1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5732 of 2008 1. Vijay K. Mehta 2. Sushila V. Mehta A- 791, Bandra Reclamation, Bandra(W), Mumbai 400 050. .. Petitioners versus 1. Charu K. Mehta 2. Rekha H. Sheth 3. Niket V. Mehta 4. Dr. Amritlal C. Shah All residing at A-791,Bandra Reclamation Bandra (West) 5. Mithun H. Mehta 6. Jatin V. Mehta 7. Sandeep Rathi 8. Sanjay Bhutada 9. Kishore K. Mehta 10. Rajiv K. Mehta 11. Prashant K. Mehta 12. Prabodh K. Mehta 13. Rashmi K. Mehta 2 14. Chetan P. Mehta 15. Nanik Rupani 16. Vijay Choraria 17. The Joint Charity Commissioner .. Responents ... Mr.Dinyar Madan, Sr. Counsel, Mr.Sanjay Jain and Mr.Kunal Vajani i/b M/s.Wadia Ghandy & Co. for the petitioners. Mr.Aspi Chinoy and Mr.Nawroz Seervai i/b M/s.Thakore Jariwala & Associates for respondent no.1. Mr.Janak Dwarkadas with Mrs.J.N. Shah i/b M/s.Daru Shah & Co. for respondent no.2. Mr.Akhil Sibal i/b Rupesh K. Bobade for respondent no.9. Mr.Pranav Badhekar with Mr.Shane Sapelo with Mr.Nooruddin Dhilla i/b Hariani & Co. for respondent nos.10 and 11. Mr.S.K. Chinchalikar AGP for respondent no.17. CORAM : A.M.KHANWILKAR, J DATED : 9th September 2008 P.C.: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Counsel for the respondents waive notice for the concerned respondents. As short question is 3 involved, petition is taken up for final disposal forthwith by consent. During the course of hearing the counsel for the respondent no.2 submitted that he would fully support the argument of the petitioners and would pray for transposing respondent no.2 as petitioner. 3. This writ petition under Article 226 and 227 of the Constitution of India takes exception to the judgement and order passed by the Joint Charity Commissioner, Greater Mumbai Region, Mumbai dated 23rd July 2008 below Exhibit-1 in Application no.17 of 2007. The principal application being no.17/06 has been filed by respondent no.1 for initiating action u/s.41D of the Bombay Public Trust Act 1950 (hereinafter referred to as "the Act") against the named Trustees including the petitioners. The Joint Charity Commissioner (hereinafter referred to as "the JCC") proceeded to pass order on 3rd June 2008 below Exhibit-1 in Application no.17/06. The purport of the said order is to frame charges against respondent nos.1 to 9 in the original application, who are reportedly Trustees of Lilavati Kirtilal Mehta Medical Trust (hereinafter referred to as "the Trust"), on the basis of material before him and after giving opportunity to the charged Trustees. Besides framing charges against the said 4 Trustees (respondent nos.1 to 9 in the said application), the JCC by the said order proceeded to issue directions against the respondents before it as also against other Trustees to the effect that none of the Trustees shall take any policy decision and shall enter into any financial transaction with regard to the Trust, without prior approval of the Administrators Dr.Narendra Trivedi and Hon’ble Justice Shri Halbe, till further orders". In the said order, it is noted by the JCC that as charges have already been framed the same could have been made basis for suspending the Trustees in terms of section 41D(4) of the Act. However, he (JCC) observed that if the said Trustees were to be suspended, it would be necessary to appoint some other fit person(s) to replace the said trustees so that the working of the trust is not affected in any manner. The JCC was of the view that so long as it was not possible to find out appropriate fit person to be appointed in place of the respondents in the said proceedings, it would be appropriate to issue directions to the Trustees. That view was on the basis of overall view taken by the JCC in the context of material available with him. 4. The respondents in the said application as well as the other Trustees filed two separate writ 5 petitions before this court questioning the correctness of the view taken by the JCC in the order dated 3rd June 2008, being Writ Petition no.3849 of 2008 and 3850 of 2008 respectively. Both the writ petitions were heard and disposed off together by the learned Single Judge of this Court on 11th July 2008. In so far as the opinion recorded by the JCC in his order dated 3rd June 2008 in relation to framing of charges against the respondents, that has been upheld by the learned Single Judge of this court. The learned Single Judge however quashed and set aside the direction issued by the JCC not only against the other Trustees who were not respondents in Application no.17 of 2006 but also at the instance of writ petitioners in Writ Petition no.3849 of 2008 who had appeared in the proceedings as respondents before the JCC. The respondent no.1 thereafter moved the same learned Single Judge for clarification of the order, on which praecipe following order came to be passed, on 15th July 2008. "1. Heard counsel on the application for speaking to the minutes of order dated 11-7-2008. 2. One of the argument advanced in the aforesaid writ petitions was, pending final decision in respect of nine trustees against whom serious charges have been framed, whether the Joint C.C. was 6 justified in passing an interim order on 3-6-2008, thereby restraining the entire Board of trustees from functioning as trustees against whom there were no allegations made and no charges were framed. As those trustees were not heard before passing the impugned order, by a judgment and order dated 11-7-2008, the interim order passed by the Joint C.C. was set aside. 