TaxTMI 
TaxTMI 
2021 (2) TMI 891
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Mr. Sylvine Sarmah, Advocates for R-18. Col. Ashish Khanna, Secretary, Gymkhana Club JUDGEMENT BANSI LAL BHAT, J. Pending consideration of CP No. 71/2020, National Company Law Tribunal ("Tribunal", for short), New Delhi, Principal Bench, being of the view that a prima facie case demonstrating that the affairs of the 'Gymkhana Club' ("Club", for short) are being conducted in a manner prejudicial to the public interest, passed interim order dated 26th June, 2020 within the ambit of Section 242(4) of the Companies Act, 2013 ("Act, 2013", for short) for regulating the conduct of the company's affairs by directing Union of India to appoint two nominees of its choice as Members in the General Committee to monitor the affairs of the Club along with other General Committee Members and give suggestions to the General Committee and also directed the Union of India to constitute a Special Committee with five Members of its choice to enquire into various issues including affairs of the Club, utility of the land leased out by the State, constructions in progress, Articles and Memorandum of Association and membership issues including waitlist, adherence of the Club to the Rules and fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en Government. Respondent Nos. 2 to 17 before the Tribunal were the General Committee Members for the year 2019- 2020 out of whom Respondent No.2 was acting as President of the GC while Respondent No.18 was working as Secretary/ CEO of the Club. Respondent No.19- the Ministry of Housing and Urban Affairs is the lessor of 27.03 acres of land given on perpetual lease to the Club in 1928 under a lease deed executed inter se the Secretary of State for India in Council (British India) and the Imperial Gymkhana Club Limited (the erstwhile name and style of the Club), the prefix "Imperial" having been dropped in the year 1959 after lapse of paramountcy of the British Empire and adopting of Constitution of India. The Club, with its main objective, being to promote various sports and pastimes and other objectives set out in the Memorandum of Association, has a limited membership. The number of permanent members is 5600. However, the users of the Club are stated to be double the number of permanent members. Based on complaints received by the Government against the Club, Ministry of Corporate Affairs, Government of India issued order dated 16th March, 2016 directing inspection of the Club by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p issue in accordance with the Articles of Association and its action cannot be called in question by the Government on the ground of being prejudicial to public interest. The Club further pleaded that the premises housing the Club has been leased out to it in perpetuity and the Club has been paying the rent regularly. It is denied that the Club was being used for purposes other than the objects mentioned in the Articles of Association. It was further pleaded that the land had been allotted to the Club for sports and pastimes along with other objectives which have neither been altered nor is the Club pursuing any other objective. The further stand taken by the Club before the Tribunal was in regard to maintainability of the Company Petition on the ground that the opinion in regard to affairs of the Club being conducted in a manner prejudicial to the public interest is bereft of reasons and application of mind. 5. Union of India filed Company Petition under Section 241(2) of the Companies Act, 2013 against the Club and its GC members as also the Ministry of Urban Affairs alleging that the affairs of the Club were being conducted in a manner prejudicial to public interest, therefo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticles of Association and it shall not deal with the funds received for admission of Members and it shall not conduct balloting until further orders. The GC is given liberty to carry day to day functions of the Club by using funds of it other than fee collected from applicants. All these directions shall remain in force until further orders". 7. As noticed at the very outset, while the Company Appeal (AT) No. 95 preferred by the Club assails the finding recorded by the Tribunal as regards maintainability of the Company Petition as also existence of prima facie case for grant of interim relief in favour of Union of India, Company Appeal (AT) No. 94 of 2020 preferred by Union of India assails the impugned order only to the extent of interim relief granted which is said to be inadequate and not efficacious. Since the issue relating to the interim relief being not efficacious or inadequate would be dependent on the finding in regard to maintainability of the Company Petition and existence of prima facie case for grant of interim relief, we deem it appropriate to first come to grips with Company Appeal (AT) No. 95 of 2020. 