Calcutta High Court
Benjamin H. Elias And Ors. vs Official Trustee Of West Bengal And Ors. on 19 September, 2006
Equivalent citations: 2007(1)CHN555
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Tapan Kumar Dutt
JUDGMENT Pinaki Chandra Ghose, J.
1. The appeal is arising out of an order passed by the Hon'ble First Court dated 19th March, 2004.
2. Facts of the case briefly are as follows:
One Late Benjamin H. Elias, the memory of his uncle, donated certain amount from his estate and the premises No. 25, Blackburn Lane, Kolkata (hereinafter referred to as the said premises) was purchased to establish, maintain and manage the Prayer-house which is known as the Maghen Aboth as well as a Rest House or home for the aged members of the Jewish community was created in the name of "Jacob Benjamin Elias Home". For such purpose a society was registered under the Societies Registration Act, 1860 having its registered office at No. 25, Blackburn Lane, Kolkata.
3. The following persons became the members of the said society:
(i) Mr. J.N. Elias, President (nominated);
(ii) Mr. Muslesh Hony, Treasurer (nominated);
(iii) Mr. B.N. Musleah, Hony. Secretary;
(iv) Mr. I.E. Mordecal;
(v) Mr. S. Nawe;
(vi) Mr. A. Ezekiel;
(vii) Mr. A. Morris.
4. Some of the objects of the said society are to manage and maintain the said premises at No. 25, Blackburn Lane, Kolkata or elsewhere, the said Prayer-house and further to manage and maintain the Rest-house or old aged Home for the members of the Jewish community and also to maintain and manage the institution.
5. On or about September 14, 1949 a trust deed was created and the said premises and the rest of the amount which was donated by the late Benjamin H. Elias were kept under the trust. The said trust was executed between Jacob Benjamin Elias and others, the nominees of the committee of the said society and the Official Trustee of West Bengal and the executors of the estate of late Benjamin H. Elias.
6. The salient features of the said trust are as follows:
(i) The Official Trustees of West Bengal shall at the request and cost of the said committee convey, transfer, assign or make over any of the properties of the Institution movable or immovable held or to be held by him as aforesaid at such time or times and in such a manner and to such person or persons as the said committee for the time being may direct provided that in the case of immovable property it shall first be necessary for the Official Trustee of West Bengal to obtain the sanction of the Court and provided the proceeds of any of such sale shall be reinvested in real property or trustee securities and utilized for the same trust herein set out;
(ii) The committee agrees to indemnify the Official Trustee of West Bengal against any loss or damage that the Official Trustee of West Bengal may suffer by reason of acting as such trustee as aforesaid.
7. Under the rules and regulations of the society a committee was formed consisting of two persons to be nominated by eldest son surviving descendants of late B.N. Elias. The said late B.N. Elias had two sons, viz. Nissim Benjamin Elias and Jacob Benjamin Elias. Jacob Benjamin Elias died in or about 1952 and Nissim Benjamin Elias died in or about 1969. Julian N. Elias, one of the appellants herein, claimed himself to be the eldest surviving descendant of late B.N. Elias.
8. The property in question was transferred to the Official Trustee of West Bengal by a registered deed of conveyance dated 17th March, 1942. By a deed of trust dated September 14, 1949 a Trust was created wherin the Official Trustee was made the Trustee to look after the said property. The said property was partly tenanted and it was submitted that the income of the property was too meagre to maintain the property. It is also stated that there had been illegal encroachment.
9. Considering the said fact on or about March 15, 1980 the Executive Committee of the said Synagogue and/or the trust entered into an agreement with the respondent No. 2, a devoloper namely Mithua Provisions Pvt. Ltd. for the purpose of development of the said property. The said agreement was placed before this Court and the Hon'ble Court in Matter No. 868 of 1981 approved the said agreement between the Executive Committee on the one hand and the said developer on the other hand. Thereafter, a supplementary affidavit was filed which was also approved by this Hon'ble Court. After approval was granted by this Court, the property was handed over to the respondent No. 2, developer for the purpose of development. There had been inordinate delay in completing the work. Thereafter, the application was made by the members of the Executive Committee, being the Chairman and Secretary thereof inter alia for direction upon the Official Trustee to execute and register the deed of lease in favour of the respondent No. 2 in terms of the draft lease.
