Calcutta High Court (Appellete Side)
Agrasain Seva Samity vs Sri Basudeo Tikmany on 31 July, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 1102 of 2019
With
C.A.N. No. 3828 of 2019
Agrasain Seva Samity
Vs.
Sri Basudeo Tikmany
For the petitioner : Mr. Aniruddha Chatterjee,
Mr. Tanmoy Mukherjee,
Mr. Kushal Chatterjee,
Mr. Amal Kumar Saha
For the opposite party : Mr. Saktinath Mukherjee,
Mr. Saptangshu Basu,
Ms. Kabita Mukherjee,
Mr. Manas Dasgupta,
Mr. Ajit Pandey,
Ms. Madhubanti Chakraborty
Hearing concluded on : 22.07.2019
Judgment on : 31.07.2019
Sabyasachi Bhattacharyya, J.:‐
1.The present application under Article 227 of the Constitution of India is directed against an order whereby the appellate court reversed an order of refusal of temporary injunction and held that the plaintiff/opposite party is entitled to continue as member of the petitioner‐Society, being the Agrasain 2 Seva Samity, until cessation of his trusteeship as per the Rules of the said Samity. It was further observed that the defendant/petitioner is always at liberty to follow the prescribed procedure as per the Regulations. It was held that the plaintiff, under those circumstances, would be entitled to raise this plea and the decision is to be taken by the defendant as per the Regulations. It was further observed that in case the decision is passed against the plaintiff after due process is followed, it is always open to the defendant(s) to file an application for vacating the interim order, in view of change of circumstances, under Order XXXIX Rule 4 of the Code of Civil Procedure and the plaintiff would be entitled to contest the same on merits under those circumstances.
2. The dispute from which the instant matter arises relates to the alleged expulsion of the plaintiff/opposite party from membership and trusteeship of the petitioner‐Society.
3. The reliefs claimed in the suit are as follows:
"a. For a decree for declaration that the plaintiff is the permanent member and thrustee of Agrasain Seva Samity as fully described in Schedule "A"; b. For further decree for declaration that the resolution taken by the defendant in meeting held on 15.10.2017, 29.10.2017, 19.11.2017 and 06.01.2018 relating to plaintiff's membership in Agrasain Seva samity as described in schedule "B" is void, illegal and inoperative;3
c. For further declaration that resolution dated 19.11.2017 taken by the defendant against the plaintiff to expel him from the membership of Agrasain Seva Samity is void, illegal, arbitrary, inoperative, and not binding upon the plaintiff; d. For further declaration that the meeting of Agrasain Seva Samity held on 19.11.2017, and also the meeting held on 6.1.2018 and the resolution taken therein and the notice dated 16.1.2018 to call for extra ordinary general meeting on 11.02.2018 is void, illegal, inoperative, and not binding upon the plaintiff; e. For a further decree for permanent injunction against the defendant its representatives, men, agents, interalia from giving any effect to the notice dated 16.01.2018 from holding any Extra Ordinary General Meeting, scheduled to be held on 11.2.2018 for giving effect to the purported resolution passed on 19.11.2017 by the defendant or preventing the plaintiff in acting/functioning as members/trustee of Agrasain Seva Samity;
f. For temporary injunction in terms of prayer (d) above; g. For Leave under Order 2 rule 2 of the code of civil procedure;
h. For costs; i. For any other relief or reliefs to which the plaintiff is entitled to in law and equity."
4. In the said suit, the plaintiff/opposite party took out an injunction application under Order XXXIX Rules 1 and 2, read with Section 151, of the Code of Civil Procedure, praying for injunction restraining the defendant/petitioner and its representatives, men and agents from giving any effect to the notice dated January 16, 2018, from holding any Extraordinary General Meeting scheduled 4 to be held on February 11, 2018, for giving effect to the purported resolution passed on November 19, 2017 by the defendant and/or preventing the plaintiff in acting/functioning as member/trustee of the petitioner‐Samity.
