S. Banerjee, J. - (1.) Several years after the horse has bolted, the state government appeals to the inherent sense of justice of the court by wielding the parents pateriae doctrine to both chase the horse back into the stable and bolt the door. The primary application, GA No. 3637 of 2010, is the one carried under Sec. 151 of the Code of Civil Procedure, 1908 by the State for recalling orders dated October 8, 2004 and December 23, 2004 by which the suit stood disposed of. GA No. 3490 of 2007 is a previous application by the State seeking leave to take over the assets and liabilities of the seven hospitals that belong to the first Defendant. GA No. 643 of 2011 is by the added Defendant seeking a clarification of the recent orders made on the State's principal application and, in effect, seeking to continue in management of the hospitals as permitted by the orders passed in the year 2004. GA No. 2766 of 2011 is by a person claiming to be an erstwhile employee of one of the hospitals and a member of the first Defendant society.
(2.) As is almost inevitable in a matter of the present nature, a question of the locus standi of the state government to maintain its prayers has been raised. The real tussle is between the state government and the added Defendant, Picasona Health Care Private Limited. The Plaintiffs have not been represented in course of the present proceedings despite service. The existence of the first Defendant society is in serious doubt and though some persons claiming to be the members of the first Defendant society have either used an affidavit or have applied to be heard, they appear to be unabashed supporters of added Defendant Picasona and have hardly made any bones about it.
(3.) Before embarking on the question of the State's locus to apply and have the orders passed in the year 2004 recalled, the scope of the suit and the orders made therein must be noticed without comment. In the plaint relating to the suit, the third Plaintiff is claimed to be a registered trade union; the first Plaintiff is said to be the general secretary of such union; and, the second Plaintiff is described as the chief adviser to the third Plaintiff union. The avowed purpose of the suit, as evident from the opening paragraph of the plaint, is "to enable (members of the third Defendant union) to recover the dues from the Defendant No. 1." The second Defendant is described as the special officer "appointed in respect of the said Society by this Hon'ble Court by an order dated September 29, 2000 ..." The plaint says that in 1992 the employees of the first Defendant society instituted proceedings under Article 226 of the Constitution and, by an order dated December 23, 1996, this Court directed payment of the salaries to the employees of the relevant hospitals within a particular time. The plaint reveals that on a subsequent writ petition a similar order was made on January 28, 2002. The business end of the plaint and the reliefs claimed therein need to be seen in the Plaintiffs' words: 8. However, the Defendants have not paid the salaries 1.12.99 to 30.4.2002 and other dues of the workmen of the said hospitals. Full particulars of such dues are as follows: JUDGEMENT_203_LAWS(CAL)9_2011.jpg "9. The workmen of the said hospitals are living in chill penury and are unable to sustain themselves and their families and dependants anymore. "10. The Defendants are thus liable to pay the said dues of the said workmen with interest at the rate of 12 per cent per annum. "11. The workmen are also entitled to interest At the rate of 12% percent per annum on their said dues till realization. "12. The Plaintiffs have valued the reliefs claimed in the instant suit at Rs. 2,52,24,363.00. The Plaintiffs have paid appropriate ad -valorem Court fees on the instant suit. "13. Inasmuch as the instant suit is valued At over Rs. 10 lakhs, this Hon'ble Court only have the jurisdiction to tertian, try and determine the instant suit and the City Civil Court does not have pecuniary jurisdiction to try and determine this instant suit. The Plaintiff claims: - a) A decree for Rs. 2,52,24,363.00 as stated in paragraph 8 thereof; b) Interim interest and interest on judgment at the rate of Rs. 12%. c) Injunction: d) Receiver; e) Attachment before judgment f) Costs; g) Further and/or other reliefs. 