Recusal of Justice Riyaz Chagla from a high profile case gives rise to many questions.

 

Recusal of Justice Riyaz Chagla from a high profile case gives rise to many questions.

The case was fixed for hearing on application to initiate contempt action against  members of Azad Nagar Co operative society for dealing with Godrej Properties Ltd. whilst their prayer was not accepted by the Court on previous occasion due to objection raised by the East & West Developers - a sister concern of RNA Builders.

A Division Bench of the Bombay High Court, earlier in the case of Godrej and Boyce Manufacturing Co. Pvt. Ltd. 1992 Cri. L. J. 3752, had directed prosecution against directors of Godrej Boyce for playing fraud upon High Court and committing offences of forgery and perjury.

Mumbai: Today, Justice Riyaz Chagla has recused from the case which is primarily related to the Petition for taking action under Contempt against the member of Azad Nagar Society for their dealing with the Godrej Properties Ltd whilst their prayer was not accepted by the Court on previous occasion. And when the legality of the impugned judgment passed by Justice Gautam Patel is still subjudice before the Division Bench of Justice S.J. Kathawalla and Justice Riyaz Chagla.

The application has also prayed for action against Advocate for Azad Nagar Society in Writ Petition No. 241 of 2020.

HEARING HELD ON 06.10.2020:-

1.   Today, two matters were listed before the Division Bench of Justice S. J. Kathawalla & Justice Riyaz Chagla :

i)             Sr. No. 47: Appeal No. 78 of 2020 filed by M/s East & West Developers (sister concern of RNA Builders) for setting aside the order passed by Justice G. S. Patel alongwith the application for action under contempt against the society members

ii)           Sr. No. 51: Writ Petition No. 241 of 2020 filed by Azad Nagar Society.

 

2. When the matter came up for hearing, the Court asked the Host (Technical Head of the VC hearing) to close the screen and mute the microphone for a while. The counsel for the parties were asked to wait for sometime.

After a while, the screen was back and the Court passed the order that, Justice Riyaz Chagla was recusing from the case and the matter  shall not be listed before the Bench of which Justice Chagla is a member.

 

3. The case is related with the project at Subhash Nagar at Chembur. which was taken by RNA group for redevelopment. It has a total FSI of around 40 Lakh Sq. ft. and stakes involved are around Rs. 5000 crores upon completion of the project.

The counsel for RNA group, Adv. Nilesh Ojha informed the reporters that Justice Riyaz Chagla should have disclosed the reason for his recusal.

In Supreme Court Advocates-On-Record Association (2016) 5 SCC 808, a Constitution Bench had observed as under;

               ‘‘77.Theaboveprinciplesareuniversalinapplication.Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting theintegrityoftheofficeofaJudgeinconductinghisdutiesandthe functioningofthecourt.Thelitigantswouldalwaysliketoknowthough they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which theJudgedoesnotwanttodisclose,hehasdecidedtorecusehimself from hearing thecase.’’

He said, if the reason is not given then, it will give rise to many doubts as to why all of a sudden, the Judge does not want to hear the case when prosecution is sought against the society members working for the benefit of Godrej  Properties Ltd. .

Earlier, in a different matter, Justice Rohinton Narimanand Justice Vineet Saran of Supreme Court had recused from the case related with Adv. Nilesh Ojha by giving the reason thatsince  Mr. Ojha and few other persons had filed criminal case against Justice Nariman& his father, therefore he had recused.

Several Judges have recused themselves from hearing the cases where Mr. NileshOjha is appearing. But there are reasons for each case and not providing reasons for recusal is somewhat objectionable.

Justice D.R. Dhanuka had recused from the cases represented by  Adv. NileshOjha because he is representing as a counsel for Justice Dhanuka’s uncle.

Justice NareshPatil had recused from the case as his connection with accused were pointed out by Adv. NileshOjha in a property case with stake of 10,000 Crore.

Then Chief Justice Mohit Shah and Justice B.P. Collabawalla keep themselves away from the hearing of the case between Nilesh Ojha Vs. Chief Justice Mohit Shah bearing Cri. Writ Petition No. 4767 of 2014 arising from the case of NileshOjha Vs. State 2014 SCC OnLineBom1655 as both the Judges were party respondent and accused.

Justice RoshanDalvi had recused from the case related with a property at Marine drive where there were allegations that her husband had demanded Rs. 25 lakhs as bribe for a favourable order. The Judge had recused after a request for recusal as per provisions of section 14(2) of the Contempt of Courts Act was filed.

Justice Z. A. Haq had recused from his case due request of recusal as the reference of contempt was by the same Judge sitting as a single Judge and as per law he could not have presided over the Division Bench.

Justice A.K. Menon had recused because Mr. Ojha sought the sanction to prosecute  Justice A.K. Menon for creating forgery of Court records.

Recently Justice  S.S. Shinde recused from the case, but he too had not assigned the reason of recusal.

In the case related with Adv. AniketNikam,Justice SadhnaJadhav had recused from the case by giving the reason that accused had approached her.

 

BRIEF HISTORY OF THE CASE:

As per the version of developer the company M/S EAST & WEST DEVELOPERS, the sister concern of  RNA Corp. has been appointed as a developer in the said redevelopment project at Subhash Nagar, Chembur. The said developer has invested Rupees 100 crores in the project. When the project was about to commence, there arose some minor dispute regarding rent to be paid to the tenants. The Developer was about to settle the said dispute, but  some mischievous elements, under instigation by some business rivals, had started creating confusion and misunderstanding between the developer and the tenants. The Society then approached the High Court by filing a Suit. The said suit was disposed off after filing ‘consent terms’. Thereafter creating an issue of default of consent terms the society instead of filing execution of the said decree, straightaway filed the Contempt Petition.  When matter came up before Justice G.S. Patel, then in the said contempt proceedings, Justice G. S.Patel passed some additional directions regarding the development rights of the society. Based on the said order, various further orders were passed by the Justice N.J. Jamdar, including the notice for contempt.

