Anil Rajkumar Mukherji vs Poritosh Canning and Ors (08/10/2020)

IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO No. 83 of 2020
CS No. 111 of 2019
IA No. GA/1/2020
(Old No. GA/1148/2020)
GA/2/2020
(Old No. GA/1149/2020)

ANIL RAJKUMAR MUKERJI & ORS.
Versus
RT. REV. PARITOSH CANNING & ORS.

BEFORE:

The Hon’ble JUSTICE SANJIB BANERJEE
AND
The Hon’ble JUSTICE ARIJIT BANERJEE

Date : October 8, 2020.

(Through Video Conference)

Appearance
Mr. Jishnu Saha, Sr. Adv.
Mr. Joy Saha, Sr. Adv.
Mr. Sourojit Dasgupta, Adv.
Mr. A.K. Awasthi, Adv.
                          …Appellants

Mr. Shyam Divan, Sr. Adv.
Mr. Sankalp Narain, Adv.
Mr. Paritosh Sinha, Adv.
Mr. B.P. Tiwari, Adv.
Mr. Rohit A. Sthalekar, Adv.
Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Paritosh Sinha, Adv.
Ms. Shrayashee Das, Adv.
Mr. Jishnujit Roy, Adv.
Mr. Priyankar Saha, Adv.
                          …Respondents

The Court: There will be an order in terms of prayer (a) of the stay petition.

The matter is of some importance and the slippery technical arguments made on behalf of some of the respondents would have the Court miss the wood for the trees.

The appeal arises out of an interlocutory order of August 18, 2020, passed in a suit pertaining to certain grievances in the management and administration of La Martiniere School, Calcutta. One of the reliefs claimed in the suit is for a scheme of management or administration to be put in place.
There is a bit of history which cannot be overlooked before addressing the present lis. There is an old Equity Suit pending for nearly 200 years pertaining to the Will of Claude Martin and the school set up as a consequence thereof. There is no dispute that a decree was passed in the year 1944 by this Court framing a Constitution for the school. Twelve Ex-officio Governors were to constitute the Board of Governors of the school.

The posts were indicated as follows:

1. His Excellency the Governor of Bengal.
2. The Hon’ble Chief Justice of Bengal.
3. The Most Reverend Lord Bishop of Calcutta.
4. The Hon’ble Minister of the Viceroy’s Council in charge of education.
5. One of the members of the Executive Council of His Excellency the Governor of Bengal to be nominated from time to time by His Excellency the Governor.
6. One of the puisne judges of the High Court to be nominated from time to time by the Chief Justice.
7. The Advocate-General of Bengal.
8. The General Officer in Command of the Presidency Brigade.
9. The Director of Public Instruction, Bengal.
10. The Chairman of the Corporation of Calcutta.
11. A Minister of St. Andrew’s Church of Scotland in Calcutta to be nominated by the Kirk Session of the said Church.
12. The President of the Bengal Chamber of Commerce.

However, the immediate succeeding clause in the decree dealing with the constitution of the Board of Governors of the school provided that no person officiating in the aforesaid offices who did not profess the Christian religion would be eligible to exercise or perform any of the duties as Ex-officio Governor.
It must also be noticed that the 12 Ex-officio Governors were empowered by the decree of 1944, to co-opt four additional governors every year for the 16 member Board of Governors to run and administer the school.

It appears that the Constitution of the school as framed in the 1944 decree has not been amended, nor does it appear that any meaningful attempt for the purpose of amending the same has been made. The decree and the Constitution indicated therein are quite anachronistic. The country has gained independence. The State is now West Bengal and even the Calcutta of old is spelt differently.

It appears that upon the first two named in the Board of Ex-Officio Governors, for long, not being persons professing the Christian religion, the third named in the list has taken it upon himself to assume the post of the Chairman of the Board of Governors and wield powers that the Constitution may not have provided for the occupant of the relevant post. Further, since several of the other
positions are no longer manned by persons professing the Christian religion, the Board of Governors has effectively shrunk to two or three with the successor-in- office to the Lord Bishop of Calcutta and the nominee of St. Andrew’s Church of Scotland in Calcutta being the principal persons in control of the Board of Governors. Prima facie, it does not appear that the 1944 decree intended only two persons to control the Board of Governors. If it is necessary, to respect the Will of founder Claude Martin, that the permanent Board of Governors should not have non-Christian members, the decree could have been modified as the old Equity Suit remains pending and the perpetual overall mandate of this Court continues.

As far as the present suit is concerned, it was instituted by four persons who had been co-opted on the Board of Governors for a one-year term and whose nomination was subsequently sought to be revoked. While it is true, as some of the respondents suggest, that personal reliefs qua the individual plaintiffs figure most prominently in the suit, there is a prayer for a scheme of administration or management to be framed and it cannot be missed that the Board of Governors as functioning in the recent past may not be in consonance with the decree of 1944.

The respondents suggest that the scope of the appeal is limited and that the interim order of July 12, 2019 was merely vacated by the impugned order of August 18, 2020 upon the Court noticing that the one-year tenure of the four plaintiffs would have run out in the usual course. However, it cannot be
missed that the Board of Governors of La Martiniere is not the Board in accordance with the decree of 1944.

The appellants complain that major policy decisions have been taken by the Board of Governors headed by the present Bishop of Calcutta for establishing branches or new schools in the name of La Martiniere in conjunction with other schools. It would be in the best interest of all concerned that all
decisions taken by the Board after the institution of the suit or after the passing of the initial order therein on July 12, 2019 be not immediately given effect to except those pertaining to the day-to-day administration and functioning of La Martiniere School, Calcutta, both the Boys’ and Girls’ sections. No decision pertaining to any new school should be given effect to or any steps taken in pursuance thereof till the matter is decided.

It may be necessary to make the constitutional document more contemporary and to revisit the manner of the composition of the Board of Governors of the school. Since such part of the exercise may be purely for the interest of the school and not adverse to any person, the exercise may even be
taken up in course of the present appeal to preserve and protect the interest of the school which ought to be the paramount concern of the Court. The appeal and the applications therein will now appear a week after the Court reconvenes following the Puja vacation.

It will be open to all the respondents to file affidavits, particularly, to indicate how the new constitution of the Board of Governors of the school should be made. Since the eo nominee plaintiffs would, in any event, have demitted office after the period of one year ran out, such plaintiffs cannot be restored to
the position apparently occupied at the time of the institution of the suit.

For the moment, the current Board of Governors will continue to function, but it will not take any major decision or precipitous action except for the immediate purpose of the proper management of the Girls’ and Boys’ sections of the school in Calcutta.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(SANJIB BANERJEE, J.)
( ARIJIT BANERJEE, J.)