Arun Mishra, C.J.@mdashThe aforesaid application being GA No. 531 of 2014, GA No. 532 of 2014 and GA 533 of 2014 has been filed by Justice R.V. Raveendran, Former Judge of the Hon''ble Supreme Court of India and the Administrator appointed by the order dated 4th October, 2012 passed by the Division Bench of this Court. Three fold prayer has been made in the application:-
a) For a direction that the movables(gold coins, jewellery and ornaments) inventoried by the Special Officers be directed to be handed over to the joint custody of parties (or their counsel), or the other two members of the APL Committee to be held by them in the Bank Vault/locker in escrow;
b) for appropriate directions on Issues (i) and (ii) set out above to clarify and delineate the scope of the functions of the APL Committee and its role in regard to the Companies/Trusts/Institutions/Societies in the MP Birla Group, in particular the nature and extent of control of APL Committee in regard to (i) the companies in M.P. Birla Group; and (ii) in regard to the trusts, Societies and other Institutions in M.P. Birla Group;
c) for restricting the role of the third member/the applicant of the APL Committee(as submitted in paras 25 to 27 above or alternatively for acceptance of his resignation from his position as member of APL Committee.
2. Back drop facts indicate that Smt. Priyamvada Devi Birla, wife of Late Madhav Prasad Birla, died on 3rd July, 2004. The appellants are the legal heirs of one R.S. Lodha who initiated Testamentary Suit No. 6 of 2004 prayed for issue of probate in regard to the registered probate dated 18th April, 1999 executed by Smt. P.D. Birla read with codicil dated 15th April, 2003.
3. Learned Single Judge of this Court vide order dated 27th August, 2010 appointed three members of the Bar, as Administrators pendente lite during the pendency of the probate proceeding.
4. The said order was challenged before the Division Bench by way of filing APOT No. 508 of 2010, 550 of 2010 and 551 of 2010 in which interim order dated 22nd December, 2011 was passed by Division Bench of this Court on the basis of agreement of both the side that instead of three independent Advocate, being members of the Committee of Administrators Pendente lite (for short "APL Committee), each party would nominate one member and the Court will appoint former Judge to act as third member. It was also observed that on the point that would remain for decision of the court the issue regarding the powers of the APL Committee vis-a-vis the exercise of nature of rights relating to the shares which formed major part of the estate.
5. In terms of the order dated 22nd December, 2011 after the parties suggested the names of their nominees, this court vide order dated 19th January, 2012 appointed Justice C.K. Thakker, former Judge of Hon''ble Supreme Court. As Justice C.K. Thakker sought his discharge from the APL Committee and thereafter Justice R.V. Raveendran has been appointed as Administrator in his place, Mr. Mahendra Kumar Sharma, is nominee of Harsh Vardhan Lodha & Others and Mr. A.C. Chakrabortti, is nominee of Ajay Kumar Newar & Others are other members of APL Committee. The appeals were decided by Division Bench of this Court on 23rd August, 2012.
6. The learned counsel for the parties have addressed only with respect to the prayer (c) made in the aforesaid G.A. No. 531, 532 and 533 of 2014 with respect to restricting the role of applicant Administrator Justice R.V. Ravindran, Former Judge of Hon''ble Supreme Court of India as submitted in paras 25 and 27 of the application or alternatively for acceptance of his resignation from his position as member of the APL Committee.
7. It has been mentioned in the application that there is surcharged atmosphere where each side repeatedly mentions or indicates that if what is suggested by that side is not accepted and followed, the third member, the applicant, as also other members of APL be made liable personally for the consequences and losses, such action is not conducive for functioning freely and independently as such prayer has been made by the third member/applicant does not like to continue as member of the APL Committee unless his role is defined and restricted as stated in paras 27 to 29 of the application. Learned counsel for the parties have only addressed with respect to the prayer (c) and have not addressed on prayer (a) and (b) of GA 531, 532 and 533 of 2014 as such prayer (a) and (b) are not taken up for consideration and to be decided later on.
8. Mr. Kapil Sibal, learned Senior Advocate appearing with Mr. S.N. Mookherjee, Sr. Advocate and Mr. Ratnanko Banerji, Advocate submitted that the applicant has to continue as Administrator only, not as an Umpire, in terms of the order passed by the Division Bench of this Court which has attained finality. SLP preferred has been dismissed summarily by the Supreme Court, the observation which was made in the order dated 22nd December, 2011 that the Court may appoint former as Umpire had been ordered to be corrected in subsequent order and word Umpire has been substituted by third member of the APL Committee. Shri Kapil Sibal further submitted some retired person of financial institution having business experience may be appointed in place of applicant. The appointment of applicant as Umpire would be against the provisions of Section 247 of the Indian Succession Act and against the spirit of the order passed by the Division Bench of this Court according to which the members of APL Committee have to act as Joint Administrator as such alternative prayer made by the applicant for his acceptance of his resignation may be allowed.
9. Mr. Anindya Kr. Mitra, Sr. Advocate appearing along with Mr. Maloy Kr. Ghosh, Sr. Advocate, Mr. Soumya Roychowdhury, Advocate, Mr. Debanjan Mondal, Advocate, Mr. Sanjiv Kumar Trivedi, Advocate supported the aforesaid submission raised by Shri Kapil Sibal and had further submitted that some other person having experience of the business may be appointed or the applicant Justice Ravindran may continue as single member i.e. Administrator constituting APL. He has further submitted that within purview of Section 247 of the Indian Succession Act appointment of Umpire is not contemplated as such alternative prayer made in the application may be allowed.
10. After hearing learned counsel of the parties, it is apparent that earlier three Advocates had been appointed by a Single Judge as Joint Administrators. In the appeal against the order passed by Single Judge, a Division Bench of this Court has passed judgment and order on 23rd August, 2012 constituting APL Committee to act as Joint Administrators as contemplated u/s 247 of the Indian Succession Act.
11. Earlier Justice C.K. Thakker, Former Judge of Hon''ble Supreme Court had been appointed as third member of the Committee he has sought discharge expressing his inability to continue. Thereafter Justice R.V. Ravindran, Former Judge of Supreme Court had been appointed to act as third member of APL Committee.
12. It is really unfortunate that functioning of the APL Committee had been made quite difficult by surcharged atmosphere created by the rival parties. Compounded by the fact that each of the rival parties has nominated one of the Administrators and only third member is independent one, hence the role of the third member becomes quite difficult. Two other members of APL Committee are the nominees of the rival parties and they are not independent administrators. It has been mentioned in the paragraph 30 of the application that applicant would not like to member of the committee where he requires to cast his vote in favour of the views of one member against the views of another member and it is repeatedly submitted by the rival parties that if suggestion of one of the party is not accepted and followed the applicant as well as other member would be made liable personally for the consequences and losses. Following are the averments made in the paragraph 30 & 31 of the application:-
30. The third member/the applicant respectfully submits that he would not like to be a member of a Committee where he is required to cast his vote in favour of the views of one member against the view of another member. As earlier stated he accepted the assignment on the assumption that the role of the would be that of an Umpire to give a decision whenever there is conflict or differences between the other two members of the APL Committee, rather than voting for or against the views of any member. He further respectfully submits that he would like to restrict his role to adjudicating upon differences and disputes, and not get into the day-today management of an estate. The Third member/the applicant feels that the surcharged atmosphere where each sides repeatedly mentions or indicates that if what is suggested by that side is not accepted and followed, the third member/the applicant as also other members of APL will be made liable personally for the consequences and losses, is not conducive for functioning freely and independently.
31. In view of the above and having regard to the nature of the holdings and the nature of differences in regard to the scope of the administration, the third member/the applicant does not like to continue as a member of the APL Committee and would like to withdraw from the APL Committee, unless his role is defined and restricted as stated in paras 27 to 29 above.
13. In the aforesaid backdrop, it has to be examined whether role of the applicant may be defined and restricted as mentioned in paragraphs 27 to 29 of the application. Paragraphs 27, 28 and 29 of aforesaid GAs are quoted below:-
27. The third member/the applicant is a retired Judge of the Supreme Court, based at Bangalore. When his consent was sought for appointment, he voiced his doubt about the suitability of a retired Supreme Court Judge functioning as a member of Committee of Administrators pendente lite. The third member/the applicant was informed that his presence and participation will not be required for more than a day or two(including the time for travel) in a month at Kolkata in connection with the work of administration of the estate and that his role would be limited to acting as an umpire giving opinions/decisions(subject to the directions by the Court from time to time) in the event of differences between the two nominated members; and that he will not be required to take any business or managerial decisions relating to administration of the estate having financial implications or the responsibility of taking over or being in charge of any other assets. He was not willing to take any assignment involving business decisions or responsibility of taking over and holding the custody and safeguarding the valuable moveable assets like jewellery, ornaments, gold coins, ivory carvings. He has no expertise in either running any corporate business or in assessing the genuineness, or in regard to the valuation and safekeeping of such valuable movables.
28. The third member/the applicant accepted the assignment on his understanding(on the basis of information given to him) that his duties/functions would involve only formulating the policy relating to preservation of the estate and acting as an umpire in the event of differences between two APL members nominated by the parties.
29. The two nominated members of APL Committee have been differing virtually on all issues relating to nature of intervention in the managements of companies/institutions in the MP Birla Group.
14. Before we proceed to consider whether role of the applicant can be restricted as mentioned in paragraphs 27 to 29 of the application, we examine legal objection raised that in case such prayer is allowed it would be against the provision of Section 247 of Indian Succession Act and the decision of the Division Bench of this Court dated 23rd August, 2012 which has attained finality.
15. First we take up the provisions of Section 247 for consideration. Section 247 of Succession Act reads thus:
247. Administration, pendente lite.--Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.
16. The section imposes two limitations upon the Administrator pendente lite (i) that he has no right to distribute the estate and has to act as Administrator within the ambit of his power as limited by the Section (ii) he has to act subject to the control and direction of Court i.e. the court has power to give certain directions and control functioning of administrator or administrators as the case may be.
17. In our considered opinion, as step in aid for proper administration of the estate in case committee of Administrator had been appointed, role of each of the Administrator, constituting APL Committee can be defined by the Court and Court is competent to issue appropriate direction in this regard. Thus, it is possible for this Court to issue requisite direction restricting role of applicant Justice R.V. Ravindran, Former Judge of Supreme Court as prayed in paragraphs 27 to 29 subject to which he has to act as Administrator within purview of Section 247 of the Indian Succession Act.
18. When we consider the decision of Division Bench of this court to which our attention was drawn by Shri Kapil Sibal, learned Senior Counsel, it has been observed that member of APL Committee have to act as Joint Administrator. However, we find at the same time as there are sharp differences and disputes which are arising between the two Administrator nominated by each of the party as they represent them and surcharged atmosphere in between the parties is not conducive for any independent member to side with one or the other nominated Administrator of the parties. It would not be in derogation to the spirit of the judgment and order by which APL Committee has been constituted to restrict the role of the applicant as administrator. This Court in its order dated 22nd December, 2011 had directed that third person of APL Committee has to be a Judge which order is binding and initially Justice C.K. Thakker had been appointed as such as he could not continue, thereafter Justice R.V. Ravindran, Former Judge of the Supreme Court of India has been appointed. In our opinion, in the circumstances so created and entire scenario, it would not be possible to find out any other suitable ''Judge'' to act as third member only remedy appears is to restrict the role of third member and intention of this court is to appoint a Judge as a third member is apparent from various orders and not a person from field of business. It is imperative on the part of the Court to see to it that estate is managed smoothly and it would not be appropriate to venture at this point to re-open the issue and to appoint a retired person having business experience. Parties are expected not to create such surcharged atmosphere which is derogatory for conducive functioning of the third member they should avoid it in their own interest and for proper administration of the estate. We are not appointing Justice R.V. Raveendran as Umpire; he has to continue as Administrator but with restricted role.
19. In the facts and circumstances of the case, it is considered appropriate to restrict role of the applicant as prayed in paragraphs 27 to 29 of the applications. The function of the third member Justice R.V. Ravindran as Administrator is confined to administration of the estate to give opinions/decisions, subject to direction by the Court from time to time in the event of differences between the two nominated Administrators and that he will not be required to take any routine business or managerial decision relating to the administration of the estate having financial implication or responsibility or taking over or being in charge of any other assets. Applicant is not to take responsibility of taking over and holding of the custody and safeguarding the valuable moveable assets like jewellery, ornaments, gold coins, ivory carvings. No Judge is expected to run any corporate business or assessing genuineness with regard to the valuation and safe keeping of such valuable moveable. The third member applicant is required to formulate the policy relating to preservation of the estate and in the event of differences between the two APL members nominated by the parties to resolve by giving his opinions/decisions.
20. The prayer made in paragraph (c) of the application to the effect that third member applicant role be restricted as prayed in paragraphs 27 to 29 is allowed. Considering the chequered history, atmosphere created and nature of the body of APL, the main prayer made of to restrict role of third applicant is considered appropriate to be allowed. Thus, it is not necessary for us to consider alternative prayer for acceptance of resignation as member of APL Committee as it becomes redundant.
21. Thus, the prayer (c) made in APOT No. 508 of 2010, 550 of 2010, and 551 of 2014 stand disposed of. With respect to prayer (a) and (b) matter will be taken up subsequently.