8. Sh. S.N. Mookherjee, Senior Advocate representing the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Tribunal has glossed over the matter by ignoring the judgments of Hon'ble Apex Court. Thus, it is submitted that error is obvious as the letter of 18th March, 2020 is not an opinion and makes no reference to an opinion. Besides it does not reflect any application of mind. It is submitted that for formation of an opinion there must be sufficient evidence to arrive at satisfaction. The standard of proof would ordinarily be such that would satisfy an unprejudiced mind beyond reasonable doubt, objectively and not subjectively. It is submitted that the opinion has to be formed on the basis of material and the validity and the existence of opinion can be subjected to judicial review. If the opinion fails to pass the muster of judicial scrutiny, the condition precedent would not be fulfilled and the exercise of powers would be bad in law. 9. Sh. S.N. Mookherjee, Senior Advocate representing the Club next contended that the petition ex-facie disclosed no public interest, therefore, the petition against the Club would not lie. It is submitted that the Club is a private members' Club for the benefits of its members where the public has no interest. The Tribunal has a very limited scope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....b cannot be construed as public interest in the affairs of the Appellant. It is submitted that there is no allegation of any violation of the lease deed. It is submitted that the Club has been or is being used for the very same purpose for which lease was granted in favour of the Club in 1928. Taking strong exception to the observations of the Tribunal that the perpetual lease granted to the Club was a 'State largesse', it is submitted that the grant of perpetual lease can under no circumstances be termed as 'largesse'. It is submitted that even in case of lease being a 'State largesse', the Hon'ble Apex Court has recognized the need to recognize government largesse as enforceable rights besides there is no misuse of the land or violation of any of the terms of the lease deed. It is submitted that 'better utilization' of land is not a ground available to initiate an action under Section 241(2) of the Act, 2013. Any violation of the terms of perpetual lease deed may give rise to a contractual dispute to be agitated before a Civil Court for appropriate remedies, but would not entitle Central Government to maintain a petition under Section 241(2) of the Act, 2013. 10. It is submitt....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the Articles of Association. It is further submitted that under Articles of Association there is a cap on permanent membership with voting rights restricting it to 5600. GC regulates the balloting of a candidate for membership of the Club in a manner that ensures maintaining the proportion of members belonging to Armed Forces of India or Civil Officers of Government at about half of the total active membership. This is besides facilitating the early admission of members of the Diplomatic Corps. This is aimed at maintaining the distinctive character of the Club. Under Articles of Association not less than half must be from the Government at the time of balloting for election of membership. Subject to this there is no restriction on the powers of GC and power to induct others vests in GC. 12. It is submitted on behalf of Club that there is a distinction between permanent members of the Company and other members/ users of the Club permitted use of Club premises. Special provisions have been made in Articles of Association for children of members to permit them use of the Club, first as dependent children and after attaining age of 21 years seeking membership. Children below 21 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mic prejudices and thereby destroy the basic structure of the Club. It is submitted that grant or non-grant of such membership can never be the subject matter of a petition under Section 241(2) of the Act, 2013 as no element of public interest was involved therein. It is submitted that the Tribunal is supposed to exercise jurisdiction to protect the entity viz. the Club and not destroy it. It is submitted that the Tribunal was not justified in invoking Article 14 of the Constitution of India which did not extend to Club membership. It is submitted that the Club is a private body and not amenable to Article 14. It is constituted of and for its members and does not serve the public nor perform public function. In terms of Memorandum of Association, the Club is for enjoyment of its members alone. It is further submitted that the Tribunal erred in holding that the Club was under the principles of democracy. It is submitted that the Club is at liberty to manage its affairs within the confines of its charter documents viz. MOA and AOA. No breach of fundamental rights of any prospective members can be said to be violated by the Club. 16. It is further submitted on behalf of the Club th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction and had various other motives. Union of India should not espouse the cause of disgruntled members. It is lastly submitted that the Company Petition itself has been filed by way of proxy on behalf of such disgruntled members of the Club, who had an independent right to complain. It is submitted that the Central Government is not a competent authority to entertain complaint from members of the company. The Central Government exceeded its jurisdiction by entertaining complaints from members for moving the Company Petition. It is submitted that the Company Appeal (AT) No. 95/2020 deserves to be allowed and Company Appeal (AT) No. 94/2020 is liable to be dismissed. 