1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9753 OF 2009 Mrs Charu K Mehta .. Petitioner Vs 1. Chetan P. Mehta, 2. The Charity Commissioner, Maharashtra State, 3. The State of Maharashtra. .. Respondents Mr V.B.Naik, Advocate a/w Mr Raj Patel, H.N.Thakare and Pranav Sampat i/b M/s Thakur Jariwala and Associates for the petitioner. Mr S.U.Kamdar, Senior Counsel, a/w Mr Prateek Seksaria and A Chaturvedi and Ashwin Sakalkar, i/b M/s Paras Kuhad and Associates, for respondent no.1. Ms M.S.Bane, “B” Panel AGP, for respondent nos 2 and 3. CORAM : D.B.BHOSALE, J. DATE OF RESERVING THE JUDGMENT : 18.12.2009. DATE OF PRONOUNCING THE JUDGMENT : 05.01.2010. JUDGMENT: 1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 18.11.2009 passed by the Charity Commissioner, Maharashtra State, Mumbai, on the application at Exhibit-3 in Application T 2 No.40 of 2009. Application No.40 of 2009 is filed by the petitioner under rule 36 (ii) (iii) of the Bombay Public Trusts Rules (for short, “the Rules”), seeking transfer of an application, being Application No.15 of 2008, instituted by respondent no.1 under section 41-D of the Bombay Public Trusts Act,1950 (for short, “the Act”). During pendency of this application (No.40 of 2009), the petitioner filed an application at Exhibit-3 for stay of the Application No.15 of 2008. By the impugned order, the Charity Commissioner has rejected the prayer for stay and hence this petition. 2. Respondent no.1 has filed the Application No.15 of 2008, under section 41-D of the Act seeking suspension/removal of the petitioner as a trustee of the Trust known as “Lilavati Medical Trust”. Respondent No.1 has also filed Exhibit-2 application seeking interim order of suspension against the petitioner, pending hearing and final disposal of the application No.15 of 2008. Hearing of the Application No.15 of 2008 for framing of charges and of the application (Exhibit-2) for interim stay commenced on 11.9.2009. Learned counsel for respondent no.2 argued the matter for two days, i.e. 11.9.2009 and 16.9.2009 and then the Advocate for the petitioner also argued on 22.9.2009 and 24.9.2009. On 24.9.2009, the matter was 3 adjourned to 29.9.2009 for further arguments. On that date and thereafter on three consecutive dates the petitioner filed applications for adjournment at Exhibits 59, 60, 61 and 62. The first three applications were allowed and the last application was rejected and the matter was closed for orders. This order of the learned JCC dated 27.10.2009 prompted the petitioner for filing the application for transfer (40 of 2009) on 3.11.2009. The transfer, as stated in the transfer application, was sought on the following grounds: (i) The JCC has been proceeding with Application No.15 of 2008 on a day to day basis even though not time bound and hearing it parallel to Application No.17 of 2006 which was expedited and made time bound by the Supreme Court of India. (ii)The JCC has closed the hearing of Application No.15 of 2008 on charge and reserved the same for orders without giving a fair opportunity to the applicant. This was done despite circumstances that were beyond the control of the applicant as there was not a single counsel available as the matter was adjourned to Diwali holidays. (iii)Refusal to proceed/hear/number Revision Application filed by the applicant even though the same has a crucial and direct bearing on four Change Reports including those of two sons of the applicant, which Change Reports have been expedited and made time bound by the Hon’ble High Court. (iv)The JCC while passing orders in Application No.17 of 2006 has made unwarranted observations and 4 totally out of context about Trusteeship of Mr Kishor Mehta, Mr Prashant Mehta, Mr Rajiv Mehta and Mr Vijay Mehta while the Change Reports pertaining to their Trusteeship are pending before the Assistant Charity Commissioner for adjudication. The Assistant Charity Commissioner being a sub-ordinate authority is bound to be prejudiced by these observations. The JCC was fully aware of the pending proceedings. Before the Assistant Charity Commissioner while making these unwarranted and illegal observations. (v) The JCC has made unwarranted observations in Application No.17 of 2008 on the Trusteeship of Mr Kishor Mehta, Mr Rajiv Mehta and Mr Prashant Mehta. In fact, the Hon’ble High Court has granted liberty to establish the same in appropriate proceedings. (vi)The JCC has been influenced by the Deputy Law Minister, Maharashtra and called to discuss matters pertaining to the Lilavati Trust. 3. I have heard learned counsel for the parties at considerable length. Mr Naik, learned counsel for the petitioner in the course of hearing took me through the entire record and more particularly the impugned order, the Application No.40 of 2009, the affidavit of Charu Mehta dated 14.11.2009 (Exhibit-D to the writ petition) and the letter dated 10.10.2009 annexed to the said affidavit. 4. Mr Naik, learned counsel for the petitioner, submitted that the learned Charity Commissioner has committed a manifest 5 error of law in holding that after framing of charges the party against whom the charges are framed, will be given opportunity to defend the same/submit their say chargewise and then only question of order of suspension would arise. He submitted that it is clear from the scheme of section 41-D of the Act that suspension can be ordered contemporaneously with the framing of charges. Therefore, to say that framing of charge is not a final order may not entirely be the correct position of law. He then submitted that on account of the grounds raised in the transfer application, the applicant is clearly under a reasonable apprehension that she may not have a fair and impartial hearing before framing of the charge itself. He then submitted that the application cannot be stated to be premature and it warrants interference by this Court. Mr Naik further submitted that even otherwise propriety demands that since the Charity Commissioner is seized of the transfer application, hearing of the Application No.15 of 2008 pending before the JCC is required to be stayed as in the eventuality of transfer of the said application being allowed, the hearing before the JCC would be waisted efforts. Mr Naik also after taking me through the application for transfer and the other material, submitted that the allegation regarding dilatory tactics being adopted by the petitioner can be addressed by this court directing a time bound 6 schedule for the hearing and disposal of the Transfer Application No.40 of 2009. In other words, the allegation of dilatory tactics per se cannot be a ground for refusing to accede to the simple request for stay of the application no.15 of 2008 till the Application No.40 of 2009 is decided. Then, Mr Naik, though not all, addressed on most of the grounds mentioned in the transfer application to submit that in the interest of fair and impartial decision, it is desirable that the proceedings in Application No.15 of 2008 be stayed till the Transfer Application No.40 of 2009 is heard and adjudicated upon. Mr Naik submitted that the petitioner had no option but to seek adjournments since the circumstances were beyond her control. He took me through the adjournment applications in support of this submission. He then submitted that while deciding Application No.17 of 2006 the JCC made unwarranted observations against the sons of the petitioner, which clearly show that he was bias. He submitted that the JCC was making undue haste in proceeding with Application No.15 of 2008 on day to day basis though not time bound. This all, according to Mr Naik, created apprehension in the mind of the petitioner that she would not get justice from the JCC. Mr.Naik submitted that the question in such cases is not whether the Presiding Officer would have bias but the question is whether there is reasonable 7 ground for believing that there is a likelihood of apparent bias. In other words, having regard to the facts of the present case and the grounds mentioned by the petitioner in her transfer application there is reasonable ground for believing that there is a likelihood of bias. In support of this contention he placed reliance upon the judgment of the Supreme Court in M.P. Special Police Establishment vs. State of M.P. 2004 (8) SCC 788 and the judgment of this court in Nilesh Jap Daru vs. State of Maharashtra 2004 (2) Bombay Cases Reporter (Cri.) 852. In short, Mr.Naik submitted that the grounds for transfer mentioned in the application are sufficient to create apprehension in the mind of the petitioner that she would not get justice from the learned JCC and, therefore, till her application for transfer is decided finally, application No.15 of 2008 deserves to be stayed. 5. Mr Kamdar, learned senior counsel, on the other hand, submitted that the application for transfer is one of the series of proceedings taken out by the present petitioner in 41-D application filed by respondent no.1. The application for stay in the Transfer Application, he submitted, was filed by the petitioner with the sole motive and object to somehow thwarting and/or stalling the said proceedings and to avoid framing of 8 charges against her and passing of any consequential interim order therein. He invited my attention to various proceedings filed by the petitioner from time to time and the orders passed by this court and the Supreme Court in those proceedings in support of his aforesaid contention. He submitted that the motive behind filing the transfer application is yet another attempt to prevent conclusion of the hearing of the application for charge. He then, after taking me through the grounds in the application, submitted that merely because JCC refused to grant adjournment beyond all limits, he cannot be branded as bias. He submitted that the grounds mentioned in the transfer application are all after thought. He then submitted that it is now well settled that refusal of adjournment cannot be a ground for seeking transfer. Insofar as the affidavit of Prashant Mehta and his letter dated 10.10.2009 are concerned, Mr Kamdar submitted that he has made false and frivolous allegations against the learned JCC with an ulterior motive and that the allegations are unsustainable, unfounded and unsupported. He submitted that the said allegations do not find place in the letter dated 10.10.2009 so also in the transfer application. If the allegations in the affidavit were true, the petitioner would have definitely made reference to those allegations in her transfer application. He submitted that no indulgence should be 9 shown to the petitioner, who is adopting all possible and impossible tactics for delaying the proceedings. He then submitted that merely because some observations are made by the learned JCC against the sons of the petitioner in parallel proceedings, it cannot be stated that there exists element of bias, more particularly when the orders passed by the learned JCC against the petitioner’s sons are the subject matter of challenge before this court. Lastly, he submitted that it is always open to the petitioner to raise all these grounds, if the charges are framed against her, challenging the order of framing of charge in further proceedings. 6. Ordinarily, I would not have written such a long order in the proceedings of this nature and it was possible to disposed of this petition by passing a short order granting stay, as prayed, by issuing direction to the Charity Commissioner to dispose of the transfer application within time frame. But in view of the peculiar facts and circumstances of the case I am stating in detail the backdrop against which the application for transfer has been filed and my reasons for rejecting the prayer for stay of the proceedings (Application No.15 of 2008) till disposal of the application for transfer. 10 7. Before I advert to the submissions advanced by learned counsel for the parties, it would be relevant to make reference to different proceedings filed by the petitioner from time to time, in order to appreciate diverse contentions and claims made by the parties. In these proceedings, at every stage, the petitioner has filed some or other application and most of the orders passed by the Joint Charity Commissioner (for short, “the JCC”) were carried to this court and/or to the Supreme Court. I would like to make reference to some of the orders passed by the JCC and by this Court and the Supreme Court in those proceedings. (a) After the petitioner was served with Application No.15 of 2008, she filed an application before the Charity Commissioner for its dismissal on various grounds. The said application was, however, dismissed by the JCC vide order dated 23.4.2009. That order was carried by the petitioner in Writ Petition No.4623 of 2009. This Court, while rejecting the petition vide order dated 24.6.2009, observed that “it would have been appropriated for her (the petitioner) to await till charges are framed rather than filing an application at this stage for dismissal of Application No.15 of 2008.” Then the learned Judge in paragraph 7 observed thus : 11 “After framing of the charges, it would always be open for the petitioner to challenge the same, if so advised. It may be possible that the Joint Charity Commissioner would not frame charges in respect of the instances regarding which the petitioner is already facing charges in other applications filed under section 41-D. Therefore, it would be premature to direct the Joint Charity Commissioner not to frame such charges.” (b) The order of the learned Single Judge dated 24.6.2009 was carried by the petitioner in an appeal, being LPA No.180 of 2009. The Letters Patent Appeal was also dismissed vide order dated 10.8.2009. It is pertinent to note that in the writ petition and in the L.P.A. the petitioner had prayed for stay of the proceedings in Application No.15 of 2008 and that the prayer was not granted. (c). The petitioner, thereafter, filed another Writ Petition, bearing No.6598 of 2009 challenging the order dated 21.7.2009 passed by the JCC disposing of the petitioner’s application at Exhibit-44. The application at Exhibit-44 was made by the petitioner for seeking inspection of the documents. This Writ Petition was also dismissed vide order dated 4.8.2009. In this 12 petition also the prayer for stay was rejected. (d). Thereafter, the petitioner filed one more writ petition bearing