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2009 DIGILAW 736 (CAL)

Satipati Nandi v. State of West Bengal

2009-09-14

KALYAN JYOTI SENGUPTA, MD.ABDUL GHANI

body2009
Judgment : SENGUPTA, J. (1.) This appeal was against a judgment and order of the learned Single Judge dated 20th of August, 2009 whereby and where under the writ petition of the appellants was dismissed summarily. By the writ petition the appellants questioned a speaking order of the West Bengal Board of Secondary Education (hereinafter referred to as the Board) dated 23rd February, 2001 rejecting the representations and claim of the appellants seeking to be the founder members of the Managing Committee for Jamgram Janardan Institution, Hooghly. The fact of the case leading to filing of the above writ petition as well as the appeal as it has been correctly recorded by the learned trial Judge, is as follows: - The 1st and 3rd appellants are claiming themselves to be the sebait of the estate of Sree Sree Iswar Lakshmi Janardan Thakur, while the second appellant is Receiver appointed by competent Court to manage the properties of the Trust which is a part of the Estate of the said deity. According to the appellants though in terms of two deeds all the properties were dedicated to the aforesaid two deities Sree Sree Iswar Lakshmi Janardan Thakur Estate and Sree Sree Saraswati Thakur Trust Estate, the said family donated to the said School a sum of Rs. 20,000/-from and out of the said Trust fund. As such at least two of the trustees were entitled to be nominated to form Managing Committee by framing Special Constitution. Indeed on recommendation of the then Head Master West Bengal Board of Secondary Education on 23rd July, 1975, then again 5th September, 1979 and 20th April, 1982 allowed the claim and brought two of the nominees of the said Trust Estates as members to constitute special Managing Committee. Thereafter all of a sudden the School concerned subsequently refused to nominate the said trustee as members of the Managing Committee in other words the Special Constitution of the Managing Committee was denied. So representation was made and the same was turned down. In the mean time the appellants filed Civil Suit in the Court of learned Munsef, Hooghly being Title Suit No. 168 of 1986 praying amongst others declaration and injunction. So representation was made and the same was turned down. In the mean time the appellants filed Civil Suit in the Court of learned Munsef, Hooghly being Title Suit No. 168 of 1986 praying amongst others declaration and injunction. The said suit was decreed ex parte against the defendant, the then Headmaster of the School and other defendants restraining them from holding the meeting on the notice issued excluding the nominee of the said Trust Estates as members thereof. Thereafter on or about 14th June, 1987 a representation was made to the President of the West Bengal Board of Secondary Education informing about passing of decree again and demanding formation of Special Managing Committee with founder members from and amongst trustees. No step was taken pursuant thereto. In or about 1990 a writ petition was filed by the then Headmaster of the said School behind the back of the appellants and even without impleading them as parties asking for certain reliefs as at that point of time the Board appointed adhoc committee for running the affairs of the School in stead of reconstituting of the Managing Committee. The said writ petition filed by the Headmaster was disposed of by an order of Justice K.M. Yusuf (as His Lordship then was) on 31st October, 1990. By the said order His Lordship was pleased to pass an order directing the President of the West Bengal Board of Secondary Education, to deal with and dispose of the case of the petitioner with regard to withdrawing and/or non-granting and further granting Special Constitution in respect of the said School in accordance with law after giving personal hearing to the petitioners and other interested persons and to pass speaking order. Pursuant to the said order the Board heard the matter with notice to the concerned parties including the appellants herein. The Board thereafter rejected the claim of the appellants for granting Special Constitution including the nominee member from and amongst the trustee in the Managing Committee. The aforesaid order of the Board was challenged by the present appellants by filing a Writ Petition being C.O. No. 1705 (W) of 1991. The said writ petition was disposed of on 28th September, 1999 by Honble Justice Sujit Kumar Sinha (as His Lordship then was). The aforesaid order of the Board was challenged by the present appellants by filing a Writ Petition being C.O. No. 1705 (W) of 1991. The said writ petition was disposed of on 28th September, 1999 by Honble Justice Sujit Kumar Sinha (as His Lordship then was). By this order Justice Sinha was pleased amongst others to direct the ad hoc committee of the said School to hold the election of the Managing Committee of the concerned School within 31st December, 1999 peremptorily to which the said two nominees of the aforesaid Trust estates shall be entitled to be elected as members. The said judgment and order dated 28th September, 1999 was appealed against by the present respondent Nos. 8 to 15 as they were not made parties. The Appeal Court in M.A.. No. 4175 of 1999 by order dated 4th January, 2000 allowed the said appeal and set aside the aforesaid order of Justice Sinha impleading the present respondent Nos. 8 to 15 as party respondents and remanded the matter for fresh hearing. The said writ petition on remand was re-heard by the Honble Justice Ashim Kumar Banerjee and disposed of by order dated 9th January, 2001. By the said order Justice Banerjee was pleased to set aside the speaking order passed earlier in terms of order of Justice Yusuf dated 24th September, 1991. While quashing the same Justice Banerjee asked President of the Board to rehear the issue of Special Constitution consisting of nominee Members of the said Trust Estates, in terms of the order of Justice Yusuf. Justice Banerjee in his order directed to dispose of the matter in true