:1: 268.10-lpa bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.268 OF 2010 IN WRIT PETITION NO.9501 OF 2009 Charu Kishor Mehta ..Appellant Vs. The Joint Charity Commissioner & Ors. ..Respondents Mr.Aspi Chenoy, Senior Advocate with Raj Patil, N.Rizu i/b. Thakar Jariwala & Associates for the appellant. Mr.A.I.I.Patel, AGP for respondent Nos.1 and 14. Mr.D.D.Madon, Senior Advocate i/b. Daru Shah & Associates for respondent No.2. Mr.Iqbal Chagla, Senior Advocate with Mr.Kunal Vajani and Ms.Pradnya Goyal i/b. Wadia Gandhy & Co. for respondent No.4. Mr.Dinesh Tiwari i/b. Dinesh Tiwari & Associates for respondent No.10. Mr.Mahesh Jethmalani, Senior Advocate with Pranav Badheka i/b. Mulla & Mulla and C. & B. C. for respondent Nos.11 to 13. CORAM : D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATE : DECEMBER 1, 2010 P.C. The dispute in the petition relates to the management of the Lilavati Hospital, Bombay. Therefore, at the outset, parties were informed by one of us (D.K.Deshmukh,J.) that his son is working as a Consultant in the Lilavati Hospital and therefore, he does not want to take the matter for hearing. The learned Counsel appearing for all the parties have stated that they have no objection with this Bench hearing the appeal and therefore, the appeal is heard. :2: 268.10-lpa 2. The appellant, admittedly is a Trustee of the Public Trust which runs a Hospital. She had moved an application under Section 41D of the Bombay Public Trust Act,1950 for removal of the Trustees. We will refer to the parties by their status in the application under Section 41D filed before the Joint Charity Commissioner. The present appellant was the applicant. The present respondent Nos.1 to 9 were the respondents before the Joint Charity Commissioner. The appellant had prayed for an order for removal of respondent Nos.1 to 9 before the Joint Charity Commissioner. The Joint Charity Commissioner, by his order dated 25th September, 2009 ordered removal of only respondent No.9 Mr.Vijay Mehta. It is common ground before us that Mr.Vijay Mehta is no more. He died after the Writ Petition was decided by the learned Single Judge. 3. A Writ Petition was filed by the present appellant challenging the order passed by the Joint Charity Commissioner declining to remove respondent Nos.1 to 8 before the Charity Commissioner as Trustees of the Trust. That Writ Petition has been dismissed by an order dated 2nd March,2010 by learned Single Judge of this Court. The present appeal is filed by the original petitioner challenging that order. 4. Learned Counsel appearing for the petitioner submitted that by Charge No.1 it was alleged that; “The Respondents No.1 to 9, trustees of the trust advanced huge amounts more than Rs.15 crores to M/s.Mayfair Realtors Pvt. Ltd. & M/s.Vesta India Pvt. Ltd. for procuring medical equipments during years 2001-02 to 2003-04 without taking proper care & despite failure by these companies to supply the equipments, did not take steps to recover the money and thus, continuously neglected their duties & committed misfeasance & also dealt improperly with the trust property.” :3: 268.10-lpa A finding was recorded by the Joint Charity Commissioner that this charge is proved against respondent Nos.1 to 9. 5. He further submits that charge No.2 was also against respondent Nos.1 to 9. Charge No.2 reads as under: “The Respondents No.1 to 9, trustees of the trust, gave donations regularly to the tune of Rs.6.36 crores from year 2003-04 to 2005-06 to Madhulaxmi Trust, without verifying that the donations are utilised to fulfill objects of the trust and thus, continuously neglected their duties & committed misfeasance & also dealt improperly with the trust property.” This Charge was also held to be proved against respondent Nos.1 to 9 by the Joint Charity Commissioner. Charge No.3 was also also against respondent Nos.1 to 9. Charge No.3 reads as under: “The Respondents No.1 to 9, trustees purchased a Honda Accord Car MH 02 MA 4343 for and in the name of Mr.Dushyant Mehta & thus dealt improperly with the trust funds and mis appropriated the trust money.” The finding of the Joint Charity Commissioner was that, it is proved against all the respondents. Charge No.4 was only against respondent No.9. Charge No.9 reads as under: “The Respondent No.9, trustee of the trust, utilised the trust funds to the tune of Rs.36,06,470/- during financial years 2003-04 to 2005-06 towards payments of his credit cards & thus received personal benefits from trust funds & thereby mis appropriated the trust money and committed malfeasance.” :4: 268.10-lpa It was held to be proved against him. Again Charge No.5 was against respondent Nos.1 to 9. Charge No.5 reads as under: “The Respondents No.1 to 9, trustee of the trust arranged meetings of the trustees as well as other meetings at Antewerp, Belgium & other foreign countries instead of India & sepnt huge amounts to the tune of Rs.58,40,456/- from year 2002-03 to August,2006 & squandered the trust money & committed misfeasance & also dealt improperly with the trust property.” The finding was that it is proved against respondent Nos.1 to 9. Charge No.6 was against respondent Nos.1 to 9, which reads thus: “The Respondents No.1 to 9, trustee of the trust have spent money from trust funds to meet traveling expenses of Mr.Suresh Motwani who has no concern with the trust, for his trips to Goa & Dubai & committed misfeasance & also dealt improperly with the trust property.” It was held to be proved against all of them. Similarly, Charge No.7 reading as under was also against respondent Nos.1 to 9 was held to be proved against all of them. “The Respondents No.1 to 9, trustee of the trust advanced amount of Rs.2.75 crores to M/s.Albina Developers Pvt. Ltd. without verifying its track record & without taking proper care & acted negligently in dealing with this transaction & committed misfeasance & also dealt improperly with the trust property.” Charge No.8 reading as under was also against them and it was held to be proved against all of them. “The Respondents No.1 to 9, trustee of the trust allowed misuse of a trust account for the purpose of clandestine transaction in favour of Golden Sea Shell C.H. & thereby