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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO.23881 OF 2024

HDFC Bank Limited & Ors. .. Petitioners

Versus

State of Maharashtra & Ors. .. Respondents

…

Mr.Shirish Gupte, Senior Advocate with Mr.Kevic Setalvad,

Senior Advocate, Mr.Dharam Jumani, Mr.Jehan Lalkaka,

Mr.Mihir Nerurkar, Ms.Prapti Kedia, Mr.Rushikesh Dusane,

Ms.Neha Ravlela, Mr.Amit Singh and Ms.Anasamah Sayed i/b

Agama Law Associates for the Petitioners.

Ms.Sheetal Malvankar, AGP for the Respondent/State.

Mr.A.Y.Sakhare, Senior Advocate with Mr.Rohan Mirpury i/b

Mr.Yogesh Patil for the Respondent No.2.

Mr.Abad Ponda, Senior Advocate with Mr.Kushal Mor,

Mr.Marmik Shah, Mr.Abhishek Prabhu, Mr.Asim Mohd.

Mr.Chitlesh Dalmia, Ms.Jyoti Ghag and Mr.Shailesh Prajapati

i/b Dua Associates for the Respondent No.3.

...

CORAM: BHARATI DANGRE &

MANJUSHA DESHPANDE, JJ.

DATED : 18

th

SEPTEMBER, 2024

JUDGMENT (Per Bharati Dangre, J.) :-

1. Petitioner No.1, a banking company, incorporated and

registered under the Companies Act, 1956 alongwith its

Managing Director and Chief Executive Of�cer, Group General

Counsel, Head of Department of Special Operations and an

employee, have approached this Court, seeking issuance of

M.M.Salgaonkar

MANDIRA MILIND

SALGAONKAR

Digitally signed by MANDIRA

MILIND SALGAONKAR

Date: 2024.09.23 22:27:59 +0530 2024:BHC-OS:14485-DB

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writ of certiorari or a writ, order or direction in the nature of a

writ of certiorari for quashing and setting aside the impugned

notice dated 23/07/2024 issued by Respondent No.2-

Maharashtra State Minorities Commission (hereinafter

referred to as, “Minorities Commission”), asking them to

attend the hearing, scheduled before it on 01/08/2024.

A writ of prohibition or a writ, order or direction in the

nature of writ of prohibition is also sought restraining

Respondent No.2 from entertaining and/or proceeding with

the hearing of the impugned complaint.

2. On the Petition being listed before us on 01/08/2024, the

learned senior counsel representing the Minorities

Commission informed us that the hearing was re-scheduled to

02/09/2024 and pursuant thereto, upon the af�davits being

�led by the Respondents, we have taken up the Petition for

hearing.

3. We have heard learned senior counsel Mr.Shirish Gupte

alongwith learned senior counsel Mr.Kevic Setalvad i/b Aagma

Law Associates for the Petitioners, whereas learned senior

counsel Mr.Anil Sakhare alongwith Mr.Rohan Mirpury has

represented Minorities Commission. Respondent No.3-the

Complainant, who has lodged the complaint with Minorities

Commission, is represented by learned senior counsel Mr.Abad

Ponda alongwith Mr.Kushal Mor and Mr.Marmik Shah.

The State of Maharashtra is represented by Ms.Sheetal

Malvankar, the learned Assistant Government Pleader.

By consent of the parties, it is agreed to take up the

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Petition for �nal hearing at the stage of admission and the

learned counsel are heard in support of their stand adopted in

the Petition.

4. On 22/07/2024, Respondent No.3-Mr.Rajesh Mehta,

projecting himself to be the permanent trustee of Lilavati

Kirtilal Mehta Medical Trust (hereinafter referred to as,

“LKMM Trust”) lodged a complaint with Vice Chairperson of

Minority Commission, State of Maharashtra, Mumbai alleging

severe harassment and mental torture caused to him and his

late father Mr.Kishor Mehta, an eminent person belonging to

Jain Minority Community, by the Senior Management and

Recovery Department of HDFC Bank, allegedly in collusion

with the erstwhile trustees of LKMM Trust and attributing

that this harassment caused death of Mr.Kishor Mehta on

20/05/2024.

The complaint alleged that his family was engaged in a

�erce litigation with erstwhile trustees of LKMM Trust, with

regard to the control of LKMM Trust and Lilavati Hospital for

last two decades and the legal battle was carried upto the

highest Court and pursuant to the order dated 18/09/2023

passed by Hon’ble Supreme Court of India, the Assistant

Charity Commissioner vide his order dated 14/12/2023,

rejected the claim of trusteeship of the erstwhile trustees,

thereby �nally giving his family the opportunity to take over

the management and control of LKMM Trust and Lilavati

Hospital. It is also stated in the complaint that in the year

2002, HDFC Bank Ltd, being part of consortium of banks, had

initiated the recovery proceedings against the borrower

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company, M/s Beautiful Diamonds Ltd. (now Splendour Gems

Ltd.) and his late father Mr.Kishor Mehta, in which he himself,

were arraigned as the Defendants. In 2004, HDFC Bank Ltd.

was successful in getting the Recovery Certi�cate for an

amount of Rs.14.74 crores from Debts Recovery Tribunal,

Mumbai against the borrower company, Mr.Mehtas and other

Defendants.

The complaint further alleged that after issuance of the

Recovery Certi�cate, the properties mortgaged by the

borrower company came to be auctioned and till date property

worth Rs.84 crores approximately, belonging to the borrower

company, guarantors and mortgagors have been auctioned and

sold by the consortium member banks. It is also alleged that

HDFC Bank received an amount of Rs.45 Lakhs, being part of

the consortium, which substantiate the contention of the bank

that it is entitled to receive or has received money recovered

by consortium member banks.

5. It is alleged that despite auction of properties, in the year

2017-18, HDFC Bank started recovery proceedings against the

Defendants and several other allegations are further contained

in the complaint involving HDFC Bank, by alleging that

substantial deposits were made by the illegal trustees with

HDFC Bank through LKMM Trust in a clandestine manner,

without obtaining mandatory approvals. It is further alleged

that the erstwhile illegal trustees, their lawyers and advisors

perceived late Mr.Kishor Mehta and his family members as a

threat and in order to neutralize this threat, they acted in

collusion with HDFC bank and the various acts of the illegal

trustees defrauded the LKMM Trust, thereby making the

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charitable trust a victim of their endeavours. It is also alleged

that the Senior Management of HDFC Bank acted hand in glove

with erstwhile illegal trustees to effect severe mental and

physical harassment and an application was �led before the

Debts Recovery Tribunal, Mumbai, seeking closure of the

recovery proceedings on the ground of Recovery Certi�cate

being satis�ed, which is still pending.

In paragraphs 16 and 17, the Complainant has

speci�cally pleaded as under :-

“16. Further, HDFC Bank also is not coming forward with the

information as to what are the communications exchanged between

them and the consortium member banks and why they are not

willing to write to the consortium member banks to take their share

from the recoveries made through auction and sale of properties if

the share is not already received by HDFC Bank. Rather than

taking this recourse and making recoveries, HDFC Bank is only hell

bent on arresting me even till date.

17. It is further important to mention here that, at the time when

HDFC bank was ferociously pursuing litigation against my late

father and asking for his arrest and incarceration, Mr.Kishor Mehta

was 86 year old individual who was suffering from Gangrene and

�brosis in lungs. In the past he had undergone Triple Bypass

Surgeries and spine surgeries and therefore was con�ned to

wheelchair. As on 17.04.2024, he had undergone amputation of his

right foot due to the spread of gangrene and is in and out of ICU

since past many months. Due to his medical condition, he had not

been in any fruitful employment nor had been working otherwise

since past more than 15 years. The day to day activities and

�nances of Mr.Kishor Mehta were supported by his kith and kin and

he has no means of income since past more than 15 years.”

6. The complaint preferred by Respondent No.3 to Minority

Commission, thus pleaded that the erstwhile illegal trustess

and the Senior Management and Recovery Department

hatched a conspiracy against late Mr.Kishor Mehta and the

Complainant and it is alleged that they were responsible for his

demise.

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Alleging that HDFC Bank has caused serious mental and

physical harassment to the members of the minority

community, a request is made to conduct an inquiry for gross

professional misconduct by the of�cers of the Bank and they

should be punished, if found guilty of the misconduct and

illegalities.

7. On receipt of this complaint, the Minorities Commission

through its Secretary, on 23/07/2024, issued a notice to the

Managing Director and Chief Executive Of�cer of HDFC Bank,

informing that hearing of the complaint is scheduled on

01/08/2024 in the of�ce of the Commission and, the presence

of the Noticee was sought alongwith the necessary papers.

Being aggrieved, the present Petition is �led seeking the

reliefs mentioned as above and the premise on which, the

argument advanced, is lack of jurisdiction of the Commission

to entertain the present complaint.

Our attention is invited to the provisions of the

Maharashtra State Minorities Commission Act, 2004

(hereinafter referred to as, “Act of 2004”) and, in speci�c,

Section 10 of the Act, which has set out the functions of

Commission and in the wake of the said provision, it is urged

before us that there is no power conferred upon the

Commission to adjudicate upon any dispute or lis or to pass

any executable order much less to make an adjudication on

legality and validity of a sale transaction.

In Paragraph 4 of the Petition, it is contended that

Respondent No.3 is Certi�cate Debtor No.3 in Recovery

Proceedings No.709 of 2004, pending before the Recovery

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Of�cer, Debts Recovery Tribunal-II, Mumbai since 30/11/2004

and against him, an arrest warrant is pending execution since

30/10/2023 on account of his mala�de acts set out in the order

dated 25/10/2023, passed by Recovery Of�cer, DRT-II,

Mumbai.

Reliance is placed upon the order dated 27/02/2024,

passed by this Court, clearly observing that, Respondent No.3

has committed contempt of court and notice under Rule 1035

of the Bombay High Court (Original Side) Rules, 1980 is

issued.

8. The Petition has speci�cally pleaded the background

facts to support the contention that the proceedings in form of

complaint lodged before the Minorities Commission is only to

evade the due process of law and the complaint is wholly

untenable, as by no stretch of imagination, it can satisfy the

test of deprivation of rights of the minority community. The

basis of the complaint that HDFC Bank has been prosecuting

the recovery proceedings against Respondent No.3 and

previously against his father, which has caused him constant

serious and physical harassment is nothing but an attempt to

give the recovery proceedings a de�nite colour and is nothing

but an attempt to wriggle out the consequences of the

proceedings.

9. Mr.Setalvad, has urged before us that the Maharashtra

State Minorities Commission Act, 2004 was enacted for

protection of rights of minorities within the State and the

attempt of the Complainant is to call upon the Commission to

adjudicate as to whether the steps taken by the Petitioners

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amounted to physical and mental harassment to Respondent

No.3 and his deceased father.

It is submitted before us that Respondent No.2-

Minorities Commission cannot sit and adjudicate upon the

allegations of harassment and gross professional misconduct,

as alleged in the complaint, which is nothing but the steps

taken pursuant to the recovery proceedings being instituted

and the Recovery Certi�cate being issued.

It is urged before us that the Minorities Commission do

not have jurisdiction to entertain the alleged grievances

contained in the complaint, as they are ex facie beyond its

jurisdiction and, therefore, issuance of notice is also without

jurisdiction and the Petitioners are not duty bound to comply

with the same, as by issuing the notice, the Commission has

exceeded its limited jurisdiction, conferred upon it under the

Act of 2004.

10. Another argument submitted before us is that the Act of

2004 cannot be invoked to precipitate personal vendettas and

is not a means to avoid the consequences of a legally binding

decree/Recovery Certi�cate and/or to obstruct the recovery

proceedings and orders/warrants issued in course thereof in

accordance with law. It is also submitted that the whole object

of instituting such a complaint is to avoid payment of amount

due under the Recovery Certi�cate and somehow obstruct the

recovery proceedings, by using the machinery available with

Respondent No.2.

Entertaining the complaint while the issues raised

therein are subject matter of the recovery proceedings, the

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issuance of notice is construed by the Petitioners to be without

jurisdiction and the action of issuing notice is alleged to be

wholly arbitrary and without/beyond jurisdiction of

Respondent No.2 and left with no other remedy, the writ

jurisdiction of this Court is invoked.

11. The learned senior counsel Mr.Sakhare, representing the

Minorities Commission, would raise a preliminary objection

about the maintainability of the Writ Petition, as according to

him, challenge to issuance of show-cause notice is premature,

since no action is purportedly taken against the Petitioners

and in any case, Mr.Sakhare would submit that the

Commission is quite conscious of its recommendatory power

and after the presentation of the necessary document by the

Bank and its of�cials, the Commission may not even exercise

its recommendatory power.

He has relied upon paragraph 3 of the af�davit �led by

Sarangkumar Vasantrao Patil, Secretary of Maharashtra State

Minorities Commission on 16/08/2024, which reads as under :-

“3. At the further outset, I say and submit that, the present

writ petition is premature and not maintainable as such. The

Respondent No.2 Commission has received a complaint and as a

matter of procedure and propriety provided a copy of the said

complaint to the Petitioners and called upon the Petitioners to

remain present for a hearing alongwith all the relevant documents

that the Petitioners wish to place on record in respect of the

allegations made in the complaint. The Respondent No.2 has not

adjudicated any aspect of the complaint on merits including but not

limited to the maintainability of the complaint and therefore, at this

stage the present petition is premature and not maintainable and

on this ground alone is liable to be dismissed.”

