Whether Gram panchayat can give no objection for regularization of encroachment done over Gairan land by passing resolution?

  The petitioner is admittedly an encroacher

upon government “E” Class land, which is Gairan land.

It is the contention of Mr. Awachar, learned counsel for

the petitioner that the petitioner is a land less person,

who has encroached upon this land since the year 1991

and therefore, the petitioner is entitled for allotment of

the land encroached by him through its regularization.

He also submits that there is a Gram Panchayat

Resolution dated 30.06.1998, which gives no objection

for permanent allotment of government land to the

petitioner. {Para 2}

3. Mr. Patil, learned AGP for respondent Nos.1,

3 and 4 submits that under Section 22A of the

Maharashtra Land Revenue Code, 1966 (for short "the

Code of 1966"), no regularization for any private

purpose is permissible, as it could amount to diversion

of the Gairan land against the express provisions of law.

He also submits that even by the criteria laid down in

the case of Jagpal Singh (supra), the petitioner is not

entitled for any kind of regularization.

4. So far as Gram Panchayat resolution is

concerned, we must say that there was no business for

the Gram Panchayat to have passed a resolution, giving

its no objection for regularization of the encroachment

upon the government land, especially in view of the

provisions made under sub-Section (6) of Section 22A

of the Code of 1966. These provisions indicate that

powers of diversion, grant, lease of Gairan land under

Section 22A of the Code of 1966 shall be vested in the

State Government. Therefore, passing of any unwarrented

resolution in respect of the land, of which

Gram Panchayat is not the owner or the land which is

not vested in the Gram Panchayat, only amounts to

meddling with the affairs of the State Government, for

which purpose, appropriate action, if thought it

necessary, would have to be taken by the State

Government.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CIVIL WRIT PETITION NO.2581 OF 2021

Ramdas s/o. Sambhaji Ghewande Vs. State of Maharashtra, through its Secretary,

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Whether the court can dismiss the complaint about the dishonour of cheque if an officer of Co-operative society was not duly authorized to give evidence?

When the Complainant's witness the said Shirodkar was cross-examined on the said Resolution/Authority letter, the Complainant's witness admitted that the said Resolution authorised him to attend Court cases and not to depose on oath. It is contended by learned Counsel on behalf of the accused that this point was raised before both the Courts below. The learned J.M.F.C., merely observed that the Complainant produced on record true extract of the Resolution authorising Gaurish Shirodkar to attend the Court on behalf of the Society. There is no whisper about the said Resolution/Letter of Authority in the Judgment of the learned Appellate Court, which otherwise also is very cryptic. The said Resolution did not authorise the said Gaurish P. Shirodkar, the recovery officer of the Complainant-Co-operative Society, either to file a complaint on behalf of the Complainant, which is a separate legal entity or to depose in support of the Complainant. A complaint under Section 142 of the Act can be filed either by the payee or the holder in due course. The Complainant-Co-operative Society was the payee in his case and the complaint was filed in its name. The authority produced did not sufficiently authorise Shri G. P. Shirodkar either to file the complaint or to depose in support thereof. The Complainant was not sufficiently represented before the Court. Therefore, it could not be said that the complaint filed or the evidence given in support thereof was in accordance with Section 142 of the Act, which requires that the complaint has to be made by the payee or, as the case may be, by the holder in due course of the cheque. In the absence of any Power of Attorney or a valid authority by the Complainant in favour of the said Recovery Officer, the complaint itself could not have been entertained and conviction based on such a complaint, is liable to be set aside.

IN THE HIGH COURT OF BOMBAY AT GOA

C.R.A. No. 32 of 2006

Decided On: 04.10.2006

 Alka Toraskar  Vs.  The Vaishya Urban Co-op. Credit Society Ltd. and Ors.

Hon'ble Judges/Coram:

N.A. Britto, J.

Citation: MANU/MH/1097/2006,2007 CRLJ 858, 2006(6) ALLMR 397

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Whether suit filed by the trust is maintainable if co-trustees are not joined as a party to suit?

The law is well settled that all co-trustees must be joined in filing suit unless the instrument of the Trust otherwise provides. No one single co-trustee even if he be as a managing trustee, unanimously chosen by the co-trustees, can maintain such a suit without other trustees being parties to it. If any one or more are unwilling to be joined the suit as plaintiff or for some reason or the other it is not possible to join them as plaintiff, they must be impleaded as defendants so that all the co-trustees could be before the Court.

