylon
(hereinafter referred to as ''CIBC') became
Church of India, Pakistan, Burma and Ceylon
(hereinafter referred to as ''CIPBC'), but no
such amendment was made in the Rules and
Regulations of the Society and in the Rules
and Regulations of the Society, the Society
has continued to refer CIBC.

10. On 27th November, 1970, six
Churches including the erstwhile CIPBC
merged into one entity and created ''the
Church of India' (hereinafter referred to as
''CNI') under Indian Churches Act, 1927 and
rules/regulations framed thereunder.

11. It appears that appellant herein,
while claiming himself to be Metropolitan
Church of India and Bishop of Diocese of
7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
321
Lucknow, had submitted an undated
application to the Deputy Registrar,
Firms, Societies and Chits, Lucknow
Division, Lucknow (hereinafter referred to
as "Deputy Registrar"), which was received
in the office of Deputy Registrar on
14.08.2014 (Annexure No.14 of the writ
petition).
In
the
aforesaid
undated
application, the appellant herein had prayed
that in the light of Vinod Kumar M.
Malviya
and
others
Vs.
Maganlal
Mangaldas Gameti and others : (2013)
15 SCC 394, the present Managing
Committee of the Society is illegal and,
therefore, the approval/registration of the
list of the members/office bearers of the
Managing
Committee
of
the
writ
petitioners' Society be cancelled and in its
place the list of members and office bearers
presented by CIPBC, be registered. In the
aforesaid application, it has been admitted
by the appellant that since 1970 (from the
date of formation of CNI), respondent no.
1/writ petitioner no.1's Society is in control
and management of the members of the
CNI.

12. The Deputy Registrar, vide order
dated 07.02.2015, declared the entire
General Body of the writ petitioners'
Society as invalid and directed the
appellant herein (respondent no.3 in writ
petition) to take action for re-constitution
of the Committee of the Management of the
petitioners' society in accordance with the
bye-laws.

13. Feeling aggrieved by the aforesaid
order dated 07.2.2015, the respondents no.
1 and 2/writ petitioners had approached this
Court by filing writ petition No. 406 (M/S)
of 2015, which was allowed by the learned
Single Judge while quashing the order
dated 07.02.2015 vide judgment and order
dated 28.05.2015.

14. Hence the instant special appeal.

15. Pleadings have been exchanged
between the parties.

C. Application for Impleadment
filed by applicant-The Right Revd. Dr.
Peter
Baldev,
Bishop
Diocese
of
Lucknow (C.M. Application No. 109924
of 2019)

16. During the course of arguments, it has
been pointed out by the learned Counsel for
the parties that application for impleadment
filed by the Right Revd. Dr. Peter Baldev,
Bishop
Diocese
of
Lucknow
(C.M.
Application No. 109924 of 2019) is
pending and a Co-ordinate Bench of this
Court,
vide
order
dated
20.11.2019,
observed
that
this
application
for
impleadment be considered at the time of
final hearing of the appeal. In these
backgrounds,
this
Court
proceeds
to
consider the application for impleadment.

17. Shri Anil Kumar Tewari, learned
Senior Advocate assisted by Shri Vivek
Kumar, appearing on behalf of the
applicant-the Right Revd. Dr. Peter Baldev,
Bishop Diocese of Lucknow, has argued
that the applicant-the Right Revd. Dr. Peter
Baldev is presently the Bishop of Diocese
of Lucknow, Church of North India. As per
Clause-3 and Clause-15 of the bye-laws of
the Society, the applicant being the Bishop
of Diocese of Lucknow is the ex officio
Chairman of the Society and therefore, he
is vested with certain powers. He argued
that after passing the interim order with
regard to maintaining status quo in the
present appeal vide order dated 15.06.2015,
the parties inter se CIPBC and CNI
maintained status quo with regard to the
governance of the Society and that
consequently
the
Society
was
being
322 INDIAN LAW REPORTS ALLAHABAD SERIES
managed by the CNI. He argued that after
passing the interim order dated 15.06.2015,
the
respondent
no.2
has
wrongly
interpreted
the
interim
order
dated
15.06.2015 and not convened the meeting
of the Society in the garb of the interim
order dated 15.06.2015 and subsequently
wrote a letter to Mr. Ricardo Henry Soler
with regard to the applicant not being the
Chairman of the Society even inspite of
attending the annual general meeting of the
society in the year 2015 and 2016 under the
Chairmanship of the applicant. Thus, the
conduct of the respondent no.2 is not good.
In these backgrounds, his submission is that
the applicant being the Chairman has no
faith in the intentions and integrity of the
respondent no.2, hence the applicant be
impleaded as respondent no.5 in the present
appeal.

