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Y.John Murray and ors. Vs. the Registrar of Companies and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P.(MD)No.13249 of 2011 And M.P.(MD) No.2 of 2011
Judge
ActsIndian Companies Act, 1913; Constitution of India - Articles 226, 25, 26, 19, 14, 21; Code of Civil Procedure (CPC) - Section 9; Places of Worship (Special Provisions) Act, 1991
AppellantY.John Murray and ors.
RespondentThe Registrar of Companies and anr.
Advocates:Mr.Aagney Sail, Adv.
Excerpt:
indian companies act, 1913 --article 25 guarantees freedom of conscience and a fundamental right of free profession, practice and propagation of religion. it is only article 26 which speaks about the religious denomination. while the fundamental right guaranteed under article 25 is for individuals, the right guaranteed under article 26 is for the religious sects, denominations or sections thereof.this right is a civil right which has to be enforced only through a normal civil court. .....rolls of the salvation army, without following the principles of natural justice, violated their civil rights and the rights guaranteed under article 25 of the constitution. therefore, the learned counsel contended that the writ petition is maintainable. he also relied upon (i) the decision of the privy council in hasanali vs. mansoorali {(1947) 75 ia 1}, and (ii) two decisions of the supreme court, viz., sardar syedna taher saifuddin saheb vs. state of bombay {1962 supp. 2 scr 496} and most rev. p.m.a. metropolitan vs. moran mar marthoma {1995 suppl. (4) scc 286}. the learned counsel for the petitioner also relied upon the unreported decisions of this court in (i) pon.thangasami vs. the revenue divisional officer {w.p.(md) no.8079 of 2008 dated 1.8.2008} (ii).....
Judgment:

1. The petitioners have come up with the above writ petition, challenging an order passed by the Territorial Commander of the Salvation Army, removing the names of the petitioners from the rolls of the Salvation Army Soldiers.

2. I have heard Mr.Aagney Sail, learned counsel for the petitioners.

3. All the petitioners herein are ordained members of the Booth Tucker Memorial Church, Vetturnimadam, Nagercoil. All of them were members of the Salvation Army of the said Church, but they have come up with the above writ petition, looking for a salvation from this Court, after being thrown out by the second respondent.

4. The Salvation Army is an integral part of the Christian Church although distinctive in governance and practice. The army's doctrine follows the mainstream of Christian belief and its articles of faith emphasise God's saving purposes. The movement was founded in 1865 by William Booth, who was Priest in the Methodist New Convention Church. In 1878, the movement adopted a quasi military command structure by bringing to use the title “The Salvation Army”. In India, the Salvation Army started its work in Bombay on 19th September 1882 through Mr.Frederick George De Latour Tucker of the Indian Civil Service, who took the name of Fakir Singh. From Bombay, it moved over to Travancore in 1889 and later to Nagercoil in 1893 where Harry Andrews set up a dispensary to start medical work.

5. The Salvation Army got registered as a guaranteed company under the Indian Companies Act, 1913. Obviously, it has a set of Memorandum and Articles of Association. It is only persons who subscribe to its objects, who can become members of the Salvation Army. Therefore, the Articles of Association constitute a binding contract among the members inter se. Consequently, the petitioners are not entitled to challenge their removal, by way of a writ petition under Article 226 of the Constitution.

6. However, the learned counsel for the petitioners contended that the removal of their names from the rolls of the Salvation Army, without following the principles of natural justice, violated their civil rights and the rights guaranteed under Article 25 of the Constitution. Therefore, the learned counsel contended that the writ petition is maintainable. He also relied upon (i) the decision of the Privy Council in Hasanali vs. Mansoorali {(1947) 75 IA 1}, and (ii) two decisions of the Supreme Court, viz., Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay {1962 Supp. 2 SCR 496} and Most Rev. P.M.A. Metropolitan vs. Moran Mar Marthoma {1995 Suppl. (4) SCC 286}. The learned counsel for the petitioner also relied upon the unreported decisions of this Court in (i) Pon.Thangasami vs. The Revenue Divisional Officer {W.P.(MD) No.8079 of 2008 dated 1.8.2008} (ii) S.Thamiyon vs. The District Collector {W.P.(MD) No.9227 of 2011 dated 22.8.2011} (iii) M.Noohukan vs. The State of Tamil Nadu {W.P.No.13358 of 2009 dated 16.12.2009} and (iv) K.Gopal vs. State of Tamil Nadu {(2005) 3 MLJ 456 (Mad.)}.

7. But at the outset, there is a flaw in the contention raised by the learned counsel for the petitioners with respect to Article 25 of the Constitution. Article 25 guarantees freedom of conscience and a fundamental right of free profession, practice and propagation of religion. But there is a vast distinction between religion and religious denomination. In The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt {AIR 1954 SC 282}, the Supreme Court brought out the distinction by pointing out that religion means a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being. It need not be theistic. But religious denomination means a religious sect or body having a common faith and organisation and designated by a distinctive name. A religious denomination must satisfy 3 conditions viz., (i) it must be a collection of individuals who have a system of beliefs or doctrines which they regard as conductive to their spiritual well-being, that is, a common faith; (ii) a common organisation and (iii) designation by a distinctive name.