spirit and terms of the order of Justice Yusuf. Thereafter, the President of the Board heard the matter afresh serving notice to the respective parties including the present appellants/writ petitioners and disallowed the claim of the appellants for Special Constitution of the Managing Committee with the nominee members from the said trust estates. In the said fresh order of the President it has been found and recorded that the appellants could not prove the payment of donation as claimed and it was found that Constitution of Special Committee with the nominee members in the category of founder member by the school on earlier occasion is wholly erroneous in law and for this reason Constitution of Special Committee had no foundation in the context of factual aspect. It was further found that it was a sheer mistake on the part of the then Headmaster in recommending for grant of Special Constitution of the Managing Committee. (2.) Challenging the aforesaid fresh order above writ petition being No. 5998(W) of 2001 was filed on which the learned trial Judge dismissed the same after hearing the parties at the time of admission. The learned trial Judge while examining the question of maintainability found that the writ petition was incompetent as the said petitioners (appellants herein) have no locus to file the same. However, on the ground of maintainability the said writ petition was not dismissed rather it was heard on merit and learned trial Judge did not interfere with the speaking order of the President. The learned trial Judge found while accepting the speaking order that the Institution was recognized in 1947 and till 1975 no Special Constitution was in existence. The Management Rules came into being in 1969. For unknown reason in 1975 and 1979 and 1982 the Board issued order permitting Special Constitution of the Managing Committee with the names of the two trustees. From 1982-1990 the Managing Committee was again constituted according to the provision of Management Rules without any claim of Special Constitution with two nominee members from Trust Estate. The learned trial Judge further found that only in 1990 they moved this Court and the Board was asked to consider the request of the Special Constitution. The learned trial Judge did not interfere with the fact finding of the President that there was no evidence to support the claim of donation entitling the nominees of the Trust to be treated as founder members of Managing Committee of the Institute. (3.) On the factual background as aforesaid the present appeal has been preferred. (4.) Mr. Subir Sanyal the learned Lawyer appearing for the appellants placing the grounds in the Memorandum of Appeal submits that there was clear evidence to show there has been donation and as such in 1975 and 1979 and 1982 the Board granted permission for Special Constitution of the Managing Committee consisting two nominees from the aforesaid trust estates in the category of founder member. He further contends that when the same was done no evidence actually was needed. He further contends that when the same was done no evidence actually was needed. He further submits while producing additional evidence before us that books of accounts of the said Trust, which were more than 30 years old would show that there has been donation of Rs.20,000/- from each of the trust estates to the said School exceeding Rs.20,000/-and if these documents are allowed to be produced and to be reconsidered either by the learned trial Judge or by the Board it would be proved without any doubt donation indeed had been made as required under the laws. There was no reason as to why after granting permission by the Board for above three years in the subsequent years the permission was refused. (5.) Mr. Subrata Basu, learned Senior Advocate, appearing for the respondent Nos. 8 to 15 submits that the learned trial Judge has rightly dismissed the writ petition. Firstly this Writ Petition was not maintainable in law and further on merit nothing could be proved to claim Special Constitution of the Managing Committee that nominee members of the said two trusts. In fact on earlier occasion the Headmaster concerned by mistake recommended for Special Constitution of the Managing Committee with the founder members from the said two trust estates. Taking advantage of this mistake the said two members entered into the committee and mismanaged and misappropriated the school funds by granting loans to the third parties which could never be recovered. Significantly the said third parties are either the companies or establishments controlled by the said Nandy family. He further contends that even if it is accepted for argument sake the donation has been given by the said two trust estates still under the Rules claim for Special Constitution with the founder members cannot be entertained as it is an admitted position till 1975 from 1947 when the school was established there has been no Special Constitution of the Managing Committee with the founder members under the Rules. (6.) He has drawn our attention to the Rules 5 and 6A of the Management Rules of 1969. (7.) The learned Lawyer for the State and Board supports the argument of Mr. Bose and further submits that the appeal Court should not interfere with the fact finding of the learned trial Judge as well as the speaking order passed by the Board. (7.) The learned Lawyer for the State and Board supports the argument of Mr. Bose and further submits that the appeal Court should not interfere with the fact finding of the learned trial Judge as well as the speaking order passed by the Board. (8.) After hearing the parties and considering the contention and rival contention of the present appeal the points which have arisen for decision is as follows: Whether the fact finding of the learned trial Judge as well as the Board on the question of donation can be interfered with, or on the facts and circumstances of this case whether the decision of the learned trial Judge on the question of permission for Special Constitution of the Managing Committee under the Rule is correct or not. (9.) We shall come into the factual aspect of donation