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STATE OF U.P. & OTHERS versus INDIAN CHRISTIAN TRUSTIES

High Court of Judicature at Allahabad

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State Of U.P. & Others v. Indian Christian Trusties - FIRST APPEAL No. - 556 of 1985 [2007] RD-AH 16053 (26 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 10

First Appeal No. 556 of 1985

State of UP through Collector, Gorakhpur and others ... Defendant-appellants

Vs.

Indian Christian Trustees Calcutta

through its General Attorney ... Plaintiff-Respondent

HON'BLE YATINDRA SINGH, J

HON'BLE VIJAY KUMAR VERMA, J

(Delivered by Hon'ble Yatindra Singh, J.)

1. Who manages the Churches of India (affiliated to the Church of England)? What are their rights over the property? Are they absolute or limited? This is the main focus of this appeal.

THE FACTS

2. The plaintiff-respondent filed the Suit No. 121 of 1981 in the Court of Civil Judge, Gorakhpur in respect of plot no. 4 (3.80 acre), 6 (3.98 acre), and 7 (14.48 acre) situate in village Daudpur, Pargana Haveli, Tehsil Sadar, district Gorakhpur. It is an urban property situate within the municipal limits of Gorakhpur. The relief claimed for is, that the plaintiff be owner of the property in dispute and a mandatory (it should have been permanent prohibitory) injunction be granted restraining the defendant from interfering with their possession.

3. The plaint allegations are that:

The property in dispute was acquired by the Church Missionary Trust Association Ltd., 6 Salisbury Square Fleet Street London (also called Church Missionary Society) more than 100 years ago from the Zamindar;

Over the property, the Christ Church (belonging to Church of England) with residence of the priest was constructed;

Later on, St. Andrew's School, College and the principals' residence , students hostel were also constructed;

After enactment of the Indian Christian Church Act, 1927 (the Act), the property was transferred to the plaintiff, who became its owner.

Rt. Reveren Bishop Din Dayal Chairman Lucknow Diocesan Trust Association is managing its affairs on behalf of the plaintiff;

The cause of action arose on 15.12.1980 when the employees of the Government threatened to interfere with plaintiff's possession over the property in dispute.

4. The defendants filed their separate written statements and denied the plaint allegation. It is accepted that the property in dispute is urban property within the Municipal Limits of Gorakhpur, however, their case is that:

The property in dispute is recorded in the name of the Central government in the revenue records and the State of UP is managing it through Nagar Palika Gorakhpur;

The plaintiff is not owner of the property in dispute;

The Indian Christian Church Act, 1927 is not applicable.

5. The suit has been decreed on 11.1.1984 for declaration as well as permanent injunction. Hence the present appeal.

POINTS FOR DETERMINATION

6. We have heard standing counsel for the appellant and Sri BN Asthana and Sri PK Asthana for the plaintiff-respondent. The following points arise for determination:

(i)Whether the civil court has jurisdiction to try the suit.

(ii)Whether there is pleading regarding ownership of the plaintiff.

(iii)Whether the property in dispute has vested in the plaintiff.

(iv)In case it is vested with the plaintiff then is the vesting absolute or limited?

1st POINT: APPELLANT NOT ENTITLED TO RAISE THE PLEA OF JURISDICTION

7. The standing counsel cited the decision reported in Guru Granthji Vs. Bachha Krishna Das (1988 All. LJ 934) and submitted that the property in dispute is governed by the UP Tenancy Act and as such Civil Court has no jurisdiction to try the suit.

8. The counsel for the plaintiff respondent has brought to our notice;

The decisions reported in State of UP Vs. Jagdish Sharan Singhal 1982 ALJ 1302 (Paragraph 17);

The definition of the word 'Land' {Sec. 3(10)}, 'holding' {Sec. 3(7)} and preamble of the UP Tenancy Act;

The definition of the word 'Urban area', {section 3(15)} and section 84 of the UP Urban Areas Zamindari Abolitions and Land Reforms Act repealing the UP Tenancy Act in respect of Urban Area.

