Case Note & Summary
The petitioner, Kishor Kirtilal Mehta, was a permanent trustee of the Lilavati Kirtilal Mehta Medical Trust. The Assistant Charity Commissioner, by a letter dated 29 September 2004 addressed to the Trust, stated that the petitioner could not continue as trustee due to a serious complaint and his departure from India without permission under the Bombay Public Trusts Act, 1950. The letter directed the Trust to take appropriate steps and file a compliance report. Pursuant to this, the Trust removed the petitioner on 6 October 2004. The petitioner challenged the order primarily on the ground that it had adverse civil consequences and was passed without any notice or opportunity of hearing. The respondents contended that the impugned communication was merely a letter, not an order. The court rejected this contention, noting that the letter used mandatory language and was treated as an order by the Trust, which acted upon it to remove the petitioner. The court held that the order had serious civil consequences for the petitioner and violated the principles of natural justice, specifically the rule of audi alteram partem. The Assistant Charity Commissioner did not dispute the absence of notice. The court set aside the order and directed that the petitioner be restored as trustee, with liberty to the respondents to proceed in accordance with law after giving due notice.
Headnote
A) Administrative Law - Natural Justice - Audi Alteram Partem - Bombay Public Trusts Act, 1950 - Order directing removal of trustee without show cause notice - Held that any order having adverse civil consequences must be preceded by a notice and opportunity of hearing; failure to do so renders the order void (Paras 2-6).
Issue of Consideration
Whether an order of the Assistant Charity Commissioner directing removal of a trustee without prior notice and opportunity of hearing is valid.
Final Decision
The court allowed the petition, set aside the order dated 29.9.2004, and directed that the petitioner be restored as trustee. Liberty granted to respondents to proceed in accordance with law after giving due notice.
Law Points
- Natural justice
- audi alteram partem
- civil consequences
- order vs letter
- Bombay Public Trusts Act 1950
Case Details
2005 LawText (BOM) (10) 87
Writ Petition No.5099 of 2005
Mr.D.J.Khambata, Senior Advocate, with Mr.T.N. Tripathi for the petitioner; Ms V. Mhaispurkar, Asstt. Govt. Pleader for respondent nos.1 and 14; Mr.R.A.Dada with Mr.Shyam Diwan, Senior Advocates, and Mr.Chetan Kapadia i/b. Nankani & Associates for respondent nos.2 to 11; Mr.K.L.Kharva for respondent nos.12 and 13
The Asst. Charity Commissioner & Ors.
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Nature of Litigation
Writ petition challenging order of Assistant Charity Commissioner directing removal of trustee.
Remedy Sought
Petitioner sought quashing of the order dated 29.9.2004 and restoration as trustee.
Filing Reason
Order was passed without notice and opportunity of hearing, violating principles of natural justice.
Previous Decisions
Assistant Charity Commissioner's order dated 29.9.2004; Trust removed petitioner on 6.10.2004.
Issues
Whether the impugned communication is an order or a mere letter.
Whether the order was passed in violation of natural justice.
Submissions/Arguments
Petitioner: The order has adverse civil consequences and was passed without notice or opportunity of hearing.
Respondents: The communication is a mere letter, not an order; no notice required.
Ratio Decidendi
Any order having adverse civil consequences must be preceded by a notice and opportunity of hearing; failure to do so violates principles of natural justice and renders the order void.
Judgment Excerpts
The impugned order is challenged primarily on the ground that it has had adverse civil consequences on the petitioner and has not been preceded by a notice to the petitioner to show cause against the impugned order.
It is difficult to accept this contention in view of the terms of the order which, though in the form of a letter, states as follows:- 'In this circumstances, Mr.Kishore Mehta can not continue to be trustee of the above mentioned trust. You are therefore, directed to take appropriate steps in the matter and file compliance report of this office immediately.'
Procedural History
Assistant Charity Commissioner passed order dated 29.9.2004; Trust removed petitioner on 6.10.2004; petitioner filed writ petition in 2005; heard and decided on 3.10.2005.
Acts & Sections
- Bombay Public Trusts Act, 1950:
