High Court
Case Details
Neutral Citation No. - 2023:AHC:134754-DB Court No. - 39 Case :- WRIT - C No. - 22451 of 2012 Petitioner :- Church Of North India Trust Association Respondent :- State Of U.P. Thru The Chief Secy. And Another Counsel for Petitioner :- A.D. Saunders Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J. Hon'ble Vinod Diwakar,J. 1. Heard Sri A.D.Saunders, learned counsel for the petitioner and learned Standing Counsel for the State. 2. The present petition has been filed by Church of North India Trust Association against the order of the District Magistrate, Farrukhabad dated 13.04.2012, whereby that District Magistrate has refused to renew the lease deed over 13.15 acres of lease land, as applied for by the present petitioner, vide application dated 12.12.2008. 3. According to the petitioner, originally, in the year 1898, the Governor of United Provinces executed a lease deed in favour of the Board of Foreign Missions of Presbyterian Church of United States of America ('BFMPC' in short). The object of the lease thus executed was to allow the lessee to use the leased land to establish and run a school, an orphanage, a small hospital and also to maintain its cemetery. There is no dispute to the fact that such activities were set up and run on the land thus leased to BFMPC. Also, there is no dispute to the fact that the said lease deed was renewed from time to time. 4. Last, on 17.02.1959, the Governor of Uttar Pradesh renewed that lease, for the land, now described as Mauja Rakha, Pargana Pahara, Tehsil & District Farrukhabad, in favour of BFMPC, to hold the leased land for the purpose of running the Mission School and Orphanage etc., for a term of 50 years. That deed is hereinafter described as Lease Deed. 5. Again, according to the petitioner, in 1959, five other church entities merged with BFMPC. BFMPC then acquired a new name- Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the United States of America ('COEMAR' in short). In turn, COEMAR appointed the Church of North India Trust Association, a company incorporated under the provisions of the Companies Act, 1956 ('CNITA' in short), as its trustee, to hold and manage its property in North India (hereinafter described as the Trust Deed). That Trust Deed is disclosed to be dated 21.12.1981
Decision
(Annexure 2A to the writ petition). 6. Relying on various clauses of the Lease Deed dated 17.02.1959, and corresponding clauses of the Trust Deed dated 21.12.1981, it has been vehemently urged, there is neither any alienation nor any subletting nor change of original purpose or activity of the lessee nor there is any change in the ownership, occupancy or use of the leased property. In that regard, reference has also been made to Section 108 (B)(o) of the Transfer of Property Act, 1882 ('Act' in short). 7. Thus, it has been submitted, the District Magistrate Farrukhabad has completely misapplied the law to believe that the Trust Deed dated 21.12.1981 was a deed of alienation. Thus, the said authority has erred in reaching a further conclusion of violation of the terms of the Lease Deed dated 17.02.1959. Consequently, he has completely erred in refusing to renew the Lease Deed in favour of the present petitioner. 8. It has also been strenuously urged, there is no dispute to the fact that the Mission School, the Orphanage and the Cemetery established over the leased land alongwith a small hospital, do exist. They continue to be managed by the present petitioner-CNITA, in accordance with the terms of the original Lease Deed. The petitioner has only acted as a trustee of BFMPC, now known as COEMAR. There is no third party alienation of title or interest as alleged, over 2 of 13 any part of the leased property. Hence, it has been asserted, the petitioner, a religious organization, is entitled to renewal of the Lease Deed, to pursue the objects for which the Lease Deed had been granted. 9. On the other hand, learned Standing Counsel has urged, though simple change of name of the lessee may never give rise to any allegation of alienation or inference of subletting and while it may be true that the leased property may have been used for the purpose for which it was originally leased out, in the present case, upon execution of the deed dated 21.12.1981, described as "Deed of Appointment of New Trustee & Transfer of Trust" ('Trust Deed' in short), valuable rights permitting occupancy and use were first created in favour of the CNITA, as were not pre-existing and as may not be traced back to that entity, prior to the execution of the said Trust Deed. 10. Referring to various clauses of the Trust Deed, learned Standing Counsel would contend, read in its entirety, by executing the said Trust Deed, COEMAR washed its hand off the title and occupancy rights over the properties-mentioned in the Schedule to the Trust Deed. Not only that, COEMAR also attempted to transfer its rights and interest in those properties in favour of the petitioner-CNITA. It sought to vest, assign and convey to the present petitioner, all its rights, liberties, privileges, easements etc. in the properties specified in the Schedule to the Trust Deed. 11. In no unclear terms, the Trust Deed seeks to convey and make available all properties of COEMAR (enumerated in the Schedule to the Trust Deed), for the use and benefit of CNITA. Doubt, if any, as to surviving right, title or interest in the property in question had also been clarified, by making it plain-from the date of execution of the Trust Deed, the CNITA would not have to seek any approval of COEMAR or BFMPC, in dealing with any property (or its use etc.), 3 of 13 mentioned in the Schedule to the Trust Deed. That prior written approval would be required of the Executive Committee of the Synod of the Church of North India. 