1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 9501 OF 2009 Charu Kishor Mehta ...Petitioner Vs. The Joint Charity Commissioner & Ors. ...Respondents Mr. Raj Patel a/w. Mr. Aditya Parab i/b. M/s. Thakor Tariwala & Associates for the Petitioner Mr. A.D. Kango, A.G.P for Respondents 1 & 14 Ms. Pallavi Kanakagiri i/b. Mr. Dinesh D. Tiwari, Advocate for Respondent No.9 Mr. Pranav Badhekha i/b. M/s Mulla & Mulla & CBC for Respondents 12 and 13 Mr. Dinyar Madon, Sr. Counsel a/w. Mr. Sanjay Jain and Ms. Jyoti Shah i/b. M/s. Daru Shah & Co. for Respondent No.2 Mr. Shrihari Aney, Sr. Counsel a/w. Mr. Prateek Sakseria and Mr. Ashwin Sakolkar i/b. M/s. Vidhi Partners for Respondents 4 & 7 Mr. Jimmy Avasia a/w. Mr. Kunal Vajani and Mr. Pranaya Goyal i/b. M/s. Wadia Ghandy & Co. for Respondent No.10 CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND MARCH, 2010 P.C. : 1. This Petition has been filed on 30th October 2009 challenging the order of the learned Joint Charity Commissioner dated 25th September 2009 passed in respect of 4 of the Trustees of the disputed Trust. An interim order came 2 to be passed on 20th November 2009. Thereafter, parties have been heard on 24th November 2009 and 27th November 2009. A praecipe was circulated on 2nd December 2009. After the Writ Petition was heard upon such circulation Counsel on behalf of the Petitioner withdrew their appearances on 2nd December 2009. Once again the Petitioner circulated the papers upon their praicipie. The Petition came to be placed on board on 15th February 2010. On 18th February 2010 because the Counsel of the Petitioner was not available, the Petitioner came to be adjourned to today. The Respondents 12 & 13, who support the Petitioner, are represented by their separate Counsel for the hearing of the Petition. The Petitioner’ Counsel is yet not available and the Petitioner’ Advocate applies for further time. Counsel on behalf of the contesting Respondents oppose any adjournment as this date had been fixed on account of the Petitioners Counsel’s absence. The exception taken to the application for adjournment is understandable. The Petitioner cannot be allowed to get the Petition placed on board for hearing on their own circulation and then fail to be represented when the Respondents attend through their Counsel. Hence application for adjournment is refused. Counsel on behalf of Respondents 12 and 13, who support the Petitioners, is heard on the Petitioner’s Counsel. He has referred to various paragraphs of the impugned order. 2. There have been allegations and charges of mismanagement, misfeasance, malfeasance and misconduct against some of them. The main allegations are against one Trustee Vijay Mehta who has been removed as Trustee and whose order of removal has been stayed. There are 5 Trustees against whom there have been no allegations and who continue as Trustees. There 3 have been allegations of collusion with the Managing Trustee Vijay Mehta against 8 Trustees. I am told that 4 of them have since resigned. The other 4 of the Trustees are the son of Vijay Mehta, sister of Vijay Mehta who was appointed permanent Trustee in the Trust itself, wife of Vijay Mehta and one Dr. Shah. The son of Vijay Mehta is stated to have made allegations against Vijay Mehta. 3. The main charge against the Trustees who are stated to be in Vijay Mehta’s “group” represented by Mr. Madon and Mr. Aney Senior Counsel are that they had allowed Vijay Mehta to act upon their Power of Attorney in the affairs and financial transactions of the Trust singlehandedly and allowed him to mismanage the affairs of the Trust. 4. The observations made in the impugned order show that the allegations against Trustees are of collusion and connivance. They are general in nature. They are vague. No specific allegations are alleged against them. They had not played any active role. The order further shows that there is a specific allegation that the sister of Vijay Mehta, who was the permanent Trustee since the inception, did nothing as Trustee until 2002. Yet order of search that the allegations made against her shows that the Petitioner had no knowledge of the role played by her. 5. The allegations against Vijay Mehta relate to acts done by him since 2001. The wife of Vijay Mehta and Dr. Shah another Trustee joined the Board since 2004 well after the acts of misconduct of Vijay Mehta were brought out. 4 6. The order, therefore, observes that Vijay Mehta was the only Trustee having entire control on the affairs of the Trust. The Trust Hospital has been looked after by Vijay Mehta. He took all the major decisions which he conveyed to the other Trustees. The other Trustees were not parties to those decisions or the transactions in which certain losses are alleged to have been incurred. 7. Mr. Badhekha on behalf of Respondents 12 and 13, who support the Petitioner, drew my attention to paragraph 262 of the order to contend that all the Trustees in the group of Vijay Mehta were held to be negligent as Trustees and hence, they should not have been exonerated. He contended that if the Trustees from the “group” of Vijay Mehta continue as Trustees, the Petitioner and Respondents 12 and 13 would not be allowed to continue to take major decisions on behalf of the Trust pending the Appeal and until its final decision. It will be worthwhile to reproduce the said paragraph itself. 8. Paragraph 262 runs thus: “These Respondents may be negligent in putting blind faith in Respondent No.9. It was wrong to give free hand in trust affairs to him. They were over dependent on Respondent No.9. Probably the fact that he is the eldest member of Mehta family, and since he took over as managing trustee, the hospital earned both fortune and fame might have weighed much in their minds, for which, they put total faith and reliance on him. They are certainly to be criticized for that. However their over dependence on Respondent No.9 in action, negligence and lack of interest, would not warrant their dismissal.” 5 9. Though the learned Charity Commissioner observes that the acts on the part of the Trustees to give a freehand to another as a Trustee by either over dependence on such Trustee who might misuse his powers in incorrect, the inaction, negligence and lack of interest by such overdependent would not warrant their dismissal. 10.The reliefs applied for in this Petition which are in the nature of Appeal, which is otherwise not maintainable, would not be merited since the Managing Trustee himself having been disallowed to take any policy decisions or enter into any financial transactions with regard to the trust and Trust properties in the impugned order itself, the defendant Trustees would not now be a threat to management. 11.Further the Petitioner as also the other independent Trustees, against whom no allegations have been made, would effectually outnumber the Respondents who would be the Trustees in Vijay Mehta “group” for all decisions that the Trust might take forthcoming meetings. 12.Consequently, no prejudice will be caused to the Petitioner by the order discharging Respondents 1 to 8 shown in the impugned order. 13.The order is not without jurisdiction and does not require any interference. 14.The Writ Petition is dismissed. (SMT.ROSHAN DALVI, J.)