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Judgment
Arindam Sinha, J
The Court : GA 1517 of 2019 is an interlocutory application by plaintiffs.
Mr. Banerjee, learned advocate appears on behalf of defendant no.7 and raises a point for clarification on assignment. He submits, assignment to this
Bench was for presentation of plaint and such assignment may not include adjudication of the applications.
There is a notice carried in the Original Side list, which is reproduced below:-
“Once a main matter is specially assigned to a particular Bench, all subsequent interlocutory applications in connection with such matter shall
automatically stand assigned to such assignee Bench without any formal order of Assignment.
By Orderâ€
Mr. Joy Saha, learned senior advocate appears on behalf plaintiffs and demonstrates establishment of the two schools in Kolkata called ‘La
Martiniere’.
He draws attention to extract from Major General Claude Martin’s Will, which he submits, is dated 11th January 1810. Article 22 in the Will says
the testator lived as a Roman Catholic. By article 24 was bequeathed a sum of money to be put under protection of Government or under Supreme
Court. They were permitted to devise an institution, inter alia, for public good of this city or establish a school, to fulfil wishes of the testator in regard
thereto. He then refers to decree dated 22nd October, 1832, made In Equity by Supreme Court of Judicature at Fort William in Bengal. Decree
directed establishment of a school called and distinguished by name ‘La Martiniere’, to be conducted as nearly as possible in conformity with
24th clause of the Will. The decree also provided, inter alia, for there being four Ex-Officio Governors. The Ex-Officio Governors were to annually
elect and nominate four Additional Governors, who shall during the year, for which they are nominated and elected, have equal power and authority
with Ex-Officio Governors. He goes on to add from the decree, in effect, the Board of Governors would manage the school to be determined by the
majority of them resident at the time. He submits, the suit came to be identified as ‘Old Equity Suit’ and the decree stood amended under order
of Court dated 6th June, 1944. Amendments relevant for purpose of his clients are that there was increase in number of Ex-Officio Governors to be
twelve. There was put in place, a requirement for the Ex-Officio Governors to be Christians.
He refers to letters, all dated 22nd March 2019 and similarly worded, on election and nomination of his clients as the four Additional Governors. The
letters bear signatures of the then two Ex-Officio Governors. This appointment was sought to be undone by letters impugned in this application. By
letters, all dated 19th June, 2019, plaintiffs were informed as follows:-
“Following revelations that the nominations of Honorary Acting Governors of La Martiniere on 19th March, 2019 were made not following the
required process the undersigned Ex-Officio Governors convened and held a meeting on 18th June, 2019 and unanimously resolved the following:-
“Founded on detailed scrutiny, it revealed that selection and nomination of 4 (Four) Honorary Acting Governors, namely, Mrs. Suchitra Guha, Dr.
(Mrs.) Anjali Das, Mr.Gerry Arathoon and Mr.A.R.Mukerji on 19th March, 2019 were not made following required process and hence the
nominations so made are hereby revoked with immediate effect for being appropriately made in terms of and following the settled age old conventions
and process.â€â€
He submits, there be interim order in terms of prayers (a) to (c) at this time. Mr. Mukherjee, learned senior advocate appearing on behalf of defendant
nos.1 and 2 moves his clients’ application for revocation of leave granted under section 92 and Order 1 Rule 8 of the Code of Civil Procedure.
The application is GA 1523 of 2019. Mr. Mukherjee submits, the suit cannot be said to be one under section 92 of the Code. Once that has been held,
consequently leave granted under Order 1 Rule 8 of the Code should also be revoked. He relies on two judgments of Supreme Court. Firstly, on
Swami Paramatmanand Saraswati versus Ramji Tripathi, reported in (1974) 2 SCC 695, to paragraphs 10 and 11. He submits, when right to office of
a trustee is asserted or denied and relief asked for on that basis, the suit falls outside of section 92. Secondly, on Vidyodaya Trust versus Mohan
Prasad R, reported in (2008) 4 SCC 115, to paragraphs 19, 22, 24 â€" 26.
He submits further, leave granted under Order 1 Rule 8 should otherwise also be revoked. No other person apart from plaintiffs can be said to have
same interest, as in the suit, where plaintiffs have challenged their removal. He, however submits, he is seeking adjudication on his clients’
application, for the present, on revocation of leave granted under section 92. Regarding his clients’ contentions on revocation of leave under Order
1 Rule 8, the application be decided on affidavits. Mr. Ghosh, learned advocate appears and submits, he represents Association of La Martiniere
Alumni. He wants for his client to participate in the suit. Mr. Saha submits in reply, a learned single Judge of this Court had in Sarat K. Mitra versus
Hem Ch. Dey, reported in AIR 1960 Cal 558, revoked leave under section 92 but allowed the suit to be maintained as an ordinary suit.
Mr. Mukherjee on merits submits, his clients would want to file affidavit without prejudice to maintainability of the suit. He hands up copy of minutes
dated 14th June, 2019, of Board of Ex-Officio Governors of Schools, with copy to Mr. Saha, regarding necessity of issuance of letters dated 19th
June, 2019. The minutes states, inter alia, since installation of the Right Reverend Dr. Prabal Kanta Dutta as Bishop of Calcutta on 14th October,
2018, there had been series of administrative and other erroneous acts and conduct committed in respect of and related to the schools. The minutes
bear initials of the Ex-Officio Governor who replaced the Right Reverend Dr. Prabal Kanta Dutta and signatures of him and the continuing Ex-Officio
Governor. On query from Court Mr. Saha submits, there is nothing in either the decree or the amendment order regarding removal of Additional
Governors. At the time of appointment, the two Ex-Officio Governors were duly holding office.
On perusal of reliefs claimed in the suit, it does not appear that decree has been claimed for removing any trustee or appointing new. Plaintiffs have
challenged letters, by which their appointment was said to be bad. They have, as a consequence also challenged appointment of some of the
defendants as Additional Governors. It must be recorded here that Mr. Saha was requested to confine his submissions to those pertaining to plaintiffs,
as he wanted to also make submissions regarding removal of, inter alia, defendant no.9. Since the suit does not relate to plaintiffs seeking appointment
or removal of Governors involved in the management of the schools, established as aforesaid, Court is inclined to and revokes leave granted under
section 92 of the Code.
GA 1523 of 2019 will be further heard on affidavits. Affidavit-in-opposition by 22nd July, 2019; reply by 30th July, 2019.
Court has perused two documents bearing signature of continuing Ex-Officio Governor. Persons who can officiate as Ex-Officio Governors have
been described in the decree and amendment order. It is unfortunate that one such person has signed two documents, contents of which contradict
each other. Court will not comment further. Nothing has been shown from either the decree or the amendment order that the appointments made by
Ex-officio Governors can be undone. Plaintiffs are entitled to an interim order. The Board of Governors of the schools will not take any decision
regarding management of the schools till disposal of this application. The Ex-Officio Governors will not, in that time, appoint any person as Additional
Governor.
Mr. Mukherjee submits, same directions be given in this application as well. He also submits, Ex-officio Governors should not be restrained. The
interim order will be as above for there to be expeditious adjudication and management being restored to the Board. More so because there was
appointment of Additional Governors, who on appointment ‘shall’ have, during the term, equal power and authority with Ex-officio Governors.
List on 31st July, 2019 under appropriate heading.
Mr. Mukherjee prays for stay of operation of the order. The prayer is considered and rejected.