12. As to the provisions of Section 108 of the Act, relied upon by learned counsel for the petitioner, it has been submitted, the same are subject to the private law to the contrary, between the parties. Insofar as the Lease Deed does not allow for transfer, assignment or subletting of the leased property, the provision of Section 108(B)(o) of the Act stood overridden. It would not apply, to the facts of this case. 13. Having heard learned counsel for the parties and having perused the record, in the first place, we must take note of the nature of rights created under the Lease Deed, dated 17.02.1959. Here, it may be noted, undisputedly those rights were created in favour of the BFMPC. According to the petitioner, it is a separate entity, independent of the Church of North India or the CNITA. While there can be no dispute to the fact that no allegation of transfer or alienation may have emerged at the stage of merger of the five other churches BFMPC, that issue or dispute is not before the Court. At present, the violation is alleged to have taken place at a later point in time-upon execution of the Trust Deed dated 21.12.1981, in favour of CNITA. 14. The terms and conditions of the Lease Deed dated 17.02.1959, as are material for our purpose, read as below:- "And the lessee here by covenants with the lessor that the lessee will during the said term, pay the rent here in before reserved on the day and in the manner aforesaid, and pay all existing and future taxes, rates or assessments that may from time to time by lawful authority be levied on the said premises provided always that the said lessee shall have no power to alienate its rights in this lease or to sublet the said premises or any building standing there on or to use the said premise for any other purpose than those for which they are hereby expressed to be demised provided also that if and whenever any part of the said rent shall be in arrears for 30 (thirty) days whether the same shall have been loyally demanded or not or there shall be a breach of any of the covenants by the lessee here in before contained the lessor or any person or person's authorised 4 of 13 by him in his behalf may re-enter upon any part of the said premises in the name of the whole and there upon the said term shall absolutely determine and no claim for compensation of any kind shall be allowed or recognized." (emphasis supplied) 15. Then, as we have noted above, the merger of the five churches into BFMPC, in the year 1959, had no bearing to the dispute before us. Therefore, no useful purpose may be served in offering any discussion on the true purport of the Certificate of Merger as also the merger of certain committees and bodies of the merging entities. That was done purely for the purpose of maintaining administrative functionality. Till that date i.e., 23.06.1958 when the Certificate of Merger was filed in the office of Secretary of the State of New York, U.S.A, and also upon change of the name of the lessee, from BFMPC to COEMAR, no violation may ever be alleged. 16. Coming to the crux of the dispute, we may take note of the Trust Deed dated 21.12.1981, in more detail. The description of the Trust Deed and the executing parties is contained in the opening recital of the said deed. It reads as below:- "THIS INSTRUMENT OF APPOINTMENT OF NEW TRUSTEES AND st day of December 1981 BETWEEN TRANSFER OF TRUST is made this 21 COMMISSION ON ECUMENICAL MISSION AND RELATIONS OF THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, a body corporate and politio forever constituted by and under the Charter granted by the Legislature of State of New York, N.Y. 10115, Chapter 187 of Law of 1862 dated the 12th April 1862 as amended to date having its registered, office at 475 Riverside Drive, New York, N.Y. 10115, also known as Trustees for the Commission on Ecumenical Mission and Relations of this United Presbyterian Church in the United States of America (hereinafter referred to as the "Commission" which expression shall include its successors, administrators and assigns) of the ONE PART and the CHURCH OF NORTH INDIA TRUST ASSOCIATION, a company incorporated under Section 25 of the Indian Companies Act, 1956, bearing Registration No. 7936 of 1975-76 and having its registered office at 16 Pandit Pant Marg, New Delhi (hereinafter referred to as the "Trust Association" which expression shall include its successors, administrators and assigns) of the OTHER PART." (emphasis supplied) 17. Thus, COEMAR is described as the Commission whereas the CNITA is described as the Trustee. 5 of 13 18. Though clauses of the said Trust Deed are not numbered in the original text, yet clause 1 to 6, 7, 8, 11 (A, B, E and F) thereto read as below:- WHEREAS the Commission consists of Trustees appointed from time to time by the Central Assembly of the United Presbyterian Church in the United States of America; AND WHEREAS the management, control and disposition of the affairs of the Commission are vested in the said Trustees; AND WHEREAS the Commission by that name and by virtue of the action of the Trustees are capable of taking by purchase, grant, device or otherwise hold, convey or otherwise dispose of any real or personal estate for the objects of the said Commission throughout the world; AND WHEREAS the Commission is established for the purpose of promoting and affecting the diffusion of Christianity outside the area of the United States of America by conducting, carrying on and maintaining any and all forms of religious, and charitable work, activity and institutions, and for conducting and carrying on, whether within or without the area of the United States of America, communications, relationships and co-operations with other Christian Churches hereinafter referred to as the objects of the Commission. AND WHEREAS in pursuance of the said objects of the Commission, various Churches, Schools, Colleges, Hospitals Dispensaries and other religious and charitable institutions were established by the Commission in India, including having acquired the properties more particularly described in the Schedule hereto. AND WHEREAS the Commission as religious and charitable trust is desirous of making proper and better provision for the management, protection, preservation, and use of its properties hereinafter detailed in the schedule hereto. AND WHEREAS the Commission has now by virtue of its resolution dated 20/3/1979 RESOLVED to vest its properties, more particularly described in the Schedule hereunder, in the Trusteeship of the Church of North India Trust Association. AND WHEREAS the Commission has obtained permission of the Reserve Bank of India, Exchange Control Department, Bombay, vide its letter No.CO.FCS (iii) 593/C-25-81 dated 17/8/1981 to transfer these properties in Trust to the said Trust Association. NOW THIS DEED WITNESSETH that subject to the stipulations hereinafter, the Commission as Trustees declare that the Commission properties described in the Schedule hereto shall hereby stand vested assigned and conveyed to the Church of North India Trust Association as Trustees thereto TOGETHER WITH all rights, liberties, privileges, easements and ALL appurtenances thereunto belonging to and enjoyed by the Commission including the right to sell, transfer lease or otherwise alienate or dispose of the said properties, subject to the provision below: (A) That the property hereunder vested in the Trust Association shall be administered by the Trust Association, or by whatever name it may be called at 6 of 13 any future date due to amalgamation, merger or otherwise, for the use and benefit of Church of North India or its successor-in-interest: (B) That if the use of the property hereunder vested or any part thereof is to be changed or if the property or any part thereof is to be sold, the Trust Association shall seek prior written approval of the Executive Committee of the Synod of the Church of the North India and use the sale proceeds thereof for the following purposes: (i) for upkeep, and maintenance including insurance, payments of taxes and legal expenses to be incurred for the protection of the remaining property hereunder transferred; (ii) for meeting the expense of the Trust Association for managing the said Trust properties; (iii) creating a general Scholarship Fund to be administered as per scheme approved by the Executive Committee of Church of North India; (iv) creating and establishing an endowment fund for payment of Pensions to Church of North India workers, and (v) for meeting such other purposes as in the opinion of the Trust Association are necessary or desrirable, but in such a case for a period of ten years for the transfer hereof the Trust Association shall have prior consultation with the Commission. (E) The Trustees of the Commission hereby DECLARE that the TRUST PROPERTY exists for the benefit generally of the work of the Church of North India and for any other body church or organization by which the same may in future be designated, known or called having similar objects and/or akin to the Commission. (F) The Trustees of the Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the United States of America hereby FURTHER DECLARE that the Trust hereby created is without consideration of any kind whatsoever and shall be irrevocable. (emphasis supplied) 19. As to the property in dispute, the same is clearly mentioned in the Schedule to the Trust Deed. Here, it may be noted the Schedule contains a list of properties some of which may be a lease held or otherwise i.e., is against title. To the extent it is relevant, that Schedule reads as below:- "SCHEDULE OF THE PROPERTY MENTIONED ABOVE All the pieces and parcels of land as described hereunder consisting of Mission Hospital building, Staff Quarters, Christian Inter College building, Residence, Hostels, Rakha Mission Girls School, Primary Mission School, Mission Church Worker's houses; Girl's School buildings, Residences, Church etc., City Girls Middle building and Residence, Church House and Graveyard etc., together with all buildings constructed thereon and all fittings and fixtures therein heretofore described by whatsoever name or distinguished by the Revenue/Municipal authority." 