committed malfeasance.” :5: 268.10-lpa 6. However, the Joint Charity Commissioner, while considering the question of what is to be operative order made in the application, held that the order of removal is liable to be made against respondent No.9 Vijay Mehta because, according to the Joint Charity Commissioner, respondent Nos.1 to 8 had delegated all their powers in favour of Vijay Mehta and one of them had also executed a power of attorney in favour of Vijay Mehta. The submission of the learned Counsel is that the findings recorded by the Joint Charity Commissioner on Charge Nos.1 to 8 and the findings recorded by the Joint Charity Commissioner for the purpose of making the order for removal of respondent No.9 only are contradictory. In the submission of the learned Counsel, once having found respondent Nos.1 to 9 jointly guilty of misfeasance and negligence in performance of their duties an order for removal ought to have been made against all of them. 7. On behalf of respondents, it is submitted that respondent Nos.1 to 8 as also the appellant had delegated their powers to respondent No.9. For every act which was alleged against respondent Nos.1 to 8, the appellant was also equally guilty. Though she made the application, she did not step into witness box. It is submitted that so far as financial powers are concerned, Mr.Kishor K.Mehta, husband of the appellant who stepped into witness box admitted that all financial powers were with Mr.Vijay Mehta and he was looking after all the financial transactions and therefore, no exception can be taken to the order of the Joint Charity Commissioner in not making the order of removal of respondent No.9. The learned Counsel appearing for the respondents also referred to the conduct of the appellant in conducting the Writ Petition filed before the learned Single Judge. :6: 268.10-lpa 8. Perusal of the record shows, that the Joint Charity Commissioner has in fact recorded finding on charge Nos.1 to 8 except Charge No.4 holding respondent Nos.1 to 9 guilty of misfeasance and negligence in performance of duty. Perusal of the provisions of Section 41D shows that it is a discretionary power vested with the Charity Commissioner. The Joint Charity Commissioner, after having found that respondent Nos.1 to 9 have been negligent in performance of their duties jointly, while considering the question of what should be the order, he restricted his order of removal to respondent No.9 only. The Joint Charity Commissioner found that there was a resolution passed by all the Trustees of the Trust which included the appellant by which respondent No.9 was appointed as the Managing Trustee and all powers to manage the Trust and the Hospital were delegated to him. In this background, on finding that the Trustees were members of a family and respondent No.9 was the oldest member of the family and that during his tenure as a Trustee, the hospital was run most efficiently, he restricted the order of removal to respondent No.9. The observations made in paragraph No.261 and 262 of the order of the Joint Charity Commissioner in our opinion are relevant, they read as under: 261. To conclude, I do not find anything against respondent No.1 to 8 to connect them directly with the alleged transactions. The respondents No.2,3,4 & 7 admittedly joined board of trustees much later i.e. in the year 2004. It would be wrong to blame them for the acts done in past, before they joined as trustees. 262. 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 facts 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 :7: 268.10-lpa relieance on him. They are certainly to be criticised for that. However their over dependence on respondent No.9, in action, negligence and lack of interest would not warrant their dismissal. 9. In our opinion, after finding that the Trustees are jointly liable, it is not obligatory on the part of the Joint Charity Commissioner to make an order of removal of every one of them. If the Joint Charity Commissioner finds that there are circumstances justifying the removal of respondent No.9 only, despite finding some of the Trustees responsible, he is free to make the order and he has jurisdiction to make that order. 10. In the present case, the Joint Charity Commissioner, after giving detailed reasons has decided to make an order of removal only against respondent No.9. That order cannot be said to be an order made without jurisdiction. The Joint Charity Commissioner has given reasons for making the order for removal of respondent No.9 only. The reasons given by the Joint Charity Commissioner can by no stretch of imagination be said to be perverse or impossible. In our opinion, therefore, considering that the order is within the jurisdiction of the Joint Charity Commissioner and the reasons given by him for making the order are also possible and plausible reasons. The learned Single Judge was justified in not interfering with the order. We have also been informed that when the learned Single Judge was considering the validity of the order in the Writ Petition, the finding recorded in the order against respondent No.9 were stayed in the appeal filed against that order by him before the Competent Court. 11. We, thus, find that the order of the learned Single Judge in these circumstances declining to interfere with the order is justified considering that the appellant herself was a party to the resolution appointing respondent No.9 :8: 268.10-lpa as a Managing Trustee and though she made the application before the Joint Charity Commissioner, no steps were taken by her to cancel that resolution as also her conduct of not entering into witness box to justify her conduct of appointing respondent No.9 as Managing Trustee and delegating all powers to him and taking no objection to his functioning as a Managing Trustee. We also find that though the appellant filed the petition it was not seriously contested before the learned Single Judge. Taking overall view of the matter, therefore, in our opinion, it will not be appropriate to interfere with the order of the learned Single Judge in this appeal. The appeal is, therefore, rejected with no order as to costs. (N.D.DESHPANDE,J.) (D.K.DESHMUKH,J.)