18. Per contra, it is submitted by Mr. K.M Natraja, learned ASG representing Union of India that the proceedings after 31st July, 2019 and the decision based thereon, including the decision for further inquiry (supplementary inspection) shows that there has been material as well as application of mind to the findings therein. Further consideration culminated in order dated 18thMarch, 2020. Thus there has been a formation of an opinion, as contemplated under Section 241(2) of the Act, 2013. It is submitted that format....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the purpose, it has to be read disjunctively. Therefore, any activities undertaken by the Club for 'pastime' should also be related to promotion of sports only. Moreover, such objects being final, if there is something ultravires in the object clause of the Club, same would be a good ground to hold that the Club has declared that it will conduct the affairs in a manner prejudicial to the public interest. Mr. K.M Natraja, would submit that the Club, initially registered as a Section 26 company under Companies Act, 1913, cannot carry out recreational activities divorced from sporting activities at least as its major time functions. It is pointed out that the Club is spending less than 3% of its total expenditure towards its major objects while spending over 60% for maintaining the recreational club. Mr. K.M Natraja would further point out with reference to the inspection report the complicity of Club in specific criminal offences, therefore, it is submitted that the violation of the legal restrictions on the Club, which inhere in each grant, are palpably injurious to public interest. It is submitted that the grant of a privilege by a largesse by the State has to "best sub-serve the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion reports which pointed out that majority has been obtained by dubious means and it has remained confined to few families with majority used to violate MOA and AOA by acts of continuous sabotage bringing in numbers of their choice by misusing the provision for voting on addition of new members. The management has failed to protect the distinctive character of the Club which stands converted into recreational Club only. As regards violation of lease deed, it is pointed out that the lease deed was obtained for the benefit of Section 8 Company with permitted objects and work towards the achievement of such objects. Deviation from the object vitiates the consent given by the Government. In such circumstances, the lease itself may not be subsisting. This is also a factor for filing an application under Sections 241-242 of the Act, 2013. As regards membership of the Club, it is submitted that membership applications are invited from the public satisfying certain criteria. Money is collected but no decision is communicated on the application. Though return of money is provided for, interest earned thereon is appropriated by the Club. In the given circumstance, when nepotism and opacity ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... correctness of the impugned order, common to both appeals, were heard together. Before dealing with the issues raised in these appeals, it would be appropriate to have a conspectus of the provision governing grant of interim relief under Section 242(4) of the Act, 2013 and the scope of appeal preferred against an order passed in exercise of powers under Section 242(4) of the Act, 2013. This Appellate Tribunal, while dealing with the issue in "Smt. Smruti Shreyans Shah vs. The Lok Prakashan Limited- Company Appeal (AT) No. 25 of 2018 (decided on 5th September, 2019)" observed as under: "15. Now coming to the issue of grant of interim relief, be it noticed that Section 241 of the Act dealing with grant of relief in cases of oppression and mismanagement provides that any member of a company, eligible in terms of Section 244 of the Act, may apply before the Tribunal for an order under Chapter XIV dealing with prevention of oppression and mismanagement. Such member's complaint must be in regard to the affairs of the Company that have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or mem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h specific allegations of oppression and mismanagement and demonstrate that the affairs of the company have been or are being run in a manner which jeopardizes his interests or interests of other members or the interests of the company. Passing of interim order necessarily correlates to regulating the conduct of company's affairs. It is therefore imperative that the member complaining of oppression or mismanagement makes out a prima facie case warranting grant of relief in the nature of an interim order. The making of an interim order by the Tribunal across the ambit of Section 242 (4) postulates a situation where the affairs of the company have not been or are not being conducted in accordance with the provisions of law and the Articles of Association. For carving out a prima facie case, the member alleging oppression and mismanagement has to demonstrate that he has raised fair questions in the Company Petition which require probe. Fairness of questions depends on the nature of allegations which, if proved, would entitle the member complaining of oppression and mismanagement to final relief in terms of provisions of Section 242." 