10. Appellants herein claiming themselves to be the elected members of the Executive Committee made an application for intervention in the matter before the Hon'ble First Court. Point taken by the appellant before the Hon'ble First Court that the applicants (before the Hon'ble First Court) did not have any locus standi at all to make the said application and the terms of the proposed lease were unreasonable and as such no order should be passed.
11. On or about March 15, 1980 certain persons declared themselves to be the members of the committee and purportedly made an agreement with the Mithua Provisions Private Ltd., now known as 'Mithua Developments Private Ltd., the respondent No. 2 herein, inter alia to develop the trust property and/or the said premises and under the said agreement an area of 1,400 sq. ft. in the proposed building was to be made over to the committee and/or to the said society for its purposes. The said agreement was subsequently modified on 23rd February, 1982 by the said committee.
12. It is alleged that the some persons held themselves out to be the members of the committee of the said society took steps to enter into the said agreement. It is further alleged that the society and/or its members had no knowledge of the aforesaid agreement. It is also alleged that one Samuel Sadka claimed himself to be a member of the said society, although he had no right to form a committee under the rules of the society. Therefore, the agreements which were entered into between the parties and signed on behalf of the said society by those persons, who had no locus standi to enter into the said agreements. It is also alleged that the said agreements are illegal, null and void and of no effect.
13. The allegation of the appellant/petitioner that in or about September, 2002 appellant/petitioner came to learn that Harry Morris, Mrs. A.M. Cohen, Samuel Sadka and Ian Zachariah and others purportedly on July 1, 2002 constituted a committee (hereinafter referred to as the July, 2002 Committee) of the said society and are interfering and dealing with the properties and affairs of the Institution and are intending to take possession of 1,400 sq. ft. of the area in the new building constructed in the said premises by Mithua Developments Private Ltd., the respondent No. 2 herein. It is submitted that the said committee had no authority to deal with the said trust property or the affairs of the said Institution. It is further submitted that the said purported committee has no legal and valid right to represent the said society.
14. On March 10, 2003 Benjamin H. Elias, one of the petitioners/appellants wrote a letter to the respondent No. 1, the Official Trustee of West Bengal and informed that the committee of the society was reconstituted and the following persons became the members of the said committee:
(i) Benjamin H. Elias (Acting Hony. Chairman, son and heir of Jacob Benjamin Elias-party of the First Part)
(ii) Julian N. Elias (son of Nissim Benjamin Elias-party of the Third Part)
(iii) Brian Aucland (Acting Hony. Secretary)
(iv) Michale Ezra,
(v) Dr. David M. Bamett,
(vi) Elisha Twena.
15. On March 19, 2003 the appellants/petitioners herein through their Advocate addressed a letter to Mrs. A.M. Cohen and informed that the society in terms of its rules and regulations had already formed a committee and the said reconstituted committee has right to deal with the property and no other person has any right to deal with the property of the said society. Thereafter, one of the petitioners came to learn that the said Mrs. A. M. Cohen alleging herself to be the Secretary of the Institution or society through S. Jalan & Co., the common solicitors for the alleged committee and the developer as alleged by them seeking direction to execute and register and to complete the lease in favour of the developer, the respondent No. 2 herein. The members of the said society thereafter on December 23, 2003 prayed for a leave from the Hon'ble Court for intervention in the proceeding and in terms of the order of the Hon'ble Court an application was filed to seek intervention on the proceeding as also to stay and dismissal of the said application filed by the alleged committee. Thereafter, at the request of the petitioners a copy of the application filed (being G.A. No. 4047 of 2003) on behalf of the said alleged committee was served on the appellant and the appellant came to learn from the said application that on March 15, 1980 a document alleged to have been executed on behalf of the society which was signed by Aaron Arakie and Samy Sadka and thereafter, the said agreement was modified on February 23, 1982 executed by Aaron Arakie allegedly as a Chairman of the said society and the orders were passed on the said application (being Matter No. 858 of 1981) by the Hon'ble Court on 19th June, 1981 and 21st December, 1981 and directions were given to the Official Trustee to act in terms of the said direction and to execute the aforesaid agreements.
