Bombay High Court
Charu Mehta Trustee Life Of Lilavati ... vs Ld Charity Commissioner And Ors on 25 October, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14596 OF 2024
1. Mrs. Charu Mehta, Age 82, ]
Permanent Founder Trustee for Life of ]
Lilavati Kirtilal Mehta Medical Trust of ]
Mumbai, Indian Inhabitant ]
having her address at Diamond House, 9 ]
Vatcha Gandhi road, Mumbai - 400007. ]
]
2. Mr. Rajesh Mehta, Age 56, ]
Permanent Trustee ]
Lilavati Kirtilal Mehta Medical Trust of ]
Mumbai, Indian Inhabitant ]
having his address at Diamond House, 9 ]
Vatcha Gandhi road, Mumbai - 400007. ]
]
3. Mr. Prashant Mehta, Age 52, ]
Permanent Trustee ]
Lilavati Kirtilal Mehta Medical Trust of ]
Mumbai, Indian Inhabitant ]
having his address at Diamond House, 9 ]
Vatcha Gandhi road, Mumbai - 400007. ]...Petitioners.
Versus
1. Ld. Charity Commissioner ]
Sasmira Institute, 2nd floor, Sasmira Road, ]
Opp. Nirlon House, Worli, Mumbai - 400 032 ]
]
2. Mr. Chetan Mehta ]
of Mumbai, Indian Inhabitant having ]
his address at The Imperial- North Tower, ]
Apartment-3205, Tardeo, Mumbai-400 034 ]
]
3. Mr. Niket Mehta ]
Of Mumbai Indian Inhabitant having ]
th
his address at Maker Tower 'L', 9 floor, ]
Flat No. 91, Cuffe Parade, Colaba, ]
Mumbai 400 005 ]
]
4. Mrs. Sushila Mehta ]
Of Mumbai Indian Inhabitant having her ]
address at Maker Tower 'L', 9th floor, ]
Flat No. 91, Cuffe Parade, Colaba, ]
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Mumbai 400 005 ]
]
5. Mr. Rashmi Mehta Of Mumbai Indian ]
Inhabitant having her address at Usha Kiran, ]
Flat No. 24, 12th floor, 15, Carmichael Road, ]
Mumbai 400 026 ]
]
6. Mr. Bhavin Mehta ]
Of Mumbai Indian Inhabitant having his ]
th
address at Usha Kiran, Flat No. 24, 12 floor, ]
15, Carmichael Road, Mumbai 400 026 ]
]
7. Mr. Ayushman Mehta ]
Of Mumbai Indian Inhabitant having his ]
address at The Imperial North Tower, ]
Apartment, 3205, Tardeo, Mumbai 400 034 ]
]
8. Mr. Nimesh Sheth ]
Of Mumbai Indian Inhabitant having his ]
address at Garden View, 13th floor, ]
Flat No. 1301, Nepeansea Road, ]
Mumbai 400 006 ]
]
9. Mr. Dilip Sanghavi ]
Of Mumbai Indian Inhabitant having his ]
address at Sun Pharmaceutical Industries Ltd. ]
No.201 B, Sun House, CTS, Western Express ]
Highway, Goregaon, Mumbai 400 063 ]
]
10. Mr. Rajiv Mehta ]
Of Mumbai Indian Inhabitant having his ]
address at Diamond House, ]
9 Vatcha Gandhi Road, Mumbai - 400 007 ]
]
11. Mr. Mohit Mathur ]
Of Mumbai Indian Inhabitant having his ]
address at Hansraj Damodar Building, ]
2nd floor, Mumbai 400 004 ]
]
12. Mr. Saurav Sharma ]
Of Mumbai Indian Inhabitant having his ]
address at Flat No. 4, 1st floor, Yusuf Manzil ]
Awabai Kashinath Street, Tardeo, ]
Mumbai 400 034 ]
]
13. Mr. Kiran Shah ]
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Of Mumbai Indian Inhabitant having his ]
address at S/o. Nagindas Shah, ]
above Bank of India, 377, Smitkiran, ]
1st floor, S. V. Road, Vile Parle (West), ]
Mumbai 400 056. ]
]
14. Mr. Sanjay Shroff ]
Of Mumbai Indian Inhabitant having his ]
address at S/o. Puran Shroff, 302, Swarup, 14, ]
Cumoalahul Rod, Kemps Corner, Cumballa ]
Hill, Mumbai Maharashtra 400 026 ]
]
15. Mr. Tatyaba Palve ]
Of Mumbai Indian Inhabitant having ]
his address at F2, Marian House, 29 road, ]
Bandra West. ]
]
16. Mr. Kunal Shah ]
of Mumbai, Indian Inhabitant having his ]
address at Mumbai ]
]
17. Chetan Joshi ]
Of Mumbai, Indian Inhabitant, residing at ]
2/16, Seeta Mahal, Warden Road, BP Road, ]
Near Parsee General Hospital, ]
Cumballa Hill, Mumbai-400 026 ]...Respondents.