20. It is indisputable that an order granting in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r relief, subject to its entitlement under Section 244, the Central Government is empowered to apply to the Tribunal for relief in case of mismanagement only if the affairs of the company are being conducted in a manner prejudicial to public interest. The Central Government is required to record its opinion as regards affairs of the company being conducted in a manner prejudicial to public interest. Recording of such opinion is a sine qua non for applying to the Tribunal under Section 241(2). The first issue confronting this Appellate Tribunal would be whether there is formation of opinion on the part of Central Government in regard to the affairs of the Club being conducted in a manner prejudicial to public interest. This would require briefly going into the genesis qua formation of the Club, its activities as delineated by its MOA & AOA, the objects sought to be pursued by the Club, handling of its affairs including its assets and funds besides regulating the entry and exit of its members. Formation of opinion by the Central Government in regard to affairs of Club being conducted in a manner prejudicial to public interest: 22. While contending the Club appears to have raise....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any application of mind. It is contended on behalf of the Club that the standard of proof on the basis of which satisfaction has been arrived at by the Central Government must be such that would ordinarily satisfy an unprejudiced mind objectively and not subjectively. The Club would further argue that the opinion has to be formed on the basis of material as the validity and existence of opinion is not excluded from judicial review. The opinion has to pass the muster of judicial scrutiny. This argument is countered by the Union of India submitting that the proceedings after 31st July, 2019, the decision based thereon which included the decision to cause a supplementary inspection to be conducted clearly demonstrate that there was material as also application of mind to arrive at the conclusion which is supplemented by the fact that further consideration was accorded which culminated in order dated 18th March, 2020. It is submitted that formation of opinion is an internal process of the Government and cannot be called in question in the manner sought to be done by the Club. 24. It cannot be disputed that the opinion in regard to affairs of the Club being conducted in a manner pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he instant case, it is not in controversy that the order dated 16th March, 2016 came to be passed by the Ministry of Corporate Affairs for inspection of the Club in terms of powers conferred under Section 206(5) of the Act, 2013. This order came to be passed upon receipt of complaints against the Club which, inter alia alleged ineligibility of 'M/s. S.N. Dhawan and Company' for appointment as Statutory Auditors of Club, irregularities in the management of the Club, demand by the Club for revision of registration fee with retrospective effect from some individuals etc. It is also not in dispute that the Inspectors held inspection from January, 2019 to July, 2019 for F.Y. 2012- 13 to 2017-18, in respect whereof report was laid before the Regional Director (Northern Region) of Ministry of Corporate Affairs, who placed the same before the Central Government on 5th August, 2019. The inspection report pointed out violations which are set out in para 9 of the impugned order reproduced herein below: "9. The violations borne out from the inspection report are as follows: (i) Violation of Section 58A of the Companies Act, 1956 read with Companies (Acceptance of Deposit) Rul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6. The Ministry of Corporate Affairs, on consideration of the Inspection Report directed taking of penal action against the Club management, Auditors of the Club which included removal of management and appointment of Government directors with further provision for supplementary inspection for dealing with the issues pertaining to allotment of membership, funds raised from new aspirants as registration fees for membership, accounting treatment of the amount received from such funds, investments made by the Club out of such amount as also processing charges received from the aspiring candidates for membership. Report dated 31st July, 2019 came to be placed before Ministry of Housing and Urban Affairs with a view to initiate necessary action against the Club. A direction was given to the Inspectors who submitted the Supplementary Inspection Report dated 3rd March, 2020 to the Regional Director. Same was placed before the Ministry of Corporate Affairs on 4th March, 2020. This Report elaborately dealt with the numerous violations and mismanagement of the affairs of the Club. It also brought to fore that the actions of the committee acting in brazen violation of Articles of Association ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....interest. The forming of an opinion in regard to affairs of the Club being conducted in a manner prejudicial to public interest would not be based on satisfaction as contended on behalf of the Club. Such formation of opinion cannot be called in question. The Tribunal would not be acting within its province to evaluate or sift the material placed before the Central Government and arrive