9. In view of the above, the counsel for the plaintiff submitted that:

The UP Tenancy Act only governs the agricultural area and not the urban area;

It is admitted that the property in dispute is in urban area over which no agriculture is done;

UP Tenancy act is not applicable;

In any case in view of section 84 of section 3(15) of the UP Urban Areas Zamindari Abolitions and Land Reforms Act, UP Tenancy Act stands repealed in respect of Urban area.

The decision cited by the Standing Counsel has not considered this aspect and is not rightly decided.

10. It is not necessary for us to decide whether the UP Tenancy Act is applicable or not. Admittedly, no issue was framed on the question of jurisdiction. This question is not raised in the grounds of appeal. It is being raised for the first time at the hearing of the appeal. No prejudice has been caused to the defendant-appellants. We see no justification to permit the defendant appellants to raise this plea at this stage.

2nd POINT: THERE IS PLADING OF OWNERSHIP

11. The plaintiff in the present suit is, India Church Trustee Calcutta through General Attorney Rt. Rev. Din Dayal Bishop of Lucknow and Chairman Diocesan Trust Association, 25 MG Marg, Allahabad. We have already mentioned the plaint allegation in paragraph 3 of this judgement. These allegations are sufficient pleading to indicate the ownership and right to sue on behalf of the plaintiff. The evidence adduced by the plaintiff can not be ignored merely on the ground that there is insufficient pleading.

12. Apart from it, the plaintiff-respondent is relying upon the Act, the rules framed under it, and the Gazette notifications, for which the court is bound to take judicial notice.

3rd POINT: THE PROPERTY HAS VESTED WITH THE PLAINTIFF

Evidence Produced

13. The plaintiff-respondent, has filed revenue records, different orders, letters sent by the Central Government and the State Government. The statement of Sri E. Larace, Secretary, Lucknow Diocesan Trust Association (PW-1) and Sri Anil Kumar Basu, Manager of the plaintiff (PW-2) has also been recorded on its behalf.

14. The defendant appellants have filed Khatauni of 1381-1383 Fasli, letter dated 13.7.1968 and have produced Sri Lalji Singh, Tax Superintendent, Nagar Mahapalika, Gorakhpur as (DW-1).

Property Was Of The Church Missionary Society

15. In 1322 F Khatauni (Ex-11), the plots are recorded in Patti of government; Hata Girjaghar and Hata Padri Saheb is recorded in Zaman 12 in the cultivator's column. This entry was corrected by Record Officer by the order dated 27.2.1919 (Ex-16). He has held:

'This is an objection to the entry of plots no. 1 to 7 as the property of Government. In the Khatauni of last Settlement plots 1 and 5 are entered as Qadim in the Khatwat of the Sarkar Bahadur, plots 4, 6 and 7 are entered as the compound of the Padri Sahib in Khewat of the Sarkar Bahadur... At first Sheikh Farasat Hussain claimed that all the numbers are his property and that they are held by the Church Missionary Society on a permanent lease. He has withdrawn his claim in regard to Nos. 1, 2, 3 and 5. I have examined the Nazul Register and find that Nos. 4, 6 and 7 are not entered in it. Sheikh Farasat Hussain states that he receives an annual rent of Rs. 32/13/19 on account of these numbers from the Church Missionary Society and on behalf of the Society the Reverend AC Pelly confirms this statement. The Collector is represented by the Supervisor Qanungo and by the Naib Registrar Qanungo, who likewise make no claim. I am satisfied that the entry is an erroneous one and I order that Nos. 4, 6 and 7 be entered as the Zamindari of Qazi Farasat Husain perpetually leased to the Church Missionary Society at an annual rent of Rs. 32/13/19.'

16. This order was never set aside and later revenue records, Khatauni from 1353 to 1363 F (Ex.32), show that plots no. 4, 6 and 7 were recorded in the patti of Farasat Hussain and the name of Hata Girjaghar Jere Ihatmam [under the management of] Padri Sahab is mentioned in the Zaman 8 (ie as hereditary tenant).