5. The court of first instance, vide Order No. 2, dated February 9, 2018 dismissed the said injunction application on contest. It was observed by the trial court that the suit appears to be "immatured" to some extent and unless the plaintiff is expelled from the Samity, there is no scope of injunction, whether such expulsion was legal or illegal. The trial court further held that temporary relief cannot be given since it equates with the final permanent reliefs sought for in the suit.
6. By way of observation, the trial court also found that if the plaintiff is disrobed of his membership, he will not be able to do social work which he intended to and that it was not understandable how the plaintiff would suffer from irreparable loss and injury if he was temporarily deprived from doing social work.
7. Being aggrieved, the plaintiff/opposite party preferred Miscellaneous Appeal No. 61 of 2018, which was ultimately allowed on contest by an order dated December 24, 2018, which is the order impugned herein.
8. While reversing the order of the trial court, the appellate court disagreed with the trial court's proposition that the suit was premature. It was further observed that the plaintiff is not only a member but a trustee of the petitioner‐ Society. By placing reliance on Rule 13(ii) and (iii), the appellate court held 5 that a trustee shall hold office until he resigns or retires and/or dies and that each of the trustees shall become member of the Society unless he ceases to be a trustee on expiry of the stipulated three months.
9. It was found by the appellate court that there are two separate provisions dealing with the two classes of persons forming the Society, being members and trustees. It was held that the plaintiff was not only a member but also a trustee, governed by Rule 16 and not Rule 18 of the Rules and Regulations of the Society. Once a life member was elevated to the class of trustee, he was controlled by Rule 16 which, according the appellate court, the trial court failed to appreciate. It was held that when the suit was filed, the expulsion process had already began and so there was a strong prima facie case to go for trial.
10. The appellate court further held that the principle of Audi Alteram Partem was not followed in the present case.
11. Although the appellate court noted that the Council may at any time remove a member and such power is unfettered, such process was not adopted in the present case, since no opportunity of hearing was afforded to the plaintiff/opposite party. On such consideration, the appellate court held that the plaintiff was entitled to continue as member of the Society, unless cessation of his trusteeship happens as per the Rules of the Agrasain Seva Samity.6
12. Learned counsel for the petitioner submits at the outset that the principle of Audi Alteram Partem is not attracted to the present case at all. Contrary to the allegations made in paragraph no. 30 of the plaint, it is seen from the minutes of the meeting of the Society dated November 19, 2017 that the said meeting was held in presence of the plaintiff/opposite party, who was a signatory to the attendance sheet accompanying the minutes. In such meeting, the process of expelling the opposite party was initiated and it was recorded that the decision to expel the opposite party from the primary membership of the Society had already been taken.
13. Even thereafter, the opposite party attended the meeting dated January 6, 2018 which would be evident from the attendance sheet and minutes of the said meeting. It was unanimously decided in the said meeting to call an Extraordinary General Meeting on February 11, 2018 for getting the necessary approval of the members to expel the opposite party from the primary membership of the petitioner‐Society and its trust as per the Rules and Regulations of the Samity.
14. However, despite being aware that an Extraordinary General Meeting had been called on February 11, 2018, the opposite party deliberately abstained from attending the same. Pursuant to the decision taken on November 19, 2017, to expel the opposite party from the primary membership of the Society, thereby implying his removal also from the position of trusteeship as per Rules of the Society, which was taken in presence of the opposite party, the 7 Extraordinary General Meeting dated February 11, 2018 expressed their approval to such decision.
15. The notice dated February 11, 2018 was merely a consequence of the preceding meeting and communicated to the opposite party his expulsion from primary membership as well as trusteeship of the petitioner‐Society.
16. As such, it is submitted by the petitioner that the opposite party was all along aware of the steps for expulsion taken against him and also attended relevant meetings in that regard, thereby negating any apprehension of violation of the principle of Audi Alteram Partem.