first. The President of the Board by speaking order with detailed reasons has found that there has been no proof that donation has been given or for that matter the said Trust was created. The learned trial Judge has examined this factual aspect minutely and with detail discussion accepted the order. In exercise of writ jurisdiction the appeal Court cannot interfere with the same. The factual finding by the statutory authority and the learned trial Judge can only be interfered when it is found there is no foundation to come to such conclusion. In the order of the learned trial Judge as well as the order of the President we noticed that considering the argument of submission made by both the parties it was found that there was no basis of the claim and contention of the appellant. Now the question is whether on production of the additional documents namely books of accounts whether this Court would remand the matter for fresh hearing on the aforesaid factual background. The books of accounts produced before us are mostly of the old books of accounts no doubt and it recorded certain amounts have been paid but in our view such recording may be relevant on factual issue under the rule of evidence. Relevancy of the evidence is one thing and acceptability of the same is another thing. There has been no evidence worth to show the money indeed has been paid. No document has been produced in support of the same. Relevancy of the evidence is one thing and acceptability of the same is another thing. There has been no evidence worth to show the money indeed has been paid. No document has been produced in support of the same. It appears from the records that on several occasion opportunity was given to the appellants for production of documents but they failed to do so. At this stage, we do not think fit to reopen the issue allowing them to produce documents. In any event we are of the view that those documents are not helpful at all. There is yet another aspect of the matter, there has been a decree of Civil Court for declaration wherein the board was also party and this decree has legal implication in this matter. We do not find in the said decree recording any finding of payment of donation. Even the said decree was never enforced lawfully before appropriate forum. Now at this stage after 12 years it is of no effect as it cannot be executed nor can it be enforced anywhere. (10.) We are unable to accept the contention of Mr. Sanyal that since permission was granted for Special Constitution in the year 1975-1979 and 1982 this permission should be granted as a matter of course. We are rather inclined to accept contention of Mr. Bose that on mistaken recommendation of the three Headmaster Committee was formed with nominated members from the said trust estate for certain period, as the Rule clearly does not permit for Constitution of Special Committee with founder Member unless meaning and terms of word "founder" as mentioned in Rule 5(b) of the Management Rule are established. Bose that on mistaken recommendation of the three Headmaster Committee was formed with nominated members from the said trust estate for certain period, as the Rule clearly does not permit for Constitution of Special Committee with founder Member unless meaning and terms of word "founder" as mentioned in Rule 5(b) of the Management Rule are established. The said Rule 5(b) is set out hereunder: - "The term founder means a person who has been recognized as such by the First Committee of the Institution constituted according to the rules after recognition by the appropriate authority, and his/her name has occurred as founder in the voters list for constitution and for successive reconstitution, if any, of the Committee since its inception and on the death of the founder, his/her son or other heir shall not be entitled to be treated as a founder unless his/her right to be so treated has been recognized in any registered deed executed by the founder and accepted by the First Committee as aforesaid and approved by the University of Calcutta or the West Bengal Board of Secondary Education." (11.) Methodology for formation of Committee with founder member has been provided in Rule 6A which is set out hereunder: - "6A-Manner of formation of Committee-(1) Persons whose names are entered in the registered of eligible persons as founder shall be member of the Committee, one at a time by rotation, according to the procedure to be determined by the Director or by an officer authorized by him in this behalf: (i) If a person has paid not less than Rs.20,000/-or its equivalent to the Institution, he shall be a life member of the Committee during his life time or shall have the right of nominating a person as a member of the Committee. But a person who has donated Rs. 10,000/-or more in cash or kind immediately preceding the date of issue of Notification No.855-Edn (s) dated the 23rd December, 1980, shall, however, continue as a life member of the Committee. But a person who has donated Rs. 10,000/-or more in cash or kind immediately preceding the date of issue of Notification No.855-Edn (s) dated the 23rd December, 1980, shall, however, continue as a life member of the Committee. Provided that when there are more than one life member and the life member selected by rotation by the Director or the officer authorized by him in this behalf may select any other life member from the panel, who is willing to serve in the Committee; (ii) A person nominated by a life member shall cease to be a member of the Committee on the death of the life member. Admittedly till 1975 from 1947 there was no claim for Special Constitution with the founder members nor the Committee was formed at any point of time in the above manner. When the aforesaid legal requirement is not fulfilled we do not think that the claim and contention as urged by Mr. Sanyal of the appellants can be accepted. We therefore, hold for the forgoing reasons the finding of the Board does not call for interference as it has been done rightly by the learned trial Judge. We therefore, dismiss the appeal and uphold the order of the learned trial Judge. There will be no order as to costs.