17 In 1364 F and 1365 F (Ex-32), the entries are Hata Girijaghar, Lucknow Diocesan Trust Association, Allahabad Jrer Ihatman Sri PN Ghose Mukhatare Aam, Vsarasatpur is recorded and Lucknow Diocesan Trust Association, Allahabad Jere Ihatman Shri PN Ghose, Mukhatare Aam Vasratpur respectively.

18. A correction application was filed. It was supported by the Government of India. It was allowed on 21.5.1968 (Ex.14). The relevant part of the order is as follows:

'This is an application for correction of papers filed by the Secretary, LDTA for correction of entries over the plots no. 4, 6 and 7 area 22 acres 26 decimal in all, existing in the name of the Lucknow Diccesan Trust Association Zer Intizamd Sri PN Ghose, Mukhtar-s-Am, situate in village Daudpur, Tappa and Pargana Haveli, Tehsil Sadar, District Gorakhpur. The entries are incorrect in the column of ownership as the Mukhtar-e-Am Shri PN Ghose is no longer the local agent and in any case the owner should have been shown as Indian Church Trustees, Calcutta, through the Lucknow Diocesan Trust Association, Allahabad as General Attorney. The application has not been contested by any one. Sri PN Ghose has filed an admission accepting the claim of the ICT [Plaintiff]. The application has been supported by Govt. of India, Ministry of Defence No. Eccl 472/D-2(b) dated 23..3.1968 transferring the Church to the ICT. The land is the property of the ICT and not of the Govt. and they are also in its possession through the LDTA. I therefore find that the existing entry is incorrect and may be corrected. Let the name of the Indian Church Trustees, Calcutta Zer-i-Intizam Lucknow Diocesan Trust Association be entered in place of the existing entry'.

19. The only revenue record, where contrary entry is recorded, is Khatauni of 1380-1381 F (Ex-ka-1). Here the Government of India is recorded as Sirdar. There is nothing on the record to show as to how the name of Government of India came to be recorded over the property in dispute as Sirdar.

20. The documentary evidence on record establishes that

The property in dispute was in the Patti of Farat Hussain who was the Zamindar and it was perpetually leased out to the Church Missionary Society.

The Christ Church was constructed. Girjaghar and Ahata Padiri Sahab is recorded over the property in dispute.

The property was later on recorded in the name of the Indian Church Trustee (plaintiff).

The Property Vests In The Indian Church Trustee

21. The Indian Church Measure Act 1927 was enacted for dissolution of the legal union between the Church of England and the Church of India. Thereafter the Indian Church Act, 1927 (the Act) was enacted, providing incidental and consequential matters. Section 6 of the Act (see Appendix-1) envisages incorporation of the Indian Church Trustee (Plaintiff). This was done by issuance of the notification on 20.7.1929.

22. A reading of sections, 4 and 6(1) and 6(3)(a) of the Act show that most of the Churches along with their property vested in the Crown and over some, only management rights were given to the plaintiff. The Churches that vested in the Crown are mentioned in the Part-I of the Second Schedule of the Act. Part-II of the same Schedule contains names of those churches that did not vest in the Crown and only management was handed to the plaintiff. The Christ Church, Gorakhpur (Church is dispute) is in Part-I. This Church along with its property (namely plots no. 4, 6 and 7) vested in the Crown in view of the section 4 of the Act (see Appendix-1).

23. Section 5 of the Act (see Appendix-1) empowers the Governor General of India in Council to make rules. Initially Indian Church Statutory Rules, 1929 (the 1929 Rules) were framed. These rules were superceded by the Indian Church (India) Statutory Rules, 1940 (the 1940 Rules). The relevant part of the 1940 Rules is Appendix-2. Rule 12 empowers the removal of any Church from part-I of the second Schedule of the Act and Rule 15 empowers the vesting of the same with the plaintiff.

24. The government of India was looking after Churches under Ecclesiastical affairs. Later on, it was decided to wind up these affairs and transfer the Churches and properties to different authorities. A letter dated 23.3.1948 (Appendix-3 to the judgement) was sent and notification dated 27.3.1948 (Appendix-4 to this judgement) to this effect was published.