The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the Court either as plaintiffs or even as defendants."

45. As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the Managing Committee of the Trust. It is only through such resolution the Trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint to appoint or engage leader to represent the interest of the trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the Managing Committee of the appellant-Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the trust. Thus, prima facie; suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

IN THE HIGH COURT OF BOMBAY

Appeal from Order No. 641 of 2004

Decided On: 13.08.2004

Decided On: 14.09.2004

Shri Cutchi Visa Oswal Derawasi Jain Pathshala Vs. Cutchi Visha Oswal Derawasi Jain Mahajan 

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) ALLMR484

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Bombay HC: Trust is not required to file resolution for filing eviction suit if all trustees have filed suit

As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the managing committee of the Trust. It is only through such resolution the trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint, to appoint or engage pleader to represent the interest of the Trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the managing committee of the appellant - Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the Trust. Thus, prima facie, suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

From the facts of the said case, it is clear that only one of the trustees had filed the suit and neither there was any pleading nor there was any evidence that the trustees had passed a resolution to, file a suit against the defendant and that the said trustee, who had filed the suit was authorised by all of the trustees to represent the Trust. If one or some of the trustees only filed the suit or such an application, this authority would be applicable, but where all the trustees have joined as the applicants in the application, that itself indicates that all the trustees had agreed and resolved to file the application for eviction. Therefore, it was not necessary to plead and prove that such a resolution was passed. In fact there was no question of authorisation of any particular trustee to file such an application because the application was filed by all the trustees jointly.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application Nos. 1254, 1255 and 1256 of 2001

Decided On: 13.03.2008

 Minoo Rustomji Shroff Vs. Dali Kavasji Gai and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2008(4) MHLJ 71,2008(3) BCR 16

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On which ground, change report filed before charity commissioner can be challenged?

 Here in the case, admittedly the notice of the proposed meeting, according to respondent No. 1 also was issued to appellant and respondent No. 2. The question is whether that notice was legal and valid in view of the mandate of the Memorandum of Association. As stated above, clause 16(C) of the Memorandum of Association lays down that 15 days written notice in advance be given to the members before the election of the members for executive committee. Clause 18 further lays down that the notice of 15 days in advance must be received by the member for any proposed meeting of General Body. Here in the case, admittedly the notice is alleged to be issued on 21/12/1990 and it is stated to be sent Under Certificate of Posting on 22/12/1990 as the meeting was proposed on 06/01/1991 and held on that day, it follows that there was no 15 days in advance notice before the date of meeting. It is apart that as per the case of appellant and respondent No. 2 they had not received the notice and the proof of Under Certificate of Posting cannot be a valid proof of service of notice as there is no acknowledgement receipt.

14. In view of this situation, it is apparent that in the first place 15 days notice in advance was not received by appellant and respondent No. 2 and on this very ground itself the DCC has rightly held that the meeting was not legal, proper and valid. Secondly, ousting of the appellant and respondent No. 2 in the said meeting and induction of some other members in the Executive Committee was also done without giving an opportunity of hearing to appellant and respondent No. 2. Even assuming that they had not paid the subscription fees, on this count also their removal from the membership in the said meeting and induction of some outsider members to the Executive Committee cannot be upheld.

15. Thus, looked at it from any angle, it cannot be said that the Change Report filed by the respondent No. 1 before the DCC on the basis of the resolution passed in the said meeting was legal, valid and correct. The DCC has rightly rejected the same. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 359/1998

Decided On: 18.07.2017

Santosh Vs. Purushottam and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2017(6) MHLJ 888

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Whether resolution taken by general body of trust will not be effective till it is approved by charity commissioner?

 Learned Advocate Shri Sunil Manohar then placed reliance on reported judgment in Chembur Trombay Education v. D.K. Marathe reported in MANU/MH/0863/2001 : 2002(3)BomCR161 . In paragraph 11 of this judgment the learned Single Judge has observed as under:

... A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of Section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.

Giving the natural meaning to this word in Section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail....

9. Learned Advocate Dr. Anjan De fairly conceded that the judgment of learned Single Judge of this Court in Chembur Trombay Education v. D.K. Marathe reported at MANU/MH/0863/2001: 2002(3)BomCR161 does not support his contentions.