3. Thus, by the Judgment and order dated 11-7-2008 only the interim order passed by the Joint C.C. on 3-6-2008 has been set aside and the order passed by the Joint C.C. in so far as it frames charges against the trustees who were parties to Application No.17 of 2006 is not affected and the Joint C.C. is accordingly at liberty to proceed further in the matter. 4. In para 28 of the Judgment and order dated 11-7-2008, the sentence "The Joint C.C. is directed to pass fresh order in accordance with law’ be substituted as "The Joint C.C. is directed to pass fresh interim order in accordance with law’. 5. Application is disposed of accordingly." (emphasis supplied) 4. Later on, the respondent no.1 moved application (Exhibit-63) before the JCC on 16th July 2008 for preponement of the hearing of the application. The JCC however, passed formal order on the said application Exhibit-63 on 19th July 2008 - that the application be listed on 23rd July 2008. The JCC also called upon the respondents to file say in the context of letter sent by one of the Administrators Shri Halbe dated 27th June 2008. 7 5. The petitioners herein on the other hand, however, questioned the correctness of the view taken by the learned Single Judge of this court in judgement dated 11th July 2008 as well as clarificatory order dated 15th July 2008, by way of Letters Patent Appeal which was filed in this court on 22nd July 2008. That appeal is reportedly pending for admission. Be that as it may, when the matter was taken up by the JCC on 23rd July 2008, application (Exhibit 65) was moved by respondent nos.1, 3 and 9 in the original application to adjourn the hearing of the application as the matter was pending in this court by way of Letters Patent Appeal against the abovesaid decision of the learned Single Judge of this Court. At the same time, request was made by respondent nos.2, 6 and 7 in the original application to keep back the matter as their advocate was not available. Request to keep back the matter was accepted by the JCC. However, in so far as application for adjournment (Exhibit-65) is concerned, the same was opposed by the original applicant. Instead, the original applicant insisted that appropriate orders be passed against the Trustees respondent nos.1 to 9 against whom charges have already been framed. That stand taken by the original applicant found favour with the JCC. At the same time, the JCC 8 declined to accept the request of the original applicant (Respondent no.1 herein) that the concerned Trustees be forthwith suspended in view of the decision of the learned Single Judge of this court. That has been noted in the last paragraph at page 180 of the paper book. The JCC, however, keeping in mind the observations made by Joint Administrator Justice Shri Halbe in his communication that despite the order dated 3rd June 2008 passed by the JCC and despite his objections, huge payments were made by the Trustees towards personal litigations in respect of which say of the Trustees was invited. The JCC then proceeded to record that charges are framed against the concerned Trustees as there is prima facie evidence against them of mismanagement of the Trust and misuse of the Trust funds. It is further noted that he is empowered to pass order of suspension against the charged Trustees but till such order is passed and while allowing the adjournment application, he thought it appropriate to issue directions to respondent nos.1 to 9, (the concerned Trustees) that they shall not take any policy decision and shall not enter into any financial transactions with regard to the trust without prior approval of the administrators Dr.Trivedi and Justice Shri Halbe, till further orders. The 9 correctness of this decision is put in issue in the present writ petition. 6. Indeed, upon issuance of notice, respondent no.1-original applicant has filed reply affidavit to oppose this petition. In the said affidavit, several aspects have been highlighted. The petitioners in terms of order passed by this court was expected to file rejoinder affidavit before specified date. However, such affidavit was not filed in time. Instead attempt was made by counsel for the petitioners to tender the said affidavit across the bar when the matter was being heard. That request was turned down. Indeed, counsel for the petitioners made a point that the respondent no.1 in the reply affidavit has made allegations which if remain unrefuted may affect the merits of the case and cause serious prejudice to the petitioners. However, I have permitted the petitioners to proceed on the basis of denial without taking the rejoinder affidavit on record. More so because the issue that is required to be addressed in the present petition is very limited for which it is not necessary for this court to go into every factual aspect of the matter which both the parties wanted this court to consider. 10 7. Having considered the rival submissions at length, I shall now proceed to first deal with the preliminary objection raised by the counsel for respondent no.1 about the maintainability of the present writ petition. According to respondent no.1, the present writ petition is in relation to subject matter which has arisen wholly within the Greater Mumbai area. In that, the Trust has its registered office in Mumbai; the proceedings under the said Act are pending before the JCC at Mumbai. The Petition, therefore, arises in respect of matters substantially within the area of Greater Mumbai. If it is so, no writ petition under Article 226 of the Constitution of India can be entertained on the Appellate Side of the Bombay High Court. This submission is founded on the purport of Rule 636 of the Bombay High Court (Original Side) Rules read with Rule 1, 4 and Rule 18 of Chapter 17 of the Bombay High Court (Appellate Side) Rules 1960. The relevant extract of the said Rules read thus: "Rule "Rule "Rule 636. 