25. The management of the Churches and their property was vested with the authorities mentioned in the letter dated 23.3.1948. The Christ Church is a Church of India and was vested with the plaintiff. This is how the plaintiff became owner of the Christ Church and its property: However, this vesting is not absolute: it is limited. This is dealt in discussion under the next point: VESTING IS LIMITED.

26. It is no body's case that the Christ Church is situate in the cantonment area. The Indian Church Trustee has become its owner is also proved by the following admissions of the defendant-appellants:

The letter dated 24.12.1949 from the Defence Ministry Government of India;

The letter dated 18.12.1956 written by the Chief Secretary of Uttar Pradesh;

The order dated 21.5.1968 where the Central Government had supported the case of the plaintiff.

4TH POINT: VESTING IS LIMITED

Vesting Can Be Limited

27. Before we consider the nature of vesting of the properties with the plaintiff, let's see whether vesting is only of one type or can it be of different types.

28. Vesting is not always absolute. It takes colour from the content in which it is used and it is not necessarily the same in every provision or in every context. This is so held by the Supreme Court in Maharaj Singh Vs. State of UP; AIR 1976 SC 2602 (paragraph 17) and M. Ismail Farauqui Vs. Union of India AIR 1995 SC 605 (Paragraph 21, 44). Thus vesting can be absolute: it can be limited.

Nature of Vesting - Present Case

29. The Church Missionary society was affiliated with the Church of England. The property was held for its purposes. The Christ church was constructed and consecrated: Services were and are still held therein???it is no body's case that the Christ Church was not consecrated. Under section 4(3) of the Act, the crown held it in trust for the purposes of the Church of England. It is this right which has been vested with the plaintiff and is further qualified by the 1940 Rules. The plaintiff holds the property in trust for the purposes of the Church of England and is subject to the 1940 Rules.

30. Rule 28 to 30 of the 1940 Rules provide consequences of the breach of the Rules. In case the property is utilised otherwise or conditions in the 1940 Rules are violated, then suitable action can be taken. It is in this sense that vesting is not absolute but is limited. At this stage, we wish to clarify that it is no body's case that the property is used contrary to the purposes of the church of England or any condition of the 1940 Rules has been violated.

31. The defendant-appellants have filed a letter dated 18th July, 1968 sent by the Secretary of the UP Government (Ex-Ka-2). It states that:

The Government has re-examined the matter in light of section 5(iii) & 5 (v) of the Act, and rule 15 & 30 of the 1929 Rules (it should be 1940 Rules);

The vesting is of right of possession, control, and user only;

The vesting does not extend to vesting of full proprietary rights; and

The earlier GOs dated 18.7.1956 and 29.12.1956 are cancelled/amended.

32. In our opinion, the correct legal position is that the Christ Church and the property is vested with the plaintiff for the purposes of the Church of England and is subject to the 1940 Rules: a violation of the same may render it liable it for suitable action under the law and property may be resumed.

A CLARIFICATION

33. The Christ church and residences for the priests were already constructed before enforcement of the Act. At present there is a school, degree college, students hostel, residence of teachers over the property in dispute. It is also being used for the educational purposes for more than 50 years though it is not clear as to when the school was constructed. There is neither any pleading nor any suggestions that this use is contrary to the purposes of the Church of England or contrary to the 1940 Rules. Even if that be so, it has been condoned: the appellants have acquiesced in the same. We clarify that now no action can be taken against the plaintiff for utilising a part of the property in dispute for educational purposes.

CONCLUSIONS

34. Our conclusions are as follows:

(i)There is no justification in permitting the defendant-appellants to raise the plea of jurisdiction.

(ii)The evidence led by the plaintiff cannot be ignored on the ground that there is insufficient pleading.

(iii)The Christ Church and the property has vested in the Indian Church Trustee (plaintiff- respondent)

(iv)The vesting is not absolute but is for the purposes of the church of England and is subject to the conditions mentioned in the Indian Church (India) Statutory Rules, 1940: a violation of the same may lead to legal action and resumption of the property.

(v)The use of the Church property for educational purposes will be treated for the purposes of Church of England and in consonance with the 1940 Rules. Even if this is not so, no action can be taken as the defendant-appellants have condoned it and acquiesced in the same.

ORDER

35. The appeal is partly allowed. The declaration given by the court below is modified. It is declared that the Christ church and the property in dispute has vested in the plaintiff, however, it is not absolute but is for the purposes of the Church of England and is subject to the Indian Church (Indian) Statutory Rules 1940. The defendant appellants are restrained from interfering with the possession of the plaintiff, except in accordance with law.

36. With these observations, the appeal is partly allowed. The parties will bear their cost throughout.

Date: 26.09.2007

SKS /BBL

Appendix - 1

The relevant part of the Indian Church Act, 1927 is as follows:

Section 1. In this Act -

...

The expression "Maintained Church" means a Church specified in the list contained in the Second Schedule to this Act as varied from time to time under the provisions of the act or of rules made thereunder:

The expression "property subject to this Act" means all property of whatsoever kind held on behalf of or for the benefit of the India Church or of any diocese or dioceses or other part or parts thereof or of any person holding office in the said Church or any diocese thereof as such or for the furtherance of any religious, educational or philanthropic work in connection therewith;

...

Section 4. (1) If the Archbishop of Canterbury shall certify by a writing under his hand sent to the Governor-General of India in Council that the Indian Church has ceased to be in communion with the Church of England, the Governor-General of India in Council on receipt of such certificate shall cause the same to be published in the Gazette of India and shall forward a certified copy to the Bishop of Calcutta and thereupon shall be at liberty to resume complete control of all or any Maintained Churches or burial grounds, whether consecrated or not, and the Indian Church and the officials and members thereof respectively shall cease to have any rights therein.

(2) (i) Every such resumption of complete control shall be effected by not less than twelve months notice sent to the Bishop of Calcutta and expiring at the end of a financial year of the Government of India.

(ii) No such notice shall be valid unless given before the expiration of two years from the date of the publication of the certificate of the Archbishop of Canterbury.

(3) Upon such resumption of Complete control of a Church or burial ground the Church or burial ground shall, if not already so vested, by virtue of such notice and without any conveyance being necessary vest in the Crown or such person or persons as the Governor-General of India in council shall appoint for an absolute estate in possession, and if duly consecrated shall be held in trust for the purposes of the Church of England, and shall be freed from the any claim by the India Church or any officials or members thereof connected therewith.

Section 5. The Governor-General of India in Council, with the sanction of the Secretary of State in council of India, and, save as by the rules expressly provided, with the concurrence of the Bishop of Calcutta, make rules-

(i) Regulating the licensing, discipline, ministrations, duties, and supervision of Chaplains;

(ii) Providing for epicopal ministrations and the making of grants out of the revenues of India in respect thereof;

(iii) Regulating the removal of Churches from and the addition of Churches to the list contained in the Second Schedule to this Act, and the transfer of churches from one Part or sub-division of a Part of the list to another Part or sub-division;

(iv) Making provision for vesting any Maintained Churches, and the goods and ornaments thereof, in the Indian Church Trustees, or in any other person or persons, subject to any conditions that may be prescribed regarding the use of the Churches while so vested;

(v) Prescribing the circumstances in which and the conditions on which any Maintained Churches and the goods and ornaments thereof shall cease to be so vested, and the disposal of them in that event;

(vi) Making provision for the services of the Church of England and of the Indian Church to be held in Maintained Churches, and the hours at which they shall be held;

(vii) Making provision for the administration of the rules and practice of the India Church in Maintained Churches with or without modification thereof;

(viii) Providing for the loan of Maintained Churches to other denominations, according to the practice now existing;

(ix) Providing for any special system of supervision which may be found to be necessary of Chaplains engaged in ministering to troops;