7 of 13 (New Khasra No. 8 in Reserve Bank Permission letter) Sr. No. 24 and 25 Rakha Girls, School Mission 9, 33, 35, 36, 37, 38, 39, 127, 128, 140, 142, 151, 152, 153 20. Plain reading of the Lease Deed dated 17.02.1959 brings us to an unequivocal observation that it permits of no alienation of rights of BFMPC or COEMAR. To that extent, there is no quarrel between the parties. Therefore, it is the Trust Deed dated 21.12.1981 and the effect it causes or attempts to cause that has to be examined, to test if that may amount to alienation of rights of BFMPC or COEMAR, or any effect akin the same. 21. At first, it may noted, BFMPC and therefore COEMAR never held title in the land in dispute. It was only granted lease hold rights in that land, to fulfil a specified object only. Qua the land, BFMPC or COEMAR was only a lessee. Also, as noted above, COEMAR and CNITA are two, entirely different independent entities, neither drawing its existence or dependence, on the other. Again, it is undisputed to the petitioner that it is a duly incorporated company, different and independent of BFMPC/COEMAR. While the petitioner contends, CNITA has only been appointed Trustee of the property-held in trust by COEMAR, the State asserts otherwise. Whether the deed dated 21.12.1981 seeks to appoint CNITA as a simple Trustee, amongst others over the disputed property, only for the purpose of its better management and use or whether it seeks to create new/fresh rights of ownership and occupancy in CNITA, is a matter to be dealt with on the strength of the Clauses of that deed itself. 22. As quoted above, Clause 6 of the Trust Deed provides for better management, protection, preservation and use of the property in dispute and/or lease hold rights in the property in dispute, created in favour of BFMPC/COEMAR. A simple change of Trustee appointed 8 of 13 to manage such property held in trust as originally created, in the better interest of BFMPC/COEMAR, may therefore not constitute or involve any alienation of rights of BFMPC/COEMAR. That Clause may, therefore, remain neutral or cause no effect, on the determination of the dispute before us. 23. However, Clause 7 of the Trust Deed refers to a resolution dated 20.03.1979, passed by COEMAR to "vest its properties", described in the Schedule, in "trusteeship" of CNITA. That Clause appears to create a serious doubt as to the intent of the Trust Deed. However, since the resolution dated 20.03.1979 is not before us, mere use of the word 'vest' in Clause 7 of the Trust Deed may not, itself be decisive of the issue-whether the COEMAR relinquished its right in the property in dispute or whether it sought to create any right of use and occupancy in favour of the CNITA. 24. The next Clause 8, of the Trust Deed speaks of the permission granted by the Reserve Bank of India, Exchange Control Department, Bombay to transfer "properties in trust" including the property in question, to the CNITA. Unresolved doubts arise upon reading of the above noted Clause, again, especially because that document is also not before us. Therefore, it would have to be examined if the intent of COEMAR was to transfer all the rights in the properties (held in trust), by COEMAR as that is the plain intent emerging from the words employed and thought expressed, under that Clause. 25. Yet, Clause 11 (main part) read with sub-clause A thereto, makes it plain that the intent of the COEMAR was to relinquish all its rights in-the properties mentioned in the Schedule to the Trust Deed, specifically including the property in dispute, in the present proceedings. Here, the parties to the Trust Deed clearly expressed that the property in dispute shall vest, be assigned and be conveyed to CNITA. 9 of 13 26. By using in conjunction, the words 'vested' 'assigned' and 'conveyed', no matter of doubt has been left alive, as may allow a reasoning to emerge that the rights or interest in the property in dispute continued with the COEMAR or that the intent of the parties to the Trust Deed was only to appoint a new trustee, to manage the properties held in trust, in accordance with the original dedication made. Here, it may be recorded, in the context of lease held land, a permanent dedication committing the title in the land in trust, in favour of BFMPC/COEMAR, could never arise. It was a legal impossibility. The original Lease Deed itself, recognized this status. 27. If at all, any such doubt stood resolved by employment of words (in the same Clause), that make plain-together with such vesting or assignment would arise 'rights', 'liberty', 'privileges', 'easement' etc. in favour of CNITA. The intention of the BFMPC/COEMAR was unequivocal i.e., to give up all its pre-exising rights, interests and liabilities in the property in dispute to the extent, it may not only cease to act as a trustee, but, transfer its existing rights in the trust property itself, to CNITA with liberty given to the lesser to use and apply, amongst other, the property in dispute, as per its sole discretion. Here, it may be noted, CNITA is a company incorporated of the Companies Act, 1956. It is not the case of the petitioner that CNITA was formed to administer the properties of COEMAR or to further its objects. Thus, CNITA could have applied and put to use the property in dispute for the furtherance of its objects of incorporation, that may be different, distinct and contrary to the objects of COEMAR, without reference to the objects of creation of BFMPC/COEMAR and without including any legal obligation towards COEMAR. 