10. We find that any of the provisions contained in Bombay Public Trusts Act or the Rules thereunder do not mandate that amendment to the bye-laws or the rules of constitution of society passed by the society or trust shall not operate unless and until said amendment gets approval of Charity Commissioner/ Assistant Charity Commissioner etc.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2672 of 2007

Decided On: 26.07.2007

 Ganesh S/o. Mahadeorao Thawre Vs. Central Hindu Military Education Society 

Hon'ble Judges/Coram:

A.H. Joshi and R.C. Chavan, JJ.

Citation: 2007 (6) MHLJ589

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Whether resolution taken by general body of trust will come in to effect from date of resolution?

Now we would revert to the second aspect of the matter regarding the relief of mandatory/injunction claimed against the appellants in A.O. No. 1260 of 1995 emanating from Notice of Motion No. 4762 of 1995 in suit No. 5470 of 1995. The same is pressed essentially on the premise that Shri Marathe still continues to be the life president of the Society. This premise, in my view, is wholly inappropriate. It clearly over looks the fact that the general body of the Society in its meeting dated March 19, 1995 resolved to amend the constitution thereby deleting the provisions which ordained that Shri Marathe shall remain life President of the Society. Besides deleting the said provision, the general body also resolved to amend the constitution by providing that the post of President as well as that of the Governing Council members shall be filled by election only and the term of their office would be upto a period of three years from the date of assuming office. Besides amending the constitution which effected the change, this change has been reported to the competent authority under section 22 of the Bombay Public Trusts Act, 1950. Besides this change, another change that occurred pursuant to the general body decision dated June 18, 1995 is that Shri V.M. Pant, Senior Member was elected as a President and other members were elected to the new Governing Council, who assumed office after the said resolution. Even this change was reported to the appropriate authority as required under section 22 of the Act. The argument, however, advanced on behalf of the respondent-Shri Marathe is that the said change will come into effect only after the same is accepted by the appropriate authority. The Counsel for the respondent further contends that the amendment to the constitution is yet to be approved by the appropriate authority and till such time the question of conducting elections on the basis of such amended constitution, as has been done in the present case, is totally without authority of law. He further submits that the change report with regard to the amendment of the constitution, being change Report No. 1456/1995, was initially rejected by the Assistant Charity Commissioner by order dated June 6, 1998 which order was later on set aside by the Joint Charity Commissioner on June 13, 1998 at the instance of appellants in A.O. No. 1260/1995. He however, contends that the said decision has been interdicted by the City Civil Court in Charity Appeal Application No. 15/1998. According to him, therefore, the said change report relating to amendment of the constitution is still pending consideration and till such time no steps can be taken on the basis of the amended constitution. This submission is totally misplaced and in the teeth of the settled legal position. The law with regard to the efficacy of any change brought about and its application is no more res integra. The Apex Court in decision reported in A.I.R. 1993 S.C.W. 3006; Managing Committee, Khalsa Middle School and another v. Smt. Mohinder Kaur and another, has considered this aspect of the matter. The Apex Court was called upon to examine similar provisions of the Societies Registration Act, 1860. The scheme of section 12-A of that Act is more or less same as section 22 of the Bombay Public Trusts Act. The Apex Court compared the said provision with the provisions of sections 18 and 19 of the Companies Act which mandate that the alteration or amendment to the Memorandum of Association of the Company takes effect from the date of its registration only. In that context the Apex Court in para 11 of the said judgment has observed that in absence of any requirement in the Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

"To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise."

Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

Chembur Trombay Education Society and Ors. Vs. D.K. Marathe and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(3)BomCR161 

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Whether certified copy of resolution or extract of minutes book is admissible without proof of original?