(x) Making provision for referring to arbitration differences regarding or arising out of the rules, including any difference between the Governor- General of India in Council and the Bishop of Calcutta as to any amendment or variation thereof, and in such case for amending or varying the rules in accordance with the award of the arbitrator without the concurrence of the Bishop of Calcutta;

(xi) Prescribing the conditions on which, the circumstances in which, the extent to which, the procedure by which and the persons with whose assent, concurrence, sanction or approval the arrangements embodied in the rules, or any of them, may from time to time be terminated, modified or brought into being again;

(xii) Providing for any matters incidental to, or consequential or, any of the said powers, and making any supplemental provisions which may appear necessary or expedient for giving effect to such powers, including provisions for the maintenance at the Government expense of any Maintained Churches.

Section 6. (1). At any time after the commencement of this Act, the General Council may by resolution appoint such number of persons as they shall see fit (not being less than three) to represent the Indian Church and to hold property for any uses or purposes thereof, and when it is shown to the satisfaction of His Majesty the King that the said Council has appointed such persons His Majesty the King is Council may by Charter incorporate them and their successors with power to hold land without licence in mortmain under the name of the Indian Church Trustees.

(2) At any time after the commencement of this Act and before the date of severance, any corporation or corporations sole or aggregate which will be dissolved under paragraph (iv) of section two of this Act may, by declaration in writing, vest any property subject to this Act held by it or them, severally or jointly, in any society or body of trustees duly registered under the Societies Registration Act, 1860, or the Indian Companies Act, 1913, and that society or body shall hold such property on the same trusts or for the same purpose on or for which the corporation or corporations held it.

(3) Subject to the provisions of this Act and rules made thereunder, upon the date of severance all property subject to this Act shall vest in the Indian Church Trustees, except the following viz:

(a) churches for the time being entered in Part-I of the Second Schedule to this Act and the goods and ornaments of such churches;

(b) cemeteries other than those vested in corporations dissolved by this Act.

(c) property held by societies or bodies of trustees duly registered under the Societies Registration Act, 1860, or the Indian Companies Act, 1913;

(d) property held by or in trust for or on behalf of any missionary or religious society or religious community of which the head office, headquarters, governing body, mother house, superior or head, as the case may be is situated or usually resident outside India, whether or not such property is directly controlled or administered by such head office, headquarters, governing body, mother house, superior or head;

(e)property held by trustees, whether corporate or unincorporate, in respect of which the trustees or a majority thereof before the date of severance shall certify by a writing under their hands sent to the Governor-General of India in Council (who shall send a copy thereof to the Bishop of Calcutta) that they or such majority of them object to such property vesting in the Indian Church Trustees; and

(f) property exempted by the Governor-General of India in Council from the operation of this subsection by notification in the Gazette of India before the date of severance.

(4) The churchyards of consecrated churches shall vest in those persons or bodies in whom under the provisions of this Act, the respective churches vest.

(5) At any time after the incorporation of the Indian Church Trustees any trustees, whether corporate or unincorporate, may by declaration in writing vest any property subject to this Act held by them in the Indian Church Trustees or in any diocesan society or body of trustees duly registered under the Societies Registration Act, 1860, or the Indian Companies Act, 1913, to be held by them or it on the same trusts, and the Indian Church Trustees may by declaration in writing vest any pr0operty subject to this Act held by them in any such diocesan society or body of trustees to be held by them or it on the same trusts:

Provided that no such property shall be so vested in the Indian Church Trustees or a diocesan society or other body of trustees without their consent.

...

SECOND SCHEDULE

LIST OF MAINTAINED CHURCHES

Part I

Churches vested in the Crown

...

B. CIVIL CHURCHES

...

Diocese of Lucknow

...

Gorakhpur Christ Church

...

Appendix-2

DEPARTMENT OF COMMERON

NOTIFICATION

Ecclesiastical

New Delhi, the 9th March, 1940,

No. 304: Exercise of the powers conferred by section 5 of the Indian Church Act, 1927 (17 and 18 Geo. 5. Ch. 40) and in suppression of the Indian Church Statutory Rules, 1029, in their application to India the Governor General of India in council with the sanction of the Secretary of State for India and with the concurrence of the Bishop of Calcutta, is pleased to make the following rules.

