Delhi High Court - Orders
Indrani Ghosh vs Sahana Gandhi Mukerjee & Anr on 26 April, 2024
$~108
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 656/2024, CM APPL. 24232/2024 & CM APPL.
24233/2024
INDRANI GHOSH ..... Petitioner
Through: Ms. Shobhana Takiar & Mr. Rajiv
Aneja, Advs. with Ms. Indrani Goshi,
petitioner in person.
M: 9910109815
Email: [email protected]
versus
SAHANA GANDHI MUKERJEE & ANR. ..... Respondents
Through: None
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 26.04.2024 CM APPL. 24233/2024 (For Exemption)
1. Exemption allowed, subject to just exceptions.
2. Application is disposed of.
CONT.CAS(C) 656/2024 & CM APPL. 24232/2024
3. The present petition has been filed alleging willful disobedience of the order dated 21st August, 2021 passed by the Civil Judge-02, South East, Saket, New Delhi in CS SCJ 2113/2019. By way of the said order, the respondents were restrained from changing the existing Rules and Regulations of the Society, without following the due process, as given in the Rules of the Durgabari Society.
4. It is submitted that the petitioner is a senior member of Durgabari Society (Regd.) and has been prosecuting the aforesaid suit against the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:13 respondents, so that the illegal activities in violation of the Society Rules, are stopped.
5. Attention of this Court has been drawn to aforesaid order dated 21st August, 2021, relevant portions of which read as under:
"xxx xxx xxx
17. There is no need to go into the merits of the contentions raised by the plaintiff regarding the averment that rules have been changed without following the due process, since the defendants no. 2 and 3, by advancing the arguments that the General body cannot be restrained from changing the rules, have indirectly admitted that defendants have been amending the rules and not according to Rule 17. Rule 17 clearly prescribes the role of the Trustees and the Governing body in making amendments to the Rules. However, Ld. Counsel for the defendants no. 2 and 3 has argued that it is the prerogative of the General Body to change the rules.
18. No rule was pointed out by the Ld. Counsel for the defendants showing that the General body has the residual powers to make rules in extraordinary situations
19. The second argument advanced by the Ld. Counsel for defendant no. 2 and 3 that since elections of Trustees could not be held, and Governing body was the only functional body, it with the approval of the General body had to take requisite steps for smooth functioning of the temple, seems to be logical and acceptable. However, the other argument advanced by the Ld. Counsel that any restraint on the General body of the society to change the rules cannot be made, is unacceptable. It implies that the defendant no.2 and 3 are arguing that they cannot be expected to follow the procedure as laid down in the rules. A one-off situation or an extraordinary situation like Covid, where exceptions had to be made due to the consequences of the pandemic, cannot imply that the defendants can openly flout the rules of the society. There is no gainsaying the fact that the rules and regulations of society are made for the smooth functioning of the society and that they should be interpreted in a way which promotes the functioning of society rather than stalling it. However, the very fact that some of the members of the society can change the rules without following the due procedure as laid down in the internal rules and regulations of the society goes against the ethos, the intentions and the purpose for which the rules were framed. It can lead to arbitrariness and chaos.
20. The instant society i.e. the Durgabari Society is a society registered This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:13 under the Societies Registration Act. It is an admitted fact that the society has a two-tier system of administration and the roles and responsibilities are divided between the Trustees and the Governing body members. Further, it is a well settled law that a Society is bound by its rules and regulations. The procedures provided in the rules and regulations are to be followed by all the members.
21. The only reason for not following Rule 17, which was stated by the Ld. Counsel for the defendant no. 2 and 3, was the non-conduct of elections of trustees and the consequent problem in functioning of the society. It has been pointed out by the Ld. Counsel for the plaintiffs that the tenure of the defendants is ending on 31.08.2021 and fresh elections of the trustees and the Governing Body are going to be conducted. So, once fresh elections are conducted and the two-tier system of governance of the Society is back in place, there will be no reason for the defendants to not follow the rules as laid down by the Society.
22. In view of the above discussion, keeping in view the interests of both the parties and keeping in view the interest of the Society, it is clear that a prima facie case qua prayer 3 exists in favour of the plaintiff. Balance of convenience also tilts in favour of the plaintiffs since the plaintiffs as members of society governed by its rules, would suffer more harm if the defendants do not follow the existing rules and it will cause irreparable injury to the plaintiffs. Accordingly, prayer 3 in the application stands allowed. I deem it fit to direct that the 'defendants are restrained from changing the existing rules and regulations of the society without following the due process as given in the Rules of the Durgabari society, till the disposal of the suit.' The interim status quo order dated 10.01.2020 which was further revised on 07.03.2020 stands vacated.
xxx xxx xxx"
6. Thus, it is submitted that the Society is bound by its Rules and Regulations and that the respondents had been restrained from changing the existing Rules and Regulations of the Society, except by following the due procedure.
7. Attention of this Court has also been drawn to Rule 17 of the Rules of Durgabari Society (Regd.), which reads as under:
"xxx xxx xxx This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:14
17. Amendments to the Memorandum, Rules and Regulations and Deed of Indenture:
Any amendment(s) to the Memorandum, Rules and Regulations or the Deed of Indenture, must be proposed by a majority of the Trustees, a majority of the Governing Body or not less than 30 Members.
Such proposal in writing and duly signed by the requisite numbers, • shall be received by the General Secretary.
• All such proposals, if received 15 (fifteen) days or more before the date of issue of notice for the General Body Meeting, shall be included in the agenda for consideration by the General Body.
• A copy of the proposed amendment(s) shall be provided to the Members along with the notice of the meeting.