18. Per contra, Shri Santosh Kumar,
learned Counsel for the appellant, Shri
Gaurav Mehrotra, learned Counsel for the
respondent no.2 and Shri Nadeem Murtaza,
learned Counsel for the respondent no.1 have
vehemently
opposed
the
aforesaid
submissions of the learned Senior Counsel
for the applicant and argued that as per the
Memorandum, the business and affairs of the
Society shall be managed by a Management
Committee (Governing Body) of the Society.
Clause-19 of the bye-laws explicitly provide
that in any litigation etc., it is the Secretary of
the Society who has to append his/her
signature and above all necessary action on
behalf of the Society. He argued that
applicant-Right Revd. Dr. Peter Baldev,
Bishop Diocese of Lucknow, was never a
party either before the learned Single Judge
during the writ proceedings nor was the
applicant ever represented or was a party
before the Deputy Registrar, Firms, Societies
and Chits, U.P., Lucknow, by whom order
dated 07.02.2015 was passed which was
assailed in the writ petition filed by the
respondent no.1/society and the Secretary of
the respondent no.1/Society. Thus, applicantRight Revd. Dr. Peter Baldev, Bishop
Diocese of Lucknow has no locus standi to
seek impleadment as a respondent before this
Court. They argued that the Society is already
impleaded as respondent no.1 in the instant
intra Court appeal. The byelaws nowhere
authorize the Chairman of the respondent
no.1-Society to represent the respondent
no.1-Society in any litigation, therefore, the
impleadment application preferred by the
applicant is absolutely frivolous and not
maintainable and is liable to be rejected.

19. Having examined the submissions
advanced by the learned Counsel for the
parties and gone through the record, it is an
admitted position that applicant was not a
party before the Deputy Registrar nor before
the learned Single Judge in a writ
proceedings. Rule 19 of the Rules and
Regulations of the Society clearly indicates
that it is the Secretary, who shall sue and be
sued on behalf of the Society and shall be the
officer to execute all legal documents on
behalf of the Society. It is not in dispute that
presently, the respondent no.2 is the Secretary
of the Society and managing the affairs of the
Society.

20. On due consideration, this Court is
of the view that the applicant is not the
necessary party in the present special appeal.
Accordingly,
the
application
for
impleadment filed on behalf of the
applicant (C.M. Application No. 109924 of
2019) is hereby rejected.

D. Submissions of the parties on the
Merit of the special appeal.

21. Heard Shri Santosh Kumar
assisted by Shri Ankit Singh and Dr. Pooja
7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
323
Singh, learned Counsel for the appellant,
Shri Gaurav Mehrotra, learned Counsel for
the respondent no.2, Shri Nadeem Murtaza,
learned Counsel for the respondent no.1
and Shri V.P. Nag, learned Standing
Counsel for the State.

D.1. Submission on behalf of the
appellant

22. Challenging the impugned order
dated 28.05.2015 passed by the learned
Single Judge, Shri Santosh Kumar, learned
Counsel for the appellant argued that on
23.11.1927, the National Assembly of the
Church of England approved the request
for the dissolution of the union existing
between the Church of England and the
Church
of
England
in
India
and
accordingly, it passed the Indian Church
Measure,
1927,
providing
for
such
dissolution and that after such severance,
the Church of England in India would be
free to manage its own affairs. It further
mentioned that the ecclesiastical law of
Church of England so far as it exists in
India, shall in India cease to exist as law;
and no proceeding by way of rehearing or
appeal from any decision, judgment,
sentence, decree or other order of any
ecclesiastical court or official of the Indian
Church shall be entertained, admitted,
prosecuted, heard or determined in by or
before any of His Majesty's Courts of
Justice in India or elsewhere, any Court of
Commissioners delegate in India or his
Majesty in Council. On 22.12.1927, the
British Parliament passed an Act, known as
the ''Indian Church Act, 1927', by which
union between Church of England and
Church of England in India was dissolved
and Church of England in India was free to
manage its own affair. Later on, after
creation of Pakistan from Indian mainland,
the Church of England in India was
succeeded by the Indian Church known as
''CIPBC'.
The
Christ
Church
was
established within the jurisdiction of
CIPBC for the purpose of imparting
education through Christ Church School
and Christ Church College.