THE INDIAN CHURCH (INDIA) STATUTORY RULES.

These Rules may be called the Indian Church (India) Statutory Rules, 1940.

...

Maintained Churches

11. The churches entered for the time being in the Second Schedule to the Indian Church Acts shall be maintained and repaired at Government expense, provided that nothing in the rule shall impose any liability on Government to repair any Church when before the passing of the Act such church was not repaired as Government expense.

12. The Governor-General in Council may remove any Church from the list contained in the Second Schedule to the Indian Church Act by agreement with the Bishop of Calcutta or by 12 months notice expiring with the end of a financial years, provided that such notice shall not be given unless he has notified his intention to do so to the Bishop of Calcutta and allow him a reasonable opportunity of showing reason against such removal.

13. The Governor General may with the concurrence of the Bishop of Calcutta add any church to the list, transfer any Church from Part I of the list to part II thereof or vise versa, or from the sub-division 'A--Military Churches of Part I to the sub division 'B-- Civil Churches thereof or vice versa or replace on the list any church which has been removed in accordance with Rule 12, and such addition or replacement shall take effect from the beginning of a financial year.

14. The Governor General shall, before the end of March in each year, send to the Bishop of Calcutta a correct list of Maintained Churches f or the ensuing financial year.

15. If the Governor General removes a church from the list for the time being of Maintained Churches, such Church if at that time vested in the Crown shall vest in the Indian Church trustee, provided that if the Governor General shall so require, the Indian Church Trustees shall hold it upon the trusts following, namely:-

(1) Upon trust to permit the service of the Church of England as contained in any Book of Comment Prayer from time to time authorised by law in England or any of them to be performed in that Church for any congregation which includes members of the Church of England domiciled in the British Isles (a) if a majority of the members of the congregation so domiciled or a majority of the members of the congregation worshipping in that Church in the English language desire such services, and (b) if and so long as the congregation is willing to contribute an equitable sum to the determined by the Bishop of the Diocese towards the cost of lsuch services and towards the maintenance and repair of the Church;

(2) Upon trust to arrange for such services to be held at such times as are convenient to the congregation:

Provided further that if during a period of seven consecutive years, which period may include any period previous to the date of severance, no service has been held in any such Church, such Church shall be held freed and absolved from the trusts (if any) above specified.

...

Breaches of Rules

28. If it shall appear to the Governor-General that any officer of the Indian Church has committed a breach of these rules, he shall bring the matter to the notice of the Bishop of Calcutta, who shall take such steps as he thinks fit to ensure their observance.

29 (i) If after bringing alleged breaches of these rules to the notice of the Bishop of Calcutta, the Governor General shall be of opinion that such breaches continued to be committed, whether with the knowledge of the authorities of the Indian Church or through their default or neglect, or otherwise, or (ii) if he shall be of opinion that the Indian Church is so administered that the general intention of these rules is frustrated and if, in other case, the Bishop of Calcutta differs from the opinion of the Governor-General, the matter in question shall, with the sanction of the Secretary of the State, be referred to arbitration in the manner provided by Rule 27, and the decision of the arbitrator shall be final.

30. If the arbitrator shall find that a breach of these rules has been and is being committed or that the Indian Church is so administered that the general intention of these rules is frustrated, and that the default is such as to justify the Secretary of State in taking action as specified in this rule, then the Secretary of State may if he thinks fit call upon the Indian Church by its representative the Bishop of Calcutta to carry out any suggestion of the arbitrators from remedying such default and on the refusal or failure of the Indian Church to carry out such suggestion or without so calling on the Indian Church may declare that in all or any of the Churches entered at the date of the declaration in Part-I of the Second Schedule to the Act the ecclesiastical law of Church of England to such extent as the Archbishop of Canterbury may direct shall be observed and followed, and in such case the Governor-General may with the sanction of the Secretary of State, and the concurrence of the Archbishop of Canterbury, amend or cancel rules made on any matter specified in paragraph (vi), (vii), (viii), (ix) and (xii) of Section 5 of the Act and/ or make new rules in substitution therefore, or in the amplification or modification thereof, and Secretary of State may, at any time, after making the above mentioned declaration, further declare that all or any of the said Churches shall, at the the expiration of 12 months from the date of his declaration, vest in the Crown or in such concern or persons as he may appoint for an absolute estate in possession, and such of them as are duly consecrated shall be held in trust for the purpose of ministrations in accordance with the rites of the Church of England, and shall be freed from any claim by the Indian Church or officials or members thereof.