Next comes the document No. 1 -the certified true copy of the resolution dated 16.2.2009, whereby the complainant company had allegedly resolved to give consent of the Board of Directors to execute power of attorney in favour of Ashwin Sheth, Managing Director and/or Sharad Doshi, Executive Assistant to the Managing Director to institute or defend any suit or criminal proceedings. The learned trial Court observed in the impugned order that there is no clear-cut provision about issuance of certified copy of extract of minutes book but if Sub-section (2) of Section 196 of the Companies Act is read, it may be stated that certified copy of the minutes can be given. The learned trial Court observed that the witness Sharad Doshi in his affidavit had deposed about the said document and thereby he has proved the genuineness of the document. Under Section 195 of the Companies Act, where minutes of the proceedings of any general meeting of the company have been kept in accordance with the provisions of Section 193, then, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place. Section 194 of the Companies Act provides that the minutes of meetings kept in accordance with the provisions of Section 193 shall be evidence of the proceedings recorded therein. However, no provision in the Companies Act is brought to my notice which provides that the certified copy or extract of the minutes would be admissible in evidence without proof of the original. Section 65(f) of the Evidence Act provides that secondary evidence may be given of the existence, condition and contents of the document when the original is the document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence. As no provision from the Companies Act is brought to my notice under which the certified copy of the minutes of the meetings of the board of directors is admissible in evidence without proof of the original, it must be said that the copy of the minutes cannot be admitted in evidence directly unless the original is proved or the copy is admitted by opposite party. Therefore, even though that document is given exhibit number, it cannot be treated to have been proved, unless the complainant leads appropriate evidence to prove the minutes.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 40 of 2011

Decided On: 16.03.2011

Ashish C. Shah Vs. Sheth Developers Pvt. Ltd., 

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2011(4) MHLJ 288

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Whether dismissal of judicial officer can be set aside on ground that copy of resolution of full court is not supplied to him?

 Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) laid down as under:

“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

31. It may be noticed here that after the law was laid down by Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) specific provision in this regard has been inserted in the Rules of 1958 as Rule 16(10A) in the year 2003, as reproduced hereinbefore.

32. In the present case as admittedly the copy of the resolution of the Full Court was not made available to the petitioner, the same apparently was in violation of the resolution itself as well as express provisions of Rule 16(10A) of the Rules, 1958 and results in causing prejudice to the petitioner, who being unaware of the opinion of the Full Court did not make any representation qua the said opinion of the Full Court.

33. The rest of the issues sought to be raised by the petitioner pertaining to the findings of the Inquiry Judge, on account of the fact that the Full Court apparently formed the opinion that the petitioner acted with corrupt motive also, go into oblivion at this stage.

34. In view of the fact that the opinion of the Full Court was not communicated to the petitioner and petitioner could not make any representation qua the said opinion, further the Full Court rejected the representation and the State acting on the opinion of the Full Court has ordered for dismissal of the petitioner, the order of dismissal stands vitiated.

In the High Court of Rajasthan at Jodhpur

(Before Sangeet Lodha and Arun Bhansali, JJ.)

Ghanshyam Giri v. Rajasthan High Court through the Registrar General,

D.B. Civil Writ Petition No. 637/2012

Decided on September 20, 2017

Citation: 2017 SCC OnLine Raj 2559

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How to prove resolution passed by board of directors of company?

Sec. 193(1A)(a) of Company Act makes it clear that each page of the minute book is to be initialed or signed and the last page of the record of proceedings of each meeting in such book is to be dated and signed in case of minutes or proceedings of a meeting of Board or of a committee thereof, by the chairman of the said meeting or the chairman of the next succeeding meeting. Ld. counsel for the plaintiff has tried to make mountain out of a mole hill in view of the photostat copy Ex. DW 1/1 (mark A) of the resolution dated 9.3.1999 i.e. the 83rd resolution. In this document (mark A) Ex. DW 1/1 Ajay Chaudhary was mentioned as the chairman. Ld. Counsel for the plaintiff wanted to take this particular fact to be sufficient to conclude that this resolution was fabricated as Shiv Nadar was not present on 9.3.99 and he had later on signed the same. It is not in dispute that Shiv Nadar was the chairman of the company. Therefore in view of Sec. 193(1A)(a) Companies Act he had signed the 83rd resolution at the time of the meeting dated 20.4.99 on which date 84th meeting of the board of director had been convened. The photostat copy of the 84th meeting of Board of Directors shows that it was attended by Shiv Nadar. Therefore, in view of Sec. 193(1A)(a) of Companies Act, he was entitled to sign the minutes of the 83rd meeting. Thus, there is no material to hold that the minute book had been fabricated later on. The original minute book had been produced at the time of recording of statement of G.P. Kalra DW 1. The evidence had been recorded by my ld. predecessor. When the defendants were directed to produce the photostat copy of the minute book containing the entries of 83rd and 84th meeting, the same had been produced before on 13.12.2003. I had also perused the original minute book containing the minutes of 83rd and 84th meeting. The minute book appeared to be properly maintained in accordance with Sec. 193 of Companies Act and there did not appear anything to raise suspicion.

