2010 Supreme(Bom) 15

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE D.B. BHOSALE
Charu K. Mehta
Versus
Chetan P. Mehta & Others
Writ Petition No. 9753 of 2009
Decided on : 05-01-2010

Headnote:Bombay Public Trusts Act, 1950 - Section 41-D - Bombay Public Trusts Rules, 1951, Rule 36(ii)(iii) - Transfer of application - Application for under Rule 36(ii)(iii) - Respondent 1 filed application under Section 41-D of Act for removal of petitioner as trustee - During pendency of application filed under Rule 36(ii)(iii), petitioner filed application for stay of application of respondent-1 - Rejected by Charity Commissioner - Challenged - Held - Petitioner not made any grievance about hearing of application - All adjournments bought by petitioner for 15 times - Affidavit filed by son of petitioner in desperation with view to prejudice mind of JCC and to thwart/stall proceedings before JCC - No likelihood of apparent bias - Petition dismissed. - From bear perusal of paragraph 1 and 2 of the affidavit dated 14.11.2009 and the letter dated 10.10.2009 recording the alleged activities, it is clear that they are not consistent. As a matter of fact, the letter dated 10.10.2009 clearly states that the petitioner had no personal knowledge and whatever he had stated in the letter about Paresh Parmar seems to be hearsay. Moreover, he has not stated in the letter that he had personally seen Paresh Parmar or Ghanu entering into the cabin of learned JCC prior to 25.9.2009 as stated in the affidavit. It is pertinent to note that this affidavit was filed by Prashant Mehta after the application for stay was heard and closed for orders on 11.11.2009. No explanation whatsoever is offered either by the petitioner or Prashant Mehta as to why these allegations were not incorporated in the transfer application. It is pertinent to note that even in the writ petition challenging the judgment and order dated 25.9.2009 passed in the Application No. 17 of 2006 no such allegations are made by the petitioner. The writ petition was filed some time in October 2009 and is pending for admission. Court is satisfied that this affidavit has been filed by the son of the petitioner in desperation with a view to prejudice the mind of the Charity Commissioner and to thwart/stall the proceedings before the JCC.

       The judgments relied upon by the Mr. Naik in M.P. Special Police Establishment case and in Nilesh Jap Daru case, in opinion will not have application to the facts of the present case did not find any ground for believing that there is a likelihood of apparent bias. From the facts of the present case it cannot be stated that the learned JCC has any interest in the outcome of the case. Merely because he refused last adjournment and closed the matter for orders and made certain observations in the parallel proceedings, it cannot be stated that there is a reasonable ground for believing that there is a likelihood of apparent bias. Even the judgment of this Court in Nilesh Jap Daru’s case is also of no avail to the petitioners. In that case there were reasons, as stated in the judgment to create apprehension in the mind of the petitioner that he would not get justice from the concerned Judge. In the present case do not find any such ground for assuming the possibility of bias or a reasonable doubt about fairness of administration of justice.

       The parties to the proceedings as observed by the Division Bench in the order dated 7.10.2009 are litigating at every possible and impossible opportunity and they are not allowing the JCC to proceed in the matter. In view of the direction issued by the Charity Commissioner in the impugned orders, the matter is now part heard before the JCC. So far he has heard the arguments of counsel for the parties for four days. The arguments should get over within a day or two or may be a day or two more. Court is satisfied that the JCC should be allowed to proceed with the hearing on charge and the application at Exhibit-2 and dispose them of expeditiously. In the circumstances, pass the following order :

       (a) The petition is dismissed.

       (b) Dismissal of the writ petition shall, however, not preclude the petitioner from challenging the order of the JCC in Application No. 15 of 2008, if adverse to the petitioner, in appropriate proceedings on all grounds including the grounds mentioned in the transfer application. It is needless to state that challenge to the order of the JCC would be considered on merits in accordance with law and without being influenced by the observations made in this judgment.

       (c) If the order of suspension/removal is passed by the JCC as prayed in the application at Exhibit 3 in Application No. 15 of 2008 same shall remain stayed for a period of 15 days from the date of its communication to the petitioner or to her advocate on record. This protection is granted to the petitioner to enable her to challenge the order of suspension/removal if passed in appropriate proceedings.