16. Appellants stated that neither the said Aaron Arakie nor Samy Sadka or any one else had or have any right to represent the said society. In these circumstances, the said Prayer-house for Jewish community was demolished and new commercial structure was constructed at the cost of the committee. It is further submitted that under the said agreements the developer shall have the right of the entire building as a lessee thereof. The said orders were passed behind the back of the present appellants and further without giving any notice to the entire community, since the Prayer-house was and is for the charitable and religious purposes of. Jewish community of Calcutta.
17. On 4th March, 2005 the intervening application of the appellants was allowed by the Hon'ble First Court. His Lordship was pleased to stay the said proceedings being G.A. No. 4047 of 2003. The said intervening application, which was filed by the appellants, was directed to be treated as an affidavit-in-opposition to the application so filed by the said Cohen being G.A No. 4047 of 2003. The appellants also filed a supplementary affidavit in the said proceedings. On March 19, 2004 His Lordship was pleased to allow the following prayer of the respondents:
Prayer (a) 'The Official Trustee of West Bengal being the respondent No. 1 herein be directed to execute, register and complete the lease in favour of the respondent No. 2 according to the draft lease annexed hereto and marked with the letter "H".
18. Mr. Pratap Chatterjee, learned senior Advocate appearing in support of this application contended that in December, 2003 the appellants were informed by the Official Trustee that one Mr. Aaron Arakie and Mr. Samy Sadka claimed themselves to be the Chairman and Honorary Secretary of the said society through their Advocate M/s. S. Jalan & Co. applied before this Court for direction over the Official Trustee to execute and register a deed of lease in favour of the developer (respondent No. 2 herein). He further submitted that M/s. S. Jalan & Co. is the Advocate-on-Record of the said respondent No. 2.
19. Mr. Chatterjee contended that the applicant before the Hon'ble First Court had no locus standi to make the instant application as well as the application in the year 1981. It was further submitted that the terms and conditions of the proposed lease agreement were one-sided and to the detriment and prejudice of the Synagogue. He further contended that the application was not maintainable under Section 7 of the Charitable and Religious Trusts Act, 1920. Mr. Chatterjee also contended that the original area supposed to be handed over to the Managing Committee was about 1400 sq. ft. which had been reduced in the proposed lease to 1100 sq. ft. to the detriment of the Synagogue.
20. Mr. Chatterjee submits that the Hon'ble First Court did not have any jurisdiction to pass a judgement and/or order on the petition made under Sections 3, 4, 5 and 7 of the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the said Act). According to him, no petition under the provisions of the said Act is maintainable in view of the provisions of Section 9(b) of the said Act of 1920. The said Section 9(b) of the said Act off 1920 is reproduced hereunder:
Section 9(b). If the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General the Official Trustee, or any society registered under the Societies Registration Act, 1860.
21. He further submitted that the said property being the 'Trust Property" vested in the Official Trustee and it has been admitted by the petitioners before the Hon'ble First Court (appearing in paragraph-4 of their petition). It is also submitted that the Official Trustee should act as the custodian or bare Trustee for holding the Trust on behalf of the Institution. He also drew our attention to Clause 1 of the trust deed dated 14th September, 1989 (appearing at pages 20-28 of the Paper Book) which provided that the Official Trustee of West Bengal shall hold the said premises upon trust to permit the same to be used and enjoyed by or for any of the object of the said Institution.