636. 636. Application Application Application for Writ, etc. for Writ, etc. for Writ, etc. under under under Article 226 of the Constitution Article 226 of the Constitution Article 226 of the Constitution -(1)(a) Application under Article 226 of the Constitution, other than an Application for a Writ of Habeus Corpus, 11 in matters arising substantially within Greater Bombay out of - (i) the orders passed under the Bombay Municipal Corporation Act, 1888; (ii) the orders passed under the Maharshtra Housing and Area Development Act, 1976, and under the enactments repealed by the said Act; (iii) the orders passed under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (iv) the orders passed under the Industrial Disputes Act, 1948; (v) the orders made in applications under the Bombay Industrial Relations Act, 1946; (vi) the orders passed under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (Act XIV of 1975) (vii) the orders passed under the Maharashtra Co-operative Societies Act, 1960; (viii) the orders passed under Chapter Vi and VII of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; (ix) the orders passed under the Payment of Gratuity Act, 1972 (Act no.39 of 1972) (x) the orders passed under the Workmen’s Comepnsation Act, 1923; (xi) the orders passed under the Payment of Wages Act, 1936; (xii) the orders passed under the Minimum Wages Act, 1948; (xiii) the orders passed under the Bombay 12 Prohibition Act, 1949; (xiv) the orders passed the Maharashtra Land Revenue Code, 1966; (xv) the orders passed under the Maharashtra University Act, 1994 (xvi) the ordes passed under the Bombay Stamp Act, 1958; (xvii) the orders passed under the Bombay Police Act; (xviii) the orders passed under the Bombay Shops and Establishments Act, 1948; (xix) the orders passed under the Bombay Port Trusts Act, 1879; (xx) the orders passed under the Bombay City (Inami and Special Tenures) Abolition and Maharashtra Land Revenue Code (Amendment) Act 1969; (xxi) the orders passed under the Banking Corporation (Acquisition and Transfer of Undertakings) Act, 1970; (xxii) the orders passed under the Displaced Persons (Compensation) Rehabilitation Act, 1964; (xxiii) the order passed under the Electric (Supplied) Act 1948; (xxiv) the orders passed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952; (xxv) the orders passed under the Employees’ State Insurance Act, 1948; (xxvi) the orders passed under the Factories Act, 1948; (xxvii) the orders passed under the Indian Railways Act, 1890; (xxviii) the orders passed under the Indian Electricity Act, 1910; 13 (xxix) the orders passed under the Motor Vehicles Act, 1939; (xxx) the orders passed under the Major Port Trust Act, 1963; (xxxi) the orders passed under the Merchant Shipping Act, 1958; (xxxii) the orders passed under the Registration Act, 1908; (xxxiii) the orders passed under the Wireless, Telegraphy Act, 1933; A N D (xxxiv) the orders passed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,1971; may be heard and finally disposed of by a Single Judge to be appointed in this behalf by the Chief Justice. Provided when the matter in dispute or relates to the challenge to the validity of any statute or any rules or regulation made thereunder and arising substantially within Greater Bombay shall be heard and disposed off by a Division Bench to be appointed by the Chief Justice. Rule Rule Rule 1 of Chapter 17 of Appellate Side 1 of Chapter 17 of Appellate Side 1 of Chapter 17 of Appellate Side Rules. Rules. Rules. 1. 1. 1. (i) (i) (i) Applications Applications Applications for issue of writs, for issue of writs, for issue of writs, directions, directions, directions, etc. under Article 226 of the etc. under Article 226 of the etc. under Article 226 of the Constitution Constitution Constitution - - - Every application for the issue of a direction, order of writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed 14 or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of. (ii) (ii) (ii) Applicant Applicant Applicant to inform Court, if, to inform Court, if, to inform Court, if, during during during pendency of an application, the pendency of an application, the pendency of an application, the Supreme Supreme Supreme Court has been approached - Court has been approached - Court has been approached - If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side. (iii) (iii) (iii) Hearing Hearing Hearing may be adjourned pending may be adjourned pending may be adjourned pending decision decision decision by Supreme Court - by Supreme Court - by Supreme Court - The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter. 4. 4. 4. Division Division Division Bench to dispose of the Bench to dispose of the Bench to dispose of the application; application; application; rule nisi may be granted by rule nisi may be granted by rule nisi may be granted by a Single Judge - Single Judge - Single Judge - Applications under Rule 1 shall be heard and disposed of by a Division Bench; but a single Judge may grant rule nisi, provided that he shall not pass any final order on the application. 18. 18. 