If the Secretary of State shall make the first above mentioned declaration without making the second declaration and the Archbishop of Canterbury shall declare his assent thereto, the Secretary of State may require the Indian Church to provide episcopal ministrations for the Churches specified in the said declaration and episcopal supervision of the chaplains serving therein, and the Indian Church shall provide such episcopal ministrations and supervision so long as the chaplains concerned hold licences from Bishop of the Indian Church, and the congregations of the said Churches remain congregations of the Indian Church. If the Secretary of State make the second above mentioned declaration no obligation shall rest on any Bishop of the Indian Church to give episcopal supervision or ministrations in Churches to which the second declaration shall apply.

...

Appendix-3

No. Eccl. 472/D, 2(b) Government of India

Ministry of Defence

NEW DELHI, the 23rd March 1948.

..

Subject: Transfer of Churches, church buildings etc. to the Church authorities concerned on the wind up of ecclesiastical affairs with effect from 1st April 1948.

...

Most Rev. Sir

Revd. Sir (for 2 only)

I am directed to say that accordance with the wind up of all ecclesiastical affairs, it has been decided that all churches and connected buildings attached thereto, which have hitherto been maintained at State expense from funds provided under "32-Ecclesiastical", will not be maintained by them after the 31st March, 1948, and that all such churches and connected buildings will be handed over to the church authorities concerned who will be responsible for their upkeep and maintenance from the Ist. April, 1948. No expenditure shall therefore be incurred by the establishment etc. from that date. The details of the churches, the authorities to whom they will be transferred, and other particulars are given in the succeeding paragraphs and the annexures to this letter.

...

2. (a) Church of India: All Anglican churches included in the List of Maintained Churches which forms the Second Schedule to the Indian Church Act, 1927, will be removed from the List from 1st April 1948, which will have the effect of vesting them in the Indian Church Trustees from that date. I enclose a copy of the Notification that will be published in the Gazettes of India and Pakistan in this connection.

There are certain Anglican churches which are at present being maintained at State expense but which do not find a place in the Second Schedule to the Indian Church Act, 1927. The names of these churches are shown in annexure- I to this letter. As the Government will not maintain these churches after the wind up of ecclesiastical affairs, they will also be transferred to the Indian Church Trustees with effect from 1st April, 1948.

...

3. Along with the churches specified in the annexures the sites of the churches and church buildings, the church compound proper, and other connected buildings situated thereon, which have hitherto been maintained by the Government will also be transferred to the Church Authorities concerned. In the case of those churches and Church buildings situated in Cantonment lands, the sites of the buildings and the church compounds, when no longer required by the Church authorities for the purposes for which they are intended, will revert to the Government concerned.

...

Appendix-4

THE GAZETTE OF INDIA, MARCH 27, 1948.

(Part I- Sec. 3)

Ecclesiastical

In exercise of the powers conferred by rule 12 of the Indian Church (India) Statutory Rules, 1940, the Governor General by agreement with the Bishop of Calcutta, is pleased to remove with effect from the 1st, April 1948 the churches specified below from the list contained in the Second Schedule to the India Church Act, 1927, namely:-

SECOND SCHEDULE (SECTIONS 1, 5 AND 6) TO THE INDIAN CHURCH ACT, 1927 (17 AND 18 CEO. 5, CH. 40)

List of Maintained Churches

Part I

Churches Vested in the Crown.

...

B. Civil Churches

...

Diocese of Lucknow

..

Gorakhpur Christ Church


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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