at a different conclusion. Such an exercise would be impermissible as the task of formation of an opinion in regard to the conduct of affairs of company being prejudicial to public interest is not in the nature of an order required to be passed by the Central Government as a statutory authority for purposes of discharge of any statutory duty like in a case of amalgamation/ merger of Companies but merely for the purpose of enabling it to apply to the Tribunal for an order under Chapter XVI of the Act, 2013. While a member of a Company is entitled to complain that the affairs of Company are being conducted in a manner prejudicial to public interest, the Central Government can file a petition under Section 241/242 of the Act, 2013 only after forming an opinion qua affairs of Company being conducted in a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was questioned by alleging gross abuse of powers and mismanagement has been detailed in the impugned order and we don't intend to burden this judgment by reiterating the same except to the extent of demonstrating of existence of prima facie case for interim relief claimed by the Union of India. Land admeasuring slightly above 27 acres situated on Safdarjung Road came to be allotted to the Club in the nature of perpetual lease by the Government. It happened in 1928. The main objective of the club, as envisaged in its MOA and AOA was to promote sports and pastimes and other objectives within the legal and regulatory framework. Several complaints alleging mismanagement, irregularities, misuse of funds, fudging of financial statements etc. were lodged with the Central Government against the management of Club prompting the Central Government to order an inspection for the period covering Financial Years 2012-13 to 2017-18. The inspection came to be conducted between January to July, 2019. The inspection report dated 31st July, 2019 came to be submitted to Central Government which revealed several violations qua management of funds and fabrication of financial documents and balance sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he average vacancy rate of the Club membership per annum ranged between 120 to 135 and from 1972 onwards there was a long waiting list. Further that the Club had a waiting list for the non-government category for a period of about 37 years. It is alleged that the action of culling out and giving the proportion meant for non-government category to the category of UCPs (use of club premises) in the new category of wait list thus, ex facie and unlawful way of inducting permanent members. The petition further alleged that the Club was manipulating the creation of categories of membership only to ensure that certain individuals and children of existing members are accommodated by excluding the general public. In regard to charging of fee from different categories for membership the Club is alleged to be acting contrary to the provisions in Articles of Association. It was alleged that during the last five fiscals the Club has consistently failed to carry out the objects of the Club. Allegedly 30.34% of the total expenditure of the Club has been incurred towards catering consumables, wine, beverages and cigarette. Registration fees has been increased and more categories of members have be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ass of people. The members remain waiting years together for membership is nothing but causing prejudice to the public, when some are in waiting, some getting entry prior to others in waiting is prejudice to the public, some persons alone enjoying the state property is also prejudice to the public. 63. With regard to formation of opinion, in Governments, one person can't do everything right from inspection to formation of opinion, it goes from one table to another in step wise functioning, when it comes to the highest official, he will examine summation and supporting documents to ascertain whether prejudice is being caused to public interest, moreover Government has to discharge various functions, this formation of opinion is one among many works, of course for club, it is the only work. For this is not anybody's personal job, it is to be assumed Government will remain impersonal, unless it is shown that certain officer has personally done something against somebody to settle personal score. No such material before this Bench. To elaborate this logic, the State has relied upon Gullapalli Nageswara Rao v. APSRTC (AIR 1959 SC 308), to say that when facts are available to ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... suggesting for better use of the club premises for the larger good in a transparent manner on equity basis within two months hereof." 