The judgment relied upon in the case of Amal Kumar Mukherjee (supra) with respect to the argument that the minute book of a company ought to be bound and written in hand, is to be read in the context of the facts of the said case wherein there were disputes inter se shareholders of a company and in such circumstances, the issue had arisen with respect to manipulation of the minute book of the company. In the present case, there is no dispute inter se shareholders or inter se Directors of the Board of the company and therefore the judgment in the case of Amal Kumar Mukherjee (supra) will have no application to the facts of the present case, especially for the reasons stated above that there is no subsequent resolution of the Board of Directors or any resolution in the General Body meeting of defendant No. 1/respondent No. 1-company questioning or rescinding the termination of services of the appellant - Sh. Pawan Kumar Dalmia.

IN THE HIGH COURT OF DELHI

RFA Nos. 180/2004 and 235/2004

Decided On: 13.03.2012

Pawan Kumar Dalmia Vs. M/s. HCL Infosystems Ltd. & Ors.

Hon'ble Judges/Coram:

Hon'ble Mr. Justice Valmiki J. Mehta

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Whether resolution of board of directors is more important letter issued by company?

 Whether the defendant company in refusing to register shares did so on the ground of indebtedness of Hemmad or not has in our opinion first to be found from the terms of the resolution of the meeting of the Board of Directors. The company or the Board of Directors speak primarily through its or their resolution. If the enquiry is as to what was the decision taken by the Board of Directors the Court would look more and depend more on the actual terms of the resolution than on the terms and the language in which such decision was conveyed by letter or correspondence even if such a letter in fact was written and despatched. It is, therefore, necessary to refer to the resolutions in this case.

Calcutta High Court

Babulal Choukhani vs Western India Theatres Ltd. And ... on 5 December, 1956

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How to prove resolution of board of directors of company?

In this view of the matter, as the power to institute the suit had to be proved, copy of Resolution No. 5 passed in the meeting of the Board of Directors of Escorts Limited (plaintiff) held on 16th October, 1965 was placed on record, as this was not enough, the original minutes book containing Resolution No. 5 dated 16.10.1965 was brought to Court. I saw the original minutes book. It contains the aforesaid Resolution No. 5 dated 16.10.1965. This Resolution approves the draft Power of Attorney which was proposed to be granted. The manner of proving the said Resolution which has been adopted by the plaintiff is an affidavit of Mr. P.N. Arora, son of Mr. Lekh Raj, being affidavit dated 22nd March, 1990. In that affidavit, it is stated that the minutes of the Board of Directors have been written in the hands of Ms. Amarjit Kaur, who is the representative of the plaintiff company. The deponent says that he can identify the handwriting of the said Amarjit Kaur.

(14) The manner in which such a resolution of the Board of Directors of Companies are to be proved, is clearly stated by Hardayal Hardy, J. in a judgment passed in Suit No. 469 of 1986 in M/s. Oberoi Hotels (India) Pvt. Ltd. v. M/s. Observer Publications (P) Ltd. and others. In this judgment it has been stated that "the only way to prove that a particular resolution was passed at a meeting of the Board of Directors of a company is that the minutes book in which the said resolution was recorded as having been passed should be produced in Court as that alone can form evidence of the fact under section 194 of the Act". Section 194 of the Companies Act reads as under :

"194.Minutes of meetings kept in accordance with the provisions of section 193 shall be evidence of the proceedings recorded therein".
(15) In view of the fact that the minutes book of the plaintiff has been produced before me, after seeing the same I am satisfied that resolution No. 5 was passed in the meeting of the Board of Directors held on 16th October, 1965. The plaintiff has thus proved the conferment of the powers of attorney to Shri Charanjit Singh with power to institute the suit. By virtue of provisions of Order 29 of the Code of Civil Procedure, a Principal Officer can sign and verify the plaint, it is also established that Charanjit Singh is a principal officer of the plaintiff company, who can as such officer, sign and verify the plaint in suit, he is also authorised to institute this suit by virtue of the power of attorney dated 28.1.1966.
IN THE HIGH COURT OF DELHI

Suit No. 2043 of 1987

Decided On: 20.07.1990

Escorts Limited Vs. Sai Autos and Ors.