22. The said Institution is a society registered under the Societies Registration Act, which is also admitted by the petitioners in Paragraph-6 of their petition. He also relied upon a decision (Sharda Devi v. State of Bihar and Anr.) particularly he drew our attention to paragraph 35 at page 146 of the said decision which is reproduced hereunder:
35...wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is universal principle that those terms should be complied with, in order to create and raise jurisdiction, and if they are not complied with the jurisdiction does not arise.
23. He further submitted that there can be no waiver or acquiescence when there is any absence of inherent jurisdiction, the said defect cannot be waived nor can be cured by acquiescence. He further submitted that the appeal could not have been made under the provisions of the said Act and the said order has been passed without jurisdiction by the Hon'ble First Court. Accordingly, provisions of Section 12 does not apply in the facts of the present case. He also relied upon a decision (Kiran Singh and Ors. v. Chaman Paswan and Ors.). In paragraph-6 of the said decision the Hon'ble Supreme Court held as follows:
6...It is a fundamental principle well-established that a decree passed by Court without jurisdiction is a nullity, and that it is involved could be set up and would have waiver. It is said to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of subject-matter of auction strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties....
24. He also relied upon a decision reported in 1999 (1) CLT 285 (Modi Korea Telecommunication Ltd. v. Appcon Consultants Pvt. Ltd.) and submitted that the Hon'ble Division Bench of this High Court has held that when question of jurisdiction of the Court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given, such decision is "a judgment" within the meaning of Clause 15 of the Letters Patent, 1865 and is appealable. He further drew our attention to the prayers made in the petition which was filed earlier under Sections 3, 4, 5 and 7 of the said Act of 1920 and was disposed of by an order dated June 19, 1981 and modified by the order dated December 21, 1981 and he drew our attention to the prayers made in the said petition.
25. He also drew our attention to the earlier petition (Matter No. 868 of 1981) and pointed out that in Paragraph-4 of the said petition it was admitted by the said petitioners that the Official Trustee was the custodian or bare trustee of the said premises. It was also admitted in Paragraph-6 (at page 4) of the earlier petition that the said Institution was registered as a society under the Societies Registration Act, 1860. He further submitted that the said application was also not maintainable in view of provisions of Section 9(b) of the said Act of 1920. Therefore, the said orders passed by the Hon'ble High Court were also without jurisdiction. He further submitted that the petition being G.A. No. 4047 of 2003 was made on or about November 2, 2003 in a disposed of matter No. 868 of 1991, and no order should have been passed on the said application. He also relied upon a decision (State of Uttar Pradesh v. Shri Brahim Datt Sharma and Anr.)
26. He further submitted that the cause of action in G.A. No. 4047 of 2003 is clearly a fresh cause of action. He further submitted that the order dated March 19, 2004 was obtained by the petitioners in the said application (being G.A. No. 4047 of 2003) by committing fraud upon this Court by suppression of material facts and documents and he relied upon decisions reported in 1994 (1) SCC 1 [S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs and Ors.], (Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Ors.) and (United India Insurance Co. Ltd. v. Rajendra Singh and Ors.)
27. He further submitted that the orders dated June 19, 1981 and December 21, 1981 were obtained by committing fraud upon this Court by suppression of material facts and the documents, that is the relevant rules and regulations of the said Institution and there is no period of limitation when a fraud is committed on the Court and he relied upon a decision reported in 71 CWN 649 (Prabodh Chandra Mukherjee v. Pasupati Mukherjee and Ors.). He further contended that the Hon'ble First Court could not have passed the said judgement and/or order dated March 19, 2004 even treating the said petition as a petition under Section 25 of the Official Trustees Act, 1930 without making of an order of public auction in accordance with the decision of the Hon'ble Supreme Court which is (Committee of Management of Pachaiyappa's Trust v. Official Trustee of Madras and Anr.). He further submitted that the Hon'ble First Court passed the order without considering the fact that the property belongs to the trust estate though the primary duty of the Court to safeguard the interest of the trust, which was being administered by the Official Trustee. Moreover, the Official Trustee of West Bengal did not take any step or acted in such a manner as to get the maximum advantage of proposed lease of the said premises of the said trust while the property was in the custody of the Official Trustee of West Bengal.
