Shri Dipendra Kumar Sanyal vs The Director And Member
2023 Latest Caselaw 1456 Cal/2

                      In The High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya


                            WPO No.1137 of 2023
                 SHRI DIPENDRA KUMAR SANYAL
                             VS
                  THE DIRECTOR AND MEMBER
        SECRETARY BOARD OF GOVERNORS (IISWBM) AND ORS

For the petitioner      :      Mr. Tilak Kumar Bose, Sr. Adv.
                               Mr. Biswaroop Bhattacharya, Adv.
                               Mrs. Vijaya Bhatia, Adv.
                               Ms. Susmita Paul, Adv.

For the respondent no.1 :      Mr. Lakshmi Kumar Gupta, Sr. Adv.

Mr. Chayan Gupta, Adv.

Mr. Pran Gopal Das, Adv.

Mr. Saikat Biswas, Adv.

Mr. Sumit Sen, Adv.

Mr. Shuvojeet Gupta, Adv.

For the respondent nos.3 and 4 : Mr. Amitava Chaudhuri, Adv.

Mr. N. Roy, Adv.

For the respondent no.5 : Mr. Nilotpal Chatterjee, Adv.

Mr. Satyaki Banerjee, Adv.

For the State           :      Mr. T.M. Siddiqui, Adv.
                               Mr. Debasish Ghosh, Adv.

Hearing concluded on    :      12.06.2023

Judgment on             :      22.06.2023

The Court:

1. The present writ petition has been preferred against the decision

taken on May 30, 2017 in a meeting of the Board of Governors (BOG)

of the Indian Institute of Social Welfare and Business Management

(hereinafter referred to as, "the Institute") whereby the President

opined that the Board of Trustees (BOT) should be dissolved and the

BOG would continue. It is argued that the said proposal was accepted

by the BOG and confirmed subsequently in the meeting of the BOG

dated December 10, 2018.

2. Learned senior counsel appearing for the petitioner argues that the

said resolution is patently contradictory to the Memorandum of

Association of the Institute and, if accepted, would render the

functioning of the Institute lop-sided by concentrating the entire

power in the BOG, which was never the intention of the founders.

3. It is shown from the Memorandum that eminent members of the

society were Members of the Institute with the founder member being

the then Chief Minister Dr. B.C. Roy. The father of the present

petitioner was one of the founder members. Learned senior counsel

places reliance on the Memorandum to show that the BOG may from

time to time elect such person or persons as they think fit to be Life

Members. Also, Clause 2(c) indicates that several of the ex-officio

members are persons appointed by the State and/or executives of the

State.

4. As such, it is sought to be argued that a shifting of the pivot of the

power to the BOG would virtually mean that the entire control of the

Institute, which was sought to be formed as an independent and

autonomous body, would go to the State functionaries. Learned

counsel also indicates that the ex-minister of Higher Education of the

State of West Bengal, being respondent no.2, was the former President

of the BOG. It is argued and pleaded by the petitioner that due to the

unwarranted influence of the said ex-minister, who was allegedly

calling the shots in the Institute, the present challenge could not be

preferred earlier.

5. Learned senior counsel lies stress on several Clauses of the

Memorandum of Association to show that the estate of the Institute

and the basic administration was vested in the Trustees, who are

supposed to be people of academic excellence and expertise and were

originally intended to conduct the essential functions of the Institute.

The alteration sought to be incorporated by the impugned decision

would change the basic structure of the Institute and its

Memorandum and would render the checks and balances

incorporated therein nugatory.

6. Learned counsel appearing for the respondent nos.3 and 4 argues that

the said functionaries of the State have been unnecessarily embroiled

in the present litigation, despite them having no effective role to play,

and/or without any relief having been sought against them. There is

no involvement or approval of the State, it is argued, and a member is

admitted to the Institute only with his consent.

7. As such, even the ex-officio appointments in the BOT are not the

lookout of the State at all. It is argued that, as such, the perception of

the State seeking to assert control over the Institute has no basis

whatsoever.

