Church lands can’t be sold

In a landmark order, the Maharashtra charity commissioner has ruled that church properties belong to the government and cannot be sold by those in possession of them. The institutions running the churches are merely custodians of the land and buildings.

An order passed by joint charity commissioner NV Deshmukh says that church properties can be used only for religious and educational purposes.

Deshmukh passed the order in a case relating to All Saints Church at Malabar Hill in Mumbai. In this case, PB Amolik, secretary of the Bombay Diocesan Trust Association (BDTA), had sought the charity commissioner’s permission to sell transfer of development rights (TDR) to the extent of 2,283 square metres against the church property at Malabar Hill.

Passing his final order on October 22, 2009, Deshmukh rejected the BDTA request saying that no change of user can be allowed on church properties.

The order has major implications for many deals involving the sale of church land for development, some of them entered into by bogus trusts

An official inquiry by the state’s law and judiciary department earlier this year had declared over 20 such deals involving “bogus” trusts and trustees as illegal. It also asked the charity commissioner to scrap 18 dubious deals that were awaiting clearance.  

Deals pending with the charity commissioner include development of land belonging to Afghan Church in Colaba, among others, and all of them may have to be scrapped.

The October 22 order of joint charity commissioner Deshmukh in the All Saints Church case observed that two rival groups of the BDTA, one headed by Amolik, the applicant, and the other headed by RR Salvi (the objectors to the sale), had moved several change reports before the assistant charity commissioner. Out of these, the change reports filed by the Amolik group were accepted and those filed by the Salvi group rejected. These orders were challenged in appeals No 63/2002 to 73/2002. The appeals were, however, dismissed by an order dated March 20, 2007, by the charity commissioner.

“It is not in dispute that the church was in existence over the property prior to February, 1891. By an indenture dated February 5,1891, the property was allotted as a grant to the church by the (British) government. The property was allotted for the specific purpose of religious worship of the established Church of England and for no other purpose.  The document prohibits any change in usage other than for religious worship. As per the indenture, in case the property is used for other purposes, the grant shall cease and hereafter the property shall become absolutely the property of the secretary of the state.”
“Post independence, the state of Maharashtra has substituted the secretary of state,” Deshmukh said in his order.

“The averments in the application about necessity to sell are incorrect and contrary to the facts on record. The proposed transaction is not beneficial for the objectors (Salvi and others), church and school, as it would stop their further plans for progress and development. In fact, the proposal is against the interests of the trust and beneficiaries”, it further added.

“Moreover, the procedure adopted by the trustees for transfer lacked transparency. Dealing with the property by private negotiations with the offerer (the builder who was to develop the property) was objectionable. An offer with low price was accepted without making any attempts to verify and ascertain actual market price”, the order said.

What the judgment means
 
There are approximately 4,000 church properties in Maharashtra which are under the custodianship of some 50-60 small and big trusts. More than 450, including 100-and- odd in Mumbai alone, civil and criminal cases regarding such properties are pending in various courts.

Most of the cases relate to the sale of church properties under the pretext of generating additional revenue or redevelopment of old and dilapidated structures situated on church lands.

As the jurisdiction of the charity commissioner covers the whole of Maharashtra, the individuals and organisations opposed to widespread church land sales can now make use of the judgment in stalling such illegal sales by quoting the recent order.

The charity commissioner’s order could serve as a benchmark during all such proceedings and no such sale may be allowed in the future. Ordinary churchgoers were elated at the development as the order will see a gradual decline in litigation over church properties.