Darbarsahebshri Satyajitkumar ... vs Rajkumar College Trust
2021 Latest Caselaw 14300 Guj

     C/SCA/13251/2021                            ORDER DATED: 17/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 13251 of 2021
                                 With
        CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
           In R/SPECIAL CIVIL APPLICATION NO. 13251 of 2021
==========================================================
     DARBARSAHEBSHRI SATYAJITKUMAR SHIVKUMAR KHACHAR
                          Versus
                 RAJKUMAR COLLEGE TRUST
==========================================================

Appearance in Special Civil Application No.13251 of 2021
MR NAVIN PAHWA, Senior Advocate with MS SIDDHI VADODARIYA AND
MR RAVI N PAHWA(11493) for the Petitioner(s) No. 1
MR MEHUL S. SHAH, Senior Advocate with MR NIKUNT K. RAVAL for the
Respondent No.1
MR SALIL M. THAKORE for the Respondent No.2
MR PERCY KAVINA, Senior Advocate with MR SUJAY ADESARA AND MR
DEVANG NANVATI, Senior Advocate with MR MRUGEN PUROHIT for the
Respondent Nos.3 to 6
MS MANISHA L SHAH, GOVERNMENT PLEADER with MS AISHWARYA
GUPTA, Assistant Government Pleader for the Respondent No.9
Appearance in Civil Application No.1 of 2021
MR MIHIR H JOSHI, Senior Advocate with MR SAGAR J SHAH for the
Applicant (Intervenor)
==========================================================

 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 17/09/2021
                   ORAL ORDER

1. Issue notice for final disposal to the respondents, returnable on 5.10.2021.

2. The petitioner, has preferred the captioned writ petition, inter alia, praying for direction that the elections to the Trust Board of respondent no.1-Trust be held strictly in compliance with the Trust Deed/Rules as also in strict compliance of the directions contained in the order dated 28.11.2019 passed in Application 41/15/18 by the learned Joint Charity Commissioner, Rajkot. The petitioner has also prayed for direction to the respondent nos.7 and 9 to stay the further process of elections to the Trust Board of the respondent no.1-Trust on such terms and conditions as may be deemed appropriate by this Court, in alternative, it has been prayed that the

C/SCA/13251/2021 ORDER DATED: 17/09/2021

respondent no.9 be directed to keep in his custody all the votes cast during the elections either through poll or physically, in a sealed cover until such time Application 41A/7/21 along with all pending applications are finally heard and decided.

3. Mr. Navin Pahwa, learned Senior Advocate appearing with Ms. Siddhi Vadodariya and Mr. Ravi Pahwa, learned advocates for the petitioner has made various submissions, gist whereof is as under.

3.1 That the petitioner is the founding member of the non-salute group of the respondent-Trust and in past, has also been in the Trust Board of the respondent-Trust. The petitioner has been the voter and was also been involved in the active administration of the Trust for several years and therefore, is a beneficiary and a person having interest in the affairs of the Trust.

3.2 That as per the Trust Deed, the term of the Trust Board/governing body is five years with power to the President to extend by maximum period of one year at a time, but not exceeding three years. That an application under section 41A of the Gujarat Public Trust Act, 1950 (hereinafter referred to as the 'Act of 1950'), being 41A/15/18 came to be filed by three applicants from non- salute states seeking directions to hold elections to the Trust. That interim orders came to be passed which were challenged by the Trust before this Court and the said writ petition was partly allowed by the judgment and order dated 10.5.2019, which was carried in appeal being Letters Patent Appeal No.1461 of 2019. The said appeal was disposed of vide order dated 17.10.2019 with a direction to the learned Joint Charity Commissioner to decide the pending matter within a stipulated period without being influenced by the findings or observations recorded by the learned single Judge.

3.3     That pending the Application 41/15/18, the respondent nos.5





       C/SCA/13251/2021                           ORDER DATED: 17/09/2021

and 6 made an application to the respondent-Trust to include their names in the electoral roll of the Trust. An application, Exh.90 was made to the learned Charity Commissioner to decide the electoral roll, however, the learned Joint Charity Commissioner, vide order dated 13.11.2019, rejected the application, Exh.90, inter alia, holding that application is premature. The learned Joint Charity Commissioner has observed that any decision on the applications to induct the members, can be made first by the governing committee of the Trust and it is only thereafter, that an application can be made before the competent authority by the aggrieved person. Pursuant to the order dated 13.11.2019, the Trust by resolution dated 15.11.2019, rejected the application made by the respondent nos.3, 5 and 6, which was duly communicated to them.

3.4 That, on 28.11.2019, the learned incharge Joint Charity Commissioner allowed the Application 41/15/18, inter alia, directing appointment of Election Officer to hold elections considering the status as on 30.10.2019. The order categorically records that the list of registered nominated representatives of the state be prepared as on 30.10.2019 and to declare the election programme accordingly. That the respondent no.7, forwarded the election programme and also sent preliminary list of voters consisting of 23 persons.

3.5 The election programme was declared, when, the respondent nos.3 to 6 submitted an application on 13.7.2021 and 15.7.2021, requesting for inclusion of their names in the electoral roll and the Election Officer, has passed four orders, all dated 20.7.2021. Before deciding the application of the respondent nos.3 to 6, no opportunity of hearing was granted by the respondent no.7 to any person including the Trust. As per the election programme, the Election Officer was obliged to complete the process of examination and hearing between 17.7.2021 and 19.7.2021; however, the orders

C/SCA/13251/2021 ORDER DATED: 17/09/2021

have been passed on 20.7.2021. Admittedly, the Election Officer, did not give any opportunity of hearing before taking any decision on 20.7.2021 which fact, is clear from the communication dated 5.8.2021.

3.6 That as per the election programme, the Election Officer was required to receive objections against the preliminary list of electoral candidates between 5.7.2021 and 15.7.2021 and was thereafter, required to examine the objections, hear the parties and decide the objections between 17.7.2021 and 19.7.2021. The Election officer, not only received additional names which were beyond his jurisdiction, but accepted the said names to be included in the electoral roll beyond the period provided in the election programme and that too without hearing the Trust Board.

3.7 That the petitioner being aggrieved, preferred an application 41A/7/21 before the learned Joint Charity Commissioner, challenging the orders, all dated 20.7.2021 of the Election Officer, entering the names of the respondent nos.3 to 6 in the electoral roll. Apparently, the application 41A/7/21 was filed way back in the first week of August, 2021, however, the learned Joint Charity Commissioner has not decided the same despite the fact that the election programme is declared and the election is scheduled to take place on 19.9.2021. That if the application filed by the petitioner is not heard and disposed of before the elections are held, the proceedings taken out by the petitioner, would be rendered infructuous.

3.8 That the respondent nos.3 to 6 had earlier attempted for inclusion of their names in the list, and the request was rejected by resolution passed by the Trust, however, the decision of the Trust has not been challenged and therefore, there is a finality attached to the decisions taken by the Trust. In absence of any challenge to

C/SCA/13251/2021 ORDER DATED: 17/09/2021

the earlier two decisions, it was impermissible for the respondent nos.3 to 6 to have approached the Election Officer for inclusion of their names in complete defiance of the election programme, and the Election Officer to have passed the orders, all dated 20.7.2021, inducting the names of respondent nos.3 to 6 in the electoral roll.

4. On the other hand, Mr Devang Nanavati, learned Senior Advocate with Mr Mrugen Purohit, learned advocate appearing for the respondent nos.3 to 6, has made various submissions, including raising preliminary objection, gist whereof is as under:

4.1 That an alternative efficacious remedy under Section 22 of the Act of 1950 is available and the petitioner be relegated to the said remedy after the election is over. Reliance is placed on the judgments of this Court rendered in Special Civil Application No.5103 of 2008; in Letters Patent Appeal No.310 of 2008; in Special Civil Application No.4734 of 2015; Letters Patent Appeal No.511 of 2015, and the judgment of the Apex Court in the case of Shaji K. Joseph vs. V. Viswanath & others reported in (2016) 4 SCC

429.