8. Learned senior counsel appearing for the respondent no.1 argues that

the resolution impugned in the present writ petition was taken on May

30, 2017, that is about six years back. No explanation has been given

as to what prompted the extreme delay in preferring the present

challenge. That apart, there is no cause of action for filing the present

writ petition since the Institute has never accepted the suggestion

made in the impugned resolution. It is argued that although initially

the resolution was placed and confirmed by the BOG, the same did

not assume the colour of a decision and has never been implemented.

Learned senior counsel also places reliance on Annexure P-8 at page

92 of the writ petition, which is a letter dated November 29, 2022

issued by the office of the Registrar of Forms, Societies and Non-

Trading Corporations, indicating that there is no alteration of the

Memorandum of Association and Regulations of the Society, that is,

the Institute. As such, it is argued that the instant challenge is not

maintainable ab initio.

9. It is contended that for the Memorandum of Association to be

amended, a majority of 3/4th of the Members is to be taken. In the

present case, the matter went up to the stage of being placed before

the statutory authority and was subsequently ratified. However, the

same was not placed at any point of time before the Annual General

Meeting (AGM) or the statutory authority to decide on the same. It is

also reflected from the stand taken by the office of the Registrar of

Societies that no such amendment was ever carried out pursuant to

the impugned decision and, as such, the said decision remained

merely at the stage of an opinion.

10. It is further argued by the respondent no.1 that the petitioner does

not have any locus standi to prefer the instant challenge, in the

absence of any challenge by the BOT to the impugned decision. It is

argued that although the petitioner‟s father was one of the founder

Members of the Institute, the petitioner was never appointed as a

trustee in due course of law.

11. Learned senior counsel for the petitioner controverts such contentions

and argues that the petitioner is the Chairman of the BOT and was

even a part of the relevant meetings. It is reflected from the minutes

of the BOG meeting dated August 5, 2016 that the petitioner was a

Member of the said Committee which looked into the matter. In fact,

the dissent of the petitioner was also recorded in the meeting which

had confirmed the minutes of the previous meeting dated June 30,

2016.

12. Hence, it cannot be said that the petitioner does not have locus standi.

That apart, the petitioner reiterates his initial submissions on merits.

13. A perusal of the relevant clauses of the Memorandum of Association of

the Institute undoubtedly indicates that the BOT has an essential role

to play within the scheme of the Memorandum.

14. Clause 37 of the same pertains to execution of documents and

provides that all documents and instruments on behalf of the BOT are

to be executed by such trustee or trustees, as the Board may from

time to time determine, which documents would be valid and binding.

15. More importantly, Clause 38 stipulates that the trustees shall spend

money or transfer or deal with the properties vested in them and

execute documents as the BOG may determine from time to time. The

concurrence of the trustees, as per the said Clause, shall be necessary

for sale, transfer, conveyance, mortgage, charge, encumbrance,

alienation and lease of the properties of the Institute.

16. Clause 39 provides that the trustees shall invest the funds of the

Institute and realise all income, rents, issues and profits of the

properties of the Institute out of which they shall pay all outgoings in

respect of such properties and hold the balance for the objects and

purposes of the Institute.

17. Clause 44 stipulates that the trustees shall appoint one of their

Members as Treasurer. As per Clause 42, all properties of the

Institute, movable and immovable, shall be vested in the BOT. Clause

46 empowers the BOT to finally prepare the budget along with their

views to be placed before the AGM of the Members of the Institute.

18. Although Clause 50 stipulates that in case a budget is rejected, the

BOG shall be competent, in spite of such rejection, to spend out the

money or funds of the Institute, such sums are stipulated to be those

required for the administration and management of the Institute and

for the due discharge of the functions including payment of all

outgoings, salary to the staff and engagements and commitments

already made or accepted.

19. Hence, in the scheme of things and in order to maintain proper

checks and balances, the existence of the BOT is undoubtedly an

essential feature of the Institute and its Memorandum of Association.

