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MISsC.(J) 13/2015
17/3/2015
Instant Misc.(J) case arises out of petition No.462/15 filed U/O 39 Rule 1
& 2 read with sec 151 of CPC with a prayer for temporary injunction.
Petitioner’s case in brief is that they are the ,members of ‘Jorhat Kalibari’
and also amongst the public of the locality of Jorhat Kalibari, Rai Bahadur Lane.
That the affairs of Jorhat Kalibari are used to be run by the committee selected
through a public meeting. The tenure of previous committee ended in the year
2003, for which a public meeting was called for by the OP’s on 13-07-2003 at Sri
Bharati School, Rajamaidam Road and new committee was formed wherein O.P
No-1 was selected as the President, O.P No-2 as Secretary and O.P No-3 as
Treasurer. That since the date of appointment, the OP’s are taking charge of the
affairs of Jorhat Kalibari and had made various construction works including
repairing, renovation of the Puja premises. As the said construction works involved
public funds & deals with the public money hence it was incumbent upon them to
call for public meeting at regular interval to submit accounts of expenditure and
other accounts to the public. That since the date of taking over charge, the O.P’s
have undertaken various construction works like construction of ground floor & 1st
floor of Jorhat kalibari, construction of living room, Kitchen of Maharaji of Jorhat
Kalibari, permanent Latrine & bathroom and all other repairing renovation works.
But surprisingly enough since 13-7-03, no any single meeting was called by the
OP’s to submit the accounts of construction-expenditure. That there were several
demands from the petitioner & the public to call for a public meeting by O.P No. 1
& 2
and to show the accounts and also to submit the details about the
construction-expenditure. But the O.P’s did not bothered to listen to the public
demand and continued to spent the public money arbitrarily & whimsically. That
during the entire decade from 2003 to 2013 not for a single instance, the public
meeting was called and the petitioner did not have any iota of knowledge about
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the affairs of Jorhat Kalibari & were completely in dark about the construction
expenditure & the transaction of public fund. That there were several
correspondence made by petitioner & the other public, asking them to submit the
accounts of construction- expenditure of Jorhat Kalibarani,
finally on 19-01-2015
they again asked the OP’s to submit the accounts. Surprisingly OP.s ,this time have
published a notice on 31-01-2015 in the Daily newspaper Dainik Janambhumi,
whereby it is notified that they have called a public meeting on 22-03-15 wherein
they would submit the accounts. It is apprehended that they will twist the accounts
and prepare a bogus accounts by manipulating the actual accounts- expenditure
through some of their confident auditors. The petitioners have come to know that
O.P No. 1 & 2 are looking for a Chartered Accountant of their own choice who can
manipulate the accounts to save their skin. That if the OP’s are allowed to prepare
the bogus & fake accounts-expenditure it will save them from the misdeed of last
12 years and the vary purpose of filing the suit would become meaningless.
Situated thus, instant petition have been filed to restrain and prohibiting
the OP’s from auditing the accounts and preparing the bogus voucher through their
auditors till disposal of the main suit or until further order.
O.Ps. filed written objection denying and challenging the claim of the
petitioner and further stated that petitioner have no legal right to stop the auditor
to examine the accounts of Jorhat Kalibari which is required to be submitted in the
ensuing general meeting to be held on 22-03-15, as notified earlier. That petitioner
No-2 was present in the general meeting held on 26-01-13 where accounts of
Jorhat kalibari was submitted and a new executive committee was formed.
Petitioner No. 1 is neither an executive member nor he is a general member of
Jorhat Kalibari & he has not paid any membership/subscription to the member of
Jorhat Kalibari since 2003 and as such he has no locustandi to file the injunction
petition. That the petitioner has instituted the present suit against the
president/secretary & Treasurer of Jorhat Kalibari without impleading the other
necessary parties. As such the suit as well as the petition is liable to be dismissed.
It is further submitted that Jorhat Kalibari Samiti was established in 1995 with view
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to build a Kali Mandir. That the affairs of Jorhat Kalibari Samiti were managed by
Managing Body called as Jorhat Kalibari Executive Committee which is consisted of
20 members. That the affairs of Jorhat Kalibari is managed by the executive
committee, but not by the answering OP’s alone and as such all the members, &
office bearers of executive committee is necessary party in respect of the subject
matter of the suit. But the petitioner has instituted the suit without impleading all
the necessary parties. Being an unregistered organization, all the office bearers
and executive body is responsible for managing the affairs of Jorhat Kalibari Samiti.
That apart executive committee meeting and general meeting of the said
committee were held from time to time to discuss the affairs of the samiti and to
submit the accounts of various religious functions including construction works.
Moreover some construction works were done at the land of Jorhat Kalibari
Samiti by a separate construction committee for utilizing the funds received from
M.P.L.A.D scheme through project Director of DRDA for Rai Bahadur Lane
Community Hall and the amount deposited from DRDA were withdrawn & utilized
under the Joint signature of the Executive Engineer of concerning DRDA, Dept. and
the secretary of Rai Bahadur Lane Community Hall and proper accounts with
vouchers were deposited to DRDA in time. That they have called General Meeting
from time to time, and the last general meeting was called on 26-01-13 where 66
members including petitioner No.2 was present where accounts of Jorhat Kalibari
Samiti were submitted and a new executive committee was formed. Situated
thus, prayer has been made for dismissal of the petition.
I have already heard ld counsel of both the parties, perused the available
materials on records, the plaint as well as the petition and objection.
From the materials submitted by petitioner it reveals that there was a dispute
regarding the account of construction-expenditure ,which as per the petitioners
are maintained by the O.Ps. To that effect petitioners along with some members of
Kalibari have issued letter on 21-10-14, 30-12-14, 19.01.15 and lastly on 5.02.15.
It is submitted by ld counsel of the petitioner that OP’s have not responded them
and never bothered to give the accounts of construction-expenditure. The reply of
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O.Ps to the letter dtd 5.02.15 is on record wherein O.Ps have claimed that they
have called general meeting
as well as other meetings from time to time. OP’s
have given several dates wherein they claimed to have convened meeting.
Petitioners although have stated that no such meeting except on 26-1-13 was
convened by the O.Ps but at present materials on records are not sufficient to
decide as to whether all the meeting as claimed by the Op’s were held or not as it
would require evidence.
From the submission of both the parties it appears that OP’s have schedule
the next
general meeting on 22-03-15 wherein they are going to give the
accounts of construction-expenditure and also going to constitute a new
committee. It is also admitted position that they have handed over all the accounts
to auditors to submit before the general meeting.
Situated Thus, I am of the considered opinion that for an unregistered
committee like Kalibari, it will be better if the accounts relating to
construction,repairing etc were placed before the members of the committee
wherein each and every member of the committee would get the opportunity to
ascertain and check the expenditure of the public fund. The public would be better
judge in the instant case to determine if any illegality or irregularity was conducted
by the Op’s during their tenure while utilizing public money in the construction
works.
That apart Jorhat Kalibari is an unregistered society, hence I opine that the
op’s alone are not answerable for the alleged mismanagement of fund.
Moreover petition for injuction had been filed with mere apprehension that the
accounts may be manipulated
before placing in the general meeting. The
petitioner has failed to satisfy this court with prima facie evidence in respect of
financial mismanagement by the opposite parties. They have also failed to place
prima facie materials before the court in respect of apprehension of falsification of
audit. Mere bringing allegation is not sufficient to stop the public meeting of a
public organization. Situated thus I am of the considered opinion that plaintiff has
failed to show primafacie case in their favour.
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So far as balance of conveniences concerned, if the injunction petition is
allowed & the OP’s were restrained & prohibited from auditing the accounts, it
would amount to staying the general meeting. As the main purpose of convening
the general meeting is to give accounts of construction along with other works.
Thus allowance of petition would postponed the matter for
an indefinite period
which would effect the entire administration of Jorhat Kalibari and also effect the
public at large.
Situated thus, I am of the considered opinion that allowance of petition would
place the OP’s in more inconvenience stage to that of the petitioner. Considering
the facts & circumstances, I am of the considered opinion that allowance of
petition would also cause irreparable loss to the OP’s which cannot be
compensated in terms of money.
Upon consideration of the discussion made above, prayer for injunction is
hereby rejected.
Misc(j) case stands disposed off.
MUNSIFF NO.1, JORHAT