Quashed

Charu Mehta v. Sushila v Mehta and Anr.

Bombay HC30 Jan 2024WP/360/2024

Case brief

AI extract

What is this about?

The High Court quashed an order by the Joint Charity Commissioner granting ad-interim stay on the Assistant Charity Commissioner's rejection of a Change Report, holding there was no executable order to stay. The Court further held that reasons for a quasi-judicial order cannot be supplemented by an affidavit-in-reply.

What did the court decide?

Impugned orders of the Joint Charity Commissioner dated 15th December 2023 and subsequent continuation orders were quashed and set aside. Rule made absolute.

Charu Mehta Vs Sushila v. Mehta and Anr. — Quashing and FIR | Bombay HC (2024)

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Nikita

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.319 OF 2024

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NIKITA

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KAILAS DARADE

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Digitally signed byNIKITA KAILAS DARADE Date: 2024.01.31 10:36:44 +0530

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Charu Mehta & Anr.… Petitioners
V/s.
Niket Mehta & Anr.… Respondents

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WITH
WRIT PETITION NO.363 OF 2024
Charu Mehta & Anr.… Petitioners
V/s.
Bhavin Mehta & Ors.… Respondents

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WITH WRIT PETITION NO.335 OF 2024

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Charu Mehta & Anr.… Petitioners
V/s.
Rashmi Mehta & Ors.… Respondents

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WITH WRIT PETITION NO.516 OF 2024

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Charu Mehta & Anr.… Petitioners
V/s.
Ayushman Mehta & Anr.… Respondents

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WITH WRIT PETITION NO.360 OF 2024

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Charu Mehta & Anr.… Petitioners
V/s.
Sushila V. Mehta & Anr.… Respondents

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WITH WRIT PETITION NO.514 OF 2024

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Charu Mehta & Anr.… Petitioners
V/s.
Nimesh H. Seth & Anr.… Respondents

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WITH WRIT PETITION NO.515 OF 2024

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Charu Mehta & Anr.… Petitioners
V/s.
Chetan Mehta & Anr.… Respondents

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Mr. Atul Damle, Senior Advocate with Mr. Kartik Seth,
Mr. Dakshesh Vyas, Mr. Abhishek Prabhu, Mr. H. N.
Thukore, Mr. Abhishek Kandwal, Ms. Jyoti Ghag and
Mr. Shailesh Prajapati i/by Dua Associates for the
petitioners in WP/514/2024.

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Mr. Tushad Cooper, Senior Advocate with Mr. Kartik
Seth, Mr. Dakshesh Vyas, Mr. Abhishek Prabhu, Mr. H.
N. Thukore, Mr. Abhishek Kandwal, Ms. Jyoti Ghag and
Mr. Shailesh Prajapati i/by Dua Associates for the
petitioners in WP/515/2024.

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Mr. Kartik Seth, Mr. Dakshesh Vyas, Mr. Abhishek
Prabhu, Mr. H. N. Thukore, Mr. Abhishek Kandwal, Ms.
Jyoti Ghag and Mr. Shailesh Prajapati i/by Dua
Associates for the petitioners in WP/516/2024.

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Ms. Dhruti Kapadia with Mr. Abhishek Prabhu, Mr. H.
N. Thukore, Ms. Jyoti Ghag, Mr. Shailesh Prajapati i/by
Dua Associates for the petitioners in WP/319/2024.

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Mr. Malcon Siganporia with Mr. Abhishek Prabhu, Mr.
H.N. Thukore, Ms. Jyoti Ghag, Mr. Shailesh Prajapati i/
by Dua Associates for the petitioners in WP/335/2024.

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Mr. Kartik Seth with Mr. Dakshesh Vyas, Mr. Abhishek
Prabhu, Mr. H.N. Thukore, Ms. Jyoti Ghag, Mr. Shailesh
Prajapati and Mr. Abhishek Kandwal i/by Dua
Associates for the petitioners in WP/360/2024 &
WP/363/2024.

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Mr. Vishal Kanade with Mr. Dhirendra Sinha, Mr.
Raghav Taneja i/by Vidhii Partners for respondents in

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Writ Petition Nos.514/2024, 515/2024 & 516/2024.

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Mr. Abhishek Gupta with Mr. Siddhant Dhavale, Mr.
Kush Agarwal, Ms. Noopur Mathurawala i/by MZM
Legal LLP for respondent No.1 in WP/363/2024 & WP/
335/2024.