Hon'ble Judges/Coram:
Mahinder Narain, J.

Citation:(1991) 72 Com cases 483

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Whether it is necessary to examine person passing resolution authorizing filing complaint of dishonour of cheque?

 
 The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct.  He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao  Kumbhar to  file a complaint on
behalf of the  complainant bank.

This   submission   of   the   learned   counsel   for   the
applicant appears to be proper.   The Magistrate's reasoning that
the resolution had not been proved because the same had been
passed in the absence of the said Hindurao Kumbhar, and that, he
had no personal knowledge about the said resolution is not sound.
The Magistrate's view that some of the persons who passed the

resolution ought to have been examined, is not correct. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.920 OF 2013
WITH
CRIMINAL APPLICATION NO.472 OF 2013
IN
CRIMINAL APPEAL NO.920 OF 2013

THE KARAD URBAN CO­OPERATIVE BANK LIMITED  V/s.
SUNIL LAXMAN DALVI AND ANR. )...RESPONDENTS

CORAM : ABHAY M. THIPSAY, J.

DATE : 15th DECEMBER 2015.
Citation:2016(4) MHLJ 577

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Whether resolution passed by UGC regarding distance learning course is statutory in nature?

As regards the status and legal position of
the UGC, it was held that UGC Act, 1956, under which
it has been created, has a supervening influence over
all other Legislations on the subject of education for
maintenance of minimum standards in the country and
indisputably governs Open University also. Thus, the
resolution adopted in the 40th Meeting of the DEC dated
08-06-2012, Annexure P34, to confine the territorial
jurisdiction of the Private Universities within the
geographical limits of the States of its locations, having
been taken as a consequence of a policy decision of the
Government of India, it cannot be held to be
unauthorised and invalid. The policy decision
ultimately crystallised in the form of Order dated 29-
12-2012, Annexure R4. This Order having been issued
by the Ministry of Human Resource Development, 

Department of Higher Education, Government of India,
Respondent No.1, in exercise of its powers under SubSection
(1) of Section 20 of the UGC Act, 1956,
assumes a statutory character and would be considered
as part of the main Statute, i.e., UGC Act, 1956, and
binding upon all Universities irrespective of whether the
other Statutes including the ones under State
Legislations provide otherwise. This is so far as the
questions of law are concerned.
THE HIGH COURT OF SIKKIM : GANGTOK

S.B. : HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE

WP(C) No.08 of 2015
Petitioners : 1. Mr. Pralhad Dani Chhetri,


 versus
Union of India


(29th June, 2015)
Citation:AIR 2016 (NOC) 560 skm

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When resolution passed by assembly is liable to be set aside on ground of violation of principle of natural justice?

We now deal with the submissions of the petitioners that
the impugned proceedings are violative of the fundamental
right of the petitioners under Article 14. According to the
petitioners, the said proceedings have been taken in violation
of the principles of natural justice. It is settled law that the
scope of judicial review in matters relating to action taken
against members by the legislative bodies is limited.
However, it is likewise well settled that the non-compliance
with the principles of natural justice is one of the limited
grounds on which judicial review could be undertaken against
the internal proceedings of the legislative bodies in appropriate
cases.
 The petitioners’ case, though not elegantly pleaded, is that
they have not been granted the opportunity to watch the video
recording or comment on the content and authenticity of the
video. In the questions of law raised in the writ petition, the
petitioners raised the question of “Whether denial of the right
to comment on the video material would amount to breach of
natural justice?” In the grounds taken by the petitioners, they
pray for the writ to be allowed “because on the question of
authenticity of videography and as to how far it can be pressed
into service, further, the respondents never gave a copy of the
alleged videography to the petitioner”.
 The minutes of the Privileges Committee meeting clearly
show that the video-recording played an important role in
arriving at the conclusions that the Privileges Committee did.
The video recording was specifically shown to the members of
the Privileges Committee “since some of them would have
forgot only the video recordings were shown again”15. Giving
some allowance for bad translation - the said sentence only
indicates that the Committee was not willing to rely solely on
the memory of the members of the Committee. At the risk of
repetition, we reiterate that the video recording served as the
common factual platform for all the members of the
Privileges Committee, from where the members discussed the
actions of the six petitioners, and recommended action against
them.
Even at Para 70 of the counter affidavit, the respondents assert that as the incident on 19.2.2015 happened
inside the assembly chamber, the speaker and other present members were eye-witnesses to the incident,
and that the nature of the incident was known to all members in the house, including the members of the
privileges committee.