12. Mr.Sakhare would also place reliance upon Section 10 of

the Act of 2004, which has prescribed the functions of

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Commission and, in speci�c, he would rely upon clause (j) to

the following effect :-

“(j) to look into speci�c complaints regarding deprivation of

rights and safeguards of minorities and take up such matters with

the appropriate authorities.”

In addition, he would also invoke Section 10A of the Act of

2004, which has conferred the powers of the Civil Court,

trying a suit under the Code of Civil Procedure, 1908 on the

Commission, while performing any of its function under sub-

section (1) of Section 10.

13. It is urged on behalf of the Minorities Commission, that

there is statutory duty cast upon it to look into the speci�c

complaints

inter alia regarding the deprivation of rights of

minorities and in compliance of the statutory duty, as and

when any complaint is received by the Commission, and in

compliance of the principles of natural justice, a notice is

issued to the persons/parties against whom the complaint is

made, so as to afford an opportunity to respond to the

allegations made in the complaint. It is submitted by

Mr.Sakhare that it is only on receipt of such response and

giving an opportunity to both, the complainants as well as the

opponent party to put forth their side, the Commission apply

its mind to the merits of the matter and if required and

deemed necessary, make appropriate recommendations to the

concerned authorities.

On hearing both the sides, if it is found that further

evidence is required or further detailed inquiry is to be made,

then it shall adhere to the procedure in the Code of Civil

Procedure, 1908.

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In short, the submission of Mr.Sakhare, is that the

Commission has only called upon the Petitioners to remain

present, to produce such documents, as they may deem �t in

response to the allegations made in the complaint and till date,

the Commission has not indulged itself in any adjudication

whatsoever on the maintainability or merits of the complaint

and, hence, the Petition is premature, not maintainable and

liable to be dismissed.

14. Mr.Ponda, learned senior counsel representing the

Complainant would place reliance upon the decision of the

Apex Court in the case of Executive Engineer, Bihar State

Housing Board Vs. Ramesh Kumar Singh & Ors.

1

, in support of

his submission that the Petition �led by the Petitioners is

premature, as the cause of action for �ling the same is mere

issuance of notice and it is open for the Petitioners to �le their

say and place relevant material before the Commissioner and

only after adjudication of the matter, the Writ Petition could be

entertained. In addition, he would also rely upon the decision

in the case of Special Director and Anr. Vs. Mohd. Ghulam

Ghouse and Anr.

2

. He also placed reliance upon the decision of

the Andhra Pradesh High Court in the case of A.P.State

Minorities Commission Vs. Osmania University & Ors.

3

, to take

forward his submission, that the Minorities Commission has

authority and jurisdiction to grant the necessary relief to a

single individual member belonging to minority community, if

the action against him is in violation of his fundamental rights.

According to Mr.Ponda, it is open for the Commission to make

1 (1996) 1 SCC 327

2 (2004) 3 SCC 440

3 2003 SCC OnLine AP 156

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recommendations with a view to ensure effective

implementation and enforcement of all the safeguards and the

law enacted to protect the minorities.

He has attempted to demonstrate before us the violation

of Article 21 of the Constitution of India, by pointing out that

Respondent No.3 is under immense mental harassment caused

by the Bank and even when the application was �led by

Mr.Kishor Mehta, seeking stay of arrest warrants due to his

medical condition and placed the necessary medical document,

HDFC Bank kept disputing the af�davits placed by the doctor

and referred to the application �led by Mr.Kishor Mehta, as

frivolous and continued to mount pressure on the Recovery

Of�cer to arrest Mr.Mehta. It is the case of Respondent No.3

that keeping the sword of arrest hanging, resulted in untimely

demise of his father and there is �agrant violation of Article

21.

In addition, it is also alleged that the action of the Bank

to recover the money is also violative of Articles 25, 26 and 29

of the Constitution of India and its action has also violated the

Socio-Economic Rights.

15. In short, the submission of Mr.Ponda representing

Respondent No.3, who has lodged the complaint with the

Minority Commission, is clearly spelt out to the effect that the

Commission has only asked the Petitioners to come and show

material in their possession, denying the accusations levelled

against them, but since they have chosen not to report to the

Commissioner and show cause, they cannot allege violation of

principles of natural justice.

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16. Dealing with the preliminary issue about maintainability

of the Writ Petition, the law is well settled to the effect that in

the matter of issuance of writ, existence of any adequate legal

remedy is a factor to be taken into consideration. Where an

alternative remedy existed, it would be sound exercise of

discretion to refuse to interfere in the writ petition �led under

Article 226 of the Constitution. This proposition having been

quali�ed by the signi�cant words, as laid down in the case of

K.S.Rashid & Son Vs. Income Tax Investigation Commission

4

,

being "unless there are good grounds therefor", which indicate

that the alternative remedy would not operate as an absolute

bar and the writ petition under Article 226 can be entertained

in exceptional circumstances.

17. The power to issue prerogative writ under Article 226 of

the Constitution is plenary in nature and can be exercised for

enforcement of any of the fundamental rights contained in

Part III of the Constitution and also for “any other purpose”.

Under Article 226 of the Constitution, the High Court having

regard to the facts of the case, enjoy a discretion to entertain

or not to entertain a writ petition, but by virtue of self imposed

restrictions, in case where an effective and ef�cacious remedy

is available, the Court would not normally exercise its

jurisdiction. However, the availability of alternative remedy

would not operate as a complete bar in three contingencies,

namely, where the writ petition is �led for enforcement of any

of the fundamental rights or where there has been violation of

the principle of natural justice or where the order or

proceedings are wholly without jurisdiction.

4 AIR 1954 SC 207

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In Whirlpool Corporation Vs. Registrar of Trade Marks,

Mumbai & Ors.

5

, while relying upon the precedents of the

evolutionary era of the constitutional law holding the �eld, the

Apex Court concluded thus :-

“19. Another Constitution Bench decision in Calcutta Discount

Co.Ltd. Vs. ITO, Companies Distt. I laid down :

"Though the writ of prohibition or certiorari will not issue against

an executive authority, the High Courts have power to issue in a �t

case an order prohibiting an executive authority from acting

without jurisdiction. Where such action of an executive authority

acting without jurisdiction subjects or is likely to subject a person

to lengthy proceedings and unnecessary harassment, the High

Court will issue appropriate orders or directions to prevent such

consequences. Writ of certiorari and prohibition can issue against

Income Tax Of�cer acting without jurisdiction under 34, Income

Tax Act."

20. Much water has since �own beneath the bridge, but there

has been no corrosive effect on these decisions which, though old,

continue to hold the �eld with the result that law as to the

jurisdiction of the High Court in entertaining a writ petition under

Article 226 of the Constitution, in spite of the alternative statutory

remedies, is not affected, specially in a case where the authority

against whom the writ is �led is shown to have had no jurisdiction

or had purported to usurp jurisdiction without any legal

foundation.”

18. A similar objection was dealt with by applying the test in

Kaikhosrou (Chick) Kavasji Framji Vs. Union of India & Anr.

6

,

where the objection raised to the maintainability of a writ

petition, challenging the notice under Section 4 of the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 was

rejected in the wake of long line of decisions and, a writ

petition to question the legality and correctness of the notice

issued under any Act, is held to be no bar in entertaining the

writ petition in appropriate case. The reliance was

emphatically placed upon Whirlpool Corporation (supra). We

have, therefore, no doubt in our mind that the Writ Petition

5 (1998) 8 SCC 1

6 (2019) 20 SCC 705

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�led by the Petitioners, assailing the issuance of notice by the

Minorities Commission on the ground that it can not exercise

the jurisdiction over the subject matter of the complaint

deserve to be entertained, as we are of the view that the

Commission has acted beyond its jurisdiction and the basis for

our conclusion is clearly highlighted in the paragraphs to

follow.

19. The Maharashtra State Minorities Commission Act, 2004

is an Act to constitute a State Commission for minorities and

“minorities” is de�ned in Section 2(d) to mean the

communities residing in the State of Maharashtra declared by

the Government as minority communities, by order in the

Of�cial Gazette, from time to time. What is important to look

for is the functions of the Commission and Section 10 of the Act

reads thus :-

“10. Functions of Commission

(1)The functions of the Commission shall be as follows:-

(a) to examine the working of various safeguards provided in

the Constitution of India and the laws passed by the State

Legislature for the protection of minorities;

(b) to make recommendations with a view to ensuring

effective implementation and enforcement of all the safeguards;

(c) to monitor the working of the safeguards provided in the

Constitution, laws enacted by the Parliament and the State

Legislature, and policies and schemes of the State Government for

minorities;