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Ms. Padma Shelatkar for respondents in WP/319/2024
& WP/360/2024.

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Ms. M.S. Srivastava, AGP for the State.

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CORAM:AMIT BORKAR, J.
DATED:JANUARY 30, 2024

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P.C.:

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1. Rule. Rule is made returnable forthwith.

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2. Leave to amend. Amendment to be carried out forthwith.

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3.All these writ petitions involve a common question of fact
and law and, therefore, are being decided by a common judgment.

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4.Considering the limited question of the issue involved, only
those facts which are relevant for adjudication of the issue
involved are stated.

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5.Respondent No.1 filed a Change Report before the Assistant
Charity Commissioner reporting the permanent trusteeship of
Respondent No.1. By order dated 14th December 2023, the
Assistant Charity Commissioner rejected all Change Reports,
including petitioners.

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6.Respondent No.1 challenged the order of rejecting the
Change Report by filing an appeal before the Joint Charity

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Commissioner. Respondent No. 1 along with the appeal applied to
stay the order of rejection of change report. The prayer in the
application for a stay made by respondent No.1 reads as follows:

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“Pending the hearing and final disposal of the present
Appeal, the implementation, effect and operation of the
order dated 14th December 2023 passed in Change Report
No.796 of 2020 be stayed.”

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7.The Joint Charity Commissioner, by the impugned order,
granted a stay to the implementation effect and operation of the
order dated 14th December 2023. The operative part of the order
passed by Joint Charity Commissioner-1 reads as follows:

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“Appellants are granted ad-interim relief in terms of prayer
clause 19(c) thereby granting stay to the implementation,
effect and operation of the order dated 14/12/2023 passed
in Change Report No.796/2020 in term of prayer Clause
19(b) till filing of reply by the Respondents.”

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8.Thereafter, the stay order was continued. It is not in dispute
that the order granted on 15th December 2023 is in force as of
today.

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9.The petitioners have taken exception to the order passed by
the Joint Charity Commissioner on the ground that considering the
nature of the operative part of the order passed by the Assistant
Charity Commissioner, the Joint Charity Commissioner had no
power to grant a stay to the rejection of Change Report as there
was no executable order against respondent No.1.

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10. Learned advocate for respondent No.1 supported the order
passed by the Joint Charity Commissioner, contending that in the
facts and circumstances of the present case, the Joint Charity
Commissioner passed such an order to maintain the status quo,

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which was prevalent during the pendency of the change report.
According to respondent No.1, considering the nature of the power
conferred on the Charity Commissioner, the Joint Charity
Commissioner acted as parens patriae to maintain the status quo.
According to him, after passing the impugned order, the petitioners
have performed some illegal acts of appointing their relatives as
trustees. The impugned order is, therefore, passed by the Joint
Charity Commissioner to prevent such abuse of the process of law.

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11. Learned advocate for respondent No.1 in another petition
submitted that the Assistant Charity Commissioner can
provisionally accept the Change Report. Under Sub-section (3) of
Section 23, the Joint Charity Commissioner has the power to
entertain a challenge to any finding recorded by the Assistant
Charity Commissioner while deciding the Change Report and,
therefore, will have the power to grant a stay to such finding
recorded by the Assistant Charity Commissioner.

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12. Having considered these submissions made on behalf of both
sides, I am of the considered view that the Joint Charity
Commissioner had no power to grant a stay to the operative part
of the order of the Assistant Charity Commissioner rejecting
Change Reports. In the absence of an executable order, the power
of stay could not have been exercised by the Joint Charity
Commissioner.

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13. Moreover, the reasons assigned by the Joint Charity
Commissioner for the grant of such relief appear to be as follows:

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i) Hasty developments have taken place since the rejection of

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the Change Report.

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ii) The Order of the Assistant Charity Commissioner proceeds
on the basis that respondent No.1 failed to lead evidence,
which resulted in the rejection of the change report.
However, there exists material on record to substantiate the
change alleged by respondent No.1.

