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.
The application has also prayed for
action against Advocate for Azad Nagar Society in Writ Petition No. 241 of 2020.
HELD ON 06.10.2020:-
1. Today, two matters were listed
before the Division Bench of Justice S. J. Kathawalla & Justice Riyaz Chagla
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
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
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
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.
Dhanuka had recused from the cases represented by Adv. NileshOjha because he is representing as
a counsel for Justice Dhanuka’s uncle.
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.
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
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.
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.
Menon had recused because Mr. Ojha sought the sanction to prosecute Justice A.K. Menon for creating forgery of
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.
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 28th 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 28th 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 15th 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
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
But the Division Bench accepted the submission
of Appellant that said issue can be decided by the Court and not by the
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. "
APPLICATION AGAINST AZAD NAGAR CO-OP
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 7th
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.
The counsel for Society Mr.
MilindSathe requested for interim relief which is as under;
thatpending the hearing and final
disposal of the present Petition, this Hon'ble Court be pleased -
to stay the operation, implementation and enforcement of the order dated 26th
February 2020 (Exhibit "S");
to direct the Respondents to allow the
Petitioners to redevelop the subject property pursuant to the Letter of Intent
dated 7th March 2005; ”