(d) to conduct studies, research and analysis on the

questions of avoidance of discriminations against minorities;

(e) to make a factual assessment of the representation of

minorities in the services of the Government, Government

undertakings, Quasi-Government bodies, Municipal Corporations,

Municipal Councils, Zilla Parishads, Panchayat Samitis and

Village Panchayats and in case, the representation is inadequate,

to suggest ways and means to achieve the desired level;

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(f) to make recommendations for ensuring, maintaining and

promoting communal harmony in the State;

(g) to make periodical reports at prescribed intervals to the

Government;

(h) to study any other matter which, in the opinion of the

Commission, is important from the point of view of the welfare

and development of minorities, and to make appropriate

recommendations;

(i) to consider the grievances of the minorities and to

suggest appropriate solution, from time to time;

(j) to look into speci�c complaints regarding deprivation of

rights and safeguards of minorities and take up such matters with

the appropriate authorities;

(k) to co-ordinate and supervise the implementation of the

Prime Minister's 15 Points Programme for Welfare of Minorities:

Provided that, if any matter speci�ed in sub-section (1) is

undertaken by the National Commission for Minorities

constituted under section 3 of the National Commission for

Minorities Act, 1992 (19 OF 1992), the State Commission shall

cease to have jurisdiction in such matters.

(2)The Government shall cause the recommendations of the

Commission to be laid before each House of the State Legislature

along with the memorandum explaining the action taken or

proposed to be taken on the recommendations and the reasons for

non-acceptance, if any, of such recommendations.”

20. Section 10A is a provision relating to the powers of

Commission and the Commission, while performing any of its

functions under sub-section (1) of Section 10, is conferred with

the powers of the Civil Court trying a suit under the Code of

Civil Procedure, 1908 and, in particular, is authorised to issue

summons for enforcing the attendance of any person and

examining him on oath, requiring the discovery and

production of any document, receiving evidence on af�davits,

issuing commissions for the examination of witnesses and

documents etc.

21. Keeping in mind the object of the Act, as indicated in the

preamble, providing for constitution of State Commission for

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minorities, the Commission is entrusted with the function of

examining various safeguards provided in the Constitution of

India and protection of minorities. It is empowered to make

recommendations with a view to ensure effective

implementation and enforcement of all the safeguards and also

to monitor the working of the safeguards provided in the

Constitution, laws enacted by the Parliament and the State

Legislature and also contained in the policies and schemes of

the State Government for minorities. The Commission is also

empowered to make recommendations for ensuring,

maintaining and promoting communal harmony in the State

and to study any other matter, which in its opinion, is

important from the point of view of the welfare and

development of minorities and to make appropriate

recommendations.

Mr.Ponda as well as Mr.Sakhare has placed reliance upon

clause (j) in Section 10(1), which empower the Commission to

look into speci�c complaints regarding deprivation of rights

and safeguards of minorities and take up such matters with

the appropriate authorities.

22. A plain reading of Section 10 in the Act would reveal that

the thrust of the provision is upon ensuring that the

safeguards provided for the minorities, in the Constitution of

India as well as the laws, either passed by the Parliament or

State Legislature, are implemented and enforced. The

Commission is also empowered to monitor the working of the

safeguards and conduct studies, research and analysis on the

questions of avoidance of discrimination against minorities.

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In the scheme of this Section, when clause (j) is looked

into, it permits the Commission to look into speci�c complaints

regarding deprivation of rights and safeguards of minorities as

a whole and we are really doubtful, whether the Legislature

intended to cover an individual complaint like the one, before

us, which is nothing but an attempt to short-circuit the

procedure adopted by HDFC Bank against its borrowers and to

face an action as a debtor, who was jointly and severally liable

to pay an amount of Rs.14,74,51,929.35 (Rupees Fourteen

Crore Seventy Four Lakh Fifty One Thousand Nine Hundred

and Twenty Nine and Paise Thirty Five only) with interest at

the rate of 16% from the date of �ling of the Original

Application before the Debts Recovery Tribunal ( “DRT”)

against the Respondent No.3. It is not in dispute that

Respondent No.3 or any of the Certi�cate Debtor never raised

challenge to the judgment dated 26/10/2004, declaring that

they are liable for making the payment and it has thus

attained a �nality. It is only post issuance of Recovery

Certi�cate, various applications were �led by the Bank before

the Debts Recovery Tribunal, seeking to recover the

outstanding dues and despite passing of over twenty years, the

principal borrower and/or guarantors, including Respondent

No.3 had failed to discharge the debt and continued with his

spree of �ling frivolous proceedings, thus frustrating the

recovery on one or the other pretext.