No.7417 of 2009 against the order dated 20.8.2009 passed by the JCC on the application at Exhibit-54 in the Application No.15 of 2008. By this order, the Charity Commissioner had adjourned the hearing of the said application observing that “purpose behind interrogatories as claimed in the application can be served even if the application is considered at a later stage. It is not necessary to stay the hearing on charges and to give preference to this application.” This petition was also dismissed vide order dated 9.9.2009. (e). This order (9.9.2009) of the learned Single Judge was carried by the petitioner in an appeal, being Letters Patent Appeal No.260 of 2009. The LPA was also dismissed by the Division Bench vide order dated 7.10.2009. It would be relevant to reproduce certain observations made by the Division Bench in paragraphs 1 and 2 of the order dated 7.10.2009, which read thus; “At every possible or impossible opportunity these parties are litigating. There are dozen of cases pending between the parties in almost every court in Bombay. This is the 9 th appeal in series and the 13 second Letters Patent Appeal (L.P.A.). This relates to a matter pending before the Charity Commissioner and the Charity Commissioner is not being allowed to proceed in the matter.” “Charges can be framed on the basis of material which includes pleadings of the parties. Pleadings of the parties are available with the Charity Commissioner and the Charity Commissioner will be free to frame charges on the basis of material in the shape of pleadings before it. However, even after framing of the charges, if any party feels that the charges were framed on no material they will have remedy to challenge the said order.” (emphasis supplied) (f) The order passed in the Letters Patent Appeal dated 7.10.2009 was further carried by the petitioner in SLP No.27703 of 2009. The Supreme Court also declined to exercise its jurisdiction under Article 136 of the Constitution of India and dismissed the SLP vide order dated 6.11.2009. In these proceedings also the petitioner had prayed for stay of the proceedings in Application No. 15 of 2008. The prayer for stay was, however, not granted either by the High Court or by the Supreme Court. (g) It would also be relevant to make reference to three more writ petitions, being Writ Petition Nos.4944 of 2009, 445 14 of 2009 and 4946 of 200l filed by Prashant Mehta, Kishor Mehta and Rajiv Mehta respectively. They are sons of the petitioner. They had filed applications at Exhibits 21,22 and 23 before the JCC seeking intervention in the Application no.15 of 2008, and since all the three applications were rejected, the said orders were carried in these three writ petitions. All the three writ petitions were rejected by the learned Single Judge vide order dated 24.6.2009. In these petitions also, the sons of the petitioner had prayed for stay of the proceedings in Application No.15 of 2008. The order passed by the learned Single Judge dated 24.6.2009, disposing of all the three petitions, was further carried to the Supreme Court in SLP no.24630 of 2009 by Prashant Mehta. The Supreme Court also declined to interfere with the orders passed by the JCC and by the learned Single Judge. (h) Thereafter, the petitioner filed the present writ petition challenging the order rejecting her application for stay. The present writ petition was placed before the Court on 23.11.2009 when the following order was passed. “Leave to amend. Amendment to be carried out within a period of one week from today. It is made clear that this court has not passed any interim order in this petition and it is open to the authorities below to 15 proceed with the hearing of the applications. Stand over to 7.12.2009.” This order was also challenged by the petitioner in SLP (Civil) No.32370 of 2009 for seeking stay of the hearing of the Application No.15 of 2008 pending hearing of this petition. The Supreme Court, vide its order dated 4.12.2009, disposed of the SLP by the following order. “Heard learned counsel for the parties. We are informed that the matter is pending before the Joint Charity Commissioner, Mumbai and listed on 8.12.2009. Since a transfer petition is pending before the Charity Commissioner, Mumbai in which the prayer is to transfer the case from Joint Charity Commissioner to Charity Commissioner. We dispose of this petition with a direction to the Bombay High Court to hear and decide the writ petition on 7.12.2009, on which date it is already listed, and not grant any adjournment. With the above direction, the special leave petition stands disposed of.” (i) The writ petition was placed on board for admission on 7.12.2009 and since it could not be heard on that date, the petitioner once moved the Supreme Court by way of an interim application in SLP