8. The fundamental right to profess, practice and propagate any religion, does not include within itself, a right to be part of any religious denomination, except with the blessings of such denomination itself. Every religious denomination is governed by its own set of bye-laws or articles or rules and regulations. The right to membership of such a denomination arises not out of Article 25 of the Constitution, but out of the subscription of a person to the membership or objects of such denomination. Therefore, the contention based upon Article 25 is misconceived due to a mix up of religious denomination with religion.

9. It must be noted that Article 25 speaks only about conscience and religion. It is only Article 26 which speaks about the religious denomination. While the fundamental right guaranteed under Article 25 is for individuals, the right guaranteed under Article 26 is for the religious sects, denominations or sections thereof. In Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay {1962 Supp. 2 SCR 496}, the Supreme Court pointed out that the right guaranteed by Article 25 is an individual right, as distinguished from the right of an organised body like a religious denomination or any section thereof dealt with by Article 26. Consequently, the right of every member of the community is subject to the corresponding rights of others. In the majority view expressed by Das Gupta J., two important aspects were pointed out. They are (i) that the right given under Article 26(b) is not made subject to the preservation of civil rights and (ii) that the fact that civil rights of a person are affected by the exercise of this fundamental right under Article 26(b) is of no consequence. Therefore, the right claimed by the petitioner in terms of Article 25 is subject to the right of the second respondent under Article 26. In other words, the second respondent is protected by Article 26 to manage its own affairs and to insist that there is no interference.

10. In a separate but concurring opinion, Ayyangar J., pointed out in the above decision (Syedna) that a denomination within Article 26 and its members under Article 25, are entitled to ensure the continuity of such denomination. Continuity is possible only by maintaining the bond of religious discipline, which would secure the continued adherence of its members to certain essentials like faith, doctrine, tenets and practices. The learned Judge further pointed out that the right to such continued existence involves the right to maintain discipline by taking suitable action including ex-communication. The power to ex-communicate is essential for maintaining the existence and unity of the denomination.

11. The decision of the Privy Council in Hasanali, relied upon by the petitioner arose out of the ex-communication of Hasanali. On the power to ex- communicate, the Judicial Committee opined that as per the homily addressed to the Dais and the dignitaries of the Daudi Bohras Sect composed in 1200 A.D., the power of ex-communication has to be used after first taking steps to rebuke the offender and then ordering his expulsion later after a public reprimand.

12. The decision of the Judicial Committee in Hasan Ali, led to the enactment by the Bombay Legislature, of an Act known as “Bombay Prevention of Ex-communication Act, 1949”. The Act sought to outlaw the practice of ex- communication on the ground that it resulted in deprivation of legitimate rights and privileges of the principles of certain religious communities. The Act was challenged as violative of Articles 25 and 26. By a majority opinion, the Supreme Court pointed out (i) that the protection of Articles 25 and 26 was not limited to matters of doctrine or belief, but extended also to acts done in pursuance of religion, (ii) that Articles 25 and 26 guaranteed all that formed an integral part of religion; (iii) that what constituted an essential part of the religion or religious practice has to be decided by the Courts with reference to the doctrine of the particular religion and it should include practices which were regarded by the community as a part of its religion; and (iv) when ex-communication itself is based on religious grounds, it must be held to be for the purpose of maintaining the strength of that religion.

13. But both the above decisions have nothing to do with the question that I am now addressing viz., whether or not a writ petition is maintainable. As I have pointed out earlier, the fundamental right flowing out of Article 25 is distinct and different from an ordinary right to be part of a religious denomination, that flows out of the membership of such denomination. This right is a civil right which has to be enforced only through a normal Civil Court. The question as to whether the second respondent followed the procedure prescribed by the Memorandum and Articles of the second respondent and whether the ex- communication was justified or not, can very well be agitated before a Civil Court.

14. The reliance placed by the learned counsel for the petitioner in the decision of the Supreme Court in Most Rev. P.M.A. Metropolitan is thoroughly misconceived, for the simple reason that the said decision arose out of civil suits. The very maintainability of the civil suit under Section 9 of the Code of Civil Procedure and the bar in terms of the provisions of a special enactment known as Places of Worship (Special Provisions) Act, 1991, were in issue in that case before the Supreme Court. The decision did not arise out of writ proceedings. Therefore, there was no occasion for the Supreme Court to consider in that case, the maintainability of a writ petition against the removal of a person from the membership of a religious denomination or sect.

15. The reliance placed upon 4 unreported decisions of this Court, is also misconceived. The interference by this Court under Article 226, in matters relating to ex-communication of persons by the village community as a whole, rests on a different footing. The ex-communication of a person by the village community as a whole, results in the ex-communicated person being deprived of a right of access to public water bodies, places of public worship and public market places. Therefore, writ petitions are entertained for protecting the fundamental rights guaranteed under Articles 19, 14 and 21. But the case on hand does not fall under the said category. Therefore, the petitioner cannot derive any inspiration from those decisions.

16. In view of the above, the writ petition is not maintainable. Hence it is dismissed. It will be open to the petitioner to work out his remedies before an appropriate Civil Court. There will be no order as to costs. Consequently connected miscellaneous petition is closed.


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