------------
Dr. Abhishek Manu Singhvi, Senior Advocate (through VC), Mr. Anil
Singh, Senior Advocate, Mr. Aabad Ponda, Senior Advocate along with Mr. Dakshesh
Vyas, Mr. Yogesh Naidu, Mr. Aadarsh Vyas, Mr. Utwav Trivedi, Mr. Abhishek Prabhu, Mr.
Tarun Mehra, Mr. H.N. Thakore, Ms. Jyoti Ghag and Mr. Shailesh Prajapati I/By Dua
Associates AOR Mumbai for the Petitioners.
Mr. Cyrus Ardeshir, Senior Advocate along with Mr. Amir Arsiwala I/By Mr. Yash
Jariwala for Respondent No. 2.
Mr. Dinyar Madon, Senior Advocate along with Mr. Jamshed Master and Mr. Aniket
Worlikar for Respondent No.3.
Mr. S. U. Kamdar, Senior Advocate along with Mr. Jamshed Master I/By Ms. Natasha
Bhot for Respondent No.4.
Mr. Aditya Udeshi and Mr. Netaji Gawde i/b M/s. Sanjay Udeshi & Co., for Respondent
No.9.
Ms. Priyanka Chavan, AGP for the Respondent-State.
------------
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Coram : Sharmila U. Deshmukh, J.
Reserved on : October 22, 2024.
Pronounced on : October 25, 2024.
Judgment :
1. Rule. Rule made returnable forthwith and taken up for final
hearing with the consent of respective counsel. Learned advocates
appearing on behalf of the Respondents waive notice.
2. By this petition filed under Article 227 of the Constitution of
India the Petitioners seek transfer of all proceedings pertaining to
Lilavati Kirtilal Mehta Medical Trust [for short, "the said trust"] from
the file of Respondent No.1, i.e., the Charity Commissioner to any
other judicial officer exercising co-ordinate jurisdiction.
3. There has been considerable dispute between the parties over
the management of the trust. Relevant for our purpose and the
starting point leading to filing of present petition is the order dated
14th December 2023 by which the Assistant Charity Commissioner
rejected various change reports filed by the Respondent Nos.2 to 9.
Against the orders of rejection of change reports, Appeals were filed
by the Respondent Nos.2 to 9 before the Joint Charity Commissioner
on 15th December 2023. By orders dated 15 th December 2023, 21st
December 2023 and 22nd December 2023 the Joint Charity
Commissioner granted stay of the proceedings which were challenged
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by the Petitioners before this Court by way of 7 writ petitions and by
common order dated 30th January 2024 this Court set aside the orders
of the Joint Charity Commissioner. As against the order dated 30 th
January 2024 passed by this Court, the Respondent No.2 filed SLP(C)
No.3303 of 2024, the Respondent Nos.3 and 4 filed SLP (C) (Diary) No.
8888 of 2024 and the Respondent Nos. 5 and 6 filed SLP (C) No. 8331-
8332 of 2024. By order dated 19th February 2024 passed by Apex Court
in SLP filed by the Respondent No.2, the parties were relegated to the
stage of rejection of change reports on 14th December 2023 by the
Assistant Charity Commissioner by setting aside the order of Joint
Charity Commissioner as well as the order of High Court. The Apex
Court in paragraph 9 and 10 observed thus :
"9. Bearing in mind the recent proceedings, the parties
are relegated to the stage of the rejection of the change
reports on 14.12.2023 by the Assistant Charity Commissioner.
The later order of the Joint Charity Commissioner and of the
High Court are set aside. The appeal filed by the petitioner to
challenge the order of the Assistant Commissioner on
14.12.2023, should now be considered by the Charity
Commissioner, as was directed in the impugned order. During
such consideration, the appellate authority, needless to say, is
empowered to also pass appropriate interim order. However,
interim order should be passed only after the response of the
contesting parties is placed on record and all are afforded
hearing. In order to avoid any delay, the respondent Nos.1 and
2, if they have not already done so, must place on record their
response before the appellate authority, within two weeks
from today.