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iii) Respondent No.1 has been in administration for the last
16 years and, therefore, the balance of convenience is in
favour of respondent No.1

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14. Assuming that a joint charity commissioner had such power
of stay, even on merits, the reasons referred to above for passing
such an exceptional order are not satisfactory. The developments
which took place after the passing of the impugned order have no
relevance for the grant of relief of the stay of the operative part of
the order. On perusal of material on record, I find no compelling
reason to pass such an order. The contention that respondent No.1
was in the administration for 16 years can hardly be a factor for
the grant of stay to the operative part of the order of rejection of
change report.

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15. It is pertinent to note that Respondent No.1 neither prayed
for a stay of the judgment of the order nor did the Joint Charity
Commissioner grant a stay to the effect of the judgment. No
application was filed by respondent No.1 seeking permission to
allow him to continue as Trustee. No findings are brought to the
notice of this Court which would have the effect of executable
findings, nor any order of provisionally accepting change report is

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placed on record. In the absence of all such factors and in the
absence of power to grant a stay to the rejection of the Change
Report, the Joint Charity Commissioner could not have granted a
stay to the operative part of the rejection of the Change Report.

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16. Learned counsel for the respondent No.1 placed reliance of
some paragraphs in the affidavit-in-reply filed by respondent No.1.
It is well settled that the quasi judicial or judicial orders passed by
public authorities need to be supported by the reasons stated in
the order. The affidavit-in-reply filed by the parties need not be
considered for validating orders passed by such authorities. In the
facts of the case, this Court finds that such affidavit-in-reply is not
necessary for complete and effectual adjudication of the issue
involved in the petition.

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17. The law in this regard has been explained by the three
Judges bench of the Apex Court in the case of Commissioner of
Police, Bombay Vs. Gordhandas Bhanji (1951) SCC 1088,
paragraph 9 ofthe judgments reads as under:

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“9. An attempt was made by referring to the Commissioner's
affidavit to show that this was really an order of cancellation
made by him and that the order was his order and not that
of the Government. We are clear that public orders, publicly
made, in exercise of a statutory authority cannot be
construed in the light of explanations subsequently given by
the officer making the order of what he meant, or of what
was in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public effect
and are intended to affect the actings and conduct of those
to whom they are addressed and must be construed
objectively with reference to the language used in the order

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itself.”

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18. The judgment is thereafter approved and explained by the
constitutional Bench of the Apex Court in the case of Mohinder
Singh Gill & Anr. Vs. Chief Election Commissioner, New
Delhi & Ors., (1978) 1 SCC 405, The Constitutional Bench in
paragraph No.8 laid down as under.

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“8.The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in
the shape of affidavit or otherwise. Otherwise, an order bad
in the beginning may, by the time it comes to Court on
account of a challenge, get validated by additional grounds
later brought out.We may here draw attention to the
observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC
16) :

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Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what
he meant, or of what was in his mind, or what he intended
to do. Public orders made by public authorities are meant to
have public effect and are intended to affect the actings and
conduct of those to whom they are addressed and must be
construed objectively with reference to the language used in
the order itself.

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Orders are not like old wine becoming better as they grow
older.”

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19. Having considered the preposition of law laid down by the

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Apex Court in the said judgments, in my opinion, the orders of
judicial or quasi judicial authorities need to be decided based on
reasons assigned in the order, and it is justiciability cannot be
supported by additional facts or reasons in the affidavit-in-reply
which were not considered by the authority while arriving at its
decision.

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20. In overall view of the matter, in my opinion, the impugned
order passed by the Joint Charity Commissioner suffers from
patent illegality and, therefore, it needs to be set aside. Hence the
following order:

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a) The impugned orders passed by the Joint Charity
Commissioner dated 15th December 2023 in Writ Petition
No.515 of 2024, 15th December 2023 in Writ Petition No.
514 of 2024, 21st December 2023 in Writ Petition No.516 of
2024, 21st December 2023 in Writ Petition No.363 of 2024,
21st December 2023 in Writ Petition No.335 of 2024, 22nd
December 2023 in Writ Petition No.360 of 2024, 22nd
December 2023 in Writ Petition No.319 of 2024 and
subsequent orders of continuation of such orders by order
dated 23rd January 2024 are quashed and set aside.

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b) Rule is made absolute in the above terms.

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21. It is made clear that the Charity Commissioner shall decide
appeal on its own merits uninfluenced by the observations made
in this order.

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(AMIT BORKAR, J.)

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Charu Mehta v. Sushila v Mehta and Anr.

Case brief

What is this about?

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Charu Mehta v. Sushila v Mehta and Anr.

Case brief

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