18. Single Single Single Judge’s powers to finally Judge’s powers to finally Judge’s powers to finally dispose dispose dispose of applications under Article 226 of applications under Article 226 of applications under Article 226 and and and 227. 227. 227. - Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of - 1) .......... 15 2) ........... 3) the decrees or the orders passed by any Subordinate Court (or by any quasi Judicial Authority) in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court and orders passed under the Recovery of Debts due to banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. . May be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice: (Provided when the matter in dispute is or relates to the challenge to the validity of any statute or any rules or regulations made thereunder, such applications shall be heard and disposed off by a Division Bench to be appointed by the Chief Justice. Explanation - The expression "order" appearing in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the above-mentioned statutes. Significantly, Rule 636 of Original Side Rules does not include the enactment of Bombay Public Trusts Act. As a consequence thereof, application under Article 226 of the Constitution of India pertaining to order passed under provisions of Bombay Public Trusts Act would necessarily proceed only before the Division Bench of the High Court. 16 On the other hand, if similar order passed by the Authority under provisions of Bombay Public Trust Act is challenged on the Appellate Side of the High Court, by virtue of Rule 18 of Chapter 17 the same would proceed before the Single Judge. Relying on this anomaly, it is contended by the respondent no.1 that the petitioners cannot be permitted to elect the Appellate Side or Original Side merely by giving the label of Article 227 and/or Article 226 r/w Article 227 of the Constitution of India. According to Respondent no.1, the entire grievance of the petitioners in the present petition is one of non compliance of principles of natural justice and that the authority has acted contrary to the legal requirement which grounds are ascribable to Article 226 of the Constitution of India. In such a situation, the petition would necessarily lie on the Original Side of the High Court. It was argued that if the matter was to be taken to the Original Side of the High Court the petition would be heard by the Division Bench being an application under Article 226 of the Constitution of India; whereas by filing the present petition on the Appellate Side, the petitioners have succeeded in moving the matter before the learned Single Judge on the Appellate Side. It was argued 17 that it is preposterous to give option to a party to chose the side of High Court such as Appellate Side or Original Side in respect of the same subject matter. It was then argued that the attempt of the petitioners is to resort to proceedings which would give them opportunity to file intra court appeal by way of Letters Patent Appeal against the order to be passed by the Single Judge by treating the application to be one under Article 226 of the Constitution of India. 8. The argument though attractive need not detain us. The fact that the order to be passed on this petition may be amenable to intra court appeal cannot be the basis to take the view that the petitioners have no remedy on the Appellate Side of the High Court. In my opinion, firstly, the grounds which are pressed into service by the petitioners can be effectively and conveniently addressed in exercise of powers under Article 227 of the Constitution of India. Secondly, neither the Original Side nor the Appellate Side High Court Rules expressly bar institution of a composite writ petition under Article 226 r/w 227 of the Constitution. Obviously, there can be no such bar in relation to the constitutional remedy under Article 226 read with 227 of the 18 Constitution of India. Whereas, the expansive language of Rule 18 of Chapter 17 of the Appellate Side Rules clearly encompasses a composite petition under Articles 226 read with 227 of the Constitution of India. Thirdly, the Original Side Rules do not and obviously cannot envisage a composite petition particularly one ascribable to Article 227 of the Constitution of India- which remedy is available only on the Appellate Side or supervisory jurisdiction. Be that as it may, the nature of relief that I propose to finally grant would be possible only in exercise of powers under Article 227 of the Constitution of India. In that, if the remedy was confined to Article 226 of the Constitution, this court would only be in a position to quash and set aside the order impugned in the writ petition and no further order could be passed, which however, is possible only in exercise of supervisory jurisdiction under Article 227 of the Constitution. 9. The parameters of remedy under Article 226 and 227 of the Constitution is no more res integra. The Apex in the case of Surya Dev Rai Vs. Ram Chander Rai & ors. reported in (2003) 6 SCC 675 had occasion to deal with this aspect in extenso. In paragraph no.24 and 25 of the said 19 decision, the difference between writ of certiorari under Article 226 and supervisory jurisdiction under Article 227 has been noticed. One of the distinction noted in paragraph no.25 is that in a writ of certiorari the record of the proceedings having been certified by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. Whereas, in exercise of supervisory jurisdiction, the High Court may