{"id":262671,"date":"2008-12-17T00:00:00","date_gmt":"2008-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lilavati-kirtilal-mehta-medical-vs-charu-k-mehta-and-others-on-17-december-2008"},"modified":"2017-12-13T02:00:33","modified_gmt":"2017-12-12T20:30:33","slug":"lilavati-kirtilal-mehta-medical-vs-charu-k-mehta-and-others-on-17-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lilavati-kirtilal-mehta-medical-vs-charu-k-mehta-and-others-on-17-december-2008","title":{"rendered":"Lilavati Kirtilal Mehta Medical … vs Charu K. Mehta And Others on 17 December, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Lilavati Kirtilal Mehta Medical … vs Charu K. Mehta And Others on 17 December, 2008<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
                                       1\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                \n                     CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                        \n                   CIVIL APPLICATION NO.4905 OF 2008\n                                   IN\n                     FIRST APPEAL NO.2667 OF 2007\n\n\n\n\n                                                       \n    Lilavati Kirtilal Mehta Medical Trust and another      ..Applicants.\n                Vs.\n    Charu K. Mehta and others                              ..Respondents.\n                                       ....\n\n\n\n\n                                          \n    Mr. Iqbal Chagla, Senior Advocate with Mr. Snehal Shah, Mr. Sanjay\n                             \n    Jain, Mr. Kunal Vajani, Mr. Atul Daga and Mr. Rohan Deshmukh i\/b\n    M\/s. Wadia Ghandy & Co. for the Applicantas.\n                            \n    Mr. Navroz Seervai, Senior Advocate with Mr. Raj Patel and Mr. T.N.\n    Tripathi i\/b T.N. Tripathi & Co. for Respondent No.1.\n\n    Mr. R. A. Dada, Senior Advocate with Mr. Prateek Sakseria with Ms.\n    Jyoti Shah i\/b M\/s. Dhru Shah & Co. for Respondent No.2.\n           \n        \n\n\n\n    Mr. Pranav Badhekar with Ms. Aziza Khatri and Mr. Shane Sapeco i\/b\n    Hariani & Co. for Respondent Nos.10 and 12.\n\n    Mr. Janak Dwarkadas, Senior Advocate Mr. Prateek Sakseria, Mr.\n\n\n\n\n\n    Manish Desai with Mr. Dhirendra Sinha i\/b M\/s. Paras Kuhad &\n    Associates for Respondents 13 and 15.\n\n    Mr. Rajesh Behere for the Joint Administrator.\n                                     ....\n\n\n\n\n\n                        CORAM:  DR. D.Y. CHANDRACHUD, J.\n<\/pre>\n
                                   17th December, 2008.\n<\/p>\n
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\n                                        2<\/span><\/p>\n
    ORAL JUDGMENT :\n<\/p>\n
    1.        The Civil Application has been taken out in the pending<\/p>\n
    First Appeal by the First and Tenth Defendants. The reliefs that have<\/p>\n
    been sought are (i) the discontinuance of the joint administrators; or in<\/p>\n
    the alternative (ii) the discharge of Mr. A.A. Halbe, who is one of the<\/p>\n
    Joint Administrators; and (iii) the appointment of any one among four<\/p>\n
    named individuals as a Joint Administrator in place of Mr. A.A. Halbe.\n<\/p>\n
    2.<\/p>\n
              On 26th March, 2007 the Supreme Court appointed Dr.<\/p>\n
    Narendra Trivedi, Vice President of the Lilawati Hospital and Dr. K<\/p>\n
    Ramamurthy, a senior consultant to be in charge of the Hospital for<\/p>\n
    the day to day running of the Hospital and the Research Institute. The<\/p>\n
    order of the Supreme Court was pending the disposal of a suit<\/p>\n
    instituted by the Plaintiff before the City Civil Court inter alia to<\/p>\n
    challenge her removal from the Board of Trustees. The order of the<\/p>\n
    Supreme Court records that the disputes between the parties were<\/p>\n
    liable to impede the running of the Hospital which was under the<\/p>\n
    management of the Trust. The Supreme Court observed thus :\n<\/p>\n
              “After hearing the arguments on both sides, we find that
\n              there are serious disputes between the parties which<\/p>\n
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\n                                         3<\/span><\/p>\n
              ultimately may cause serious difficulties in the running of
\n              the hospital, which is under the management of the Trust.\n<\/p><\/blockquote>\n
              In view of the present circumstances, as a temporary
\n              measure, we direct that Dr. Narendra Trivedi, Vice-\n<\/p><\/blockquote>\n
              President of the Leelavati Hospital and Dr. K. Ramamurthy,
\n              Senior Consultant in that hospital, shall be in-charge of the
\n              hospital of the day to day running of the Hospital and
\n              Research Institute. There two Administrators will take all<\/p>\n
              decisions relating to the administration of the hospital.
\n              They shall give a report to the Board of Trustees every two
\n              weeks and any directions by the Board of Trustees are to
\n              be issued to these two Administrators only in the form of<\/p>\n
              resolutions and not individual instructions by any Trustee. A
\n              copy of the report of resolution shall also be furnished to the<\/p>\n
              appellant and if she is in any way aggrieved by the
\n              directions issued by the Board, she would be at liberty to
\n              seek appropriate direction from the City Civil Court, Mumbai<\/p>\n
              where the suit is pending.”\n<\/p><\/blockquote>\n
    The two Administrators were appointed to look after the day to day<\/p>\n
    running   of   the Hospital   and       the   Research     Institute.         The<\/p>\n
    Administrators were to furnish a report to the Board of Trustees.\n<\/p>\n
    Directions by the Board of Trustees were to be issued to the two<\/p>\n
    Administrators in the form of resolutions. A copy of each resolution<\/p>\n
    was to be furnished to the Plaintiff and liberty was reserved to her,<\/p>\n
    should she be aggrieved, to seek appropriate directions from the City<\/p>\n
    Civil Court. There can be no manner of doubt from the order of 26th<\/p>\n
    March, 2007 that the appointment of Administrators was for the<\/p>\n
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\n                                        4<\/span><\/p>\n
    purpose of looking after the administration of the Hospital. There was<\/p>\n
    evidently a dispute in regard to the administration of the               Trust.\n<\/p>\n
    Under the terms of appointment, the Administrators were not to be<\/p>\n
    concerned with the administration of the Trust.       The order of the<\/p>\n
    Supreme Court therefore contemplates that directions would be<\/p>\n
    issued to the Administrators by the Trustees and these directions<\/p>\n
    were to be in the form of a resolution of the Board of Trustees.\n<\/p>\n
    3.<\/p>\n
              On 20th August, 2007 Dr. K. Ramamurthy, one of the Joint<\/p>\n
    Administrators, came to be replaced by Mr. A.A. Halbe, a Former<\/p>\n
    Judge of this Court since he had expressed his inability to function as<\/p>\n
    an Administrator on grounds of health. The suit was dismissed by the<\/p>\n
    City Civil Court on 24th September, 2007. On 28th September, 2007<\/p>\n
    the Supreme Court issued directions to the effect that the Joint<\/p>\n
    Administrators should continue for a period of ten weeks subject to<\/p>\n
    any interim order or final order that may be passed in the appeal or in<\/p>\n
    collateral proceedings.   This order was clarified on 26th October,<\/p>\n
    2007 to the effect that these directions had been passed without<\/p>\n
    prejudice to the rights of the parties and the order would not<\/p>\n
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\n                                        5<\/span><\/p>\n
    tantamount to the continuance of the services of the Administrators if<\/p>\n
    they were not required.\n<\/p>\n
    4.        A First Appeal against the dismissal of the suit was lodged<\/p>\n
    before this Court. A Civil Application was taken out for interim relief.\n<\/p>\n
    On 15th February, 2008 the application for interim orders was<\/p>\n
    disposed of by a Learned Single Judge. The Learned Single Judge<\/p>\n
    observed that on a plain reading of the order passed by the Supreme<\/p>\n
    Court appointing the Joint Administrators, it is evident that the<\/p>\n
    appointment of the Administrators was in order to ensure that<\/p>\n
    disputes between the Trustees do not cause any difficulties in the<\/p>\n
    running of the Hospital. The Learned Single Judge was of the view<\/p>\n
    that even as of date there were serious disputes between the<\/p>\n
    Trustees and two separate groups were fighting a bitter battle not<\/p>\n
    merely before this Court, but before the authorities constituted under<\/p>\n
    the Bombay Public Trusts Act, 1950. The Learned Single Judge was<\/p>\n
    of the view that the circumstances which existed when the Supreme<\/p>\n
    Court passed the order appointing the Joint Administrators continued<\/p>\n
    to exist even as of date. In the circumstances, until the disposal of<\/p>\n
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\n                                       6<\/span><\/p>\n
    the appeal the interim arrangement which had been made under the<\/p>\n
    order of the Supreme Court was directed to continue to operate.\n<\/p>\n
    5.        At this stage it may be necessary to note that one of the<\/p>\n
    two Joint Administrators, Mr. A.A. Halbe had submitted several<\/p>\n
    reports both before this Court and before the Charity Commissioner in<\/p>\n
    proceedings under the Bombay Public Trusts Act, 1950.                        An<\/p>\n
    application was moved before the Supreme Court viz. Interim<\/p>\n
    Application 5 of 2008 seeking the removal of Mr. A.A. Halbe on the<\/p>\n
    ground that his conduct showed that he was colluding with the Plaintiff<\/p>\n
    to the suit before the City Civil Court. In his judgment dated 15th<\/p>\n
    February, 2008 the Learned Single Judge observed that since an<\/p>\n
    application for the removal of Mr. Halbe was pending before the<\/p>\n
    Supreme Court, it would not be proper to deal with the submissions<\/p>\n
    that had been urged in regard to the role which had been played by<\/p>\n
    the Joint Administrator. This aspect of the mater was dealt with in<\/p>\n
    the following observations contained in paragraph 33 of the judgment<\/p>\n
    of Mr. Justice A.S. Oka :\n<\/p>\n
              “In so far as reports submitted by Mr. Justice A.A. Halbe
\n              (Retired) are concerned, it must be stated that an<\/p>\n
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\n                                      7<\/span><\/p>\n
             application made by the contesting defendants for removing
\n             him as a Joint Administrator is pending before the Apex<\/p>\n
             Court. Therefore, it will not be proper to deal with the
\n             submissions made by the counsel appearing for the<\/p>\n
             defendants as regards the role played by the said Joint
\n             Administrator. Considering nature of the allegations made
\n             by the contesting defendants against the said Joint
\n             Administrator, I have not taken into consideration reports<\/p>\n
             submitted by the said Joint Administrator.”\n<\/p><\/blockquote>\n
    6.       A Special Leave Petition was filed before the Supreme<\/p>\n
    Court against the order of the Learned Single Judge dated 15th<\/p>\n
    February, 2008. The Special Leave Petition was heard together with<\/p>\n
    I.A. 5 of 2008 in which, as already noted, the relief that was sought<\/p>\n
    was the removal of Mr. A.A. Halbe. On 14th July, 2008 the Supreme<\/p>\n
    Court, while disposing of the Special Leave Petition and the I.A.,<\/p>\n
    observed that since the order of the Learned Single Judge of this<\/p>\n
    Court was an interim discretionary order, the Supreme Court was not<\/p>\n
    proposing to interfere with the order. The Supreme Court observed<\/p>\n
    that Counsel appearing for the Petitioner before the Court had made a<\/p>\n
    reference to the reports submitted by one of the Administrators<\/p>\n
    according to which there were serious irregularities in the matter of<\/p>\n
    administration. On this aspect, the Supreme Court observed thus :\n<\/p>\n
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\n                                        8<\/span><\/p>\n
              “The parties on either side are at liberty to bring it to the
\n              notice of the High Court regarding these developments and<\/p>\n
              take appropriate steps for redressal of the grievance and
\n              the High Court will be at liberty to pass appropriate orders<\/p>\n
              in this matter. We clarify that in passing appropriate orders,
\n              the High Court need not be carried away because the
\n              administrators were appointed by this Court and the High
\n              Court may be at liberty to pass appropriate orders<\/p>\n
              considering the claim of all parties concerned.” (emphasis
\n              supplied).\n<\/p><\/blockquote>\n
    The hearing of the appeal was expedited.      The Civil Application has<\/p>\n
    been instituted on 15th September, 2008, after the order of the<\/p>\n
    Supreme Court and the relief that has been sought, as already noted<\/p>\n
    earlier, is the removal of the Joint Administrators or, in the alternate,<\/p>\n
    the removal of Mr. A.A. Halbe.\n<\/p>\n
    7.        During the course of the hearing, Senior Counsel appearing<\/p>\n
    on behalf of the Applicants did not press the wider relief that has been<\/p>\n
    sought in the Civil Application for the removal of the Administrators.\n<\/p>\n
    In fact, even before the concession was made, this Court had<\/p>\n
    indicated to the learned counsel that it was not inclined to vacate the<\/p>\n
    direction in regard to the regime of the Administrators.                     The<\/p>\n
    circumstances which weighed in the appointment of Administrators,<\/p>\n
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\n                                       9<\/span><\/p>\n
    pending the disposal of the suit, continued to exist as observed in the<\/p>\n
    order of the Learned Single Judge of this Court dated 15th February,<\/p>\n
    2008.    During the course of the hearing of the Civil Application the<\/p>\n
    relief that has been pressed is the removal of Mr. A.A. Halbe as a<\/p>\n
    Joint Administrator and for the appointment of any other administrator<\/p>\n
    in his place. Counsel submitted that either a single administrator may<\/p>\n
    be appointed or another Joint Administrator may be appointed in<\/p>\n
    substitution of Mr. Halbe. The principal ground on which the removal<\/p>\n
    of Mr. A.A. Halbe has been sought is that, the Joint Administrator has<\/p>\n
    colluded with the Plaintiff and has failed to discharge his duties<\/p>\n
    impartially.   Learned Senior Counsel submitted that the Joint<\/p>\n
    Administrators came to be appointed by the Supreme Court in order<\/p>\n
    to look after the day to day administration of the Hospital and the<\/p>\n
    Research Institute. The Joint Administrators, by the terms of their<\/p>\n
    appointment, were not to be concerned with the administration or<\/p>\n
    management of the Trust since disputes in regard to the Trust were<\/p>\n
    pending before diverse authorities inter alia under the Bombay Public<\/p>\n
    Trusts Act, 1950. Yet, the submission goes, Mr. Halbe overreached<\/p>\n
    the bounds of his authority by submitting successive reports to this<\/p>\n
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\n                                         10<\/span><\/p>\n
    Court and to the Charity Commissioner on matters which did not fall<\/p>\n
    within his   domain.    A chart was submitted for the            purposes of<\/p>\n
    establishing before this Court that the reports submitted unilaterally by<\/p>\n
    Mr. Halbe     were on every occasion timed to coincide with                    the<\/p>\n
    hearings either before this Court or before the Charity Commissioner.\n<\/p>\n
    It was urged that the Joint Administrator had aligned himself with one<\/p>\n
    of the litigating parties in disputes relating to the Trust, namely the<\/p>\n
    Plaintiff, and on every occasion the submission of reports – not jointly<\/p>\n
    as envisaged in the order of the Supreme Court but unilaterally by Mr.<\/p>\n
    Halbe – was intended to influence and prejudice the outcome of a<\/p>\n
    particular proceeding. This submission is sought to be buttressed by<\/p>\n
    referring to the conduct of the Administrator. Firstly, a reference was<\/p>\n
    made to the reports of the Administrator where he had sought to<\/p>\n
    question certain payments though as a matter of fact in his joint report<\/p>\n
    together with the other Administrator, he had sanctioned the very<\/p>\n
    same payments as being in order. Secondly, a reference was made<\/p>\n
    to the fact that in a suit instituted on the Original Side of this Court by<\/p>\n
    Shri Rajiv K. Mehta (the son of the Plaintiff) on 7th March, 2008 a<\/p>\n
    disclosure was made of a report which was to be submitted by Mr.<\/p>\n
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\n                                         11<\/span><\/p>\n
    Halbe to this Court on 10th March, 2008. In sum and substance, the<\/p>\n
    submission that has been urged is that as a Joint Administrator<\/p>\n
    appointed in pursuance of the orders passed by the Supreme Court,<\/p>\n
    Mr. Halbe was expected to discharge his duties impartially. However,<\/p>\n
    the conduct of the Administrator,        shows that he has failed to<\/p>\n
    discharge that function with objectivity and impartiality and that he has<\/p>\n
    been colluding with one of the litigating parties viz. the Plaintiff to the<\/p>\n
    suit.\n<\/p>\n
    8.        On the other hand, it has been urged on behalf of the<\/p>\n
    Original Plaintiff that (i) The application for the removal of Mr. A.A.\n<\/p>\n
    Halbe was not maintainable before this Court, having regard to the<\/p>\n
    circumstance that the appointment of the Joint Administrators was<\/p>\n
    continued in the interim order dated 15th February, 2008 and since the<\/p>\n
    Supreme Court had declined to interfere with the interim order;                 (ii)<\/p>\n
    The Application before the Court was submitted by the Trust and by<\/p>\n
    one of the Trustees who had been suspended and against whom<\/p>\n
    serious charges have been framed by the Charity Commissioner on a<\/p>\n
    prima facie case being made out involving large sums of the Trust.\n<\/p>\n
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\n                                       12<\/span><\/p>\n
    The role of an Administrator, it was urged, must be distinguished from<\/p>\n
    the role of a Judge or an Arbitrator and there was absolutely no<\/p>\n
    reason why an Administrator must be required to discharge his duties<\/p>\n
    in the same manner as would a Judge in his judicial capacity. These<\/p>\n
    submissions now fall for consideration.\n<\/p>\n
    Maintainability<\/p>\n
    9.<\/p>\n
              The first aspect of the matter is whether the application<\/p>\n
    seeking the removal of Mr. A.A. Halbe as Administrator is<\/p>\n
    maintainable, having regard to the order of the Learned Single Judge<\/p>\n
    dated 15th February, 2008 and the order of the Supreme Court dated<\/p>\n
    14th July, 2008.   The Joint Administrators were appointed by the<\/p>\n
    Supreme Court on 26th March, 2007 pending the disposal of the suit.\n<\/p>\n
    Upon the disposal of the suit, the Supreme Court continued their<\/p>\n
    appointment for a stipulated period clarifying that this would be<\/p>\n
    subject to such orders as may be passed by this Court in the appeal<\/p>\n
    or in collateral proceedings. When the application for the grant of<\/p>\n
    interlocutory relief came up before a Learned Single Judge of this<\/p>\n
    Court during the pendency of the first appeal, this Court was of the<\/p>\n
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\n                                      13<\/span><\/p>\n
    view that the circumstances which warranted the appointment of the<\/p>\n
    Administrators during the pendency of the suit continued to subsist<\/p>\n
    inasmuch as the disputes amongst the Trustees had not ceased to<\/p>\n
    exist.\n<\/p>\n
    Evidently, before the Learned Single Judge, a reference was made to<\/p>\n
    the reports that were filed in diverse proceedings by Mr. A.A. Halbe<\/p>\n
    and to the role that was being played by him. That role according to<\/p>\n
    the Applicants was not either impartial or fair. The Learned Single<\/p>\n
    Judge declined to take into consideration the reports of Mr. Halbe or<\/p>\n
    the role that was being played by him, having regard to the<\/p>\n
    circumstance that by then an interim application had already been<\/p>\n
    filed before the Supreme Court seeking the removal of Mr. Halbe.\n<\/p>\n
    Paragraph 33 of the order of this Court dated 15th February, 2008<\/p>\n
    makes it abundantly clear that the Learned Single Judge was of the<\/p>\n
    view that it would not be proper to deal with the submissions made by<\/p>\n
    counsel appearing for the Defendants as regards the role played by<\/p>\n
    Mr. Halbe since an application for his removal was pending before the<\/p>\n
    Supreme Court. The order of the Supreme Court of 14th July, 2008<\/p>\n
    disposed of both the Special Leave Petition against the order of the<\/p>\n
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\n                                        14<\/span><\/p>\n
    Learned Single Judge continuing the mechanism                 of the Joint<\/p>\n
    Administrators as well as the Interim Application for the removal of Mr.<\/p>\n
    Halbe. The Supreme Court observed that while it was not interfering<\/p>\n
    with an interim discretionary order passed by the High Court, the<\/p>\n
    submission before      the Supreme Court was that one of the<\/p>\n
    Administrators had submitted reports according to which there were<\/p>\n
    serious irregularities in the administration of the Trust. The Supreme<\/p>\n
    Court expressly clarified that parties on either side would be at liberty<\/p>\n
    to bring this to the notice of the High Court and to take appropriate<\/p>\n
    steps for the redressal of their grievances.      The High Court, the<\/p>\n
    Supreme Court observed, would be at liberty to pass appropriate<\/p>\n
    orders “in this matter”. The expression “this matter” cannot, as the<\/p>\n
    Plaintiff seeks be construed to exclude the grievance of the Applicants<\/p>\n
    in regard to the conduct of Mr. A.A. Halbe. Significantly, the Supreme<\/p>\n
    Court clarified that in passing appropriate orders “the High Court will<\/p>\n
    not be carried away because the Administrators were appointed by<\/p>\n
    this Court”. The Supreme Court granted liberty to this Court to pass<\/p>\n
    appropriate orders considering the claim of all the parties concerned.\n<\/p>\n
    The observations of the Supreme Court to the effect that the High<\/p>\n
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\n                                        15<\/span><\/p>\n
    Court should not be carried away because the Administrators were<\/p>\n
    appointed by the Supreme Court is a matter of utmost significance.\n<\/p>\n
    This assumes significance in the background of the fact that the<\/p>\n
    Learned Single Judge of this Court had in the order dated 15th<\/p>\n
    February, 2008 expressed a reservation in regard to adjudicating<\/p>\n
    upon the role played by Mr. Halbe and upon expressing any view on<\/p>\n
    the reports submitted by him having regard to the fact that an<\/p>\n
    application for his removal was pending before the Supreme Court. It<\/p>\n
    is in this background, that the observations of the Supreme Court<\/p>\n
    would have to be interpreted. The order of the Supreme Court left it<\/p>\n
    open to the parties to bring their grievances for the consideration of<\/p>\n
    this Court. This would include the grievance in regard to the conduct<\/p>\n
    of Mr. Halbe. The application for the removal of Mr. Halbe on the<\/p>\n
    ground that he has failed to discharge his duties impartially is<\/p>\n
    therefore maintainable before this Court. The submission that was<\/p>\n
    urged on behalf of the Plaintiff is that what the Supreme Court kept<\/p>\n
    open in its observations is the grievances of the parties which may<\/p>\n
    be brought to the notice of this Court at the final hearing of the appeal.\n<\/p>\n
    Such an interpretation cannot be accepted. When the parties were<\/p>\n
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\n                                       16<\/span><\/p>\n
    granted liberty to move this Court for appropriate orders, that would<\/p>\n
    enable the parties to seek both interlocutory orders as well as final<\/p>\n
    orders in the appeal.\n<\/p>\n
    The conduct of the Joint Administrator<\/p>\n
    10.       The basic question which must be addressed in these<\/p>\n
    proceedings is as to whether there is any merit in the submission that<\/p>\n
    Mr. A.A. Halbe failed to discharge his duties impartially and with the<\/p>\n
    objectivity that was to be expected from the appointment of a retired<\/p>\n
    Judge of this Court as one of two Joint Administrators.\n<\/p>\n
    11.       The order passed by the Supreme Court on 26th March,<\/p>\n
    2007 defines the role of the Administrators and the scope of their<\/p>\n
    authority. The Administrators were placed incharge of the Hospital<\/p>\n
    and were to look after the day to day running of the Hospital and the<\/p>\n
    Research Institute. The two Administrators were directed to take all<\/p>\n
    decisions relating to the administration of the Hospital. The Supreme<\/p>\n
    Court observed that the Administrators were to give a report to the<\/p>\n
    Board of Trustees every two weeks and any directions by the Board<\/p>\n
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\n                                       17<\/span><\/p>\n
    of Trustees would have to be issued to the two Administrators in the<\/p>\n
    form of resolutions. The order of the Supreme Court therefore clearly<\/p>\n
    contemplates that there was a Trust in relation to which there were<\/p>\n
    serious disputes and these disputes were causing difficulties in the<\/p>\n
    running of the Hospital. The appointment of the Administrators was for<\/p>\n
    the purpose of    looking after the day to day management of the<\/p>\n
    Hospital.   The Administrators had no role to play either in the<\/p>\n
    administration of the Trust or in the conduct of the litigation between<\/p>\n
    the parties, relating to the Trust.    Both the Administrators were<\/p>\n
    expected to speak with one voice, because it is evident from the<\/p>\n
    order of the Supreme Court that they were to submit a report –\n<\/p>\n
    meaning thereby one report – to the Board of Trustees every two<\/p>\n
    weeks. On their part, the Board of Trustees was expected to speak<\/p>\n
    with one voice in the form of a resolution which was to be issued to<\/p>\n
    the Administrators. The order passed by the Supreme Court did not<\/p>\n
    contemplate the Administrators, least of all one of them, intervening<\/p>\n
    in pending disputes between the Trustees relating to the affairs of the<\/p>\n
    Trust.   These disputes in regard to the affairs of the Trust were<\/p>\n
    pending before diverse authorities inter alia constituted under the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>
\n                                        18<\/span><\/p>\n
    Bombay Public Trusts Act, 1950. Those would be adjudicated upon.\n<\/p>\n
    12.       The record before the Court reveals that Mr. Halbe<\/p>\n
    unilaterally assumed to himself the authority to address reports to<\/p>\n
    diverse authorities and to this Court in matters which fall within the<\/p>\n
    domain of the administration and the management of the Trust.                On<\/p>\n
    16th September, 2007 Mr. Halbe submitted his own individual<\/p>\n
    communication, styled as a report, to the Chairman and members of<\/p>\n
    the Trust. Mr. Halbe, as the report would show, commented upon<\/p>\n
    disputes relating to the Trust and proceeded to make a detailed<\/p>\n
    analysis of the Trust deed.     It would be unnecessary to replicate<\/p>\n
    every one of the observations in the report. As an illustration it would<\/p>\n
    be material to refer to paragraphs 5, 6 and 7 of the report which<\/p>\n
    reads as follows :\n<\/p>\n
              “5)       Mr. Kishor Kiritilal Mehta, Smt. Charu Kishor
\n              Mehta and Rekha Haresh Sheth were appointed as
\n              permanent trustees, i.e. for the life time. The permanent
\n              trustees have powers to appoint new additional trustees,<\/p>\n
              who could be permanent trustee or trustee for 5 years term.<\/p><\/blockquote>\n
              At the expiry of 5 years, the permanent trustees were
\n              further authorized to appoint other trustees for the same
\n              period. The total period of the appointed trustees was for 3
\n              terms, viz. 15 years. Regarding Governing Body and
\n              Advisory Body referred in paras 18 and 19 of the deed they<\/p>\n
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\n                               19<\/span><\/p>\n
     will be referred to at appropriate time.\n<\/p>\n
     6)           The other important provisions that the Settler
\n     Kirtilal Manilal Mehta was also vested with the power to<\/p>\n
     appoint not more than 5 trustees for 5 years and after his
\n     death, Vijay Kirtilal Mehta (eldest son), as he is living, will
\n     have the power to appoint not less than 5 trustees on the
\n     board. However, Kirtilal desired that majority of the trustees<\/p>\n
     shall as far as possible be from the family members of
\n     Kirtilal or from branches of such family members for Settler
\n     Kirtilal Mehta.\n<\/p>\n
     7)         Taking the overall view of the various paragraphs
\n     of the trust deed, one thing is manifestly clear that the<\/p>\n
     trustees shall deal with the property only within ambits and
\n     purposes of the trust and that seems to be very consistent
\n     with the provisions of Bombay Public Trust Act, 1950.\n<\/p>\n
     Under Section 36-A of the Act, it is clearly provided that the
\n     trustees of every public trust shall administer the affairs of
\n     the trust and apply the funds and property thereof for the
\n     purposes and objects of the trust in accordance with terms
\n     of the trust, usage of the institution and lawful directions<\/p>\n
     that the Charity Commissioner or Court may issue. The<\/p>\n
     trustees shall exercise the same care as man of ordinary
\n     prudence, when dealing with such affairs, funds or
\n     properties, as if they were his own. The trustees are
\n     entitled to exercise powers only for the prudent and<\/p>\n
     beneficial management of the trust. Every trustee is jointly
\n     and severally liable for the acts of all the trustees on the
\n     board. Sub-section 3 of Section 36-A further provides as
\n     follows : “No trustee shall borrow monies by way of
\n     mortgage or otherwise for the purpose of or on behalf of the<\/p>\n
     trust of which he is the trustee, except with the previous
\n     sanction of the Charity Commissioner and subject to such
\n     conditions and limits as may be imposed by him in the
\n     interest or protection of the trust”. Sub-section 4 mandates
\n     “that no trustee shall borrow money for his own use from
\n     any property of the public trust of which he is the trustee”.\n<\/p>\n
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\n                                        20<\/span><\/p>\n
                These provisions have laid down the parameters of the
\n                powers and duties enjoined upon the trustees. Trustees<\/p>\n
                hold the property in the trust not as the owner of the
\n                property but all the same he has to deal with the trust<\/p>\n
                property with such care and prudence as he would exercise
\n                in case of his personal property.”\n<\/p>\n
    Mr. Halbe referred to Application 1 of 2007 which is pending before<\/p>\n
    the Charity Commissioner and stated that the facts of the case would<\/p>\n
    need to be scrutinized “in this legal background”. He proceeded to<\/p>\n
    state that certain appointments which were made as Trustees were<\/p>\n
    illegal and invalid. In paragraph 30 of his report Mr. Halbe stated that<\/p>\n
    the facts which he had extracted are “the written facts in pleadings to<\/p>\n
    be adjudicated upon by the competent authority”.\n<\/p>\n
    13.         A second report was submitted by Mr. Halbe to this Court in<\/p>\n
    Writ Petition 1201 of 2007.        Significantly, the report that was<\/p>\n
    submitted to this Court on 16th October, 2007 was a reproduction of<\/p>\n
    the earlier report dated 16th September, 2007 submitted to the<\/p>\n
    Trustees.    Mr. Halbe, however, deleted the concluding paragraph<\/p>\n
    which clarified that what had been stated in the report was culled out<\/p>\n
    from pleadings.     Mr. Halbe had stated thus in paragraph 30 of his<\/p>\n
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\n                                         21<\/span><\/p>\n
    earlier report :\n<\/p>\n
               “30) I am sending this communication with a view to alert
\n               trust against the impending actions, which may placate<\/p>\n
               trustees into vortex of civil as well criminal actions. None of
\n               the above facts are extracted from imagination and guess
\n               work. They are the written facts in pleadings to be
\n               adjudicated upon by the competent authority. This should<\/p>\n
               be treated as the timely advise for the board to meet the
\n               situation created by the proceedings in the Court.”
\n               (emphasis supplied).\n<\/p><\/blockquote>\n
    This paragraph was deleted in the report that was submitted before<\/p>\n
    this Court on 16th October, 2007.        This aspect of the mater must<\/p>\n
    assume significance, having regard to what has transpired thereafter.\n<\/p>\n
    But at this stage it would be necessary to note that the tenor, the<\/p>\n
    language and the content of the report that was submitted on 16th<\/p>\n
    October, 2007 would lead to an inference that what was set out in the<\/p>\n
    report of the Administrator was a statement of facts which have been<\/p>\n
    investigated and found to be true. It was the bounden duty of Mr.<\/p>\n
    Halbe as the Administrator to point out to this Court that what he had<\/p>\n
    culled out were allegations from pleadings – something which he had<\/p>\n
    said in his earlier report to the Board of Trustees but which he chose<\/p>\n
    to delete while submitting the subsequent report to this Court.\n<\/p>\n
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\n                                       22<\/span><\/p>\n
    14.        A third report was addressed by Mr. Halbe to the Judges of<\/p>\n
    this Court on 25th October, 2007. The First Appeal before this Court<\/p>\n
    against the dismissal of the suit by the City Civil Court was lodged on<\/p>\n
    25th October, 2007. The report of Mr. Halbe was filed on the very<\/p>\n
    same day. In fact, it has been stated by counsel appearing for the<\/p>\n
    Applicants that the papers and proceedings in the First Appeal were<\/p>\n
    not even served on the Applicants on 25th October, 2007. The report<\/p>\n
    of Mr. Halbe refers to the “appeal against (Short Cause Suit No.1997<\/p>\n
    of 2006 of the City Civil Court”. The report was submitted on the very<\/p>\n
    same day as the filing of the appeal. The attention of the Court has<\/p>\n
    been drawn to the fact that the same report was submitted before the<\/p>\n
    Supreme Court 1. During the course of the proceedings there was an<\/p>\n
    exchange of correspondence between Mr. Halbe and Crawford<\/p>\n
    Bayley & Company which was acting for the Board of Trustees of the<\/p>\n
    Trust. In his letter dated 22nd October, 2007 Mr. Halbe seems to<\/p>\n
    have confused his role as an Administrator, with the role of an<\/p>\n
    arbitrator. Mr. Halbe proceeded to refer to Writ Petition 1201 of 2007<\/p>\n
    that was instituted by the Plaintiff before this Court as “my writ
\n    1 Volume 5 page 687.\n<\/p>\n
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\n                                                   23<\/span><\/p>\n
    petition” 2. Mr. Halbe stated that he was within his rights “to approach<\/p>\n
    parties” and justified his contacting the Plaintiff to the suit. In his<\/p>\n
    report dated 25th October, 2007 Mr. Halbe referred to a notice of 4th<\/p>\n
    September, 2007 addressed by the advocate who was appearing on<\/p>\n
    behalf of the Plaintiff and stated that the entries in the accounts upon<\/p>\n
    which the notice was based were said to be documented which he<\/p>\n
    had no reasons to disbelieve.\n<\/p>\n
    15.<\/p>\n
                 In a unilateral report dated 2nd January, 2008 submitted<\/p>\n
    again to the Judges of this Court Mr. Halbe referred to the complaint<\/p>\n
    of the Plaintiff that her room had been “bugged” and that the trust<\/p>\n
    meetings were being secretly photographed. While stating that he<\/p>\n
    was unable to offer comments on the complaint. Mr. Halbe stated<\/p>\n
    that all “said and done”, the Plaintiff “has been prevented from<\/p>\n
    interacting with any member of the staff under board resolution”.\n<\/p>\n
    16.          At this stage it would be necessary to note that a joint report<\/p>\n
    in terms of the order passed by the Supreme Court on 26th March,<\/p>\n
    2007 was submitted by the Administrators on 4th December, 2007. In
\n    2 Para 4 of the letter dated 26th October, 2007 (Vol V page 681)<\/p>\n
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\n                                        24<\/span><\/p>\n
    their report the Administrators observed that the working of the<\/p>\n
    Hospital was satisfactory. Annexed to the joint report is a statement<\/p>\n
    showing payments made between 20th November, 2007 to 3rd<\/p>\n
    December, 2007 and among them are payments made to the<\/p>\n
    advocates, Wadia Ghandy and Company. This statement forms part<\/p>\n
    of the report and evidently from the observation that the working of<\/p>\n
    the Hospital was satisfactory, Mr. Halbe found no reason to hold that<\/p>\n
    the payments were not warranted. Despite this, in a report dated 2nd<\/p>\n
    January, 2008 submitted by Mr. Halbe the very same payments which<\/p>\n
    form a part of the joint report were sought to be criticized. In a report<\/p>\n
    dated 5th February, 2008 again addressed by Mr. Halbe to the<\/p>\n
    Judges of this Court he made a grievance to the fact that some<\/p>\n
    company “by the name of Hospet & Company” has been appointed to<\/p>\n
    handle the day to day and policy matters of the Hospital without notice<\/p>\n
    to the Administrator.   In his report Mr. Halbe stated that this was<\/p>\n
    derogatory to the appointment of the Administrators by the Supreme<\/p>\n
    Court and the Trustees had by-passed the jurisdiction that has been<\/p>\n
    conferred upon the Administrators. The attention of the Court has,<\/p>\n
    however, been drawn to the fact that the payment of professional<\/p>\n
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\n                                        25<\/span><\/p>\n
    fees to the same entity in the amount of Rs.4,57,470\/- had, as a<\/p>\n
    matter of fact, been certified by Mr. Halbe under his own signature 3.\n<\/p>\n
    17.         On behalf of the Applicants a detailed chart has been<\/p>\n
    submitted before this Court to establish that almost every one of the<\/p>\n
    reports was submitted before        this Court or before the Charity<\/p>\n
    Commissioner so as to coincide with a hearing that was to take place<\/p>\n
    in a proceeding between the parties. The chart does in fact establish<\/p>\n
    the allegation. Fairly, in the submissions which were urged on behalf<\/p>\n
    of the Plaintiff, no attempt has been made at all to displace the<\/p>\n
    allegation or the correctness of the chart.\n<\/p>\n
    18.         That leads to    more serious aspect of the conduct of<\/p>\n
    Mr.Halbe.      On 10th March, 2008 Mr. Halbe submitted a report<\/p>\n
    addressed to the Judges of this Court. The report adverted to his<\/p>\n
    earlier reports in which he had furnished details of the background of<\/p>\n
    the Trust and the pending applications that have been filed under the<\/p>\n
    Bombay Public Trusts Act, 1950.         Several allegations have been<\/p>\n
    made in the report in regard to the siphoning of the funds of the Trust.
\n    3 Volume VII page 1078.\n<\/p>\n
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\n                                        26<\/span><\/p>\n
    On 7th March, 2008 a plaint was affirmed in this Court in a suit<\/p>\n
    instituted by Shri Rajiv K. Mehta, the son of the Plaintiff for the<\/p>\n
    recovery of monies alleged to have been siphoned away. The<\/p>\n
    allegation of the Applicants is that to the plaint which was verified and<\/p>\n
    affirmed on 7th March, 2008 was annexed a copy of the 5th report<\/p>\n
    which was issued only on 10th March, 2008.\n<\/p>\n
    19.
\n              The allegation against the Administrator being that he had<\/p>\n
    disclosed a report which was placed before this Court on 10th March,<\/p>\n
    2008 to one of the litigating parties even prior thereto and which<\/p>\n
    formed a part of the record of the suit which was affirmed on 7th<\/p>\n
    March, 2008 prima facie appeared to be of a serious nature.                   An<\/p>\n
    Administrator who is appointed by the Court to discharge certain<\/p>\n
    duties under the order of the Court is not a party to the lis since he is<\/p>\n
    not expected to have an interest in the subject matter of the<\/p>\n
    proceedings.     Nonetheless in the interest of fairness, it was<\/p>\n
    considered appropriate by this Court to issue directions on 26th<\/p>\n
    November, 2008 recording the allegations of fact and the submission<\/p>\n
    that the Joint Administrator had been acting in concert with the<\/p>\n
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\n                                       27<\/span><\/p>\n
    Original Plaintiff. This Court observed that the allegation was of a<\/p>\n
    serious nature and therefore before a conclusion could be arrived at<\/p>\n
    one way or the other by the Court, it was only appropriate and fair that<\/p>\n
    an opportunity should be given to the Joint Administrator to file an<\/p>\n
    affidavit explaining the circumstances in which the report dated 10th<\/p>\n
    March, 2008 came to be filed in proceedings before the Court in the<\/p>\n
    suit on 7th March, 2008.\n<\/p>\n
    20.<\/p>\n
              Mr. Halbe has filed two affidavits and has entered<\/p>\n
    appearance through counsel. A copy of the paper book was served<\/p>\n
    on counsel at his request. Learned Counsel appearing for Mr. Halbe<\/p>\n
    has participated in the proceedings and has been heard.\n<\/p>\n
    21.       In his affidavit dated 1st December, 2008 Mr. Halbe states<\/p>\n
    thus:\n<\/p>\n
              “I state that neither the draft nor formal copy of my
\n              representation to the High Court dated 10\/3\/2008 existed<\/p>\n
              on 7\/3\/2008 and there is no question of acting in concert
\n              with original Plaintiff, Mrs. C.K. Mehta in First Appeal
\n              No.2667 of 2007. The representation of 10\/3\/2008 was
\n              forwarded to the Prothonotary and Sr. Master on the same
\n              day and so were the copies to the parties.”\n<\/p><\/blockquote>\n
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\n            28<\/span><\/p>\n
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\n                                        29<\/span><\/p>\n
    22.       During the course of the hearing of these proceedings the<\/p>\n
    papers and proceedings of Suit No.1224 of 2008 were called for.\n<\/p>\n
    Certain uncontroverted facts have emerged before the Court. The<\/p>\n
    plaint was affirmed on 7th March, 2008 and the suit was lodged<\/p>\n
    thereafter on 11th March, 2008. In the Plaint as originally filed there<\/p>\n
    is a handwritten addition of paragraph 31A which makes a reference<\/p>\n
    to the report of Mr. Halbe. Exhibit Z-2 to the Plaint as originally filed<\/p>\n
    (corresponding to Exhibit N-2 of the plaint now on the record) is the<\/p>\n
    report of Mr. Halbe dated 10th March, 2008. Exhibit N-2 of the plaint<\/p>\n
    contains the signature    of the Court Associate, and the date 7th<\/p>\n
    March, 2008 below it. The endorsement of the Court Associate as<\/p>\n
    been made in accordance with the provisions contained in the High<\/p>\n
    Court Original Sides Rules viz. Rules 198 and 209. The record of this<\/p>\n
    Court therefore indicates that the report of Mr. Halbe dated 10th<\/p>\n
    March, 2008 came to be included, as part of         a plaint which was<\/p>\n
    affirmed before this Court on 7th March, 2008. The report bears an<\/p>\n
    endorsement in the writing of the Administrator of being addressed to<\/p>\n
    the Original Plaintiff Smt. C.K. Mehta. Mr. Halbe states on affidavit<\/p>\n
    that not even the draft or a formal copy of his representation dated<\/p>\n
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\n                                       30<\/span><\/p>\n
    10th March, 2008 were in existence on 7th March, 2008.                     The<\/p>\n
    Applicants have produced before the Court a receipt issued by the<\/p>\n
    stenographer of the Administrator originally dated 4th March, 2008;\n<\/p>\n
    thereafter corrected as 8th March, 2008 “for secretarial assistance in<\/p>\n
    preparation of report submitted to the High Court, Bombay in First<\/p>\n
    Appeal 2667, 2670, 2671 and 2672 all of 2007 and preparing copies<\/p>\n
    and dispatch”. The receipt of the stenographer which is annexed to<\/p>\n
    the affidavit of the Second Applicant dated 4th December, 2008 lends<\/p>\n
    credence to the submission of the Applicants that the affidavit filed by<\/p>\n
    the Administrator before this Court on 1st December, 2008 is<\/p>\n
    manifestly incorrect. In the Affidavit the Administrator has stated that<\/p>\n
    neither the draft nor a formal copy of his representation to this Court<\/p>\n
    dated 10th March, 2008 existed on 7th March, 2008. This is patently<\/p>\n
    contrary to the record that has emerged before the Court.\n<\/p>\n
    23.         During the course of the proceedings counsel appearing<\/p>\n
    for the Administrator stated before the Court that the order that was<\/p>\n
    passed by this Court on 26th November, 2008 was served on the<\/p>\n
    Administrator on 1st December, 2008. The attention of the learned<\/p>\n
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\n                                        31<\/span><\/p>\n
    counsel was, however, drawn to the fact that the stamp paper on<\/p>\n
    which the affidavit was engrossed was purchased in the name of Mr.<\/p>\n
    Halbe on 28th November, 2008. Mr. Halbe filed a second affidavit<\/p>\n
    before this Court in which he had the following explanation to offer of<\/p>\n
    the previous affidavit that was filed in these proceedings:\n<\/p>\n
              “In that regard, I have to state that my son Suhas –\n<\/p><\/blockquote>\n
              Chartered Accountant has been aware of the above
\n              proceedings about my removal since last couple of days.\n<\/p><\/blockquote>\n
              As the Head of MNC, he is required often to meet
\n              Advocates. He learnt about the order of 28.11.2008 when
\n              he was in the High Court in the early part of the day. He<\/p>\n
              therefore obtained the simple copy and informed me that I
\n              have to file affidavit on 2.12.2008. I asked him to purchase
\n              general stamp of Rs.100\/- immediately. He purchased
\n              stamp from nearby stamp vendor T.D. Jadhav at Vikhroli,
\n              where his office is located. The stamp paper is issued by<\/p>\n
              General stamp office, Mumbai on 21.11.2008 to stamp<\/p>\n
              vendor and it is purchased by me on 28.11.2008. In order
\n              not to miss date, I prepared the affidavit on 1.12.2008 and
\n              got it filed before the Court on 2.12.2008.”\n<\/p><\/blockquote>\n
    24.       Judgments and orders of this Court are converted in the<\/p>\n
    electronic form and loaded on the Internet.       The Court maintains<\/p>\n
    records of the uploading of the orders of the Court. Orders of the<\/p>\n
    Court are uploaded immediately after they are signed. The relevant<\/p>\n
    register in this regard has been produced for the perusal of the<\/p>\n
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\n                                         32<\/span><\/p>\n
    learned counsel and it clearly shows that the order of this Court was,<\/p>\n
    as a matter of fact uploaded on the Internet and was made available<\/p>\n
    only on 29th November, 2008. The explanation of the Administrator<\/p>\n
    that his son had obtained a simple copy of the order on 28th<\/p>\n
    November, 2008 is therefore manifestly untrue.            Counsel for the<\/p>\n
    Administrator urges that this is unrelated to his conduct as an<\/p>\n
    Administrator. The fact remains that the Administrator has furnished<\/p>\n
    an explanation on affidavit to this Court which is palpably untrue.\n<\/p>\n
    Defining norms for behaviour<\/p>\n
    25.        Assumption of judicial office brings with it a way of life that<\/p>\n
    is associated with values which many in the world outside may find<\/p>\n
    onerous.       But judicial office commands the dignity which it holds<\/p>\n
    precisely for that reason. The values which a judge must follow in<\/p>\n
    personal life and in the performance of duties are defining features of<\/p>\n
    that office.    Chief amongst them is integrity.     A judge’s sense of<\/p>\n
    integrity is not relative to the prevailing morals in society. That is why<\/p>\n
    a fall in ethical standards in the world around can furnish no<\/p>\n
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\n                                         33<\/span><\/p>\n
    justification for a judge to seek recourse to expediency.             Absolute<\/p>\n
    integrity is the standard which judges must observe.              Any lesser<\/p>\n
    standard is unacceptable. Constitutional legitimacy is founded on the<\/p>\n
    independence of the judge. Democratic legitimacy is founded on the<\/p>\n
    credibility of the judge. For that sense of credibility to sustain, society<\/p>\n
    is entitled to demand from judges a standard of absolute integrity.\n<\/p>\n
    The insulation of the office, the carefully crafted constitutional<\/p>\n
    judicial independence.\n<\/p>\n
    provisions and the traditions of the Bench contribute to protecting<\/p>\n
                                A judge in office      dons robes, but the<\/p>\n
    obligation which a judge assumes to be impartial and fair as a public<\/p>\n
    person does not cease on the day that the robes are laid down.\n<\/p>\n
    Judges after they lay down office are equally subject to the rigours of<\/p>\n
    a way of life that by reason of its austerity commands the respect of<\/p>\n
    society. Upon laying down office, judges are in fact deprived of the<\/p>\n
    familiar safety of the isolation which protects the judge from the rough<\/p>\n
    and tumble     of life.   But however difficult, the norm         of absolute<\/p>\n
    integrity must continue to be the standard which every individual who<\/p>\n
    is or has been a judge must follow. That is indeed one, if not the<\/p>\n
    principle reason, why judging is not for the faint hearted. Judging and<\/p>\n
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\n                                        34<\/span><\/p>\n
    the underlying values of being objective, fair and honest to one’s<\/p>\n
    conscience is what sanctifies the path, every moment of our lives.\n<\/p>\n
    Cease to be fair and honest and you cease to have a conscience.\n<\/p>\n
    Above all, it is the conscience that a Judge answers.\n<\/p>\n
    26.         The Administrator in the present case is a Former Judge<\/p>\n
    of this Court. Counsel appearing for the Plaintiff urges that the role of<\/p>\n
    an Administrator cannot be equated with the role of an Arbitrator or a<\/p>\n
    Judge. An Administrator does not decide a lis nor does he deliver a<\/p>\n
    judgment or an award. But equally there can be no dispute about the<\/p>\n
    fundamental position that when a retired Judge of the Court is<\/p>\n
    appointed as an Administrator, he or she is appointed by virtue of the<\/p>\n
    credentials of independence, impartiality and integrity which is<\/p>\n
    associated with the office of a Judge of the High Court which was<\/p>\n
    held at one time. When parties litigate over the control of institutions<\/p>\n
    such as public trusts, the interests of the body which they are<\/p>\n
    intended to subserve are liable to be sacrificed at the altar of an<\/p>\n
    internecine dispute. An Administrator is appointed under an order of<\/p>\n
    the Court because of the objectivity and impartiality with which he is<\/p>\n
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\n                                        35<\/span><\/p>\n
    expected to discharge his duties particularly when he happens to be a<\/p>\n
    Former Judge of the High Court. Therefore, the submission which<\/p>\n
    has been urged on behalf of the Plaintiff that an Administrator cannot<\/p>\n
    be impartial as a Judge cannot warrant scrutiny.\n<\/p>\n
    27.       The material which has been placed on the record clearly<\/p>\n
    establishes that the Administrator has transgressed the bounds of his<\/p>\n
    authority defined by the terms of the order under which he came to be<\/p>\n
    appointed. The order passed by the Supreme Court on 26th March,<\/p>\n
    2007 required the Administrator to act as a Joint Administrator with<\/p>\n
    Dr. Trivedi. As a Joint Administrator he was appointed to look after the<\/p>\n
    day to day management of the Hospital. The Administrator had no<\/p>\n
    role to play in regard to the pending litigation between the Trustees of<\/p>\n
    the Trust which controls the Hospital. Unfortunately, Mr. Halbe<\/p>\n
    transgressed the limits of his authority by submitting reports not jointly<\/p>\n
    with Dr. Trivedi as envisaged in the order of the Supreme Court, but<\/p>\n
    unilaterally in litigation involving the Trustees. The timing and content<\/p>\n
    of the reports indicates that the object of the submission of the reports<\/p>\n
    was to influence the outcome of proceedings between the Trustees.\n<\/p>\n
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\n                                       36<\/span><\/p>\n
    This is unfortunate because the disputes between the Trustees had to<\/p>\n
    be resolved not by the instrumentality of one of the Joint<\/p>\n
    Administrators but by recourse to proceedings in a duly constituted<\/p>\n
    forum.   The Administrator has failed to discharge his duties with<\/p>\n
    impartiality and a degree of objectivity. The contents of the affidavits<\/p>\n
    filed by him in these proceedings are belied by the record.\n<\/p>\n
    28.