28. He further drew our attention to the terms of the deed of lease which was allowed by the order under appeal and submitted that these are different from the original agreement dated March 15, 1980 and the subsequent modification thereof dated February 23, 1982. He particularly drew our attention to Clauses 5 and 6 of the said deed and submitted that those clauses are not just and/or reasonable and the said trust has not got the maximum advantage of the said transaction (lease) in respect of the said premises. The purpose of the lease amounts to fraud and which prejudicially affected the trust. He also drew our attention to the agreement dated 15th March, 1980 and submitted that it would be evident from the said agreement that the agreement was prepared at the instance of the developer to grant advantage to the developer, He further submitted that it would emerge from the agreement that:
(a) Developer shall be entitled to the debris of the entire construction, the plan will be sanctioned by the developer to the extent of maximum area possible to be constructed on the premises;
(b) Plans also to be sanctioned within one year and building should be constructed and completed and furthermore under the said agreement the total consideration including costs payable by the committee/society shall be Rs. 130/- per sq. ft. of the total covered area in the said premises and the amount so to be invested and/or spent by the developer from its own source, shall be deemed to be a loan to the committee repayable at the rate of 16% per annum and the interest shall be deducted from the rent payable by the developer and 60% of the balance of rent shall be adjusted against the principal amount.
(c) The developer has become a monthly tenant on and from 1st March, 1980 and will remain a monthly tenant in respect of the entire property at a rent of Rs. 100/- only per month with tight to sublet and/or assign the constructed portion.
(d) An area of about 1400 sq. ft. in the building so to be constructed shall be sublet by the developer to the committee at a monthly rent of Rs. 3/- per sq. ft. per month.
(e) After the new construction, a lease will be executed in favour of the developer for a period of 21 years with an option for renewal and it has been stated that-
(i) Area to be sublet to owner will be reduced if covered area would be less than 12,000 sq. ft. and tenantable area os less than 11,000 sq. ft.
(ii) Owner also liable to pay taxes and maintenance charges.
29. He further submitted that the annual return which was produced by the respondent No. 2 on the direction of this Hon'ble Court would show that 95% shares of the said developer, respondent No. 2, are held by Sri Shyamanand Jalan either in his own name or as Karta of HUF or as President of different trusts or through his family members and it is significant to note that the said Jalan acted as the Advocate-on-Record of the respondent herein (petitioner) before the Hon'ble First Court when he was controlling and having 95% shares of the said respondent No. 2. He submitted that this fact clearly shows that there was a fiduciary relationship of the Advocate for the petitioners before the Hon'ble First Court and the developer in whose favour the lease was granted. He submitted that the order under appeal should be set aside on this ground alone. According to him, the Court should presume irrebuttably that undue influence was exercised by the learned Advocate and in support of his submission he relied upon a decision reported in 2001 (4) AER 449 (Royal Bank of Scotland v. Etridge (No. 2).
30. He further submitted that the Official Trustee, respondent No. 1 herein could not inform this Court as to whether there was any advertisement for public auction for the proposed lease either in the year 1981 or in the year 2003 or before. He further contended that on behalf of the developer, the respondent No. 2 herein, no appeal lies from the order under appeal in view of the provisions of Section 12 of the said Act of 1920. It was also pointed out that no appeal lies from an order passed under Section 6 of the Specific Relief Act, 1963. He further submitted that an appeal under Clause 15 of the Letters Patent is maintainable against an order passed by the Hon'ble Single Bench of the Chartered High Court under Section 6 of the Specific Relief Act, 1963 and he relied upon a decision reported in AIR 1998 SC 424 (Vanita M. Khanolkar v. Pragma M. Pal and Ors.)
31. Mr. Debal Banerjee, learned senior Advocate appearing on behalf of the respondent No. 2 contended that the respondent No. 2's case rests on the well-settled principle of law that none should suffer for an act of the Court. Respondent No. 2 had not approached the Court. On the other hand, respondent No. 2 had acted in terms of the orders passed by the Court. Therefore, respondent No. 2 cannot be penalized. The respondent No. 2 caused to be evicted all the numerous occupants/tenants of the said premises. Respondent No. 2 obtained renewals of the Building Plan which was sanctioned on 8"' August, 1982. From time to time, progress of the building was delayed due to the refusal of the tenants/occupants to vacate the said premises and 20 years have passed in the meantime to complete the project and to get the completion certificate form the Corporation on 5th September, 2002. Appellants filed the application for the first time after the project was completed and after incurring enormous expenditure by the respondent No. 2. The order was passed by the Hon'ble First Court on 19th March, 2004 and the appeal was preferred by the appellant on 20th January, 2005. The Official Trustee in accordance with the order so passed by the Hon'ble First Court executed and caused to be registered the deed of lease in favour of the respondent No. 2 and it is further submitted that there is no vacant space in respect of the said premises. A stay petition was served on the respondents on 17"' February, 2005.
32. It is also submitted on behalf of the respondent No. 2 that on similar facts the Official Trustee has executed and registered a lease deed in favour of a third party and altered its possessions to its detriment. The Hon'ble First Court declared the order of 1984 without jurisdiction and the Hon'ble Division Bench reversed such order primarily on the ground that the challenge to the order is barred by limitation. The Hon'ble Division Bench found that even if the order of 1984 is without jurisdiction, it cannot be interfered with after the time period for challenging the same is expired and he relied upon a decision reported in 2000 (2) CLT 1 (Stephen Court Ltd. v. Official Trustees of West Bengal). No allegations have been made against the respondent No. 2. He further contended that the decisions cited on behalf of the appellant have no application in the facts and circumstances of this case.
33. On behalf of the respondent No. 3, it is submitted that the appellants have not produced any acceptable proof before this Court to establish that they are the office bearers/committee members of the said society. It is submitted that the appellants will have to proceed only by way of an intervention application in a proceeding to which they were not parties.
34. It is submitted on behalf of the respondent No. 3 that the objection with regard to alleged lack of jurisdiction of the Trial Court to pass the said order has not been either in the affidavit-in-opposition filed before the Trial Court or made even at the time of oral submissions made before the Trial Court. It is significant that in the memorandum of appeal also no grounds have been taken that the Trial Court lacked jurisdiction to pass the impugned orders in view of Section 9(b) of the said Act. In the instant case, appellants have allowed more than 25 years to go-by before raising this issue. Appellants had at all material times undertaken and completed the said property. They ought not to be granted the relief in the instant proceedings and the learned Counsel relied on the Administrative Law by Prof. Wade and Forsyth: 9th Edn. Pp. 300-303, and the decisions (State of Punjab and Ors. v. Gurdev Singh), (State of Rajasthan and Ors. v. D. R. Laxmi and Ors.) and [Rafique Bibi (Dead) by. LRs v. Sayed Waliddin (Dead) by Lrs. and Ors.].
35. He further submitted that if the appellants has filed a suit with regard to the said orders dated 19th June, 1981 and 21st December, 1981, it would have been barred by limitation. Learned Counsel also drew our attention to the correspondence exchanged between the parties in particular letters dated 27th September, 2002 (appearing at page 108 of the Paper Book). 24th October, 2002 (appearing at pages 106-110 of the Paper Book), 4th December, 2002 (appearing at pages 105-107 of the Paper Book) and 11th/12th December, 2002 (appearing at pages 109-111 of the Paper Book) and he submitted that the appellants came to know of the order in 2003 is totally false in view of the said letters and it is submitted that the appellants made false statement to mislead this Court.
36. It is submitted that the question of fraud cannot be decided on an intervention application and it requires adjudication by way of a civil suit. Appellants cannot file a civil suit at this stage since it will be barred by limitation which would be evident from the correspondence exchanged between the parties and that is the reason the appellant took step by filing such intervention application.
37. He further submitted that no case of fraud can be made out in the absence of full particulars, which include the time of occurrence of the alleged fraud, the particulars of the participants in the fraud, full details of the incidents by which the fraud was brought about. In the absence of such particulars, general allegations of fraud are insufficient to an averment of fraud of which any Court ought to take any notice, however, strong the language in which they are couched may be.
38. He further submitted that the decision of the Hon'ble Supreme Court reported in AIR 1954 SC 340 (supra) does not support the case of the petitioner. The decision reported in 2003 (3) SCC 128 (supra) as well as the decision reported in 1994 (1) SCC 475 (supra) cannot be applied in the facts and circumstances of this case.
39. After hearing the learned senior Advocates for the parties it appears to us that the appellant/petitioner did not file any proceedings for a declaration that the members of society who held themselves out to be the members of the said committee and represented the society at the time of entering into the agreement between the developer and the said society had no authority to deal with the said property. It further appears that at no point of time the petitioner ever objected to the actions taken on the part of the developer on the basis of such agreement and allowed the developer to change the nature of the property in question after incurring huge expenses for construction of the building and also to remove the occupiers of the said premises and those steps were taken by the developer since March 15, 1980 (being the date of the original agreement) and the subsequent modification made on February 23, 1982. All-through, it appears that the appellant/petitioner did not raise any objection whatsoever. It is also admitted that the plan was sanctioned on 8th August, 1982, but progress of the construction of the building was delayed due to the refusal of the tenants/occupiers to vacate the said premises and more than 20 years have passed in the meantime to complete the project and to get the completion certificate from the Kolkata Municipal Corporation. It further appears that the appellants filed the application for the first time after the project was completed. It also cannot be brushed aside fact that the order was passed by the Hon'ble First Court on 19th March, 2004 and the appeal was preferred by the appellant on 20th January, 2005. It is also to be taken into account that pursuant to the order so passed by the Hon'ble Court the Official Trustee has already executed and registered the deed of lease in favour of the respondent No. 2 as a lessee and by efflux of time there is no vacant space available at the moment in the said premises. It is also not in dispute that the appellants had knowledge of these facts and they did not take steps in the matter until the project is completed. It would also be evident from the correspondences exchanged between the parties that the appellants had knowledge of those facts and the allegations made by the appellants that they came to know of the orders passed by the Hon'ble Court in 2003, cannot be accepted in view of the letters addressed by them in the year 2002.
40. It is also a fact that the appellants did not file a suit in the matter since under the provisions of law the suit will be barred by limitation which would be evident from the correspondences exchanged between the parties. The reason for filing of this application by the appellants only to get a benefit without filing such suit before the appropriate forum.
41. Mr. Chatterjee, learned senior Advocate appearing on behalf of the appellants raised the following points:
(a) Some persons who claimed themselves to the members of the committee and represented the committee did not have any locus standi either to represent the society or to enter into the said agreement. Accordingly, he submitted that the agreements which were entered into are illegal, null and void and of no effect. In our opinion, in an intervening application the Court cannot decide the same. Such declaration has to be made by the Court in a proper jurisdiction and by way of a suit and not otherwise.
(b) Mr. Chatterjee further contended that his client had no knowledge of the said fact, but as we have already discussed the matter, correspondences were exchanged between the parties and in fact, steps were taken by the developer for the last 20 years to complete the project and during the said period no step was taken by the appellants. Therefore, at this stage it cannot be said that the appellant had no knowledge of the said fact because in our opinion, the construction could not have been completed within a day or two and particularly in this matter construction was completed and the completion certificate was issued by the Corporation after almost 20 years and the developer spent huge amounts to settle the claim of the tenants/occupiers who were in possession of the said property.
(c) He also submitted that the clauses of the agreement were one-sided and that were made at the instance of the learned Advocate-on-Record who acted on behalf of the respondent/petitioner before the Hon'ble First Court. But in our opinion, such allegation is too late in a day and at this stage.
(d) Further point which has been urged by Mr. Chatterjee that the orders were obtained by committing fraud upon the Court by suppressing material facts on the documents. But in our opinion, we do not find any grounds to uphold such contention of Mr. Chatterjee. The particulars of fraud as tried to be made out before us on the ground of suppression of material facts, in our opinion, cannot have any bearing on the given facts.
(e) Mr. Chatterjee tried to point out that the Court did not have any jurisdiction to pass an order under Sections 3, 4, 5 and 7 of the Charitable and Religious Trusts Act, 1920 since under Section 9(b) of the said Act of 1920 no petition is maintainable under the said Act. But it appears to us that the orders were passed by the Court on 19th June, 1981 and 21st December, 1981. The terms were duly approved by the Court. After such approval parties altered their position and acted in accordance with the said order. The appellants did not take any steps in respect thereof.
42. In our opinion, appellants have failed to establish their rights that they are legally appointed office bearers of the said society. They did not take any steps to prove the said fact before the Court at any point of time. It is true that the Official Trustee placed the fact before the Court and thereafter, the Court after being satisfied passed the said orders on 19th June, 1981 and 21st December, 1981. Until the said orders are satisfied, in our opinion, Official Trustee is bound by the said order. Furthermore, after lapse of such period of time, i.e. more than 20 years and without taking steps in the matter at this stage, in our opinion, it is too late for the appellant to raise such point that too in this proceedings.
43. On the contrary, we have to rely upon the decision of this Hon'ble High Court reported in 2000 (2) CLT 1 (Stephen Court Limited v. Official Trustees of West Bengal) where the Hon'ble Division Bench has relied upon the decision of the Hon'ble Supreme Court in State of Punjab v. Gurdev Singh , where the Hon'ble Apex Court in no uncertain terms held that in such case the bar of limitation would apply. It would be proper for us to quote from the said decision which is as follows:
For the purposes of the present cases, it may be assumed that the order of dismissal was void, inoperative and ultra vires and, not voidable. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. Therefore, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If a statutory time limit expires the Court cannot give the declaration sought for.
44. We have also considered the decision (Ram Niwas Todi and Anr. v. Bibi Jabrunnissa and Ors.) where the Hon'ble Supreme Court relied upon the following passage of the Administrative Law by H.W.R Wade (7th Edn.) which may be reproduced hereunder:
The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time-limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result.
And the Hon'ble Supreme Court after following the Administrative Law by H.W.R wade (7th Edn.) held as follows:
Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the Appellate Court has also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6
45. In Rafique Bibi (Dead) by Lrs. v. Sayed Walluddin (Dead) by Lrs. and Ors. , the Hon'ble Supreme Court held as follows:
Two things must be clearly borne in mind. Firstly, the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be "a nullity" and "void" but these terms have no absolute sense; their meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. If this principle of illegal relativiey is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. Secondly, there is a distinction between mere administrative orders and the decrees of Courts, especially a Superior Court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for Contempt of Court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.
46. Accordingly, after analyzing all these decisions cited before us and on the given facts, we do not have any hesitation to hold that since the appellants did not apply in a proper jurisdiction and within the period of limitation, it would not be proper for us to interfere with the order so passed by the Hon'ble First Court. Accordingly, the appeal is dismissed.
Tapan Kumar Dutt, J.
47. I agree.