23. Shri Santosh Kumar has argued
that on 23.03.1948, Ministry of Defence of
the Government of India addressed a letter
to Metropolitan of India, Burma and
Ceylon, Calcutta; the Secretary of Church
of Scotland Colonial Chaplaincy, Board In
India; Apostolic Delegate of East Indies in
Banglore; and Roman Catholic Archbishop
of Bombay, stating therein that all Anglican
Churches included in the list of maintained
Churches (Second Schedule to Indian
Church Act, 1927), which will have the
effect of vesting them in the Indian Church
Trustees w.e.f. 04.01.1948 and the Anglican
Churches
being
maintained
at
State
expenses will not be maintained by the
Government after wind up of ecclesiastical
affairs and they will also be transferred to
Indian Church Trustees w.e.f. 1st April,
1948.

24. Learned Counsel for the appellant
argued that on 26.12.1960, the Indian
Church Act, 1927 was repealed but in the
saving clause, it was declared that the
repeal shall not affect the operation of any
such statute in relation to India or person(s)
or things connected to India. According to
him, allegedly on 27.11.1970, Church of
North India (CNI) came into existence out
of the union of six churches, namely, (i) the
Council of Baptist Churches in Northern
India, (ii) the Church of the Brethren in
India, (iii) the Disciples of Christ, (iv) the
Church of India (formerly known as the
Church of India, Pakistan, Burma and
Ceylon), (v) The Methodist Church (British
and Australasian Conferences), (vi) the
324 INDIAN LAW REPORTS ALLAHABAD SERIES
United Church of Northern time. His
submission is that CNI is neither registered
as a Society nor a Company in the present
time and CNI was never empowered to
manage the affairs of the Society.

25. Sri Santosh Kumar has argued
that on 20.02.2004 Indian (Consequential
Provision) Act, 1949 was repealed vide
British Statutes (Repeal) Act, 2004 (Act 17
of 2004). His submission is that the effect
of the enactments of British Statutes
(Repeal) Act, 2004, the British Statutes
(Application to India) Repeal Act, 1960 and
the India (Consequential Provision) Act,
1949 is that by virtue of the Church of
India known as CIPBC in view of the
Section 6 of the General Clauses Act, 1897
is a statutory body having been created
under the statute i.e. Indian Church Act,
1927. He argued that Section 6 of the
General Clauses Act, 1897 provides that the
repeal shall not affect the previous
operation of any enactment so repealed;
affect any right privilege, obligation or
liability
acquired/accrued
under
any
enactment so repealed etc. Therefore, the
provisions of Indian Church Act, 1927
remained in force because the operation of
the Statute does not get affected even after
the repeal of the Act.

26. It has been argued by the learned
Counsel for the appellant that the Society
(Christ
Church
McConaghy
School
Society) was registered under the Act, 1880
in Uttar Pradesh with the objective of
imparting
Christian
education
and
opportunities for teaching witness and
worship according to the faith, doctrine and
practices of the CIBC (earlier CIPBC) and
more especially to Christian staff and
students as stated in its Memorandum of
Association. His submission is that the
Society is to be run and managed by
CIPBC Lucknow Diocease. Section 49 of
the bye-laws of the Society states that the
acts of the Society shall be done with the
assent of Bishop of Lucknow. However, the
registration of the Society had expired and
was
not
renewed
since
1977.
On
17.04.2002, the registration of the Society
was renewed but without disclosing to the
Deputy Registrar that as per the bye-laws
of the Society, its affairs were to be
managed by the CIPBC Lucknow Diocese.
He argued that the said renewal was sought
by furnishing fraudulent information and
the list of the Society contained various
irregularities,
viz.
the
Committee
of
Management list of Society for the years
1977-1978
and
2001-2002
was
not
countersigned by the old members and
whatever
subsequent
addition
and
alterations was made in the list thereon was
also not countersigned by the old members
which is major irregularity. He argued that
till now, the Society had no connection with
CNI. In these backdrops, his submission is
that the Society has never been dissolved
and no dissolution has at all taken place
and, therefore, the affairs of the Society
including the properties of the Society and
the Institution have to be managed by the
Church of CIPBC, Lucknow Diocease and
none else and any other claimant is nothing
but a usurper.