34. The finding recorded by the Tribunal has been seriously questioned, contending that no element of public interest was made out in the petition. Learned counsel for the Club submitted that the petition does not concern the welfare of public as a whole, affairs of the Club do not concern citizens generally, the public as a whole does not have any peculiar interest affecting their legal rights nor is economic welfare of the public involved. This argument, though appears to be attractive in technique, lacks substance. While it may be true that the mere fact of the Club carrying out its activities on the allotted land in regard to which it has perpetual lease hold rights, would not involve public interest as the conferment of such rights on the Club or for the purposes of Club whose activities may include banquette, concerts, dances as also lodging and boarding of its members in addition to its users for any purpose for which the same was customarily used would be lawful, the user in deviation of its laid down objective, coming in conflict with th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d authorities to perform their duties and take action in regard to the irregularities, omissions and negligence, so that the interest of the public, particularly human resources development, could be protected." 37. It is abundantly clear that misuse of the Club meant for pastime and sports activities and denying access of membership even after accepting the enhanced membership fee and putting them in queue for decades together with utilization of the component of interest admissible on their invested membership fee for the benefit of permanent members and users seriously jeopardized interest of such prospective members and involved public interest. That apart, the interests of general public seeking membership but being made to wait for decades together with membership fee being held up and its interest component being utilized for the recreational and pleasurable activities of permanent members and users of the Club despite the Club being aware of the limited number of vacancies in membership occurring every year would be a predominant consideration concerning the rights of general public to gain access and seek membership of the Club, thus involving public interest. 38. In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cademy v. State of Jammu and Kashmir- (2018) 18 SCC 65" which clearly lays down that the State has no authority to grant a largesse with the object of sub-serving private interests or recreational purposes of a private group of individuals. The Honble Apex Court observed that when violation by the grantee is noticed, it would be lawful for the Government to initiate such legal process as may be prescribed to gain control over such resources with a view to reform them, as institutions, rather than do a patch-work on piecemeal basis. With reference to "Krishan Lal Gera v. State of Haryana- (2011) 10 SCC 529", it is submitted that when the prime object of sports facility is taken over by the elite for recreational purposes and activities of the Company are hit by nepotism and favoritism while the Company was formed on the basis of State largesse, there was an injury to public interest. Largesse by the State cannot be said to be intended for enjoyment or use by highly placed individuals only. The Constitution of India sets the goal of a Welfare State and establishment of an egalitarian society where the citizens are not discriminated on the basis of region, religion, caste, language, r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Constitution. Be that as it may, such observations have not been allowed to influence the decision and in appeal we have not at all taken into consideration such observations to ensure that the finding in regard to existence of prima facie case for grant of relief remains purely within the realm of legal considerations. 43. As regards the plea of colorable exercise of power raised against Union of India, be it seen that there is no specific allegation against any officer and the question is irrelevant as Central Government would be acting within its province to apply to the Tribunal for an order under Chapter XVI of the Act, 2013 when it is of the opinion that the affairs of the Company (Club) are being conducted in a manner prejudicial to public interest. This action of applying to the Tribunal is a legally vested right in the Central Government which can be directly exercised. It is absurd to say that formation of opinion in regard to existence of affairs of the company being conducted in a manner prejudicial to public interest is beyond the power of the Central Government and exercise of such power would be a colorable exercise of power. 44. It has been noticed that the m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e direction, would not weigh at the stage of grant of interim relief when only Interlocutory order may be required to be passed for regulating the conduct of the Company's affairs. At this stage, interim relief can be granted on the basis of legal considerations justifying such grant to prevent continuance of or further prejudice to public interest in the affairs of the company. Having regard to the nature of allegations and the proof sought to be adduced in support of the same as coming to fore from the Inspection Reports, it can be stated without any fear of contradiction that the Union of India has been able to demonstrate that fair questions requiring probe have been raised in the Company Petition which would entitle it to the final relief of replacement of Directors of the Club with Government nominees to conduct the affairs of the Club in accordance with the provisions of law and its charter. 45. Having regard to the issues raised in this appeal, the material on record and the arguments advanced on behalf of the parties, we are of the considered opinion that the impugned order, in so far as finding in regard to existence of a prima facie case demonstrating that the affairs....