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2006 DIGILAW 584 (GAU)

Ashis Kumar Chakravorty v. Union of India

2006-06-20

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. R. Dubey and Mr. J. Patowari, learned Counsel for the writ Petitioners/applicants. Also heard Mr. B.C. Das, learned senior Counsel assisted by Mr. D. Bhattacharjee, learned Counsel appearing for the Respondents/opposite parties as well as Mr. P. Upadhyay, learned Counsel appearing for the newly impleaded Respondents. 2. The instant Misc. case is an off shoot of W.P. (C) No. 3973/03. 3. By means of this Misc. Application projecting certain subsequent events surfaced during the pendency of the above writ petition to the effect that despite two interim orders dated 19.6.03 and 3.3.04 passed by this Court in the connected writ petition (Annexure 1 and 2 to this Misc. Case respectively) by which the elected Board of the Bank in the Annual General Meeting (for short, 'the A.G.M.') held on 4.6.2003 was allowed to act in the interest of the Bank with a rider to avoid major policy decision, the applicants/writ Petitioners, being the shareholders of the Eastern and North East Frontier Railway Cooperative Bank Ltd. (for short, 'the Bank'), have challenged the notice dated 13.5.06 issued under the signature of the Chief Executive of the Bank, though this officer has not been arrayed as the party Respondent save and except one Chief Executive Officer made Respondent/opposite party No. 2 both in the related writ petition and this Misc. application respectively, notifying that 24th Annual General Meeting will be held at the Head office of the Bank in Calcutta on 31.5.06 at 11 am to consider the agenda namely (1) to consider and adopt the Chief Executive's Report along with account for the year 2004-05, (2) to consider and approve the proposed amendments of Bye-Laws of the Bank and (3) to consider the appointment of Auditor of the Bank and such action on the" part of the Chief Executive (not the Chief Executive Officer as mentioned in the case title) is an arbitrary exercise of power and a glaring example of wilful and intentional violation of the Court's interim orders as noticed above. 4. The notice 13.5.06 may be reproduced as under: Eastern and North East Frontier Railway Cooperative Bank Limited Regd. 4. The notice 13.5.06 may be reproduced as under: Eastern and North East Frontier Railway Cooperative Bank Limited Regd. Off.: 34 A and B Sashi Bhusan Dey Street, Kolkata 700012 NOTICE OF 24TH ANNUAL GENERAL MEETING It is hereby notified that the 24th Annual General Meeting will be held at Head Office of this bank, 34A and B, Sashi Bhusan Dey Street, Kolkata-700012 on 31st May 2006 at 11 A.M. to consider the following agenda: 1. To consider and adopt the Chief Executive's Report along with accounts for the year 2004-05. 2. To consider and approve the proposed amendments of bye-Laws of this Bank. 3. To consider the appointment of Auditor of the Bank and its remuneration. All Delegates are requested to attend the meeting on the aforesaid date in time. All Delegates are also requested to collect the Delegate Card from the Reception Counter at head Office, 34 A and B, Sashi Bhusan Dey Street, Kolkata-700 012 on 31st May 2006 at 10.00 A.M. They are also requested to bring their Delegate Identity Card issued by the bank, available with them. Sd/- 13.5.06 Chief Executive. 5. To appreciate and resolve the issue under consideration effectively, it is necessary to look into the prayer made in the instant Misc. case which is as under. In the premises aforesaid it is respectively prayed that your Lordships may be pleased to admit this application and upon the perusal there of and upon hearing the parties may be pleased to direct the opposite parties/Respondent authorities not to give effect to the notice dated 13.5.2006 as well as restrain them from holding the Annual General Meeting on 31.05.2006 and be further pleased to restrain them from approving the proposed amendments in the Bye-Laws of the Bank and/or to pass such order/orders as Yours Lordships may deem fit and proper. 6. 6. It would also be expedient to notice the prayer made in the related writ petition i.e. W.P.(C) No. 3973/03 which runs as under: In the premises aforesaid it is respectfully prayed that your Lordships would graciously be pleased to issue Rule nisi calling upon the Respondents to show cause as to why a writ in the nature of mandamus and/or Certiorari and/or any other writ, order or direction shall not be issued commanding them to issue appropriate order/notification cancelling the entire election process initiated pursuant to the election held on 5.5.2003 by setting aside the Annexure-1 notification, with a further direction to held fresh election by issuing fresh notification after making the necessary rectification in the voter list as well as in the list of constituencies giving at least the minimum required time as per the Act to the members/sharesholders enabling them to participate in the process of election and after hearing the parties and on perusal of the records be further pleased to make the Rule nisi absolute and/or pass any such (sic such) order/orders as may be deemed fit and proper considering the facts and circumstances of the case. -AND- Pending disposal of this petition be further pleased to direct the Respondents not to finalise the process of election with a further direction not to hold the Annual General Meeting scheduled to be held on 4.6.2003 and/or pass any such order/orders as may be deemed fit and proper considering the facts and circumstances of the case. 7. It is forcefully submitted by Mr. Choudhury, learned senior Counsel that when this Court categorically restrained the Board of Directors by the interim orders above mentioned from taking any major policy decision, the A.G.M. stated to be held on 31.5.06 as per the impugned notice dated 13.5.06 is going to take a major policy decision with regard to the proposed amendment of the Bye-laws of the Bank by which the tenure of the Board of Directors would be extended from 3 years to 5 years and at any circumstances the same cannot be permitted. According to him, the entire action is not only dehors the Bye-laws of the Bank but the same also violates the order of this Court dated 3.3.04 passed in the related writ petition. According to him, the entire action is not only dehors the Bye-laws of the Bank but the same also violates the order of this Court dated 3.3.04 passed in the related writ petition. It is, therefore, forcefully contended that in the interest of democratic principles as well as taking into account the interest of the share holders of the Bank, this Court may be pleased to issue direction to the Respondents-authorities not to give effect to the notice dated 13.5.06. 