2008 Supreme(Bom) 1661
2009(1) ALL.M.R. 536
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE V.C. DAGA
The Peoples Education Society) Jat, a Public Charitable Trust, through its
Secretary/President & Others – Appellant
Versus
Dr. Manohar Shivappa Modi & Others – Respondent
WRIT PETITION NO. 4436 OF 2008 WITH WRIT PETITION NO. 5577 OF 2008
Date of Judgment : 01-12-2008
For the Appellant :S.G. Deshmukh, S.S. Patwardhan, Advocates. For the Respondents:R1, V.B. Naik i/b Sandesh Patil, V.A. Shastri, Advocates, V.A. Sonpal, AGP, S.D. Rayrikar, AGP.
Headnote:(A) Administration of Justice:- Where decision is taken after a just and fair approach and after applying objective test to the circumstances and facts as evidenced by evidence led by the parties, it will be a judicial decision.
(B) Natural Justice:- The courts of law have a bounden duty to prevent abuse of the legal authority by the adoption of unfair approach by any of the litigants. Giving an opportunity of hearing to the parties is a condition precedent for every judicial proceeding. Following these principles of natural justice is a constitutional mandate under Article 14 especially when rights of others are affected.
(C)Administration of Justice:- In order to do administer justice without hindrance, the judicial officer presiding the court has a bounden duty to maintain proper record of the judicial proceedings.
(D)Constitution of India, Art.227:- Any judgment or order obtained by playing fraud on the Court, authority or Tribunal passing such an order is a nullity and non est and shall be considered by every court superior or inferior.
(E)Constitution of India, Art.227:- Where the authority bestowed under a statue exercises the power in bad faith or for collateral purpose, it can not stand to the scrutiny of law and there is no difficulty in striking down the same under the supervisory jurisdiction under Article 227.
1. Rule. Rule returnable forthwith in all petitions. Heard all these petitions finally by consent of parties. Perused the petitions, counter-affidavits and replies. INTRODUCTION
2. All these writ petitions filed under Article 227 of the Constitution of India are directed against the various orders passed by Shri M.K. Dongare, learned Assistant Charity Commissioner, Sangli Division, Sangli ("the ACC" for short) in exercise of powers under section 41A of the Bombay Public Trusts Act, 1960 ("the BPT Act" for short).
3. The parties are different, but the issue involved is identical so also the challenges set up against all the impugned orders passed by the learned ACC unfolding very sad and sorry state of affairs prevailing in the office of the ACC, Sangli, sufficient to tarnish the image of the judiciary as such all these petitions were heard together and closed for judgment with a view to dispose of by a common judgment.
4. The modus operandi adopted by all the contesting respondents in all these petitions reveals that the applications purportedly under section 41-A of the BPT Act were filed making serious allegations against various persons in the body of the applications without joining them. The learned ACC entertained such applications with open eyes knowing fully well that the persons against whom serious allegations were made were not even parties to the subject proceedings and passed orders adverse to their interest without following the principles of natural justice.
5. The learned advocates appearing for the petitioners in all these petitions have made serious complaints against the learned ACC for adopting procedure contrary to the rule of law in discharging his duty as a judicial officer. They also brought to my notice that petitions before this Court are nothing but the sample petitions and many such orders have been passed by the learned ACC entertaining such applications purportedly moved under section 41-A of the BPT Act to obtain favourable orders and that all of them were successful in their efforts.
6. This Court was shocked and disturbed to see the speed with which all these applications, filed under section 41-A, were entertained and disposed of by adopting perfunctory and casual approach without following principles of natural justice. Consequently, this Court had to pass an order dated 25th August, 2008 directing the Charity Commissioner to inform this Court by filing an affidavit disclosing the number of cases decided by learned ACC just six weeks before his transfer.
7. The learned ACC pursuant to the above order has filed an affidavit dated 15th September, 2008. The relevant extracts of the said affidavit are reproduced hereinbelow to bring on record the magnitude of the illegality committed by the learned ACC while discharging his duty. The subject affidavit reads as under:-
"3. Pursuant to the direction of Hon’ble High Court the letter was sent to our Sangli Office by fax to furnish the above information. Accordingly, the Sangli Office has furnished statements containing the above information.
4. As per the abstract (R3) and ‘R4’ to ‘R9’ as furnished by the Sangli Office Shri. M.K. Dongare disposed as many as 1057 matters during the period of December 2007 to May 2008. Monthwise Break-up of disposal is as under December 2007 ---- 156 January 2008 ----118 February 2008 ---- 102 March 2008 ---- 233 April 2008 ---- 223
.May 2008 ---- 225 Copies of monthly statements from December 2007 to May 2008 are marked as ‘R4’ to ‘R9’.
5. As per the copy of abstract at ‘R3’ out of total disposed of cases, 1051 matters are found, so it seems that six matters were not traceable.
6. Out of 1051 matters, in 462 matters stereotyped / typed roznamas were written. However, in 41 matters roznamas were written incompletely, and in 542 matters roznamas are not written.
7. Duration of proceedings (from the date of institution to the date of disposal) is as shown in the statement marked at ‘R10’ to ‘R15’." BRIEF FACTS