On 05/02/2020, the Recovery Of�cer passed an order

directing civil imprisonment of Respondent No.3 and his

father, Kishor Mehta and this order was assailed in the writ

petition �led before this Court and the Recovery Of�cer was

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directed to decide as to whether to con�rm, modify or set aside

the order. On 25/10/2023, the Recovery Of�cer con�rmed the

order dated 05/02/2020, directing civil imprisonment of

Respondent No.3 on account of various mala �de and wrongful

acts and omissions.

Pursuant to this, arrest warrant was issued on

30/10/2023 against Mr.Rajesh Mehta and once again, after a

round of litigation to the Apex Court, the order attained

�nality.

By order dated 25/10/2023, Mr.Rajesh Mehta was

restrained from travelling outside India and if he has to do so,

he shall deposit 25% of due amount as on the date of visit and

�le an undertaking to return back and also obtain permission

from the Recovery Of�cer. On several such applications being

�led, they were rejected as he avoided to make payment under

the Recovery Certi�cate.

23. The Petition has given the list of the proceedings that are

�led by Respondent No.3-Mr.Rajesh Mehta and his family

members and this includes �fteen proceedings �led before the

Bombay City Civil Court, Bombay High Court as well as the

Supreme Court.

When Mr.Mehta was unable to taste success in either of

the proceedings, to short-circuit the payment of the amount

due under the Recovery Certi�cate and to avoid the arrest, the

present complaint is �led before the Minorities Commission,

constituted under Section 3 of the Act of 2004.

True it is that normally a Writ Court would not exercise

its jurisdiction when a show-cause notice is assailed before it,

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but when this show-cause notice is issued by a forum/an

authority, which lacks jurisdiction or it is in violation of

principles of natural justice, de�nitely the High Court shall

entertain the Petition, as the former ground raised is a

jurisdictional issue.

If an authority has no jurisdiction to entertain a

complaint and despite this, merely stating that it has issued a

notice, so that a response can be received and, thereafter, it

will decide whether to proceed ahead or not, de�nitely cannot

assume jurisdiction. Either the authority has jurisdiction to

entertain the complaint/proceedings or it lacks the jurisdiction

and if it lacks the jurisdiction, it cannot proceed ahead and

even issue a notice.

24. Looking to the complaint, which is lodged by Respondent

No.3 in the backdrop of the factual narration of the

proceedings before the Debts Recovery Tribunal and its

aftermath, we are in agreement with the learned senior

counsel appearing for the Petitioners that the �ling of a

complaint, before the Minorities Commission is nothing but an

another attempt to wriggle out of his responsibilities.

The Minorities Commission, which is constituted for the

avowed object of safeguarding the rights of minorities and to

make recommendations with a view to ensure the effective

implementation and enforcement of all the safeguards,

de�nitely cannot be usurped by the Complainant, who wants to

shirk the liability fastened upon him by the Debts Recovery

Tribunal, a competent authority to pronounce upon the

default in Recovery Proceedings and who has a warrant

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awaiting him and also face an action under the Contempt of

Courts Act, 1971.

On the pretext that since he is a member of Jain

community, he cannot knock the doors of the Commission and

get the orders passed in lawful manner, either set aside or

circumvented and since this is not an option available to him

and the Commission, de�nitely, has no power to set aside such

orders, but what it is empowered to do is, to make

recommendations to the competent authority. But, de�nitely if

a liability is fastened upon him by an appropriate forum, he

cannot take bene�t of he being a member of minority

community.

25. Learned senior counsel for the Petitioners, has placed

reliance upon a decision of this Court in the case of Darul Falah

Educational & Welfare Trust Vs. State of Maharashtra & Ors.

7

,

where the Educational Trust acquired certain lands under the

Deed of Conveyance and its name was mutated in the Revenue

Records, which was certi�ed by the Circle Of�cer. Respondent

Nos.5 to 7 were the vendors under the said Deed of

Conveyance, who �le an appeal before the Commission,

challenging the mutation entry recorded as per the

Maharashtra Land Revenue Code, 1966.

The Chairperson of the Commission purported to issue

direction to the Divisional Commissioner to hold an enquiry

into the matter through the Additional Divisional

Commissioner.