8. Drawing attention to Clause 48(1)(b) read with Clause 37(3) of the Bye-laws of the Bank, Mr. Choudhury has strenuously argued that instead of holding the AGM as scheduled on 31.5.06, the entire process of election of the new Board of Directors of the Bank, on expiry of its term of 3 years from 4.6.03 to 3.6.06, ought to have been commenced 60 clear days in advance before the date of expiration; that means the process ought to have been started from 2.4.06 fixing the election of new Board of Directors on 3.6.06. However giving total go bye to all these provisions of laws governing the functions of the Bank including the terms and conditions of the Board of Directors in a most illegal arbitrary and irregular manner, just immediately 3 days ahead of the expiry of the Board's tenure they want to extend existing 3 years term of the Board to 5 years by way of taking a major decision in a most undemocratic manner. 9. In view of the same, according to Mr. Choudhury, it is a fit case warranting interference of this Court with the impugned notice as it is apparent on the face of it that injustice, arbitrariness and nepotism are writ large. In support of his submission, strong reliance has been placed on a decision of a case in Dwarka Nath v. Income Tax Officer, Special Circle D-Ward Kanpur and Anr. reported in AIR 1966 SC 81 wherein underlying the scope and power of High Court held that Article 226 was couched in comprehensive phraseology and it ex-facie conferred a wide power of the High Court to reach injustice wherever it was found. This view has also been reiterated in Secretary, ONGC Ltd. v. V.U. Warrier reported in AIR 2005 SC 3039 . 10. Mr. Das, learned Sr. This view has also been reiterated in Secretary, ONGC Ltd. v. V.U. Warrier reported in AIR 2005 SC 3039 . 10. Mr. Das, learned Sr. Counsel representing the Bank/Respondents, at the very outset has pointed out that the related writ petition being W.P. (C) No. 3973/03 has itself become infructuous on today's date inasmuch as a plain reading of the prayer made therein as already noted above would manifestly show that the relief sought by the writ Petitioners to issue a writ of mandamus and/or certiorari and/or any other appropriate writ or order or direction commanding the Respondents to cancel the entire election process initiated pursuant to the election held on 5.5.03 and also to issue further direction to held fresh election by issuing a fresh Notification cannot be granted to the Petitioners, due to the simple reason that the impugned notice dated 13.5.06, being a subsequent development as well as new cause of action, relief against which has been sought in the Misc. application, is not under challenge in the main writ petition. Hence the Petitioners are not entitled to get any relief whatsoever beyond the pleadings. 11. It is also contended that the main writ petition is even not maintainable as the Board of Directors has not been made a party-Respondent herein being a necessary party. 12. The contentions and submissions canvassed on behalf of the contesting parties have been given thoughtful consideration and also perused the pleadings exchanged by and between the parties as well as materials available on record including the relevant laws referred to and relied upon by the learned Counsel for the parties. 13. From an ordinary reading of the prayer made in this Misc. case as already reflected herein, it would appear that the Notice dated 13.5.06 notifying to hold the AGM on 31.5.06 has been challenged in this instant Misc. case. It is admitted that it is a subsequent even with a new cause of action and the same has not been incorporated in the pleadings of the related writ petition, being the foundation of this Misc. Application. In the considered opinion of this Court, the Petitioners are, therefore, not entitled to get any relief sought beyond the pleadings. Even, though this Misc. Application. In the considered opinion of this Court, the Petitioners are, therefore, not entitled to get any relief sought beyond the pleadings. Even, though this Misc. Application has been filed on 30.5.06, by the time the hearing of the matter has been concluded on 5.6.06, this Court is told that the meeting slated to be held on 31.5.06 has already been convened. 14. It is also noticed that the Board of Directors of the Bank, being a necessary party in the main writ petition as well as in this Misc. Application, on its constitution after due election held on 4.6.03, has not been arrayed as party Respondent against whom the relief has been sought had also got in terms of the interim orders referred to above on behalf of the applicants. Furthermore, the Chief Executive, an officer being appointed in terms of Clause 54(e) of the Bye-laws of the bank, and competent to issue the impugned notice, is not named in the array of the Respondents either in this application or in the writ petition though one Chief Executive Officer is made Respondent No. 2 in the instant proceeding. 15. Viewed from all angles, this Court does feel that his Misc. Application has been rendered infructuous. Consequently, this Misc. Case stands dismissed. 16. Be it mentioned herein that on consideration of the prayer as already mentioned above, the writ petition also appears to be infructuous in view of the constitution of the Managing Committee of the Bank elected on 4.6.03 in the AGM held on 5.5.03 which has been functioning since then. Application dismissed