10. When the response of the respondents is filed, the
Charity Commissioner should consider the interim prayer on the
merit of the plea, uninfluenced by either this order or the
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30.01.2024 order that was passed by the High Court. The
Charity Commissioner should not unduly delay consideration of
the interim prayer. It is ordered accordingly."
4. On 7th June 2024, an application was filed by the Petitioner
seeking time to file reply to the Appeals filed by the Respondents,
which came to be rejected by order dated 10 th June, 2024 and Appeals
were posted for final hearing on 19 th June 2024. The rejection was
carried first to the High Court which upheld the order dated 10 th June
2024 and then to the Apex Court and vide order dated 8 th July 2024
the Apex Court allowed the Petitioners to file their reply in the Appeals
pending before the Charity Commissioner. On 23 rd September 2024,
the Petitioners filed an application at "Exhibit-88" before the Charity
Commissioner seeking time for additional arguments which was
rejected. By order of even date, the Charity Commissioner granted
interim relief staying the effect of order dated 14 th December 2023,
provisionally accepting the change report of Respondent No.2,
initiating suo moto inquiry under Section 41D of the Maharashtra Public
Trust Act [for short "the Trusts Act"] against the trustees including the
Petitioners and pending inquiry under Section 41D, suspended the
trustees except the Petitioner No.1 and appointed a fit person to
perform the functions of the trust along with the Petitioner No.1 and
the Respondent No.2. On 25th September 2024, the Petitioners
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challenged the interim order dated 23 rd September 2024 before the
High Court and this Court by order dated 25 th September 2024 came to
a prima facie finding that the Charity Commissioner acted contrary to
Section 22 and Section 41D of the Trusts Act and stayed the order
dated 23rd September 2024. On the same day, Respondent No.2 filed
an application under Section 41D of the Trusts Act before the Charity
Commissioner along with an application for taking the said application
on board on 25th of September 2024. The application for taking on
board the application filed under Section 41D of the Trusts Act by the
Advocate of Respondent No.2 came to be rejected by the Charity
Commissioner. On 27th September 2024, Appeals filed by the
Respondent Nos. 3 and 4 were heard by the Charity Commissioner and
after conclusion of arguments, new documents were sought to be
relied upon which were objected to by the Petitioners and came to be
accepted by the Charity Commissioner. On 1st October 2024, the
Petitioners filed an application below "Exhibit-55" before the Charity
Commissioner for deferment of the proceedings on the ground that
the Petitioners intend to file petition in this Court seeking transfer of
the proceedings. On 11th October 2024, the Charity Commissioner in
the adjournment application on the ground of bias passed an order
directing the Advocate for the Respondent Nos. 2 to 5 to file his reply
on the averments of bias. On 11 th October 2024, the Charity
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Commissioner directed the Petitioners to disclose the source of
information regarding the incident which was quoted at paragraph "F"
of the Application. On 16th October 2024, the Charity Commissioner
rejected the adjournment application.
5. Heard Dr. Abhishek Manu Singhvi, Learned Senior Advocate
(through VC) and Mr. Anil Singh, Learned Senior Advocate and Mr.
Aabad Ponda, Learned Senior Advocate for the Petitioners, Mr. Cyrus
Ardeshir, Learned Senior Advocate for Respondent No.2, Mr. Dinyar
Madon, Learned Senior Advocate for Respondent No.3, Mr. S. U.
Kamdar, Learned Senior Advocate for Respondent No.4 and Mr. Aditya
Udeshi for Respondent No.9.