4.2 That the petitioner, has no locus standi to file the present writ petition under Article 226 of the Constitution of India inasmuch as, his right to vote has not been prejudiced. That the present writ petition is nothing, but a proxy litigation. That the orders passed by the Election Officer, were challenged before this Court by the Trust and this Court, did not entertain the writ petitions holding that the petitions are not maintainable under Article 226 of the Constitution of India. In view of the dismissal of the said writ petitions, the captioned writ petition by the petitioner, may not be entertained at this stage.

4.3 That there are two categories of voters, salute and non-salute;

C/SCA/13251/2021 ORDER DATED: 17/09/2021

11 are salute members and 16 are non-salute members. Out of 16 non-salute members, 13 members have taken postal ballot papers and out of these 13 members, 10 members have already cast their votes. Similarly, in the category of salute members, 6 out of 11 members have opted for postal ballot and out of which 4 have already exercised their right to cast the vote. Therefore, interference at this stage, would affect the right of the persons, i.e. the salute and non-salute members who have exercised their right to vote by taking ballot paper and casting their votes. The balance of convenience and irreparable loss lie in favour of the 19 members who have already exercised their rights without there being any objection about inclusion or voters.

4.4 That the founding houses which are present since the formation of the Trust, the Election Officer has merely updated the name of the representatives as per the Trust Deed. The Election Officer has rightly filled the seats with the names of the respective heads of the family and hence, no actual addition or deletion of founding members from outside the ambit of age old founding members of the Trust has taken place. Therefore, it is well within the powers of the Election Officer to include and exclude the names of the voters and hence, has acted within jurisdiction.

4.5 That the election disputes cannot be adjudicated by way of an application under Section 41A and the decision of the Election Officer cannot be made subject matter of challenge. It is also well settled that power under Section 41A cannot be exercised to adjudicate any dispute/lis between the parties.

5. Mr Percy Kavina, learned Senior Advocate with Mr. Sujay J. Adesara, learned advocate for the respondent no.3 submitted that the Trust, has filed four writ petitions before this Court challenging

C/SCA/13251/2021 ORDER DATED: 17/09/2021

the orders dated 20.7.2021 of the Election Officer and this Court, has dismissed the petitions. It is submitted that when the order dated 20.7.2021 has been challenged, all other orders subsumed in the proceedings before this Court. It is therefore, submitted that the present writ petition ought not to be entertained since the very challenge in the present petition has been substantively negatived in the earlier proceedings.

5.1 Mr. Kavina, learned counsel has submitted following written submissions:

a. That in Special Civil Application No.10697 of 2021, the direct challenge was to the order of the Election Officer dated 20.7.2021. The present petition arises from proceedings started before the Joint Charity Commissioner challenging the very same order dated 20.7.2021. It is therefore not correct to say that the present petition since it does not directly impugn the validity of the same order, it is not falling within the ambit of the earlier decided case.

b. That the earlier case, clearly involved the contention raised by some of the respondents herein that "learned Senior Counsels have further submitted that vide notification dated 17.6.2021, the election process has started and having regard to the settled position of law in this regard that this Court may not interfere with the process of election, more particularly, in view of the efficacious remedy available to the petitioner of filing an application under Section 22 of the Gujarat Public Act, in the nature of an Election Petition after the election, the Court may not entertain the present petition." In deciding the earlier case, the learned single Judge has clearly accepted the argument that Section 22 of the Gujarat Public Trust Act is an adequate remedy and declined to go into the merits of the case, and has dismissed the petition.

c. That the principles of res judicata, and constructive res judicata and also the principles of precedent and judicial comity require that this Hon'ble Court's decision accords with the decision of the earlier single Judge who after extensive hearing has declined to exercise jurisdiction under Article 226 of the Constitution of India. It is worth mentioning that the relief asked for from Joint Charity Commissioner from which the present petition arises is identical to the relief prayed for in the earlier writ petition.

         d.     That the persons holding position of control and power






       C/SCA/13251/2021                              ORDER DATED: 17/09/2021

who are afraid of losing in the continuing elections have resorted to misuse the Court process.