All the said orders are challenged by M/S EAST & WEST DEVELOPERS by way of an appeal challenging all orders including the basic order passed by Justice G.N. Patel in Contempt Petition No.(L) 174 of 2019  dated 28^th August, 2018, where  Justice G.S. Patel  formulated a default provision in the contempt proceedings regarding the issue of rent to be paid to the society members.

The main ground for challenge is that  as per law laid down by the Constitution Bench and Full Bench of the Supreme Court  in SudhirVasudeva (2014) 3 SCC 373 and reiterated in a recent judgment in K. Armugam Vs. Balkrishnan 2019 SCC OnLine SC 134, the Judge hearing the case of Contempt proceedings cannot go beyond the scope of the original order of which contempt is alleged and therefore the order passed by Justice G. S. Patel in Contempt Petition No.(L) 174 of 2019  dated 28^th August, 2018 and all the subsequent orders are vitiated and are null and void and hence, liable to be set aside. 

It is further contention of the Counsel for Appellant that, their client has spent around Rupees 143 crore on the said project and his rights cannot be taken away without following the due procedure of law and following principles of natural justice where he has a fundamental right to be heard and the principles of audialterimpartem cannot be bypassed by any Court. In support of his contention he has relied upon the various judgments of the Supreme Court.

The Registry took the objection that the Appellant should file separate appeal for each order.

This issue came up before the  Division Bench of  ‘Justice S. J. Kathawalla and Justice RiyazChhagla’ on 15^th September 2020. Adv. NileshOjha, Counsel for RNA Builders, pointed out to the Court that as per recent judgment of Supreme Court in the case of P. Surendranvs State By Inspector Of Police (2019) 9 SCC 154, had ruled that the act of numbering a petition is purely administrative. The objections taken by the High Court Registry on the aspect of maintainability, requires judicial application of mind by utilizing appropriate judicial standard. Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court. The power of judicial function cannot be delegated to the Registry.

In the said judgment it is ruled by the Supreme Court that;

“A Constitution Bench of five judges in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677, formulated the following criteria to ascertain whether a decision or an act is judicial function or not, in the following manner­;

(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre­existing legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.

(emphasis added)

The act of numbering a petition is purely administrative. ”

The  said  submission was opposed by Adv. Karl Tamboly representing the respondent Azad Nagar co-op Society.

But the Division Bench accepted the submission of Appellant that said issue can be decided by the Court and not by the Registrar.

The order reads thus;

"1. The objection raised by the office that the Appellant ought to have filed independent Appeals with regard to each of the orders impugned in the above Appeal, shall be decided by this Court. As regards the other objections raised, the same shall be removed by the Advocate for the Appellant within a period of two weeks from today.

2. Stand over to 5th October, 2020. "

 

CONTEMPT APPLICATION AGAINST AZAD  NAGAR CO-OP SOCIETY.

The Azad  NagarCo-op Society moved an application in contempt proceedings and asked the court to invoke the default clause to terminate the developer from the scheme. Justice N. J. Jamadar had called for the response from the MCGM. The MCGM did not accept the said request and  cancelled the Letter of Intent dated 7^th March 2005. Said order is challenged by  both the parties.  The Azad  Nagar Co-op Society wants restoration of LOI with permission to appoint new developer. The Appeal filed by M/S EAST & WEST DEVELOPERS prays for restoration of his position as prior to the impugned judgment.

When the Writ Petition No. OS-WP-LD- VC- NO. 241 OF 2020, filed by the society came for hearing on 24TH AUGUST, 2020 before Hon’bleDivision Bench (Corum: Shri Justice S. J. Kathawalla&Shri JusticeMadhav J. Jamdar).

The counsel for Society Mr. MilindSathe requested for interim relief which is as under;

“(c) thatpending the hearing and final disposal of the present Petition, this Hon'ble Court be pleased -

(i) to stay the operation, implementation and enforcement of the order dated 26th February 2020 (Exhibit "S");

(ii) to direct the Respondents to allow the Petitioners to redevelop the subject property pursuant to the Letter of Intent dated 7th March 2005; ”

The said request was objected by Counsel Mr. NileshOjha, who is  representingthe Developer, by taking a ground that  since the impugned order was under challenge in Appeal No. 78 of 2019, therefore no relief can be granted till decision of the said appeal. In support of his submission Mr. Ojha pointed out the law settled by the Seven Judge Bench of Supreme Court.

The Division Bench accepted the contention of Developer and refused to grant any interim relief to the society and adjourned the case for 14th September, 2020.

 

Even when if the request of society was rejected, the society, by suppressing the said fact, had called  a meeting for passing resolutions and for taking further decisions and steps for appointing another developer. Therefore, the Developer had filed an application for taking action of Contempt against the society calling the said act of society as a gross contempt. In the Interim Application filed by the Developer Shri. Anubhav Agarwal of East & West Developers, it is specifically prayed that action be taken against the society members  under contempt and under sections 192,193,471,474 r/w 120(B ) and 34 of I.P.C.

 

However Justice RiyazChhagla has recused from hearing of the case for reasons not disclosed as yet.