No.32370 of 2009 and prayed for stay of the hearing of the Application No.15 of 2008. The Supreme Court, however, refused to pass an order of stay. 16 8. It is, thus, clear that the petitioner has not left a single stone unturned in seeking stay of the proceedings in Application No.15 of 2008. At every possible opportunity the petitioner has filed some or other applications before the JCC and carried the matter to this Court or to the Supreme Court and did her best to obtain stay of the proceedings in Application No.15 of 2008. However, at no point of time, hearing of the Application No. 15 of 2008 or of the Interim Application at Exhibit-2 filed therein was stayed, either by this Court or by the Supreme Court. The JCC, therefore, had no reason to stay the proceedings in Application No.15 of 2008. As a matter of fact, till the transfer application was filed, the petitioner had not made any grievance about the hearing of Application No.15 of 2008. No adjournment at any earlier stage was sought on any of the grounds mentioned in the transfer application. The hearing of Application No.15 of 2008, in fact, had commenced on 11.9.2009 and after arguing the matter for two days, adjournments were sought on different grounds. 9. It appears that on 11.9.2009 and on 16.9.2009 the counsel for the respondent argued the matter on charge and then the counsel for the petitioner also argued on 22.9.2009 and 24.9.200, without making any grievance against the JCC. The 17 matter was then adjourned for further arguments on 29.9.2009. On 29.9.2009, the counsel for the petitioner filed an application, being Exhibit-59, and prayed for ten days adjournment to study the judgment of the JCC dated 25.9.2009 in Application No.17 of 2008. Accordingly, adjournment was granted and the matter was kept on 7.10.2009. On 7.10.2009, vide application Exhibit-60, again an adjournment was sought on the ground that her counsel had suddenly taken ill. Let me make it clear that I am not examining the question, as raised by the counsel for the respondent, whether the counsel, who was to argue the matter before the JCC on 7.10.2009, was really unwell, since admittedly he was present in the High Court in L.P.A. No. 260 of 2009 on that day. According to the petitioner, on 7.10.2009 her counsel after attending the L.P.A in the High Court had suddenly taken ill. The matter was then adjourned to 21.10.2009. On 21.10.2009 the adjournment was sought on account of “Diwali Holidays”. Diwali holidays were between 17.10.2009 and 23.10.2009. In view thereof, it seems that the matter was adjourned to 27.10.2009. On this date, again an application for adjournment, being Exhibit-62, was filed and once again adjournment was sought on account of “Diwali Holidays”. At this stage, it seems, the JCC got annoyed and lost his patience and closed the matter for orders vide order dated 18 27.10.2009. This order of the JCC prompted the petitioner to file the application for transfer. Perusal of the roznama shows that almost all adjournments, right from beginning, were sought by the petitioner. Admittedly, the petitioner sought about 15 adjournments between 1.12.2008 and 27.10.2009, though, according to the respondent, she sought about 23 adjournments, and that all adjournment applications were granted by the JCC. 10. It is against this backdrop, the questions raised for my consideration are whether refusal of adjournment and closing the matter for orders, in the facts and circumstances of the case, coupled with the other grounds mentioned in the transfer application is prima facie sufficient to hold that there is a real likelihood of bias on the part of the JCC, and whether hearing of Application No.15 of 2008 deserves to be stayed pending hearing and final disposal of the Transfer Application. My answer to both the questions is in the negative. In my opinion, the learned JCC had shown sufficient patience/indulgence and had granted adjournments liberally. As a matter of fact, conduct of the petitioner’s advocates on record and her arguing counsel raises the question whether it was proper on their part to seek adjournments in a part-heard matter on the grounds mentioned in the applications at Exhibits 59 to 62. The 19 adjournment on the ground of illness was understandable. But the subsequent adjournments and more particularly the last adjournment, in my opinion, were not at all justifiable and they were certainly annoying. 11. If the Advocate on record or the arguing counsel, in a part heard matter, has any difficulty in continuing the arguments on a particular date, he should request the court to keep the matter for further arguments on the date which may be convenient to him and to the court and it would not be proper to seek adjournment on every date of hearing on some or other ground, as it happened in