39. This Court in Raja Ram Pal case, while dealing with the
question of the rules of natural justice in the context of
proceedings in the legislative bodies, held as follows:
“As already noted the scope of judicial review in these matters is restricted
and limited. Regarding non-grant of reasonable opportunity, we reiterate
what was recently held in Jagjit Singh v. State of Haryana that the
principles of natural justice are not immutable but are flexible; they cannot
be cast in a rigid mould and put in a straitjacket and the compliance
therewith has to be considered in the facts and circumstances of each
case.”16
40. In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1,
this Court discussed the scope of the principles of natural
justice in the context of the proceedings in the legislature
(action under Xth Schedule of the Constitution) and held thus:
“Undoubtedly, the proceedings before the Speaker which is also a tribunal
albeit of a different nature have to be conducted in a fair manner and by
complying with the principles of natural justice. However, the principles
of natural justice cannot be placed in a straitjacket. These are flexible
rules. Their applicability is determined on the facts of each case…”17
41. The principles of natural justice require that the
petitioners ought to have been granted an opportunity to see
the video recording. Perhaps they might have had an
opportunity to explain why the video recording does not
contain any evidence/material for recommending action
16 Extracted portion is a part of Paragraph 446 in the judgment.
17 The extracted portion is a part of paragraph 44 in the judgment.

against all or some of them or to explain that the video
recording should have been interpreted differently.
42. The Privileges Committee should have necessarily offered
this opportunity, in order to make the process adopted by it
compliant with the requirements of Article 14. Petitioner No. 1
in his reply letter to the notice issued by the Privileges
Committee seeks permission to give further explanation when
the video recording is provided to him. The Petitioner No. 3 in
his reply letter states that he believes his version of his
conduct will be proven by the video recording. The other
petitioners do not mention the video recording in their reply
letters. However, it is not the petitioners’ burden to request for
a copy of the video recording. It is the legal obligation of the
Privileges Committee to ensure that a copy of the video
recording is supplied to the petitioners in order to satisfy the
requirements of the principles of natural justice The failure
to supply a copy of the video recording or affording an
opportunity to the petitioners to view the video recording relied
upon by the committee in our view clearly resulted in the
violation of the principles of natural justice i.e. a denial of a
reasonable opportunity to meet the case. We, therefore, have

no option but to set aside the impugned resolution dated
31.03.2015 passed in the Tamil Nadu Legislative Assembly.
The same is accordingly set aside.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 455 OF 2015
Alagaapuram R. Mohanraj & Others … Petitioners
Versus
Tamil Nadu Legislative Assembly
Rep. by its Secretary & Another … Respondents
Dated:February 12, 2016.
Chelameswar, J.
Citation:(2016)6 SCC82

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Bombay HC: At what stage of proceeding, Waiver of objection regarding admissibility of copy of document becomes irreversible

The judgment of Full Bench of this Court in the case of Mr. Hemendra Rasiklal Ghia .vrs. Subodh Mody (supra), has considered the judgment in case of Dayamanthibai .vrs. K.M. Shafi (2007 (4) SCC 107). In subsequent judgment reported at 2009 [10] SCC 239 (P.C. Thomas .vrs. P.M. Ismail and others) the Hon'ble Apex Court has held that once no objection to such document on plea either of inadmissibility or mode of proof, is raised at the time of exhibiting that document, or then during trial, such objection cannot be raised belatedly. It is therefore, obvious that opportunity to make amends or to rectify the procedural error was available to plaintiff [respondent no.1 herein] during trial. Had petitioner raised present objection then, plaintiff could have proved the resolution by producing the original proceeding book & tendering appropriate evidence. That opportunity is now lost to plaintiff and hence such 

an objection cannot be allowed to be raised thereafter. Waiver of that objection has now become irreversible.

Bombay High Court

M/S. Mohanlal Kisanlal Agrawal vs Shri Ajitnath Jain Shetambar ... on 5 January, 2011

Bench: B. P. Dharmadhikari

Citation; 2011 (2)MH L J 512

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