27. Learned Counsel for the appellant
has contended that appellant had filed a
suit, bearing Regular Suit No. 104 of 2003,
before the Court of Civil Judge (Senior
Division), Lucknow, seeking a decree of
declaration to the effect that all the
properties
including
the
property
in
question are lawfully held by CIPBC and
further restraining the defendants therein
from administering and managing affairs of
the property in question. The learned Civil
Judge (Senior Division), Lucknow, vide
7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
325
order dated 28.05.2003, granted interim
protection in favour of CIPBC. Thereafter,
on 24.02.2005, the appellant was elected
and enthroned as the Bishop of Lucknow
by the Lucknow Diocesan Council as per
the
provisions
of
the
Constitutions,
Cannons and Rules of the CIPBC. The
certificate of enthronement duly signed by
the concerned authorities has been annexed
as Annexure No. 3 to the instant special
appeal.

28. Sri Santosh Kumar has further
submitted that the question as to whether
the CNI is a successor of the CIPBC is no
more res integra and now it is a settled
position that the CIPBC has not become
non-existent and the CNI is not the
successor of the affairs and properties of
the CIPBC in view of the judgment of the
Apex Court rendered in Church of North
India Vs. Lavajibhai Ratanji Bhai and
others : 2005 (10) SCC 760, Vinod
Kumar Mathur Sewa Malavia Vs.
Maganlal Mangal Das Gameti and
others : 2006 (9) SCC 282, and Vinod
Kumar M. Malvia etc. Vs. Maganlal
Mangal Das Gameti and others : 2013
(15) SCC 394.

29. Learned Counsel for the appellant
has argued that in the year 2008, the
appellant had filed a transfer petition
bearing no. 680/2008, before the Apex
Court seeking transfer of the Regular Suit
No. 104 of 2003 pending before the Civil
Judge (Senior Division), Lucknow from
Lucknow to New Delhi, which was allowed
by the Apex Court. After transfer, the
Regular Suit No. 104 of 2003 has been
renumbered as CS (OS) 2685 of 2008 and
is pending before the Hon'ble Delhi High
Court. In the meanwhile, in view of the
dictum of the Apex Court in Vinod Kumar
M. Malvia etc. Vs. Maganlal Mangal Das
Gameti and others (supra), the appellant
being the Bishop of CIPBC filed a
complaint to the Deputy Registrar against
the
Managing
Committee
of
the
respondents' Society along with documents
on 14.08.2014. On 04.09.2014, the Deputy
Registrar issued notice to the respondent
no.2. In response thereof, the respondent
no.2 filed reply to the complaint on
25.11.2014. On 05.12.2014, the appellant
filed rejoinder along with documents.
Thereafter,
pleadings
were
exchanged
between the parties. On 07.02.2015, the
Deputy Registrar examined the entity of the
two churches, namely, CIPBC and CNI as
both claimed their control over the affairs
of the Society and the Deputy Registrar,
after examining the issue in detail, has
declared the entire general body of the
Society as invalid and while affirming that
the appellant is the rightful Bishop of
Lucknow Diocese, directed him to take
action for reconstitution of the Committee
of
Management
of
the
Society
in
accordance with bye-laws of the Society
and submit a status report thereafter. Not
satisfied by the order of the Deputy
Registrar dated 07.02.2015, respondent
no.1 and 2 herein approached this Court by
filing Misc. Bench No. 406 of 2015, which
was allowed by the learned Single Judge
vide impugned judgment and order dated
28.05.2015 while setting aside the order
dated 07.02.2015 on the ground that the
Deputy
Registrar
has
exceeded
its
jurisdiction in determining the validity of
Churches and further remitted the matter
back to the Deputy Registrar and directed
him to take a decision afresh in the light of
Sections 4, 4B and 25 (2) of the Act, 1860
in regards to the list of office bearers and
members, submitted by the respondent
no.2 for the year 2014-15. Feeling
aggrieved, the appellant has filed the
instant appeal.
326 INDIAN LAW REPORTS ALLAHABAD SERIES
30. Submission of the learned
Counsel for the appellant is that learned
Single Judge, while passing the impugned
order dated 28.05.2015, has erred in not
appreciating the fact that the list of office
bearers of the Management Committee and
the General Body members as submitted by
the respondent no.2 was not in conformity
with the bye-laws of the Society nor in
consonance with Section 4 of the Act,
1860, which requires the counter signature
of the outgoing office bearers. He further
argued that the Deputy Registrar had
lawfully exercised statutory jurisdiction
vested in it while passing the order dated
07.02.2015 as the complaint filed by the
appellant before the Deputy Registrar was
within the ambit of inquiry under Section
4B of the Act, 1860. He argued that Section
4 of the Act, 1860 requires a regular annual
general meeting of Society and filing of list
of members with Registrar. Subsequently,
by U.P. Act No. 25 of 1958, Section 4 of
Act, 1860 was amended, by which words
''Registrar of Joint-stock Companies' were
substituted by word ''Registrar'. Another
amendment was made by U.P. Act No. 52
of 1975 and existing Section 4 was
renumbered
as
sub-section
(1)
and
thereafter sub-section (2) was inserted
w.e.f. 10.10.1975. A further amendment
was made by U.P. Act No. 11 of 1984 w.e.f.
30.04.1984 and in sub-section (1), a
proviso was inserted i.e. if the managing
body is elected after the last submission of
the list, the counter-signatures of old
members, shall, as far as possible, be
obtained on the list. If the old officebearers do not countersign the list, the
Registrar may, in his discretion, issue a
public notice or notice to such persons as
he thinks fit inviting objections within
specified period and shall decide all
objections received within the said period.
Thereafter, a new section i.e. 4-A was
inserted by U.P. Act No. 52 of 1975 w.e.f.
10.10.1975. Subsequently, Section 4-B was
inserted by U.P. Act No. 23 of 2013
published in U.P. Gazette Extra-ordinary
dated 09.10.2013. He argued that the
reason for insertion of Section 4-B
mentioned in ''Statement of Objects and
Reasons' of U.P. Act No. 23 of 2013 is that
there is no provision of filing of list of
General Body of Society and a large
number of disputes in Societies are raised
due to non-existence of correct list of
General Bodies with Registrar. According
to him, the list of members of General
Body of the Society has to be filed at the
time of registration or renewal of society
and in the list, name, father's name and
occupation of members must be mentioned.
Thus, the Registrar is under a statutory duty
to examine correctness of list of members
of General Body of such Society on the
basis of register of members of General
Body and minutes thereof, cash book,
receipt book of membership fee and Bank
pass book of Society. If a member is not
included in list, whether such non-inclusion
also can be examined by the Registrar, is
not very clear from sub-section (1) of
Section 4-B of the Act, 1860 but this is
made clear by sub-section (2) of Section 4B of the Act, 1860, which provided that if
there is any change of list of members of
General Body of the Society referred to in
sub-section (1) of Section 4-B of the Act,
1860 on account of induction, removal,
registration or death of any member, a
modified list of members of General Body
shall be filed with Registrar within one
month from the date of change.

31. It has been pointed out by the
learned Counsel for the appellant that bare
perusal of the aforesaid provisions shows
that at the time of registration or renewal, a
list of members of General Body of Society
7 All. Most Rev. John Augustine Inre 406 M/S 2015 Vs. Christ Church Mcconaghy School
 Society Lucknow & Ors.
327
has to be filed by Assistant Registrar.
Thereafter, whenever there is any change in
the said list, same has to be informed to
Registrar by submitting a modified list of
members of General Body. When such a
modified list is submitted to Registrar,
examination allowed to be made by
Registrar in respect of correctness of list of
members of General Body in terms of subsection (1) of Section 4-B of the Act, 1860,
would also include removal of member(s)
for the reason, when modified list is
communicated
to
Registrar,
whether
modification is on account of induction or
removal in any manner, both aspects and
correctness thereof, can be examined by
Registrar. The intendment of Legislature
under Section 4 and Section 4B of the Act,
1860 is to empower the Registrar to
examine correctness of any inclusion,
alteration or change in the list of
Membership of Society, particularly when
an objection is raised. According to him, in
the instant case, the Registrar in its order
dated 07.02.2015 has examined the relevant
records and has found the facts evident
from record that list submitted by the
respondents /writ petitioners' society for the
year 2013-2014 is not in consonance with
bye-laws of Society.

32. Learned Counsel for the appellant
has argued that the Society remained
unregistered from 1977 to 16.04.2002. The
alleged Secretary of the Society had moved
a letter dated 08.03.2002, requesting for
renewal of Society from 27.10.1947 to
March, 2002 and had thereby also filed a
list of Committee of Management from the
year 1977-1978 to 2001-2002 in haste and
with a fraudulent intention, as the same was
not countersigned by old members of the
Society as mandated by law. Thereafter, the
list of members submitted for the year
1981-82 had new members added in serial
nos. 3, 4, 5 and 8 but the same was again
not countersigned by old members. Further,
in 1985, new names were added at serial
no. 2, 3 and 7 of the list of members of the
Society but again the same was not signed
in accordance with Section 4 of the Act,
1860. Further, in 1986-87, the same
irregularity was repeated. Moreover, the
renewal of the registration of the Society in
the the year 2002 was sought without
disclosing to the Deputy Registrar that as
per the bye-laws of the Society, the affairs
of the same were to be run by CIPBC.
Thus, the Deputy Registrar has lawfully
declared the entire General Body of the
respondent no.1's Society as illegal.

33. Learned Counsel for the appellant
has further argued that no election of the
Society was held till 2003, but the
registration of the Society of the respondent
no.2 was renewed on the basis of list of
office bearers and proceedings of election
on 16.04.2002. Further, the Secretary of the
Society has submitted a list of 14 members
to the Deputy Registrar and the Society's all
ex officio members are related to CNI,
which are both in clear contravention of the
Rule 8 of the Rules and Regulations of the
Society. However, the learned Single
Judge, while passing the impugned order,
has not paid any regards to the irregularities
made by the respondents' Society.

34. Learned Counsel for the appellant
has next argued that CNI has no role to
play in the management of Society, which
was formed in 1947 with the object of
pursuing ideals of CIBC as mentioned in
the Rules and Regulations of the Society in
the wake of the judgment of the Apex
Court in Vinod Kumar M. Malviya and
others Vs. Maganlal Mangaldas Gameti
and others (supra). Hence CNI does not
have
any
locus
poenitentiae
in
328 INDIAN LAW REPORTS ALLAHABAD SERIES
administration and running Chirst Church
College but the learned Single Judge, while
passing the impugned order, misinterpreted
the judgment of the Apex Court rendered in
Vinod Kumar M. Malviya and others Vs.
Maganlal Mangaldas Gameti and others
(supra) and also erred in appreciating the
fact that CNI has ceased to have any legal
existence whatsoever.

35. The next argument of the learned
Counsel for the appellant that the CNI has
continued to manage the Society under the
assumption of validity of merger till it was
declared otherwise. They are usurpers of
office bearers by playing fraud. His
submission is that fraud vitiates every
solemn act, which cannot be validated even
if continuing for a long period. To
substantiate his submission, he has placed
reliance upon the judgment of the Apex
Court in A.V. Papayya Sastry & Ors Vs
Government of Andhra Pradesh. &
Others : 2007 (4) SCC 221 and Meghmala
& Ors vs G. Narasimha Reddy & Ors :
2010 (8) SCC 383.

36. Learned Counsel for the appellant
has next argued that CNI cannot be a
successor of the Society and it cannot be
successor of CIPBC as merger is illegal. He
argued that the British Parliament enacted
the Indian Church Act, 1927, wherein it
dissolved the union between Church of
England and the Church of England in
India, whereby the Church of England in
India was free to manage its own affairs.
Thereafter, the Indian Church Act, 1927
created a body known as Church of India,
which later came to be known as CIPBC
after partition of Pakistan from India.