20. Clause 57 of the Memorandum provides that the Rules and

Regulations of the Institute may be altered, amended and added to by

a vote of 2/3rd of the Members of the BOG present and voting at the

meeting of the BOG after notice of the proposed amendment,

alteration or addition has been given in writing to all members not

less than one month before the meeting. The rules, as altered,

amended or added, shall be binding on all existing members. The

agenda for AGM of the Institute has been stipulated in Clause 47 of

the Memorandum, which includes various facets of the activities of

the Institute including a budget as finally prepared by the BOG,

statement showing annual receipts and disbursement and a report

showing various activities of the Institute including activities which

the BOG desires to take in the future. As per Clause 49, at any

meeting, 3/4th of the members of the Institute present and voting may

make additions and alterations to the Budget or reject the same.

Otherwise the budget, as placed before the meeting, shall be deemed

to have been approved by the members.

21. Hence, the argument of respondent no.1 that the amendments or

alterations to the Memorandum or Rules and Regulations of the

Institute have to be mandatorily placed before the AGM does not find

place in the provisions of the Memorandum itself.

22. Rather, Clause 57 indicates that two-thirds of the members of the

BOG can, by voting at their own meeting after notice of the proposed

amendment of not less than one month, may have such amendment

or alteration effected. Such amendment/alteration would then be

binding on all existing members.

23. Hence, the argument made by the respondent no.1 that the present

writ petition is premature cannot, in all fairness, be accepted. In fact,

the impugned decision of the BOG, having been confirmed and ratified

by the majority subsequently, now operates as a time-bomb, which

may explode at any point of time at the sweet will of the BOG. There

is no safety net between the impugned decision and its

implementation within the contemplation of the Memorandum itself.

As per the statutory requirement, the resolution merely has to be

intimated to the appropriate authority for the purpose of giving the

same the sanctity of law. However, there is nothing to prevent the

said decision to be implemented even now, as there is no specific

time-bar for the same. Thus, the apprehension of the petitioner is

quite valid to the extent that the impugned decision, if permitted to

remain, may be implemented at any point of time.

24. Even without going into the merits of the allegation that the challenge

could not be taken out before the removal of respondent no.2 from his

office as the Minister of Higher Education, Government of West

Bengal, the cause of action on the basis of apprehension of the

petitioner is still alive and is a continuing cause of action, since the

impugned decision can be implemented by the BOG at any point of

time at its option.

25. A comprehensive perusal of the provisions of the Memorandum, as

reflected in its various clauses, clearly indicates that the BOG,

although having primacy in certain aspects, is not the be-all and end-

all of the Institute and cannot be rendered so by effecting an

amendment at the own sweet will of the governors. The BOG cannot

arrogate to itself the entire trove of powers in respect of the Institute,

in the teeth of Clauses 38, 39, 42 and 44, which are cardinal features

of the Memorandum of Associations of the Institute. The said

provisions can very well be termed as the „basic structure‟ of the

Memorandum of Association and contain the implicit balancing

factors contemplated in the functioning of the Institute, of which the

memorandum cannot be denuded. Such an amendment, if permitted,

would demolish the very concept of functioning of the Institute and its

autonomy, all the more so since several members of the BOG are

functionaries of the State, who are ex-officio members of the BOG.

26. Hence, the defence of delay taken by the respondents cannot be paid

heed to.

27. Insofar as the locus standi of the petitioner is concerned, he was a

part of the meeting confirming the impugned decision and was the

sole objector to the impugned amendment.

28. The very fact of the petitioner being recognised as a part of the said

meeting indicates that he had the locus standi to be a part of the

meeting, prima facie as a member of the BOT. If the respondents were

to challenge his membership of the BOT, it was for the respondents to

plead and prove the same in accordance with law, which, having not

been done, it does not lie in the mouth of the respondents to deny the

locus standi of the petitioner, even as an integral part of the

functioning of the Institute, to prefer a challenge to the paradigm

alteration of the Memorandum of Association of the Institute.

29. In view of the above discussions, the impugned decision of the BOG of

the Institute taken on May 30, 2017 and subsequently confirmed by

the BOG in its further meetings, including that dated August 5, 2016

cannot be sustained.

30. Accordingly, WPO No.1137 of 2023 is allowed on contest, thereby

setting aside the impugned decision of the Board of Governors by the

resolution adopted by it on May 30, 2017 and its subsequent

confirmations.

31. There will be no order as to costs.

32. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )