CHARU KISHOR MEHTA Vs JT.CHARITY COMMR. GR. BOMBAY REG. .
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-002819-002819 / 2015
Diary number: 3647 / 2011
Advocates: KHAITAN & CO. Vs
RANJEETA ROHATGI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2819 OF 2015 (Arising Out of SLP (C) No.4148 of 2011)
CHARU KISHOR MEHTA ……APPELLANT
VERSUS
JOINT CHARITY COMMISSIONER, GREATER BOMBAY REGION & ORS. ……RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J. Leave granted.
2. This appeal has been filed by the appellant
against the impugned judgment and order dated
01.12.2010 of the High Court of Judicature at Bombay,
in Letters Patent Appeal No.268 of 2010 (for short
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“LPA”) in Writ Petition No. 9501 of 2009, whereby the
High Court dismissed the LPA filed by the appellant
and upheld the judgment and order dated 02.03.2010
passed by the learned single Judge of the High Court.
3. For the purpose of considering the rival legal
contentions urged on behalf of the parties in this
appeal and with a view to find out whether this Court
is required to interfere with the impugned judgment
and order of the High Court, the necessary facts are
briefly stated hereunder:
The appellant herein is the permanent trustee of
the Lilavati Kirtilal Mehta Medical Trust (for short
“the Trust”) which is a public registered Trust in
accordance with the terms of the registered Trust
Deed and is governed under the provisions of the
Bombay Public Trust Act, 1950 (for short “the Act”).
The respondent nos.2 to 9 are the trustees of the
aforesaid Trust along with the now deceased Vijay
Mehta, who was the Managing Trustee of the Trust
during the relevant period of time. The case of the
appellant is that respondent Nos.2 to 9 have
allegedly continuously neglected their duties and
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have committed malfeasance by acting in breach of
trust with respect to the Trust properties. They have
also misappropriated and improperly dealt with the
properties of the Trust from the year 2001 to 2006.
It has been further alleged by the appellant that
they have also squandered the Trust money to the tune
of crores of rupees and have committed serious acts
of malfeasance.
4. The appellant on coming to know of this fact in
the year 2006, filed an application, being
Application No. 17 of 2006 under Section 41D of the
Act before the Joint Charity Commissioner (for short
“JCC”), making various allegations against the
aforesaid respondent Nos.2 to 9 including the
deceased Vijay Mehta and alleged that they are liable
for dismissal from their Trusteeship of the Trust for
their acts of nonfeasance and malfeasance, inter
alia, contending that they have abdicated their
functions and duties as provided under the provision
of Section 36A of the Act, after their acceptance as
trustees in the said Trust as provided under Sections
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46 and 47 of the Indian Trust Act, 1882, which is
applicable to the fact situation of the present case.
On the basis of the said application, the JCC,
framed 8 grave and serious charges jointly against
the respondent Nos. 2 to 9 (original respondent nos.
1 to 8) and the deceased Vijay Mehta (the original
respondent no.9).
5. The JCC vide its order dated 25.9.2009, after
affording opportunity to the parties in the present
case, recorded its findings on the charges and held
that the charges against respondent Nos. 2 to 9
except charge No. 4 which was against the deceased
Vijay Mehta have been proved. The JCC however,
dismissed the application against the respondent Nos.
2 to 9 and exonerated them by holding that they are
only negligent in putting blind faith in delegating
their powers and duties to be performed as trustees
of the Trust in favour of the deceased Vijay Mehta,
the Managing Trustee of the Trust. Therefore, the
application against them was dismissed by him. The
appellant herein being aggrieved by the said findings
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and reasons recorded by the JCC filed writ petition
No. 9501 of 2009 before the learned single Judge of
the High Court, whereby the High Court vide its order
dated 2.3.2010 dismissed the writ petition.
6. Thereafter, the appellant filed LPA No.268 of
2010 before the High Court, which was also dismissed
by the Division Bench on the basis of the findings
recorded by the learned single Judge and held that
the charges framed against the respondent Nos. 2 to 9
by the JCC were established. However, as there was no
evidence against respondent Nos. 2 to 9 to hold them
responsible for the transactions from the year 2001
to 2006, except on charge No.4, it has held that
there is culpability of the deceased Vijay Mehta and
further, the JCC has held that the charges against
respondent Nos. 2 to 9 in delegating their powers and
functions to the deceased Vijay Mehta as per clauses
9 and 11(h) of the Trust Deed vide the Resolution of
the Trust dated 30.8.2001 stood established and
proved against them but they cannot be held guilty
for the same as the appellant herself was a signatory
to the above Resolution. The Division Bench of the
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High Court vide order dated 1.12.2010 declined to
interfere with the order dated 2.3.2010 passed by the
learned single Judge and found that the same is
justified after considering that the appellant
herself was a party to the above mentioned Resolution
that has appointed the deceased Vijay Mehta as the
Managing Trustee of the Trust. Further, no steps were
taken for the cancellation of the Resolution by her
as she did not even enter into the witness box before
the JCC to justify her conduct that she is not a
signatory to the Resolution wherein the deceased
Vijay Mehta was appointed as the Managing Trustee by
other Trustees who are respondent nos.2 to 9 in the
present appeal. Further, the High Court held that the
appellant did not object to his functioning as a
Managing Trustee at the time when all the powers were
being delegated to him and found that the petition
was not seriously contested before the learned single
Judge and rejected the appeal of the appellant.
7. Aggrieved by the said judgment and order of the
Division Bench of the High Court, the present appeal
is filed by the appellant with a prayer to set aside
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the judgments and orders of the JCC and the High
Court by quashing the same and requested to pass such
orders as this Court may deem fit and proper in the
facts and circumstances of the case by urging various
facts and legal contentions.
8. Mr. V. Giri, the learned senior counsel on
behalf of the appellant has contended that the
appellant was not present in any of the meetings
during the relevant period, i.e. 30.3.2002 and
1.4.2007 and in particular the meetings held on
30.8.2001 and 19.7.2002 which fact has been deposed
by Mr. Kishor K. Mehta (the original respondent No.10
before the JCC), the husband of the appellant in the
proceedings before the JCC. The JCC however, has
erroneously exonerated respondent Nos. 2 to 9 and has
imposed punishment for the removal of the deceased
Vijay Mehta only, in exercise of its discretionary
power under the provision of Section 41D of the Act
even though respondent Nos. 2 to 9 were also found
guilty of nonfeasance and misfeasance charges in
respect of the Trust properties. Therefore, the
exercise of the discretionary power under the
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provision of Section 41D of the Act by the JCC is
erroneous in law as he has failed to impose any
penalty against them as provided under the above
provision of the Act.
9. Further, it is contended by the learned senior
counsel for the appellant that the appointment of the
deceased Vijay Mehta as the Managing Trustee of the
Trust on behalf of respondent nos. 2 to 9 cannot be
construed as the abdication of the core functions of
the Trust as the trustees have to prudentially manage
the affairs of the Trust in such a manner as a man of
ordinary prudence would do. He has placed strong
reliance upon Section 36A of the Act in support of
the above legal contentions and has further contended
that the provision under Section 15 of the Indian
Trust Act, 1882, which provision reiterates that a
trustee is bound to deal with the Trust properties as
carefully as a man of ordinary prudence would deal
with such property, as if it were his own. Sections
46 and 47 of the Indian Trust Act, 1882, state that
the trustee cannot renounce his office that requires
him to discharge his duties and functions and he
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cannot delegate the same to a co-trustee unless the
instrument of trust so provides.
Therefore, it is contended by the learned senior
counsel that non exercise of the discretionary powers
by the JCC properly and not imposing penalty as
provided under Section 41D of the Act upon the
respondent nos. 2 to 9 is erroneous in law which
order of him has been erroneously approved by the
High Court in the impugned judgment and order and
therefore, the learned senior counsel for the
appellant has prayed for setting aside the same.
Further, during the course of submission, the learned
senior counsel had produced an affidavit dated
06.01.2015 on behalf of the appellant, wherein the
Minutes Book of the Trust, for the period 2000-2007
was produced before this Court in support of his
contention, the said Minutes Book is produced by him
to highlight the facts that if they are read as they
stand, the same would unequivocally and predominantly
demonstrate that the original respondent Nos. 1 to 8
before the JCC were positively aware about the mala
fide acts of the deceased Managing Trustee Vijay
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Mehta for which he had been dismissed from the
trusteeship of the Trust.
10. Further, the Minutes of the Meetings of the
Trust during the relevant period would point out that
all the major decisions of the deceased Vijay Mehta
were conveyed by him to the other trustees and the
findings recorded by the JCC on this aspect in his
judgment and order are enough to show that the
respondent Nos. 2 to 9 in the present case and other
trustees were very much aware of the various
transactions and functions of the Trust. In these
circumstances, the JCC could not have exonerated
respondent Nos. 2 to 9 by holding that they were
unaware of the misdeeds of the deceased Vijay Mehta
in the affairs of the Trust as they could have
interfered and taken corrective steps to save the
Trust from any further losses. The learned senior
counsel for the appellant has placed strong reliance
upon the decision of the Privy Council in the case of
Lala Man Mohan Das v. Janki Prasad & Ors.1 in support
of his legal contention to show that the law does not
permit delegation of the powers and functions by the
1 AIR (32) 1945 Privy Council 23
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Trustee in favour of another Trustee except in cases
of necessity or with the consent of the beneficiary
or the authority of the Trust Deed itself and also to
show that there is delegation of some functions only.
However, the delegation of all functions and all
powers is nothing short of the abdication of the same
in favour of a new body of men and also to further
show that the act of one trustee done with the
sanction and approval of a co-trustee may be regarded
as an act of both. Therefore, the non exercise of his
discretionary powers and the non imposition of
penalty by the JCC on respondent nos. 2 to 9 as
provided under Section 41D of the Act is erroneous in
law which has further been erroneously upheld by the
High Court in the impugned judgment and order.
11. On the other hand, it has been contended by Dr.
Rajeev Dhawan, the learned senior counsel appearing
for the respondent nos. 2 to 9 that both the JCC as
well as the High Court took into consideration the
fact that they cannot be held responsible because
they had completely delegated their powers and
functions to the deceased Vijay Mehta and therefore,
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they are not responsible for any acts of omission and
commission committed by the Managing Trustee and
hence no action could be taken against them under the
provision of Section 41D of the Act by the JCC.
12. He has further vehemently sought to justify the
findings and reasons recorded in the judgment and
order in not imposing penalty upon them by the JCC
which has been concurred with by the High Court based
on clauses 9 and 11(h) of the Trust Deed which permit
the trustees of the Trust to delegate their powers
and duties to the Managing Trustee as has been
delegated by respondent nos. 2 to 9 in favour of the
deceased Vijay Mehta, who was the Managing Trustee of
the Trust, by passing the Resolution of the Trust
dated 30.8.2001, to which Resolution, the appellant
is also the signatory. He has also placed strong
reliance upon clauses 9 and 11(h) of the Trust Deed,
which enables the Trustees to delegate their powers
and duties in favour of another trustee.
13. The learned senior counsel also placed reliance
upon the decision of this Court in Sheikh Abdul
Kayum & Ors. v. Mulla Alibhai & Ors.2 to substantiate
2 (1963) 3 SCR 623
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his legal submission that the aforesaid clause of the
Trust Deed enables respondent nos. 2 to 9 to delegate
their powers and duties to the Managing Trustee of
the Trust. Further, he has submitted that as is clear
from the minutes of the Resolution of the Trust held
on 30.8.2001, the appellant was present in the
meeting of the Resolution. On the basis of the same,
the JCC has rightly held that the appellant was
present in the meeting and the Resolution was valid.
He has further placed reliance upon the findings
recorded by the JCC and the High Court in the
impugned judgment and orders wherein they have held
that the delegation of powers and duties by
respondent nos. 2 to 9 in favour of the deceased
Vijay Mehta is proper and non imposition of
punishment upon them by both the JCC and the High
Court for the reason that their culpability on the
charges has not been proved by the appellant and
therefore, it is urged by him that they are legal and
valid and the same cannot be interfered with by this
Court in exercise of its jurisdiction.
14. The learned senior counsel for the respondent
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nos. 2 to 9 has also placed strong reliance on the
findings of the JCC in his judgment and order and
upon the provisions of Section 41D of the Act,
contending that the JCC has rightly exercised his
discretionary power in not imposing penalty upon
respondent nos. 2 to 9, which has also been noted by
the High Court stating that the findings recorded by
the JCC against the said respondents did not warrant
interference by the High Court to impose penalty as
provided under Section 41D of the Act. Alternatively,
he has also submitted that the charges made against
the above respondents do not warrant exercise of
power by the JCC under Section 41D of the Act to
impose penalty upon the above respondents, as the
said provisions would have serious consequence by
imposing punishment upon the respondent Nos. 2 to 9
and therefore, the same shall not be strictly
adhered to.
15. Further it has been contended by him that the
appellant was also one of the trustees of the Trust
at the meeting on 30.8.2001, who had also delegated
her powers and functions in favour of the Managing
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Trustee and she did not even enter into the witness
box before the JCC to refute her participation in the
meeting and her signature on the Resolution passed on
the date referred to above, wherein she has delegated
her powers and functions in favour of the deceased
Vijay Mehta. Further, she did not produce the Trust
records when asked by the JCC to do so, for this
reason alone the JCC should have rejected the
application of the appellant filed against respondent
nos. 2 to 9.
16. It is further vehemently contended by the
learned senior counsel for the above respondents that
the appellant has indulged in the abuse of process of
the Authority of the JCC by filing a complaint before
him when she herself was complicit in the delegation
of powers and functions to the deceased Vijay Mehta.
Thus, she cannot contend that the delegation of
powers and duties to the said Vijay Mehta by the
trustees-respondent nos. 2 to 9, vide the Resolution
of the Trust dated 30.8.2001 is an invalid
delegation. Therefore, the learned senior counsel for
the respondents submits that the view of the JCC
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which has been rightly concurred with by the High
Court is legal and valid. Hence, no substantial
question of law is involved in this case for the
consideration and interference by this Court in
exercise of its appellate jurisdiction against the
impugned judgment and order. The other learned
counsels on behalf of the other respondents have also
adopted the submission of the learned senior counsel
who has argued on behalf of the respondent
Nos. 2 to 9.
17. With reference to the abovementioned rival legal
contentions urged on behalf of the parties, we have
examined the impugned judgments and orders of the JCC
as well as the High Court to find out whether any
substantial question of law would arise in exercise
of the appellate jurisdiction of this Court. After
careful examination of the documents produced by the
appellant before this Court and on a careful perusal
of the judgments and orders of the JCC and the High
Court, we are of the view that no substantial
question of law would arise in this case as there is
no miscarriage of justice for our interference. In
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support of the above said conclusions arrived at by
us, we record our reasons as hereunder:-
It is an undisputed fact that the Lilavati
Kirtilal Mehta Medical Trust is a public registered
Trust under the provisions of the Act. The clauses 9
and 11(h) of the Trust Deed of the Trust which are
extracted below provide for the delegation of the
powers and functions by the trustees of the Trust by
appointing one or more of the existing Trustees from
among themselves to discharge all such powers and
functions of the trustees of the Trust as they may
deem fit and proper. The relevant clauses of the
Trust Deed read thus:-
“9. The trustees for the time being of these presents may appoint one or more of the trustees from among them as the Managing Trustee or Managing Trustees, with all or such of the powers and authorities of the Trustees as the Trustees may think fit, and may from time to time withdraw any such powers and authorities. 11. For the accomplishment of the Trustees of these presents and without prejudice to the generality of any powers hereby or by law conferred or implied or vested in the Trustees the following powers and authorities are hereby expressly conferred on the Trustees, that is to say :- (h).To delegate by Power of Authority or otherwise to any Trustee or Trustees or other persons whomsoever any power implied
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by law or conferred by statute or vested in the Trustees by these presents but the Trustees shall not be held liable or responsible for the acts or defaults of any persons or person but only for their own respective acts and defaults;”
18. The findings of the JCC are based on the
pleadings and the material evidence produced on
record by the parties and the Resolution dated
30.8.2001, wherein the trustees, respondent nos.2 to
9 including the appellant of the Trust had delegated
their powers and functions to the deceased Vijay
Mehta to manage the affairs of the trust. The
relevant paragraphs 1 to 4 and 9 of the Resolution
dated 30.08.2001 regarding the delegation of powers
given to the delegatee deceased Vijay Mehta read
thus:-
“Resolved that Shri Vijay K. Mehta be and is hereby appointed as Managing Trustee of the Trust with absolute and sole powers and authority in respect of the management of the Trust and all the activities of the Trust subject to provisions of the law applicable to a Charitable Trust including the following :-
1. To manage the affairs of Lilavati Hospital & Research Centre, Mumbai in all respects viz. Financial, Technical, Administrative and Management of the Hospital. 2. To manage the affairs of Lilavati Kirtilal Mehta Charitable Hospital, Palanpur in all respects viz. Financial,
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Technical Administrative and Management of the Hospital. 3. To appoint and authorise any agency and/or bankers and/or any executives to execute the functions and/or any work of the activities of the Trust and to appoint any Trustees to execute any agreements, documents or any deeds on behalf of the Trust. 4. To accept donations of money and/or property movable or immovable on such terms and conditions as the Trustees may think fit not being inconsistent with these presents of the Trust hereby established. No donation however, will be accepted with a condition requiring change in the name of the Trust and its present activities. XXX XXX XXX 9. To give donations or subscriptions out of the Trust Fund or income thereof to such public charitable institutions funds for their all or any of the objects or purposes.”
19. Thus, a careful perusal of the clauses 9 and 11
(h) of the Trust deed would clearly go to show that
there is ample scope for such delegation of powers
and functions of the Trustees to another Trustee or
Trustees of the Trust to act on their behalf. In
support of the same, the learned senior counsel on
behalf of the respondents has rightly placed reliance
upon the judgment of this Court in the case of J.P.
Srivastava & Sons (P) Ltd. v. Gwalior Sugar Co.
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Ltd.3, which reads thus:-
“29. Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all ( 1 ) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; ( 2 ) where there is express sanction or approval of the act by the co-trustees; ( 3 ) where the delegation of power is necessary; ( 4 ) where the beneficiaries competent to contract consent to the delegation; ( 5 ) where the delegation to a co-trustee is in the regular course of the business; ( 6 ) where the co- trustee merely gives effect to a decision taken by the trustees jointly.”
(emphasis laid by this Court)
20. The JCC has rightly recorded his finding of fact
on the basis of the Resolution dated 30.8.2001 of the
Trust, holding that the appellant was also one of the
signatories to the said Resolution and the learned
senior counsel on behalf of respondent nos. 2 to 9
has rightly pointed out to us that the appellant was
present in the meeting on 30.8.2001 as is clear from
the Minutes of the Meeting, which fact has also been
recorded by the JCC in his order dated 25.9.2009. The
fact that the signature of the appellant in the
Resolution is seriously disputed before this Court,
cannot be accepted by us in view of the finding of 3 (2005) 1 SCC 172
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fact recorded by the JCC based on record which has
been rightly concurred with by the High Court and the
said finding cannot be said to be erroneous in this
appeal for the reason that the appellant did not
enter into the witness box before the JCC to refute
the correctness of her signature and the Minutes Book
of the Resolution. Further, the husband of the
appellant, original respondent No.10 before the JCC
had entered into the witness box, to support the
charges made by the appellant against the respondent
nos. 2 to 9, however, he has not deposed any other
evidence except filing affidavit evidence before the
JCC. The Minutes Book of the Trust as well as the
Resolution from the year 2000 to 2007 and the
additional compilation paper book produced in this
case are not taken on record by this Court as the
same have been rightly opposed by Dr. Rajeev Dhawan,
the learned senior counsel, on behalf of the
respondent Nos. 2 to 9 contending that the same had
not been placed as evidence on record before the JCC
and therefore, the same cannot be looked into in this
appeal. By a bare perusal of the Minutes Book of the
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Resolution, wherein the Resolution of the Trust dated
30.8.2001 was recorded, the JCC has held on the facts
and evidence on record that there was mismanagement
of Trust by the Managing Trustee, deceased Vijay
Mehta. Further, it is pointed out by the learned
senior counsel on behalf of the respondent Nos. 2 to
9 that Mr. Kishor Mehta, the original respondent
No.10 before the JCC, had no knowledge of the
transactions in respect of which charges have been
framed against them as the financial transactions
were handled solely by deceased Vijay Mehta.
21. Further, the reliance placed upon Sections 46
and 47 of the Act of 1882, by the learned senior
counsel on behalf of the appellant is not applicable
to the public charitable Trust as held by this Court
in the case of Thayarammal v. Kanakammal & Ors.4,
which reads thus:-
“15. The contents of the stone inscription clearly indicate that the owner has dedicated the property for use as “Dharamchatra” meaning a resting place for the travellers and pilgrims visiting the Thyagaraja Temple. Such a dedication in the strict legal sense is neither a “gift” as understood in the Transfer of Property Act which requires an acceptance by the donee of the property
4 (2005) 1 SCC 457
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donated nor is it a “trust”. The Indian Trusts Act as clear by its preamble and contents is applicable only to private trusts and not to public trusts. A dedication by a Hindu for religious or charitable purposes is neither a “gift” nor a “trust” in the strict legal sense….”
Therefore, the delegation of all the powers and
functions by respondent nos. 2 to 9 and also the
appellant in favour of the Managing Trustee of the
Trust deceased Vijay Mehta, is permissible in law as
the instrument of the Trust provides for that.
22. The findings of facts are recorded in the
judgment and order by the JCC at para 255 which reads
thus:-
“255. In the application, allegations are made against all the trustees. However, specific allegations with regard to all the charges are against only respondent No.9. The tenor of paragraph numbers 10,27, 2 etc. of the application is that he is mismanaging the affairs of the trust. He is trying to carry out the activities of the trust single handedly. Names of Mr. Dushyant Mehta and Mr. Suresh Motwani are repeatedly mentioned as associates, or cohorts of respondent No.9. The allegations against rest of the trustees are that of collusions and connivance. But the allegations are general in nature. They are vague. No specific allegations are levelled against the respondent Nos. 1 to 8.”
The typed copy of the order of the JCC was
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produced in this case is not a correct one. The
learned senior counsel for the respondent Nos. 2 to 9
has produced the certified copy of the order of the
JCC, which reads thus:
“265. To sum, I hold that the charges 1 to 8 are established against respondent No.9. However, there is no evidence against respondent Nos.1 to 8 to hold them responsible for the charged transaction.”
By a careful reading of the above extracted
paragraphs from the order of the JCC makes it clear
that no complicity is proved against respondent Nos.
2 to 9, for the reason that the JCC found that there
is no evidence against them to hold them responsible
for the charged transaction, which means that the JCC
has held that the culpability against respondent Nos.
2 to 9 are not established. Further, the JCC has
rightly exercised his discretionary power under
Section 41D of the Act in a responsible way and not
in an arbitrary manner, as could be seen from the
reading of paragraphs 261 and 262 of his finding
which read thus:-
“261. To conclude, I do not find anything against respondent Nos. 1 to 8 to connect
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them directly with the alleged transactions. The respondents No. 2,3,4 and 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 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 the Managing Trustee, the hospital earned both fortune and fame might have weighed much in their minds, for which they put total faith and reliance on him. They are certainly to be criticized for that. However, their overdependence on respondent No.9, in action, negligence and lack of interest, would not warrant their dismissal.”
The said findings and observations of the JCC
are affirmed by the Division Bench of the High Court
in its judgment, which reads thus:-
“….The Joint Charity Commission 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
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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.”
23. Thus, in view of the fact that the appellant did
not enter into the witness box and also the fact that
similar charges as levelled against the respondent
nos. 2 to 9 were also pending against her before the
JCC for being the signatory to the Resolution dated
30.8.2001 in delegating her powers and functions to
the deceased Vijay Mehta, the JCC should not have
accepted the evidence of the original respondent
No.10 before the JCC and recorded the findings on
charges in his order. Further, he has rightly held
that the guilt of respondent Nos. 2 to 9 are not
proved and has also held that they are negligent for
only delegating their powers and functions to the
Managing Trustee, deceased Vijay Mehta but the
charges levelled against them are not proved as they
are not responsible for the alleged transactions,
therefore, there is no complicity on the allegations
made against them. The said conclusion of the JCC is
based on facts and evidence on record, therefore, he
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has rightly exonerated them from the liability and
has not imposed punishment under Section 41D of the
Act, upon respondent nos. 2 to 9, in exercise of his
power in a reasonable and fair manner and therefore,
the same cannot be said to be arbitrary and
unreasonable in nature. Therefore, the High Court
has rightly concurred with the findings of the JCC in
exonerating the respondent nos. 2 to 9 from the
charges levelled against them by passing a well
reasoned judgment and order.
24. The cases relied upon by the learned senior
counsel for the appellant, i.e. Sheikh Abdul Kayum &
Ors. v. Mulla Alibhai & Ors.(supra), J.P. Srivastava
& Sons (P) Ltd. v. Gwalior Sugar Co. Ltd.(supra) and
D. Gopalaswami Mudaliar v. Subramanya Pillai &
Anr.5, have no relevance to the fact situation of the
present case, as they do not support the case of the
appellant. The learned senior counsel for the
appellant has strongly placed reliance on the case of
Lala Man Mohan Das v. Janki Prasad & Ors.(supra), the
relevant extract of the judgment of the Privy Council
reads thus :- 5 (1942) 1 MLJ 272
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“In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee, but the Court knows no such distinction; all who accept the office are in the eyes of the law] acting trustees. If anyone refuse or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved.”
However, the said decision cannot be applied to the
fact situation of this case in view of the facts and
the evidence placed on record.
25. For the aforesaid reasons, we hold that the
impugned judgment and order(s) of the High Court and
the order of the JCC are legal and valid and the same
cannot be interfered with by this Court in exercise
of its appellate jurisdiction. The appeal is
dismissed.
26. Since the appeal against the findings and
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penalties imposed against the deceased Vijay Mehta is
pending before the Civil Court which is being pursued
by his legal representatives and therefore, the Civil
Court is required to examine the said case
independently without being influenced by the
observations and reasons assigned by us in this
judgment. We would like to make it very clear that
the said appeal is required to be examined in the
backdrop of the legal grounds and contentions urged
therein independently and dispose the same in
accordance with law.
……………………………………………………………J. [V. GOPALA GOWDA]
……………………………………………………………J.
[C.NAGAPPAN] New Delhi, March 12, 2015
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ITEM NO.1A-For Judgment COURT NO.10 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). ….../2015 arising from SLP(C) No. 4148/2011 CHARU KISHOR MEHTA Appellant(s) VERSUS JT.CHARITY COMMR. GR. BOMBAY REG. & ORS. Respondent(s)
Date : 12/03/2015 This appeal was called on for pronouncement of JUDGMENT today.
For Appellant(s) * For M/s. Khaitan & Co. For Respondent(s) Mr. Sandeep Gupta, Adv.
For K. Ashar & Co. Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
Leave granted. The appeal is dismissed in terms of the signed
Reportable Judgment. (VINOD KR.JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) (* None appeared)