• Such amendment(s) will be effective only if passed by three-fifth majority vote of the Members with voting right personally present in the meeting, and confirmed by a three fifth majority, present and voting, in a separate Special Meeting, called at an interval of one month or more after the former meeting.
xxx xxx xxx"
8. Thus, it is submitted that without following the Rule with respect to amendment of the Rules of the Society, actions are sought to be taken by the respondents, which are in clear violation of the Rules of the Society.
9. Attention of this Court has also been drawn to Rule 13 of the aforesaid Rules, which reads as under:
"xxx xxx xxx
13. Duties and Powers of Office Bearers of the Governing Body:
a) President: All activities of DURGABARI, except those mentioned under clause 18 hereinafter, shall be conducted on behalf of the President. He will direct, advise and guide the Governing Body. He will preside over all meetings of the General Body as well as the Governing Body. If at any meeting of the General Body or the Governing Body, the President is not present, then the Members present at the General Body or the Governing Body Meeting will elect a chairman from amongst them, to preside over such a meeting. In the event of a tie during voting This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:15 on any issue, the President shall have an additional voting right.
b) General Secretary: The General Secretary shall primarily be responsible for the day-to-day administration of DURGABARI including:
i. Execution of the directions of the Governing Body in conformity with the Rules and Regulations.
ii. Calling the meetings of the Governing Body, the General Body and the Joint Committee, and keeping the minutes of all such meetings. iii. Conducting correspondence on all administrative matters. iv. Preparation of Annual Report on the activities of DURGABARI for submission to the Governing Body for approval before this is submitted to the Trustees and General Body.
v. Making arrangements for timely preparation of accounts for the annual accounts with the cooperation of the Treasurer. vi. Coordination of the activities of all sub-committees as an ex-officio member.
Vii. Submission of names of new members for admission and for termination as the case may be, for consideration by the General Body. Viii. Raising funds for DURGABARI.
ix. Custody of movable assets of DURGABARI in conjunction with the Treasurer.
x. Insurance of all the assets of DURGABARI.
xi. Submission of all statutory returns within the stipulated time. Xii. Annual submission of the Names, Occupation and Addresses of the Members of the Governing Body to the Appropriate Authority. Xiii. Any other work as directed by the Governing Body.
c) Financial Advisor: A financial advisor with suitable financial qualifications shall be nominated by the President of the Governing Body, in consultation with the Governing Body and the Trustees, to advise the Governing Body in its :financial decisions. The Financial Advisor shall submit an annual report to the Governing Body and the Trustees.
d) Treasurer: The Treasurer who shall preferably be a Member with financial or accounts background shall be responsible for safe custody of all monies (cash or in bank), ornaments and documents and other movable assets of DURGABARI.
He shall:
i. Receive and disburse all monies on behalf of DURGABARI. ii. Maintain proper accounts of the financial transactions of DURGABARI.
iii. Make available all financial records or documents to the Auditor on This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:15 demand and at the time of auditing of the annual accounts. iv. Make payments of the sanctioned amounts to the Appropriate Authority within the powers delegated to him by the Governing Body. v. Appoint collectors for funds with the approval of the Governing Body. vi. Arrange for the preparation of Annual Accounts of the previous financial year of DURGABARI and get them audited. vii. Arrange for the preparation of Budget for the current financial year for presentation to the Governing Body and Trustees, and place it before the General Body for approval.
viii. Reconcile at all times the list of all movable assets, fixed assets, cash books, bank statements, ornament register, and such other registers that may be added from time to time.
ix. Prepare and arrange to file the tax returns and other related documents.
x. Do all other duties in financial matters as directed by the Governing Body.
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10. By reference to the aforesaid Rule 13, the petitioner, who appears in person, submits that existence of a President is a must for the purposes of taking various decisions. She submits that as of now, there is only a Care Taker Governing Body for the past three years and there has been no President.
11. The petitioner appearing in person, further draws the attention of this Court to the Show Cause Notice dated 18th April, 2024 issued to her, which has been issued purportedly under Rule 3(c) of the aforesaid Rules. The said Rule 3(c) reads as under:
"xxx xxx xxx
c) Termination of Membership- Membership of a person shall be terminated (i) in case of his death (ii) if he resigns in writing to the General Secretary (iii) if his annual subscription fee falls in arrear for more than one month and is not paid within two months from the date of issue of a notice by registered post to the member's last known address, requesting payment of such arrears, (iv) if the Member, other than a Trustee, is held in a meeting of the General Body by a majority decision This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:15 to have acted against the interest of DURGABARI, provided that he shall be given an opportunity to defend himself in the said meeting.
xxx xxx xxx"
12. By reference to the aforesaid Rule 3(c) sub-paragraph (iv), the petitioner submits that there is no provision in the aforesaid Rules for issuance of a Show Cause Notice. Rather, if a person was held to be violating any Rules of the Society, opportunity was to be granted to such a person to raise the defence during the course of the meeting.
13. She further submits that no such opportunity was granted to her and rather the impugned Show Cause Notice has been issued to her illegally.
14. It is further submitted that the respondents have no authority to issue the Show Cause Notice and that the tenure of the respondents is long over, since the year 2021.
15. Issue notice to the respondents by all modes.
16. Let reply be filed within a period of four weeks.
17. Rejoinder thereto, if any be filed within a period of two weeks thereafter.
18. Considering the submissions made before this Court, it is directed that the respondents are restrained from taking any action against the petitioner, pursuant to the Show Cause Notice dated 18th April, 2024.
19. Re-notify on 24th September, 2024.
MINI PUSHKARNA, J APRIL 26, 2024/kr This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/04/2024 at 22:34:16