\n              It is with a degree of anguish that this Court has had to<\/p>\n
    advert to the circumstances bearing on the conduct of Mr. Halbe as<\/p>\n
    Joint Administrator. Anguished as I was with the facts as they have<\/p>\n
    emerged from the record before the Court, I considered it appropriate<\/p>\n
    to inquire with the learned counsel appearing on behalf of the<\/p>\n
    Administrator as to whether, without the Court being required to go<\/p>\n
    into the allegations that have been levelled against him, he would<\/p>\n
    seek to demit his office with the dignity that is to be expected from<\/p>\n
    a person in his position. Learned Counsel repeatedly stated before<\/p>\n
    the Court that the Administrator would desire that he should be cross<\/p>\n
    examined in these proceedings and that he should be impleaded as a<\/p>\n
    party.   The Administrator has been given an adequate and fair<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>
\n                                       37<\/span><\/p>\n
    opportunity to place before the Court his side of the picture. Since<\/p>\n
    despite a fair opportunity he has persisted in his desire to continue as<\/p>\n
    an Administrator, the hearing of the Civil Application has proceeded<\/p>\n
    on merits, and the judgment has ensued.\n<\/p>\n
    29.       Counsel appearing on behalf of the Plaintiff urged that this<\/p>\n
    Court ought not to exercise its jurisdiction on an application which<\/p>\n
    has been moved by a suspended trustee again whom charges have<\/p>\n
    been framed by the Charity Commissioner. The submission cannot<\/p>\n
    be accepted.   The framing of charges, as was submitted on behalf of<\/p>\n
    the Applicants is subject to a Letters Patent Appeal which is pending<\/p>\n
    before a Division Bench of this Court. But, that apart, once this Court<\/p>\n
    has come to the conclusion that the Administrator has failed to<\/p>\n
    discharge his duties impartially and has entered upon the arena of<\/p>\n
    conflict by siding with one of the parties to the dispute, relief cannot<\/p>\n
    be denied merely because charges have been framed against one of<\/p>\n
    the Applicants by the Charity Commissioner. The framing of those<\/p>\n
    charges would not deprive the litigating parties of the basic assurance<\/p>\n
    that the Administrator must be impartial and fair. Our jurisprudence<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>
\n                                        38<\/span><\/p>\n
    does not deprive a party to a dispute of the right to receive fair<\/p>\n
    treatment   merely    because    charges    against     him      are      under<\/p>\n
    investigation. Insofar as the question of conduct is concerned, Mr.<\/p>\n
    Seervai, learned Senior Counsel has fairly disassociated himself from<\/p>\n
    supporting certain acts which are attributable to the conduct of the<\/p>\n
    litigation. An advocate practicing before this Court since July 1983<\/p>\n
    has filed an affidavit in these proceedings relating to Suit No.1224 of<\/p>\n
    2008 filed in this Court by the Eleventh Respondent. It appears from<\/p>\n
    the affidavit that after the plaint was lodged before this Court, a new<\/p>\n
    plaint was redrafted with material changes and the earlier plaint which<\/p>\n
    had been filed was surreptitiously removed from the records of the<\/p>\n
    Court.   That any party to a proceeding before this Court can be<\/p>\n
    audacious enough to spirit away papers in a proceeding which has<\/p>\n
    been lodged in the Court and to substitute a new plaint for an earlier<\/p>\n
    plaint which has been lodged – all without the leave of the Court – is a<\/p>\n
    matter for grave concern. This is therefore not a case where the<\/p>\n
    Court can decline relief on the ground of the conduct of one party. A<\/p>\n
    case has been made for the removal of Mr. A.A. Halbe, the Joint<\/p>\n
    Administrator and the grant of relief would have to follow.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>
\n                                       39<\/span><\/p>\n
    30.       For the aforesaid reasons Mr. A.A. Halbe will have to be<\/p>\n
    removed as one of the Joint Administrators. There shall accordingly<\/p>\n
    be an order in these terms.       At the same time the affairs of the<\/p>\n
    Hospital cannot be allowed to deteriorate in the face of the internal<\/p>\n
    disputes between the Trustees. The circumstances which led to the<\/p>\n
    appointment of the Administrators pending the disposal of the suit<\/p>\n
    continue to subsist, as observed in the order of this Court dated 15th<\/p>\n
    February, 2008. In these circumstances, it will be appropriate for this<\/p>\n
    Court to direct the appointment of a substitute Joint Administrator<\/p>\n
    instead and in place of Mr. A.A. Halbe.       The Hon’ble Mr. Justice<\/p>\n
    S.P. Kurdukar,   Former Judge of the Supreme Court of India has<\/p>\n
    consented to act as a Joint Administrator and shall accordingly stand<\/p>\n
    appointed as a Joint Administrator instead and in place of Mr. A.A.\n<\/p>\n
    Halbe. The appointment shall be on the same terms and conditions.\n<\/p>\n
    The Civil Application is accordingly disposed of.\n<\/p>\n
    31.       Mr.Seervai applies for a stay of the order removing Mr.A.A.\n<\/p>\n
    Halbe. The stay cannot be granted. In view of the reasons that have<\/p>\n
    led to the removal of the Joint Administrator,             the same Joint<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>
\n                                      40<\/span><\/p>\n
    Administrator cannot be permitted to continue.     Moreover, by this<\/p>\n
    order, the regime of the Joint Administrators has not been disturbed<\/p>\n
    and a former Judge of the Supreme Court has been appointed in<\/p>\n
    place of the earlier Joint Administrator.   Parties cannot have any<\/p>\n
    preference in regard to a particular name. In the circumstances, stay<\/p>\n
    is refused.\n<\/p>\n
                                    *****<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:09:13 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Lilavati Kirtilal Mehta Medical … vs Charu K. Mehta And Others on 17 December, 2008 Bench: Dr. D.Y. Chandrachud 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4905 OF 2008 IN FIRST APPEAL NO.2667 OF 2007 Lilavati Kirtilal Mehta Medical Trust and another ..Applicants. Vs. Charu […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-262671","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLilavati Kirtilal Mehta Medical ... vs Charu K. 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