3. Since the second Defendant in the suit is referred to in the plaint as a special officer appointed by this Court, the circumstances that led to such appointment and the brief of the special officer need to be ascertained. Matter No. 1680 of 1992 was instituted before this Court under Article 226 of the Constitution complaining of the arbitrary appointment of an administrator over the seven hospitals of the first Defendant society by the state government. The writ petition was launched by a member of the society and the assertion therein was that the state had illegally usurped control over the hospitals by a memorandum of October 10, 1975 which did not have any legal mandate. In the order dated September 11, 1992 allowing the writ petition, the court noticed the recital to the memorandum which reflected the State's understanding that upon most of the members of the executive committee of the first Defendant society having resigned "a vacuum has been created ... in the management of the hospitals" and that "in public interest, viz., the treatment and care of the T.B. Patients lying admitted in the ... hospitals and under the care of the Outdoor treatment centres, it is necessary to take immediate suitable steps to run and manage the institutions pending formation of the new Executive Committee in accordance with the rules of the Society." By the memorandum, certain officers of the state government were appointed administrators and, at the time that the writ petition was filed, the second Respondent to the proceedings was the administrator. The points canvassed in support of the writ petition, as noticed in the order dated September 11, 1992, were that the State had no power under any law to appoint an administrator over or in respect of the affairs or assets of the society; and, even it were accepted that the state government had any modicum of authority to issue the memorandum, the administrators had continued endlessly without any effort to have the executive committee of the society reconstituted. A third, unrelated charge levelled was that the administrator then in control was attempting to dispose of the assets of the society. The State did not use any affidavit to contest that petition, but the administrator did. The administrator asserted that the society had become defunct and the State had the legal sanction to step in. 4. The order recorded that the Respondents had not been able to "justify the impugned Notification by reference to any provision of law." The court noticed the limited ambit of Sec. 23 of the West Bengal Societies Registration Act, 1961 which provides that in certain circumstances the State may appoint a person to investigate into the affairs of a society and report to the State, whereupon the State may direct the society to remove the defects or irregularities within a specified time, and in default, the State may direct the registrar under the 1961 Act to move the court for dissolution of the society. The order also refers to the other provisions of the 1961 Act that provides for dissolution of a society by court, either by a resolution of its members or by the registrar seeking the same. 6. Upon consideration of the provisions of the 1961 Act, the court held that there was "no provision for the appointment of an Administrator over the affairs of the Society. The State Government control over the affairs of a registered Society is limited to Sec. 23 of the Act. It cannot be argued that the impugned action and Notification is justifiable by reference to any of the provisions of Sec. 23 of the Act." Apropos a contention that the affairs of the society needed to be taken charge of by the State for the larger good, the court opined that "public interest cannot by itself and without reference to any statutory provisions empower the State Government to take over the assets and administration of any organisation leave alone a registered Society." The order proceeded to hold that the "submission on behalf of the Respondents that the Society is defunct is based upon a mis -appreciation of the law. The Society continues to exist until dissolved. It is nobody's case that the society has been dissolved under the Act. The mere fact that members of the Executive Committee may have resigned does not affect the existence of the society." The operative part of the order dated September 11, 1992 stated as follows: Accordingly, I dispose of this application setting aside the impugned Notification/Memo. dated 10th October, 1975 under which the Respondent No. 2 is claiming to be authorised to operate as Administrator of the Society. The Respondent No. 2 is directed to forthwith handover the charge of the assets and records relating to the Society to the Director of Health Services and to Mr. Sunil Kumar Mukherjee, Advocate, who are appointed Joint Special Officers for the purpose of maintaining the continuity in the administration of the affairs of the society. The Joint Special officers will hold election of the members of the Society on the basis of the Register of Members as existed in 1975. Any other member claiming to be a member must produce the proof of membership before the Joint Special Officers. The election of the members of the Executive Committee shall be held strictly in accordance with the provisions of the Regulations of the Society within 8 weeks from the date of communication of this order to them. The Joint Special Officers, however, will not have any authority to dispose of or encumber any of the assets of the Society. After the election is held, the Joint Special Officers shall hand over the control of the assets and administration of the Society to such newly elected Executive Committee.;