17. Learned counsel for the petitioner next submits that the theory 'permanent trusteeship', floated by the opposite party, was a myth. Although such an allegation was made in paragraph no. 35 of the opposite party's plaint, in the very next paragraph, that is paragraph 36, Rule 16 of the Rules and Regulations of the Society was quoted. Sub‐rule (i) of Rule 16 specifically provides that at trustee shall cease to be a trustee if he ceases to be a member of the Society. Hence, no notion of permanence could be attached to trusteeship and the said office was subject to cessation by revocation of the membership, as done in the presence case.
18. It is argued that Rule 13(ii) of the said Rules and Regulations, providing that a trustee shall hold office until he resigns, retires and/or dies, is subject to Rule 16(i) which subjects trusteeship and makes it terminable on cessation of membership.8
19. It is further submitted by the petitioner that the plaintiff/opposite party occasioned inordinate delay in instituting the suit. Although the notice dated January 16, 2018 was challenged in the suit, the suit was filed several weeks thereafter, only on February 8, 2018, thereby defeating the plea of urgency, which is a sine qua non for grant of injunction.
20. Learned counsel for the petitioner submits further that, while deciding a miscellaneous appeal from an interlocutory refusal of injunction, the appellate court granted the relief prayed in the suit itself and held that the opposite party is entitled to continue as a trustee, which tantamounts to deciding the suit itself, without hearing the parties and granting them opportunity to adduce evidence in connection with the suit.
21. Learned counsel for the petitioner next submits that the reliefs in the suit contemplated only a challenge up to the notice dated January 16, 2018 but did not throw any challenge to the subsequent approval to the decision to expel the opposite party, taken in the Extraordinary General Meeting dated February 11, 2018. It is argued that, only upon such approval being granted, the expulsion of the opposite party attained finality. In the absence of any challenge to such approval or the connected meeting, even by way of an amendment application to the plaint, the relief granted by the appellate court was without jurisdiction.
22. While moving a connected application under Order XLI Rule 27 of the Code of Civil Procedure, bearing C.A.N. No. 3828 of 2019, the petitioner submits 9 that the same only brings forward photocopies of the minutes of the relevant meetings and no new document is brought on record. The said application, it is submitted, has been filed only to facilitate a complete adjudication of the revision.
23. Learned counsel for the petitioner cites a judgment reported at (2002) 2 SCC 256 [Om Prakash Gupta vs. Ranbir B. Goyal] for the proposition that no relief can be granted on subsequent events without any amendment to the pleadings to that effect. Such a relief would be beyond the scope of the suit. As such, the appellate court acted without jurisdiction in granting reliefs beyond the suit in invalidating the ratification of the decision to expel the opposite party, taken in the Extraordinary General Meeting dated February 11, 2018.
24. Learned senior counsel appearing for the opposite party commences his argument by submitting that no amendment was required to the plaint for the appellate court to injunct the petitioner from implementing the decision taken in the Extraordinary General Meeting dated February 11, 2018. It is pointed out that, by way of relief 'e' in the plaint, the plaintiff/opposite party sought for permanent injunction from giving effect to the notice dated January 16, 2018 from holding any Extraordinary General Meeting, which was then scheduled to be held on February 11, 2018, for giving effect to the resolution dated November 19, 2017.10
25. Since the meeting dated February 11, 2018 was only a consequence and a fallout of the notice dated January 16, 2018 and the resolution dated November 19, 2017, both of which were challenged in the suit, it could not be said that the appellate court acted without jurisdiction in injuncting the operation of the meeting dated February 11, 2018.
26. It is submitted on behalf of the opposite party that the process of expulsion had started much before and only culminated on February 11, 2018. The 'approval' given in the said meeting only put a formal seal to the decision of expulsion, already taken previously.
27. Learned senior counsel cites a decision reported at (2003) 5 SCC 83 [Vijayadevi Navalkishore Bhartia and Ors. vs. Land Acquisition Officer and Ors.], for the proposition that an 'approval' does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting.
28. Learned senior counsel then cites a judgment reported at AIR 1963 SC 1144 [T.P. Daver vs. Lodge Victoria No. 363, S.C. Belgaum and others], wherein it was laid down that since the rule of expulsion had a contractual origin, the conditions laid down in the rules must be strictly complied with.
29. Learned senior counsel next cites a judgment reported at AIR 1999 Bom 133 [Kailash Nath Harsh vs. D.C. Patel and Ors.]. It was held therein that one cannot act as a Judge in his own cause, which would be against the basic tenets of justice. The principles of natural justice ensure that decisions are arrived at fairly and the delinquent facing the departmental proceedings is not treated 11 unfairly. A person acting as a Judge in his own cause is shocking to the notions of judicial propriety and fair play. The aim of rules of natural justice is to secure justice. These rules, it was held, supplement the law and do not supplant the law of the land. The court has to consider whether the plaintiffs had been deprived of any of their property rights in the club by virtue of their membership, by the mere suspension of the membership.
30. It is submitted further that although the opposite party was present in the meeting dated November 19, 2017, no copy of the minutes were handed over to the opposite party.
31. Pointing out to the minutes of the meeting dated January 6, 2018, it is submitted that it was only decided therein to call an Extraordinary General Meeting for getting the necessary approval to expel the opposite party. Although the process of such expulsion had been initiated, the final ratification to such expulsion had not been given at that juncture.
32. Learned senior counsel places reliance upon the minutes of a meeting dated October 29, 2017, wherein the charges against the opposite party, which apparently formed the basis of his expulsion, were first levelled. Learned senior counsel points out that none of the said charges were specific but were extremely blanket and general in nature, leaving no scope to controvert those except in vague terms.
33. Moreover, it was recorded in the said minutes that the opposite party was requested by the chair to note down the charges if he so wished and to treat 12 the discussion as final communication in answer to his previous letter dated October 28, 2017. Such an opportunity, to summarily take down the charges in the midst of the meeting, was not an opportunity of hearing at all, nor was a genuine scope of having a copy of the charges provided to the opposite party. Instead of providing a copy of the minutes, the opposite party was directed to take down the charges in such meeting, which was not a feasible option but only a pretension of adherence to norms.
34. From the same minutes, it is seen that the matter was still at a stage of discussion, despite such 'charges' having been levelled against the opposite party. Under pressure, the opposite party had agreed to send his resignation letter, as recorded in the minutes, but the General Secretary was to withdraw all allegations and cases being run in the court against the opposite party. Even after such recording, the minutes of the said meeting expressed hope that in view of the discussions held on that date and commitments made by the opposite party and other members, there could be a possible resolution of the continuing deadlock in the next few days and that the Samity could look forward to all members of the Samity once again coming to work for the betterment of the Society.
35. Hence, even after levelling the vague charges, talks of resolution were going on and the subsequent decision to expel the opposite party was a bolt from the blue.13
36. That apart, it is argued on behalf of the opposite party that the trial court acted without jurisdiction in holding that the suit was premature, since the same had been filed before the decision of expulsion of the opposite party was actually implemented. In this regard, learned senior counsel cites a judgment reported at (2000) 4 SCC 50 [Kuldip Singh vs. Subhash Chander Jain and others], for the proposition that it was legitimate for the plaintiff to initiate a quia timet action, which could appear to be premature on the date of initiation. However, such an action was maintainable in case of a sufficient threat of an existing nuisance. The magnitude of a nuisance to take place in the immediate future, it is argued, would suffice to grant an injunction in apprehension, which is the ambit of prohibitory injunction.
37. In the present case, despite the plaintiff/opposite party having written a letter dated October 28, 2017 specifically asking for the specific charges against him, no satisfactory reply to the same was given, thereby strengthening the apprehension of expulsion.