6. Dr. Singhvi would submit that upon a cumulative appreciation of
sequence of events from the stage of grant of interim relief on 23 rd
September 2024 by the Charity Commissioner, to the rejection of
adjournment application by inquiring into the averments of bias itself
would make it clear that justice will not be done. He would submit that
by the interim order passed on 23rd September 2024 the Charity
Commissioner has not only stayed the order against which the appeal
was filed but has gone one step further and accepted the change
report of the Respondent No.2 and initiated suo moto inquiry and
suspended the trustees in purported exercise of powers under Section
41D of the Trusts Act without any prayer by the Respondents seeking
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any such relief. He would submit that pending inquiry under Section
41D of the Trusts Act, without giving an opportunity of hearing, the
Petitioners as well as other trustees except the Petitioner No.1 came
to be suspended with immediate effect. He submits that by the same
order, the Charity Commissioner appointed a fit person along with the
Respondent No.2 and the Petitioner No.1 thereby completely changing
the panel of trustees. Taking this Court through the order passed by
the High Court in the challenge to the order dated 23 rd September
2024, he submits that this Court had held that ex facie the order passed
by the Charity Commissioner is not in consonance with the provisions
of Trusts Act and no notice was issued before suspending the
Petitioner and that there is serious doubt about the jurisdiction of
Charity Commissioner to exercise the power as an authority of first
instance and had stayed the impugned order. He submits that on the
very same day, the application under Section 41D of the Trusts Act
filed by Respondent No.2 along with an application for taking the said
application on board was placed before the Charity Commissioner at
about 1:30 p.m. in the presence of Petitioners' Advocate. He submits
that the Petitioners' Advocate were informed that the application will
be considered at 2:30 p.m. on the same day and at about 3:10 p.m. the
Advocate for Respondent No.2 was alone called into the Chamber by
the Charity Commissioner and a private meeting went on for 30
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minutes when the Advocate for the Petitioners was not allowed to go
inside. He would further submit that at around 3:40 p.m. the Advocate
for the Petitioners was informed that the application for taking the
matter on board has been rejected. He submits that the conduct of the
Charity Commissioner in holding a private meeting with Advocate for
Respondents has raised a serious doubt about impartiality of the
Charity Commissioner. He submits that in the deferment application
filed by the Petitioner No.1 an inquiry was conducted by the Charity
Commissioner itself into the averments of bias and not only a reply was
called from the Advocate of Respondent No.2 but also the Petitioner
No.1 were directed to disclose the source of information as regards the
incident of the Advocate for Petitioners not being permitted to enter
the Court room. He would further submit that on 27 th September 2024,
order passed in the absence of Advocate for the Petitioner, records
that the arguments on behalf of the Respondent Nos.3 and 4 are
concluded and the matter is placed on 14 th October 2024 for hearing of
application on behalf of the Respondent No.3 for production of
documents. He would submit that the sequence is contrary to the
course in which the proceedings should have been conducted. He
submits that if all the events stated above are considered cumulatively,
the bias against the Petitioners is writ large. He submits that the Apex
Court by order dated 22nd April 2024 in SLP filed by the Respondent
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Nos.5 and 6 had directed the Charity Commissioner while deciding the
matter to take note of the earlier orders passed by the Court including
the orders dated 18th September 2023 and 19th February 2024 as
regards the investigation into financial impropriety which the Charity
Commissioner did not decide and decided the application for interim
relief after 10 months.
7. Per contra Mr. Madon, learned Senior Advocate appearing for the
Respondent No. 3 would submit that the only allegation of bias which
is evident from the pleadings in the petition is as regards the incident
alleged to have occurred on 25th September 2024. He submits that
although Dr. Singhvi submitted that the Advocate for the Respondent
was called into the Chamber of Charity Commissioner alone for about
30 minutes, in the petition the pleading is that the Advocate for the
Respondent No.2 was called into Court room. He would further submit
that against the order dated 14 th December 2023, the matter was
carried up to the Apex Court which directed the Charity Commissioner
to consider the appeals and also directed the Charity Commissioner to
pass appropriate interim order. He submits that accordingly the
interim order was passed by the Charity Commissioner after hearing
the parties.
8. Mr. Madon would further submit that from 1st October 2024 till
date the Charity Commissioner has not been able to hear the matter.
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He submits that in the earlier Petition filed by the Petitioners
challenging the order of 23rd September 2024, there is not a single
averment of bias. He submits that on 25th September 2024 the
Respondents have argued the appeal and it is for the Petitioners to
canvass their submissions. He submits that the application filed by the
Respondent's Advocate for taking on board the application filed under
Section 41D of the Trusts Act was in fact rejected by the Charity
Commissioner. He would submit that the Petitioner habitually files
transfer applications when faced with adverse orders and those
applications have been rejected in the past. He submits that the
Petitioners have also made allegations against the Advocate of
Respondent No.2.