The argument was advanced on behalf of the petitioner

7 2017 SCC OnLine Bom 1327

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that no power was conferred by the Act of 2004 on the

Chairperson of the Commission to make any such adjudication

about illegality of a sale transaction and reliance was placed

upon Section 10A of the Act to invoke the powers conferred on

the Commission that of the Civil Court. By examining the

statutory scheme, the Division Bench speci�cally observed

thus :-

“12. On plain reading of Section 10, it is crystal clear that

there is no power conferred on the Respondent No.4 (the

Commission) to adjudicate upon any dispute or a lis and to pass any

executable order much less to make an adjudication on legality and

validity of a sale transaction. Under clause (i), the Commission gets

power to consider the grievances of the minorities and to suggest

appropriate solution, from time to time. The power under clause (j)

of Sub-Section (1) is conferred to look into speci�c complaints

regarding deprivation of rights and safeguards of minorities and

take up such matters with the appropriate authorities. As far as the

power to make recommendations is concerned, it is only in clauses

(b) and (f) of Sub-Section (1) of Section 10. Clause (a) of Sub-

Section (1) confers power to examine the working of various

safeguards provided in the Constitution of India and in the laws

passed by the State Legislature for the protection of minorities.

Clause (b) confers power to make recommendations with a view to

ensure effective implementation and enforcement of all the

safeguards. Clause (f) confers power to make recommendations for

ensuring, maintaining and promoting communal harmony in the

State. Sub-Section (2) provides that the recommendations of the

Commission shall be laid before each House of Legislature along

with a memorandum explaining the action taken or proposed to be

taken on the recommendations.

13. … … …

17. Merely because certain powers of the Civil Court under the Civil

Procedure Code, 1908 are conferred on the Commission, it does not

mean that the Commission gets power to adjudicate as if it is a Civil

Court. Certain powers are conferred on the Commission under

Section 10. Powers under Section 10-A are to be utilised for

exercising the powers under Section 10. That is the only

signi�cance of the Section 10-A of the said Act.”

26. Recently, the Delhi High Court in Balaji Medical and

Diagnostic Research Centre Vs. Delhi Minorities Commission,

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Government of National Capital Territory of Delhi & Anr.

8

,

dealt with a writ petition praying for quashing and setting

aside the complaint case bearing number 595 of 2019 and for

quashing of all consequential orders. Respondent No.2 therein

was involved in a road accident and has sustained abdominal

injuries and broken bones and the patient was referred to the

Hospital, where the treatment commenced as per ICU protocol.

A complaint was �led by his uncle alleging that he was

not provided appropriate treatment and sought direction to

the petitioner, a Medical and Diagnostic Research Centre to

continue to provide him treatment.

The Commission passed an ex-parte mandatory

injunction, directing the petitioner to continue the treatment

and when the petitioner raised the bill on the patient in lieu of

the medical services and even given the discount, the

petitioner was asked to waive all the balance amount.

It is in this background, with reference to the Delhi

Minorities Commission Act, 1999, the Delhi High Court

observed thus :-

“9. The present case does not involve any deprivation of the

rights of the minority community. The respondent no.2 was treated

by the petitioner as a patient who sustained injuries during the road

accident. There is no complaint on behalf of the respondent no.2

being a member of minority community that his rights were

breached by the petitioner. If the respondent no. 2 or his family

members were not happy with the treatment given by the petitioner

or the medical bill raised by the respondent no.2, it does not involve

deprivation of any right of the minority communities within the

mandate of the DMC Act. It is also pertinent to mention that a letter

dated 23.08.2023, has already been written on behalf of the

respondent no.2 requesting for withdrawal of the complaint dated

13.08.2019 and consequential proceedings arising out of complaint

dated 13.08.2019.

10. The respondent no.1 did not have the statutory power to

8 W.P.(C) 12394/19 & CM Appl.50643/19 decided on 16/02/2024

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pass the order dated 13.08.2019, and the respondent no.1 while

passing the order dated 13.08.2019 exceeded the powers given to the

minority commission in pursuance of the DMC Act.”

27. In the wake of the aforesaid decision emanating from the

factual and legal position holding the �eld, by entertaining the

Petition, we record that the issuance of notice to the

Petitioners is beyond the jurisdiction of the Minorities

Commission and, hence same is quashed and set aside. The

Commission is hereafter restrained from proceeding with the

complaint by summoning the Petitioners.

The Writ Petition is made absolute in the aforesaid terms,

by quashing and setting aside the impugned notice dated

23/07/2024, issued by Respondent No.2-Maharashtra State

Minorities Commission.

(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)

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