38. As regards the cessation of trusteeship, learned senior counsel seeks to distinguish a mere member of the Society from a permanent trustee thereof. In this particular case, the opposite party was a founder‐member of the Society and a permanent trustee, governed by Rule 13(ii) of the Rules and Regulations of the petitioner‐Society, which provides that a trustee shall hold office until he resigns or retires and/or dies. It is argued that the subsequent provision in Rule 16(i), that a trustee ceases to be so if he ceases to be a 14 member of the Society, was subservient to Rule 13 and could only operate within the limited scope of Rule 13. Learned senior counsel argues that the cessation of membership would only take away trusteeship in the event the qualifications stipulated in Rule 13(ii) were attracted, that is, the trustee sought to resign or retire and/or died. Unless those qualifications applied, Rule 16(i) would not operate against a trustee but was applicable only to ordinary members of the Society.
39. Taking up the question as to whether the reliefs sought by the opposite party was premature, it is seen that the 'approval' as granted in the meeting dated February 11, 2018 was in terms of Rule 18 (ix) of the Rules and Regulations of the petitioner‐Society. The said Rule provides that if any member does any unlawful activity against the interest and objects of the Society, the Executive Committee can take disciplinary action against him and can discharge him from the post he holds or from membership. In both cases, there must be, however, approval on the action in the next General Meeting.
40. Although such approval is a sine qua non for the disciplinary action to attain finality, the actual expulsion takes place when a resolution as to the same is taken in a Committee meeting. In the present case, despite the initial meeting dated October 29, 2017 ending with a scope of reconciliation, the "hope" of resolution of the continuing deadlock, which was expressed in the minutes of the said meeting, was subject to the opposite party agreeing to send his resignation letter and extend his support to the newly elected committee. The 15 condition of withdrawal of allegations against the opposite party only strengthens the impression that the opposite party had agreed to resign in the said meeting. Although the opposite party denies having received any copy of such resolution, it is reflected in the said minutes that the opposite party was given an opportunity to take down the charges levelled against him, without any prima facie proof that he was restrained from doing so.
41. That apart, in the subsequent meetings dated November 19, 2017 and January 6, 2018, the opposite party was very much present. In the said meetings, the tone of reconciliation, subject to the opposite party tendering his resignation, was changed and the committee went one step further in unanimously deciding to call an Extraordinary General Meeting on February 11, 2018, merely for getting the necessary approval of the members to expel the opposite party from primary membership and the trust of the Society. The decision to remove the opposite party had already been taken in the said meetings. The subsequent resolution of February 11, 2018 was a mere ratification of such decision.
42. As such, the same logic which makes the suit maintainable by negating the assumption that it is premature, also lends credence to the fact that the actual expulsion of the opposite party took place within his knowledge and in his presence in the meetings dated November 11, 2017 and January 6, 2018. The subsequent ratification on February 11, 2018 was a mere terminus to the process of expulsion, lending validity and a seal of finality to such expulsion. 16 However, the resolution of February 11, 2018 was not the expulsion itself but only a subsequent seal to such expulsion, which already took place previously and was notified to the opposite party on January 6, 2018 itself.
43. As such, the alleged violation of the principle of Audi Alteram Partem does not hold ground.
44. As far as the permanence of trusteeship is concerned, Rule 13(i) of the aforesaid Rules and Regulations provides that the Board of Trustees shall be nominated or elected only out of the life members. Sub‐rule (ii) of Rule 13 provides that a trustee shall hold office until he resigns or retires and/or dies. The purpose of appointing such a Board, as elucidated in Rule 13 (i), is for the proper protection, safety and security of the properties of the Society.
45. Rule 15 of the same Rules and Regulations, which was not placed by either of the parties, provides for 'vesting' of properties from the retiring or ceasing trustees to newly elected co‐opted trustees without any deed, conveyance, assignment or transfer being executed.