9. Mr. Cyrus Ardeshir, learned Senior Advocate appearing for the
Respondent No.2 would submit that the Petitioner No.1 had given a
written complaint to the Hon'ble Chief Justice of Bombay High Court
on 27th September 2024 in which she has mentioned that the Advocate
for the Respondent No.2 was called into the Court Room and others
were not allowed to go inside and that the Charity Commissioner was
talking to some person from the phone of Advocate for the
Respondent No.2 and it appears that he was speaking with Respondent
No.2. He submits that in the adjournment application filed on 1 st
October 2024 there is no mention that the Charity Commissioner spoke
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to some person from phone of Respondent No.2's Advocate. He
submits that a communication was addressed by the Advocate for the
Petitioners to the Advocates for the Respondents to provide copy of
letters referred to by the Petitioner No. 1 in the complaint to the Chief
Justice, which was not provided. He would further submit that Ground
(F) of the present petition does not plead the allegation which forms
part of the complaint filed with the Hon'ble Chief Justice that the
Advocate for the Petitioners had witnessed the incident. He submits
that the allegations were made against the Advocate for the
Respondents. He would further submit that a detailed order has been
passed on the adjournment application on 16 th October 2024, rejecting
the application and appeal was adjourned for hearing on 18 th October
2024.
10. Mr. Kamdar, learned Senior Advocate appearing for the
Respondent No.4 would submit that transfer is sought by raising false
and baseless allegation and there is no reasonable apprehension of
bias. He submits that the allegations are that two hearings were
conducted in one day and the adjournment was not given and the only
incident based on which the petition has been filed is alleged incident
of 25th September 2024, which does not ex facie demonstrate bias.
11. In rejoinder, Mr. Singh would submit that the Petitioners have
made an application for extension of time granted by the Supreme
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Court by order dated 8th July, 2024 for conclusion of the proceedings
which is listed on Friday, i.e., 25th October, 2024.
12. Upon a query by this Court, as to who prohibited the Advocate
for the Petitioner from entering the Court Room on 25 th September
2024, Mr. Singh submits that the Court Peon had restricted the
Advocate for the Petitioner from entering into the Court Room and
that CCTV footage of the area outside of Court Room has been
sought. He submits that the allegations made are serious and there is
no denial of the said allegations and there is no response to the
demand for CCTV footage. He would further submit that it is a specific
case in the petition that Charity Commissioner does not dictate the
roznama in open Court and the roznama is written subsequently and
application for certified copy has been made in August 2024, however,
the same has not been provided to the Petitioners.
13. In the morning session, the arguments were concluded and the
order reserving the judgment was passed. Later on, in the afternoon
session Mr. Singh mentioned the matter and sought to rely on certain
judgments tendered across the bar during the morning session which
were not referred during arguments in morning session. This was
objected to by Mr. Madon submitting that he has not been served with
copy of the compilation of judgments and after the matter has been
closed for orders, no opportunity should be given to the Advocate for
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the Petitioner to reopen the arguments. In view of the fact, that the
matter was heard at length in the morning session and though the
compilation of judgments was tendered, none was referred to during
the arguments and after the matter has been closed and without copy
of the compilation of judgments being given to the Advocate for the
Respondents, this Court is not inclined to permit re-arguments based
on judgments.
14. I have given my thoughtful consideration to the submissions and
perused the record minutely.
15. This petition seeks transfer of the proceedings from the office of
Charity Commissioner, alleging bias on the part of Respondent No.1 on
the ground that a clear case of prejudice by passing of adverse orders
and conducting itself in a manner contrary to the judicial norms is made
out.
16. As the Apex Court by order dated 19 th February 2024 had
directed the appeals filed by the Respondents to be considered by the
Charity Commissioner a query was posed by this Court as to whether
this Court can transfer the proceedings to the Joint Charity
Commissioner without leave or clarification from the Apex Court. Dr.
Singhvi would submit that the direction by the Apex Court was not to
persona designata but to the institution of Charity Commissioner and
for the said purpose there is no requirement of approaching the Apex
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Court either seeking leave or clarification for the purpose of deciding
the present petition. He further submits that In event any clarification
is required by this Court, the proceedings before the Charity
Commissioner may be deferred. Mr. Madon would agree and submit no
clarification is required and there is no necessity of deferring the
proceedings before the Charity Commissioner as direction was to
institution of Charity Commissioner.
17. In the light of submissions made, I have perused the order of the
Apex Court. The Apex Court order dated 19 th February 2024 has
directed the appeals to be considered by the Charity Commissioner and
Mr. Singhvi is right in submitting that the direction is not to persona
designata but to the institution of Charity Commissioner and as the
Joint Charity Commissioner exercises the same powers as of the
Charity Commissioner, in view of Section 3A of the Trusts Act, there is
no requirement of seeking clarification from the Apex Court and in
event it is found that there is reasonable apprehension of bias, this
Court can very well direct the transfer of proceedings.
18. Reverting to the core issue required to be decided, in order to
consider the expediency of transferring the proceedings, it is necessary
to consider whether the submissions canvassed can form the basis of
reasonable apprehension on the part of the Petitioners that justice will
not be done. It is necessary to show the circumstances from which it
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can be inferred that the party to the proceedings is under an
apprehension of absence of impartiality, which apprehension is
reasonable, and not mere allegation. In the present case, in order to
demonstrate bias on the part of Charity Commissioner what is sought
to be canvassed is the passing of detailed interim order on 23 rd
September 2024, which goes beyond the relief sought and initiates suo
moto inquiry under Section 41D of the Trusts Act suspending the
trustees in the interregnum. To show perversity in the orders, reliance
is placed on the order dated 25 th September 2024 passed by this Court
where this Court has prima facie taken a view that the order was
contrary to Sections 22 and 41D of the Trusts Act and the order came
to be stayed.
19. The passing of adverse order, in my view, by itself will not
constitute bias on part of the Charity Commissioner or for that matter
on part of any Court or Tribunal or quasi judicial authority which is
empowered by law to decide the lis between the parties. While
adjudicating any application it is open for the Judicial Officers to pass
such orders, which in view of the Judicial Officer, are necessitated in
facts of the case. The order, if not in consonance with the law, is liable
to be corrected by the higher forum and only because such order
stands corrected by the higher forum cannot lead to an inevitable
conclusion that the order of the Authority/ Court / Tribunal is result of
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bias.
20. To demonstrate partisan, the incident alleged is of 25 th
September 2024 when the Advocate for the Respondent No.2 filed an
application under Section 41D of the Trusts Act and moved an
application for taking the application on board on 25 th September
2024. Allegation is that the Advocate for the Respondent No.2 was
called alone by the Charity Commissioner. During arguments Dr.
Singhvi would submit that the Advocate for the Respondent No.2 was
called to the Chamber of the Charity Commissioner whereas, as
pointed out by Mr. Madon in the petition the pleading is that Advocate
for the Respondent No.2 was called to the Court Room and that the
Advocate for the Petitioner was not allowed to go inside.
21. The debate in respect of the said incident is intensified by Mr.
Ardeshir by pointing out the complaint filed by the Petitioner No.1 with
the Hon'ble Chief Justice of Bombay High Court on 27 th September
2024 alleging that on 25th September 2024 the Advocate for the
Respondent No.2 was called into the Court Room by the Charity
Commissioner for about 30 minutes at 3:10 p.m. and others were not
allowed to go inside. In the complaint, Petitioner No.1 further alleges
that the Charity Commissioner was talking to some person from the
phone of Advocate for the Respondent No.2 and it is stated that the
incident had been witnessed by the Advocate for the Petitioner and
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further allegation is that it appears that the Charity Commissioner was
talking with the Respondent No.2. Firstly, the whole incident of 25 th
September 2024 which is one of the ground for alleging bias an part of
the Charity Commissioner is based on the alleged communication by
the Advocate for the Petitioner to the Petitioner No.1. This Court
called upon Mr. Singh to furnish copy of the letter dated 27 th
September 2024 addressed by the Advocate for the Petitioner to the
Petitioner No.1. Upon perusal of the same, it appears that the
Advocate for the Petitioner has stated that the Charity Commissioner
at about 3.10 p.m. called the Advocate for the Respondent No.2 into
his chamber and though they sought permission to join the meeting,
the same was denied and thereafter the Advocate for the Respondent
No.2 came out of the chamber of the Charity Commissioner at about
3:30 p.m. and left the Charity Commissioner's office. The
communication is totally silent as to witnessing of the incident by the
Advocate for Petitioners of Charity Commissioner speaking from the
phone of Advocate for the Respondent No.2 with any person as is
alleged in paragraph No.11 of the complaint dated 27 th September
2024 filed with Hon'ble Chief Justice of Bombay High Court. While the
communication of 27th September 2024 by the Advocate for the
Petitioner to the Petitioner No.1 refers to the Advocate for the
Respondent No.2 being called into the chamber, in the complaint to
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the Hon'ble Chief Justice the Petitioner No.1 has stated that the
Advocate for the Respondent No.2 was called into the Court Room.
Similarly, in the petition it is pleaded in the Ground D(iv) that Advocate
for the Respondent No.2 was called into the Court Room by the
Respondent No.1.
22. The apprehension is based on the alleged incident which itself
shows considerable discrepancy in the communication by the Advocate
of the Petitioners to the Petitioner No.1, the complaint by the
Petitioner No.1 to the Hon'ble Chief Justice and the pleadings in the
petition and raises considerable doubt as regards the factual
occurrence of said incident. The foundation of the application claiming
lack of transparency in the conduct of the proceedings by reason of the
alleged meeting held between the Respondent No.1 and the Advocate
for the Respondent No.2 on 25th September 2024 is itself doubtful.
That apart, a question also arises that if such a communication was
required to be established by the Charity Commissioner as alleged by
the Petitioner No.1, the same could have been done surreptitiously and
not in full view of the Advocate for the Petitioner when the matter is
listed for hearing and the Advocates for the Petitioner are present,
although may be present outside the Court Room. In fact on that day
the application for taking on board the application under Section 41D
of the Trusts Act was rejected by the Charity Commissioner.
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23. The prejudice towards the Petitioners is also alleged for the
reason that the Charity Commissioner on 27 th September 2024
accepted the compilation of documents after arguments were
concluded by the Respondent No. 3 and 4. In the petition it is pleaded
that the Respondent No.4 recorded that on 27 th September 2024 the
arguments of Respondent No.3 are concluded and the matter was
placed on 14th October 2024 for hearing on the application preferred
by the Respondent No.3 for production of documents, demonstrating
that the objections raised by the Advocate for the Petitioners to the
filing of documents were not brushed aside and in fact an opportunity
was given by the Charity Commissioner by placing the matter for
hearing on the application filed by the Respondent No.3 for production
of documents. The procedure adopted for listing the application for
hearing on 14th October 2024 after conclusion of arguments can be
said to be irregularity or illegality liable to be corrected by higher
forum.
24. It needs to be borne in mind that the Apex Court by order dated
8th July 2024 arising out of the order dated 10 th June 2024 of the
Charity Commissioner rejecting the application for adjournment, while
permitting the Petitioners to file reply to the Appeals, set out a time
bound programme by which the Charity Commissioner was directed to
dispose of the appeals within a period of 8 weeks after completion of
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pleading, which would expire on 28th October 2024. It was thus
incumbent not only upon the parties but also on the Charity
Commissioner to adhere to the time schedule and ensure compliance.
The reliance placed on the rejection of deferment application filed on
1st October 2024 to allege bias loses sight of the fact that in the usual
course the Authorities/ Courts and Tribunals when directed by order of
higher forum to adjudicate the proceedings in a time-bound manner is
reluctant to defer the proceedings unless found absolutely necessary.
It is no answer to say that the application was made on 1 st October
2024 and the appeals were required to be disposed of on 28 th October
2024 or 8th November 2024 as has been stated by the Charity
Commissioner in the order dated 16th October 2024. Either way it
cannot be denied that firstly every proceeding should be decided
expeditiously and more so where the proceedings are directed to be
adjudicated in the time-bound manner, any application for deferment is
viewed as delay tactics. Even if the orders passed are not in accordance
with law, at the most the same can be said to be a perverse order
capable of being corrected by the higher forum, however, the passing
of such order itself cannot be said to be the result of predetermined
and prejudiced mind.
25. As far as the allegation that the enquiry was sought to be
conducted by the Charity Commissioner into the averments of bias,
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although the said application Exhibit-55 is not placed on record, from
the order dated 11th October 2024 it appears that the incident alleged
of 25th September 2024 was one of the grounds of the adjournment
application and in view of the specific allegation made against the
Advocate for the Respondent No.2, the response came to be called by
the Charity Commissioner. The application below Exhibit-55 does not
appear to be an application simpliciter seeking adjournment for the
reason that the Petitioners are in the process of filing writ petition
before this Court for transfer of the proceedings but appears to be a
detailed application setting out the grounds of bias which also forms
part of the pleadings of the present petition. The calling of response
for testing the merits of the deferment proceeding, in any view, is not
an inquiry into bias itself.
26. The conspectus of foundation of bias, which can be culled out as
under :
(a) Passing of detailed order on an Interim Application going
beyond the reliefs sought and exercising suo moto powers.
(b) Recognisation of the exercise of powers by Charity
Commissioner not being in consonance with law by the High
Court.
(c) Rejection of Petitioner's application for deferment to
pursue the proceedings for transfer.
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(d) Incident of alleged private meeting of the Advocate for
Respondent No. 2 with Charity Commissioner.
(e) Accepting additional documents of Respondents after
conclusion of hearing.
(f) Inquiry into the allegation of bias by Charity Commissioner
itself.
. The allegations, if viewed, in isolation would not indicate any
basis for apprehension of bias. The submission of Dr. Singhvi is that a
cumulative consideration would warrant a finding that the
apprehension expressed by the Petitioners is a reasonable
apprehension justifying transfer. Even if the incidents are cumulatively
considered, apart from the alleged incident of 25 th September 2024,
the allegations would at the most, amount to passing of adverse orders
and may not be in consonance with law. The judicial orders passed by
the authorities legitimately, though may or may not be corrected by
the higher forums, cannot lead to an inference of pre-judged and/or
pre-determined and/or biased mind against the litigant against whom
the order has been passed. Although it is well settled that the
principles of administration of justice demands that the justice should
not only be done but seen to be done, it is also necessary to ensure for
securing the ends of justice that a mere allegation is differentiated
from an apprehension and what is required is a reasonable
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apprehension. An absence of congenial atmosphere cannot be a
ground for transfer. Similarly, passing of the adverse order cannot be
the foundation for seeking transfer of the proceedings. As already
noted above, the allegations of lack of transparency is attributed to
the incident of alleged private meeting on 25 th September 2024, which
in my opinion, considering the discrepancy in the versions cannot be
said to be a reasonable apprehension.
27. Although it was sought to be contended by Mr. Madon that the
Petitioners are in the habit of filing transfer applications on regular
basis whenever the orders are passed against the Petitioners, I am not
inclined to go into the said aspect. Before this Court what was required
to be considered is whether the apprehension expressed by the
Petitioner that the justice will not be done is a reasonable
apprehension for transfer of the proceedings from the file of Charity
Commissioner. In my view, although the Petitioners were faced with
adverse orders, even if the same are corrected by higher forum, cannot
be said to be the result of pre-judged mind and cannot form the basis
for reasonable apprehension that justice will not be done by the
Charity Commissioner while adjudicating the proceedings.
28. In my view, the apprehension of the Petitioner lacks foundation.
As such I am not inclined to entertain the petition and transfer the
proceedings from the file of Charity Commissioner to any other Judicial
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Officer. It also needs to be noted that the transfer of proceedings from
a Court/Tribunal/ or Quasi Judicial Officer Authority is usually viewed
as a suspicion being cast on the conduct of proceedings by the Judicial
Officer and the transfer cannot be based on mere allegation without
arriving at a satisfaction that the events are such that it cannot be
expected that justice will be done to the litigant. In my view, the
foundation which is expected for passing an order of transfer is lacking
in the present case.
29. In light of above discussion, I am not inclined to entertain the
petition. Petition stands dismissed. Rule is discharged.
[Sharmila U. Deshmukh, J.]
30. At this stage, request is made by Mr. Singh for extension of the
order dated 22nd October, 2024 by which this Court had requested the
Charity Commissioner to defer the proceedings till 28 th October, 2024.
He would further submit that though the matter was to be listed today,
before the Apex cout, the same was not listed as the concerned Court
is not available. He would further point out the communication by
Charity Commissioner to the Apex Court seeking extension of time to
dispose of the proceedings. He would therefore request that the
proceedings before Charity Commisisoner be deferred till 4 th
November, 2024, as the matter is listed before the Apex Court on that
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day.
31. Mr. Madon would oppose the said request and would submit that
the order of the Apex Court has to be complied and the adjudication
has to be completed of 28th October, 2024. He would further submit
that if the proceedings are deferred beyond 28 th October, 2024, the
same would constitute contempt of the Apex Court as no extension is
granted.
32. He would also submit that notice was given that the matter will
be mentioned in the Apex Court before the alternate Bench, however,
the matter was not mentioned.
33. Considering that as of today, the order of the Apex Court
directing disposal of the Appeals by Charity Commissioner on or before
28th October, 2024 has not been extended, I am not inclined to grant
any further deferment of the proceedings before the Charity
Commissioner. Request is rejected.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 27 of 27
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 25/10/2024 19:46:42
