Full Text
JUDGMENT
22. wp 2080-21 2671-22 2669-21.doc R.M. AMBERKAR (Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. WRIT PETITION NO. 2080 OF 2021 Shahazada Alisagar Bhaisaheb Kalimuddin.. Petitioner
VERSUS
Joint Charity Commissioner, Greater Mumbai & Ors... Respondents WITH WRIT PETITION NO. 2671 OF 2021 Shaikh Fakruddin Bhanpurwala.. Petitioner
VERSUS
Shabbir Husaini Chunawala & Ors... Respondents WITH WRIT PETITION NO. 2669 OF 2021 Shaikh Haiderbhai Roopwala.. Petitioner
VERSUS
Shabbir Husaini Chunawala & Ors... Respondents.................... Mr. Dinesh Purandare a/w Mr. Surabhi Agrawal, Mr. Mustafa Hussain, Kaizar Merchant and Ms. Nidhi Salian i/by Apex Law Partners for Petitioner in WP/2080/2021 Mr. Murutuza Najmi a/w Mr. Mustafa Shabbir Shamim i/by Shamim & Co for Petitioner in WP/2669/2021 Mr. Girish Godbole a/w Mr. Yahya Goghari and Mr. Mustafa Shabbir Shamim i/by Shamim & Co for Petitioner in WP/2671/2021 Mr. Girish Godbole a/w Mr. Yahya Goghari and Mr. Mustafa Shabir Shamim i/by Shamim & Co for Respondent Nos. 4, 5 and 7 in WP/2080/2021 Mr. Girish Godbole a/w Mr. Yahya Goghari i/by Pratiksha Vichare for Respondent Nos. 8 and 9 in WP/2669/2021 Mr. Zainkhan and Mr. Faiyaz Khan a/w Mr. Ashraf Kapoor for Respondent Nos. 2 & 3 in WP/2080/2021 Mr. Murtaza Najmi i/by Ms. Pratiksha Vichare for Respondent Nos. 8 & 9 in WP/2671/2021 1 of 17 Mr. S.B. Gore, AGP for State in WP/2080/2021 & WP/2671/2022 Mr. Manish Upadhye, AGP for State in WP/2669/2021................... CORAM: MILIND N. JADHAV, J. Reserved on: JUNE 16, 2023 Pronounced on: JUNE 23, 2023 JUDGMENT:
1. This Judgment & Order shall dispose of Writ Petition Nos. 2080 of 2021, 2669 of 2021 and 2671 of 2021. The impugned order in all three Writ Petitions is a common order delivered on 13.08.2021 below Exh 16 under Section 41D of the Maharashtra Public Trusts Act, 1950 (for short, “the said Act”). By virtue of the said order, the opponent Trustees who are Petitioners before the Court have been held responsible under the provisions of Sections 41D(1)(c), (1)(d) and (1)(f) of the said Act and draft charges below Exh. 16 are approved by Respondent No. 1. The impugned order is a composite order in respect of 5 Trustees, three of whom are before the Court in 3 different Writ Petitions.
2. At the outset, the position in respect of the Petitioners before me is required to be clarified. In so far as Writ Petition NO. 2669/2021 and 2671/2021 are concerned, the admitted position is that both Petitioners were heard by Respondent No. 1 before passing the impugned order. This position is admitted by the learned Advocates appearing for the respective Petitioners. However in so far 2 of 17 as Writ Petition No. 2080 of 2021 is concerned, a preliminary objection is raised by Mr. Purandare, inter alia, stating that Petitioner was not even served with the copy of the notice and was also not even heard by the Respondent No. 1 before passing the impugned order. Respondent Nos. 2 and 3 herein are the original complainants before the Respondent No. 1.
3. Perusal of the impugned order reveals that an application below Exh. 16 for framing draft charges was filed by the Applicants (Respondent Nos. 2 & 3 herein) proposing framing of draft charges against all Trustees of the “Shifakhana-e-Saifiyah Trust”. According to Applicants therein, Respondent Trustees namely Respondent Nos. 1 to 5 therein continuously neglected their duty and were guilty of committing breach of their duty and breach of trust as trustees under Section 41D(1)(c) in running and managing the affairs of the medical nursing home illegally and unlawfully without seeking change of user and registration with the Health Department of the Municipal Corporation of Greater Mumbai. Further charge against Respondents therein was under Section 41D(1)(d) that they were running and managing the medial nursing home from residential premises and thus, dealt with the Trust property improperly without change of user and without obtaining registration and therefore guilty of malfeasance and misfeasance by earning and misappropriating the income derived 3 of 17 from running the medical nursing home. The next charge against the Respondents therein was to the effect that they were running and managing the medical nursing home from residential premises without permission / consent of the 51st Dai al-Mutlaw Dr. Syedna Taher Saifuddin Saheb (R.A.) (His Holiness) for running the medical nursing home. The impugned order further reveals the defence taken by the Respondents therein in defence of their case. I need not detain myself with the defence of the Respondents therein. Three out of the said 5 Respondents before the Authority are Petitioners before me. Two remaining Trustees have not filed any Petition.
4. The fact that Petitioner - Shahzada Aliasgar Bhaisaheb Kalimuddin in WP/2080/2021 has not been heard by Respondent NO. 1 is admitted by the learned Government Pleader as time was given to the pleader to confirm the said fact on the last date of hearing with specific directions to that effect. Mr. Gore and Mr. Upadhye, learned AGPs have confirmed that Petitioner in WP/2080/2021 was not heard and only Petitioners in the remaining two Petitions were heard. This fact further stands admitted on reading the counter of Respondent Nos. 2 and 3 which states that before the Respondent No. 1, only Respondent Nos. 4, 5 (Trustees) and 7 (Trust) were present. Impugned order is however indicting all 5 Trustees of the Trust. The impugned order thus, prima facie, is not sustainable as it violates the 4 of 17 basic principles of natural justice as least in so far as Petitioner in WP/2080/2021 is concerned who is before the Court. However the impugned order will have to be seen as to whether it deals with the role of Trustees for indictment individually or together as the Petitioners in the remaining two Petitions were heard. In the given case applicable provisions of the said Act will have to be looked into. Section 41D of the said Act pertains to suspension, removal and dismissal of trustees. The charge in the present case against the Petitioners (trustees) is under Sections 41D(1)(c), (1)(d) as revealed from the impugned order. It shall be apposite at this stage to reproduce the provisions of Section 41D of the said Act for reference. Section 41D reads thus:- “41D. Suspension, removal and dismissal of trustees (1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he,— (a) makes persistent default in the submission of accounts report or return; (b) wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government;
(c) continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust;
(d) misappropriates or deals improperly with the properties of the trust of which he is a trustee; or (e) accepts any position in relation to the trust which is inconsistent with his position as a trustee; (f) if convicted of an offence involving moral turpitude. [(2)(a) When the Charity Commissioner proposes to take action under sub-section (1), the Charity Commissioner may issue notice to 5 of 17 the trustee or the person against whom the action is proposed to be taken only when he finds that there is prima facie material to proceed against the said person. (b) The trustee or person to whom a notice under clause (a) is issued, shall submit his reply thereto within fifteen days from the date of receipt of notice.
(c) If the person fails to give reply to the notice issued under clause
(a) or the Charity Commissioner finds that the reply is not satisfactory, the Charity Commissioner shall frame charges against the said person within fifteen days of the filing of the reply or the default in the filing of reply, as the case may be, and give the said person an opportunity of meeting such charges and after considering the evidence adduced against him and in his favour, may pass order regarding suspension or removal or dismissal within three months from the date of framing of charges. If it is not practicable for the Charity Commissioner to issue notice, frame charges and pass final orders within stipulated time, he shall record reasons for the same.
(d) The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation, if any, and the finding on each charge with reasons therefor.]. (3) Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension. (4) Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustee according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust. (5) [***] [(6) An appeal shall lie to the Court against the order made under subsection (1), as if such decision was a decree of a district court as a court of original jurisdiction from which an appeal lies, within sixty days from the date of the order.] (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final.
5. It is seen that action has been initiated against the Petitioners (trustees) for continuously neglecting their duty, committing malfeasance or misfeasance, breach of trust in respect of 6 of 17 the trust, misappropriation or dealing improperly with the properties of the Trust. The Petitioners (in WP/2669/2021 and 2671/2021) had also filed a counter to refute the case of Applicants before Respondent No. 1. Before I proceed even to the Application, it needs to be stated that the provisions of Section 41D are extremely drastic and serious. Assuming for the sake of argument that the Application is preferred under Section 41D for any of the beaches mentioned therein, what is pertinent is that whenever the Charity Commissioner proposes to take action under sub-section (1) in respect of any of the breaches provisions of Section 41D(2)(a) (introduced w.e.f. 10.10.2017) come into play and the Charity Commissioner will have to issue notice to the Trustee or the person against whom the action is proposed to be taken only when he finds that there is prima facie material to proceed against the said person. Clause (b) of sub-section (2) of Section 41D further states that the Trustee or person to whom such a notice under clause (a) is issued, shall submit his reply thereto within 15 days from the date of receipt of notice. Sub-section (c) further states that if the person fails to give reply to the notice issued under clause (a) or if the Charity Commissioner finds that the reply is not satisfactory, then the Charity Commissioner shall frame charges against the said person within 15 days of the filing of the reply or the default in filing of the reply as the case may be and give the said Trustee / person an opportunity of meeting such charges and after considering the 7 of 17 evidence adduced against him and in his favour, may pass order regarding suspension or removal or dismissal as contemplated under Section 41D. The said sub-section further states that if it is not practicable for the Charity Commissioner to issue notice, frame charges and pass final orders within the stipulated time, he shall record the reasons for the same. This last part of the said provision will not apply to the present case.
6. Mr. Khan, learned Advocate for the Applicants (Respondent Nos. 2 and 3 herein) would submit that in so far as the issue of service is concerned, all 5 Trustees have been served at the registered address of the Trust in Santacruz and in view of the service effected by Respondent No. 1, Petitioners - Trustees in Writ Petition Nos. 2669 of 2021 and 2671 of 2021 had appeared before Respondent No. 1 at the time of hearing of Application below Exh. 16 which proves that all 5 Trustees were indeed served and also had knowledge about the proceedings.
7. In the present case, admittedly the Respondent No. 1 representing and acting on behalf of the Charity Commissioner as holding his delegated power has issued show cause notices to the 5 Trustees therein i.e. Respondent Nos. 1 to 5 in the proceedings before him. My attention is drawn to the issuance of notice by the Joint Charity Commissioner to the Respondent Ns. 1 to 5 therein – Trustees, 8 of 17 3 out of 5 who are Petitioners before me. Perusal of the same reveals that the notices have been issued and handed over by the bailiff of Respondent No. 1 in the hands of one Mr. Mohammed Mukaser on behalf of the Respondent Nos. 1 to 5 therein - Trustees. The acknowledgment given to the receipt of the 5 notices issued under Section 41D is by the said Mr. Mohammed Mukaser who has received them. Admittedly he is not the trustee nor the person concerned against whom the draft charges have been framed. It is also pertinent to note that the 5 notices (packets) have been served on the address at Santacruz in the hands of Mr. Mohammed Mukaser and not at the addresses of the 5 Trustees so that they can receive them.
8. In this view of the matter, when the matter was argued before me on 09.06.2023, I passed the following order:
9. In continuation of the above directions, the matters have appeared today and have been argued by the learned Advocates appearing for the respective parties. Mr. Upadhye, learned AGP has after obtaining instructions informed the Court that in so far as Petitioner in WP 2080/2021 is concerned, it is an admitted position that he was not heard in the case before the Respondent No.1 pursuant to which the impugned order was passed. He would submit that both Petitioners in WP/ 2669/2021 and 2671/2021 were the persons / Trustees who were present and heard by Respondent No. 1. If this be the case and considering the provisions of Section 41D and the repercussions and consequences that would follow thereto, it is seen that under the said provisions before making any such order, the concerned person / Trustee is required to be served with the show cause notice and is also required to be heard in the matter. The provisions of Section 41D namely amended sub-section (2) (a), (b) and (c) clearly envisage a regime whenever the Charity Commissioner proposes to take action under sub-section (1) on any complaint. Before any final order is made and finding on the charge/s is given by 10 of 17 the Charity Commissioner, the procedure prescribed in clauses (a)(b) and (c) of sub-section (2) is required to be followed scrupulously and there can be no deviation whatsoever therefrom. In this regard, it is stated that service of notice of proceedings under Section 41D is a sine qua non for initiating action under the said provisions. In the present case, it is clearly seen that the notice has not been served on the 5 Trustees. The show cause notices (packets) have been handed over to a person called Mr. Mohammed Mukaser at the Trust address in Santacruz on behalf of all five Trustees and the Trust. His signature appears on the acknowledgment. It is further seen that in so far as Petitioner in WP/2080/2021 is concerned, Petitioner has not been heard or given any hearing before framing of charges against him. Once this is established, the impugned order in so far as Petitioner in Writ Petition No. 2080 of 2021 is concerned becomes unsustainable. However on reading the impugned order which is a common order passed in respect of all 5 Trustees, it is seen that there is no segregation of the role played by the said five Trustees. The impugned order is not divisible so as to carve out the role and indictment of the Petitioner in Writ Petition No. 2080 of 2021 is concerned nor the Petitioners in the other two Writ Petitions or for that matter the remaining two Trustees who are not before the Court. In that view of the mater, once the impugned order is indivisible and passed in an omnibus manner against all 5 Trustees, as a whole, it is unsustainable 11 of 17 and hence deserves to be quashed and set aside. As a consequence of this, though Petitioners in WP Nos. 2669 of 2021 and 2671 of 2021 were also heard by Respondent No. 1, the benefit of setting aside the impugned order would have to be extended to them. I wish to clarify that though an attempt was made by the learned Advocates appearing for the Petitioners in WP 2669 of 2021 and 2671 of 2021 to argue the case of the Petitioners on merits, considering the fact that I am inclined to set aside the impugned order against the Petitioner in Writ Petition No. 2080 of 2021, I have not heard or considered any of the submissions made by the Petitioners in WP Nos. 2669 of 2021 of and 2671 of 2022 on merits nor I have expressed any opinion on the same. This is solely due to the fact that the impugned order is a composite order and on reading the same it is made attributable to all 5 Trustees together for the alleged acts. Considering the fact that the impugned order is a composite order which does not assign and ascribe the roles of the five Trustees therein separately, the whole of the impugned order is therefore quashed and set aside. Resultantly, the benefit of such setting aside of the impugned order stands extended to the Petitioner in Writ Petition Nos. 2669 of 2021 and 2671 OF 2021.
10. It is seen that charges under Section 41D are extremely serious charges against the Trustee and person and hence a procedure is provided under Section 41D(2) to be followed which needs to be 12 of 17 followed and complied with to the hilt so that indictment can be upheld. In the present case, the impugned order does not state that the Trustees were served. Though it is not in dispute that Respondent Nos. 4 and 5 were the only two Trustees representing Respondent NO. 7 Trust in the proceedings before Respondent No. 1.
11. In paragraph No. 9 of the impugned order it is stated that all the parties were heard at length. This obliviously is untrue. It is the case of the private Respondents / original Applicants / complainants that Petitioner in Writ Petition No.2080 of 2021 was served since the other two Trustees namely Respondent Nos. 4 and 5 and the Trust (Respondent No. 7) appeared before the Respondent No. 1 and confirmed that Petitioner in Writ Petition No. 2080 of 2021 was served. However, record and pleadings are to the contrary. At all places it is seen that it was only Respondent Nos. 4 and 5 (two Trustees) and Respondent No. 7 who has appeared before the Respondent No. 1 in the subject proceedings on several dates. This is confirmed by the private Respondents (Respondent Nos. 2 and 3) in paragraph Nos.71 to 75 of their Reply Affidavit in the present Petition. The private Respondents further confirmed the fact that the packets of service of notice under Section 41D (six packets) i.e. five for the Trustees and one for the Trust were handed over to Mr. Mohammed Mukaser at the Santacruz address / office of the Trust (refer to para 13 of 17 No.70 of the reply Affidavit).
12. Record further indicates that Petitioner in Writ Petition NO. 2080 of 2021 is the religious head of the community and that the private Respondents were clearly aware that he resides in Mumbai City and had knowledge about his address, despite which service was effected on the Petitioner at the Trust office in Santacruz. Petitioner has averred that he got knowledge about the framing of charges under Section 41D only when the notice of Application under Section 41E was published in the newspaper for the first time on 19.09.2021 i.e. much after the impugned order was passed under Section 41D framing the charges. Though there may be underlying disputes of the private Respondents with the Trustees, this Court is required to ensure that the due process of law is followed. Application / Complaint No. 1 of 2021 under Section 41D before the Respondent No.1 for suspension and removal of Trustees invites drastic consequences. Hence, the procedure under Section 41D(2) requires service of notice on the Trustee / person charged. Such service cannot be made on an employee / person available in the Trust in the Trust office and presumed to have been served upon the Trustee / person charged. Though Petitioners before me in all three Writ Petitions have placed substantial material on record, inter alia, with respect to the activities of running of the clinic and nursing home since 2005, I have not 14 of 17 opined on the same. Petitioners case is equally countered by the private Respondents in their detailed counter Affidavit to which my attention is drawn by Mr. Khan. I have perused the pleadings. Be that as it may, all charges against the Trustee / person are required to be adjudicated after serving the Trustee / person and hearing the said Trustee / person under the provisions of Section 41D. I find that this has not been done in the present case at least in so far as Petitioner in Writ Petition No. 2080 of 2021 is concerned. I have also analyzed the impugned order hereinabove which is indivisible in so far as the role of any particular Trustee out of the five Trustees are concerned.
13. In view of the above observations and findings, following order is passed:-
(i) Order dated 13.08.2021 stands quashed and set aside;
(ii) Application below Exh. 16 is directed to be heard afresh by Respondent No. 1;
(iii) Three out of the five Trustees are before the Court being the Petitioners in three Writ Petitions. Notice in respect of the Application below Exh 16 in respect of the three Petitioners before the Court in Writ Petition Nos. 2080 of 2021, 2669 of 2021 and 2671 of 2002[1] stands dispensed with; 15 of 17
(iv) Petitioners - Trustees before the Court shall be entitled to file their affidavit in reply / say along with all documentary evidence before Respondent No. 1. Directions to this effect shall be given by Respondent No. 1 after ensuring and effecting service of Application below Exh. 16 on the remaining two Trustees who are not before the Court. Service on the said two Trustees shall be effected strictly in accordance with law;
(v) The Applicants before the Respondent No. 1 in the
Application below Exh. 16 shall be entitled to file their affidavit in rejoinder in response to the affidavit in reply filed by the Petitioners - Trustees of the Trust against whom the proposed action under Section 41D is contemplated. The timeline for filing the affidavit in reply and rejoinder shall be conveyed by the Respondent No. 1 afresh to all concerned parties;
(vi) After pleadings are completed, Respondent No. 1 shall give an opportunity of hearing to all Trustees, hear them and thereafter pass a reasoned order as contemplated under Section 41D(2) of the said Act. If deemed fit, the Respondent No.1 can hear all parties together, but will have to pass a speaking order in 16 of 17 respect of all 5 Trustees ascribing their role and findings to that effect in the final order to be passed under Section 41D of the said Act. The aforementioned exercise as directed shall be completed within a period of six months from today by passing a final order in the Application below Exh. 16 by Respondent No. 1;
(vii) It is clarified that the aforementioned timeline shall be strictly adhered to and unnecessary adjournments shall not be granted to any of the parties unless utmost necessary;
(viii) All contentions of the parties are expressly kept open;
(ix) It is further clarified that this Court has not opined on any of the propositions / merits of the case in the present order and the Respondent No. 1 shall proceed to deliver his order below Exh. 16 strictly in accordance with law and without being uninfluenced by any of the observations made by this Court in the present order.
14. With the aforesaid directions, Writ Petition Nos. 2080 of 2021, 2669 of 2021 and 2671 of 2021 stand disposed. [ MILIND N. JADHAV, J. ] Amberkar