46. The said provisions do not lend any permanence to the office of trustee, rather provide for a cessation of trusteeship upon certain eventualities and the seamless transfer of properties from the retiring or 'ceasing' trustees to newly co‐opted trustees.
47. Although trustees are to be selected from only among 'life members', no permanence has been separately attributed to trustees within the framework of the Rules.17
48. A class of members has been categorized as 'life members' in Rule 3, merely on the basis of contribution of Rs. 21,000 at a time for eligibility of life membership. In Rule 4, it is provided that a member shall cease to be a member in the event of death, resignation and six months' lunacy. Rule 18 (ix) provides that if any member does any unlawful activity against the interest and object of the Society, the Executive Committee can take disciplinary action against him and can discharge him from his post or membership, subject to approval in the next General Meeting.
49. Nowhere within the four corners of the Rules and Regulations has any special provision or semblance of permanence been provided for life members or trustees. On the contrary, all provisions as to cessation of membership apply to 'members', irrespective of whether such members are life members or otherwise.
50. Reverting back to Rule 3, it is provided therein that there shall be only one class of members, that is, life members, upon payment of Rs. 21,000/‐. Such provision qualifies Rule 2, which says that persons from Marwari (Agrawal) Community residing in any part of the country will be enrolled as members if they accept and agree with the objects of the Society.
51. Rule 1 (iii) defines "members" as members of the petitioner‐Society, namely Marwari (Agarwal) community, descendants of Maharaja Agrasain.
52. As such, the mere fact of the trustee being a 'life member' does not confer any special privilege, as far as cessation of membership is concerned. 18
53. On the contrary, Rule 16 (i) provides that a trustee shall cease to be one if he ceases to be a member of the Society. Hence, a composite reading of the Rules and Regulations indicates unerringly that removal from membership will terminate the trusteeship of a member of the Society and not the other way round.
54. In the present circumstances, since on the face of the records the membership of the opposite party was terminated by a decision taken in meetings where the opposite party was present, an automatic corollary is that the trusteeship of the opposite party also ceased by such action.
55. As such, the appellate court acted without jurisdiction in holding that the plaintiff/opposite party has a prima facie case to go for trial on that aspect of the matter.
56. Whether the 'approval' as contemplated in Rule 18 (ix) amounted to a mere ratification or lend finality to the decision of expulsion, the expulsion process was a continuum, culminating in such approval. As such, although the suit was not premature, the opposite party could not get the shelter of the principle of Audi Alteram Partem, since the opposite party was present in the initial meetings where the decision of expulsion was taken.
57. The appellate court, while passing the impugned order, granted a relief to the opposite party which not only amounted to decreeing the suit at a premature stage but was also beyond the prayer for injunction. Holding that the plaintiff/opposite party is entitled to continuous membership unless cessation 19 of his trusteeship as per the Rules of the petitioner‐Society takes place, and making arrangement for future course of action, was entirely beyond the charter of the appellate court while sitting in judgment over the refusal of injunction.
58. On a larger issue, the appellate court ought to have been circumspect in granting injunction in respect of functioning of a private Society, which would amount to interfering with the internal affairs of the Society. Such an interference, although not barred, has to be on a stronger footing than the case made out by the plaintiff/opposite party.
59. As such, considering the materials on record and the cited judgments, the appellate court acted without jurisdiction in passing the impugned order.
60. Accordingly, C.O. No. 1102 of 2019 is allowed on contest, thereby setting aside the order dated December 24, 2018 passed by the Civil Judge (Senior Division), First Court at Howrah, in Miscellaneous Appeal No. 61 of 2018 and reviving the order dated February 9, 2018, by which the injunction application filed by the plaintiff/opposite party was dismissed.
61. C.A.N. No. 3828 of 2019 is consequentially disposed of.
62. There will be no order as to costs.
63. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. 20 ( Sabyasachi Bhattacharyya, J. )