28. By way of the last clarification, the said Clause then recites-the CNITA would have a right to sell, transfer, lease or otherwise alienate or dispose of the properties subject to stipulations contained 10 of 13 in Clauses 11(A) to (G). While sub-Clause A of Clause 11 relates to the use of the property in dispute, solely for the benefit of CNITA, sub-Clause B of that Clause provides that any effort on part of CNITA to sell the property in dispute would require prior approval of the Executive Committee of the CNITA or its Synod. Thus, COEMAR completely excluded itself from that decision making. Plainly, the Church of North India and CNITA being completely independent of COEMAR, it is not possible to reach a conclusion that the Trust Deed is a simple deed of change of trustee. Rather, it is a deed that seeks to transfer the lease hold rights of COEMAR to CNITA. 29. Neither in that sub-Clause nor in any other sub-Clause nor under Clause 11 nor otherwise under the Trust Deed, the COEMAR reserved to it or to any of its functionaries or bodies, any right to deal with the property in dispute or to restrict the exercise of rights by the CNITA over such property, treating it to be its own. In fact, by employing sub-Clause E it made it clear, amongst others, the property in dispute would exist henceforth, solely for the benefit of CNITA or for any other body that may succeed to CNITA. 30. Then by way of the last clarification, contained in sub-Clause F of Clause 11 of the Trust Deed, COEMAR washed its hands off all properties mentioned in the Schedule to that deed, by stating therein, that the Trust Deed was irrevocable. 31. Therefore, the legal consequence of the Trust Deed relied upon by the petitioner is-though it may have continued in possession over the property in question by acquiring possessory rights from BFMPC/COEMAR, the lease hold rights may never have been transferred to it in face of clear prohibition as to that, under the Lease Deed. 11 of 13 32. Even otherwise, independent of BFMPC/COEMAR, CNITA may never be able to succeed to establish any right to renewal of the Lease Deed. In the first place, if the petitioner were to contend, it is only an agent of COEMAR, it may never seek relief on its own account. Leave alone the pleadings, even in the description of parties, the petitioner has not set up such description. We cannot act on the same, in absence of any right seen to have been claimed by COEMAR, at present. 33. Whether looked at in the sense of vesting contemplated under the Trust Deed or from the sense of occupancy and user, valuable rights were definitely transferred to the petitioner, in the property in question, inasmuch as by virtue of the Trust Deed, the petitioner became the sole occupant over the leased property since its execution by COEMAR and has been using that property to pursue its objects, to the exclusion of COEMAR. 34. Interestingly, in W.O.Holdsworth and others vs. The State of U.P., 1957 SC 887, the Supreme Court held as under:- "22. These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestui que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties, one of whom is acting on behalf of another. Section 11(1) therefore can only come into operation where the land from which agricultural income is derived is held by such common manager, receiver, administrator or the like on behalf of, in other words, as agent or representative of persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of Section 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the beneficiaries but they hold it in their own right though for the benefit of the beneficiaries. 12 of 13 23. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" is well known in law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in the beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others." 35. Accordingly, while no defect has been found in the order passed by the District Magistrate to the extent he has at present, refused to renew the Lease Deed at the instance of CNITA, however, it is left open to the petitioner to apply for grant of fresh Lease Deed, as it seems to be the only body that continues with the activities for which the original lease was granted, for similar objects. The Court is also mindful of the fact that besides the orphanage, school, small hospital that stand and are being seen on the leased land, there exists a cemetery. The dead may not be relocated. Here, we are mindful, till date, no proceeding has been initiated either against COEMAR or the petitioner, by the District Magistrate to cancel and or to revoke the Lease Deed or to resume the land, alleging any violation by the BFMPC/COEMAR. If such an application is filed or such proceeding is initiated, the same may be considered in accordance with law, by reasoned and speaking order, after hearing all necessary parties. 34. The writ petition is disposed of. Order Date :- 7.7.2023 Ujjawal (Vinod Diwakar,J.) (S.D. Singh,J.) 13 of 13