(A) Trust filed Special Civil Application No.10967 of 2021 on 2.8.2021. The present petitioner who is appointed by the old trustees as chairperson of the executive committee is acting in concert with the trust and has filed Application No.7 of 2021 before the Joint Charity Commissioner on 7.8.2021.

(B) On 17.8.2021 objection as to maintainability was taken before the Joint Charity Commissioner. On 25.8.2021, details of Regular Civil Suit No.153 of 2021, namely, plaint, Exh.5 was withdrawal purshis are produced by the respondents. On the same day, the pendency of Special Civil Application No.10967 of 2021 and others was informed to the Joint Charity Commissioner. It was also shown that the Hon'ble High Court was hearing the matter. At this stage itself, the proceedings before the Joint Charity Commissioner should have been halted.

(C) On 2.9.2021, it was submitted before the Joint Charity Commissioner and the Hon'ble High Court is about to pronounce order, hence matter was kept on 3.9.2021. On 3.9.2021, the order of Single Judge in Special Civil Application No.10967 of 2021 and other matters was pronounced and the same was produced before the Joint Charity Commissioner. With this, the entire proceedings before the Joint Charity Commission should in law have been terminated. However, merely to pass formal orders the matter is kept on the 18.9.2021.

5.2 It is urged that the present petition may not be entertained inasmuch as, the issue has already attained finality after the rejection of writ petitions by this Court vide common CAV judgment dated 2.9.2021.

6. Mr. Mihir H. Joshi, learned Senior Counsel with Mr. Sagar J. Shah, learned advocate for the intervenor, by referring to page 222 onward, submitted that the names were given by the Trust as on 30.5.2020. In such list, the names of respondent nos.3 to 6 were not there. Accordingly, the respondent nos.3 to 6 submitted an application before the Election Officer, and the Election Officer, while allowing the names to be included, has conducted inquiry, deciding the primogeniture and entitlement to succession. It is also submitted that the Election Officer, is not an administrator of the

C/SCA/13251/2021 ORDER DATED: 17/09/2021

Trust and definitely not an authority under the Trust Deed to decide who is the successor and the issue of primogeniture and therefore, has exceeded his jurisdiction inasmuch as, it was not within the purview of the Election Officer to have passed the order almost deciding the primogeniture and entitlement to succession.

6.1 While referring to the Trust Deed, it is submitted that the clause 4 of the Trust Deed, provides for the Trusteeship which, inter alia, provides that 1st and 2nd orders of members are the successors- in-line 'Successors-in-line' is defined below Note 1 to mean sole agnatic successor by rule of primogeniture or by adoptive appointment pursuant to relevant customary law or codified practice and accordingly so acknowledged and entered in the records of the foundation. It is submitted that the foundation has rejected the applications of respondent nos.3 to 6 in past; which action was never challenged.

7. Ms. Manisha L Shah, learned Government Pleader with Ms. Aishwarya Gupta, learned Assistant Government Pleader, appearing on behalf of the learned Charity Commissioner, while taking this Court to the chronology of events of the proceedings in respect of application 41/07/21, submitted that the allegation made by the petitioner that there was an attempt on the part of the learned Joint Charity Commissioner to stultify the proceedings before this Court, is misplaced. It is submitted that application under Section 41A was filed on 7.8.2021 and on 9.8.2021 and 11.8.2021, the replies were filed by the private respondent so also the Trust respectively followed by rejoinder on 17.8.2021. It is further submitted that on 2.9.2021, this Hon'ble Court was pleased to pronounce its verdict in Special Civil Application No.10967 of 2021 and other allied matters granting two weeks' time. It is submitted that the hearing of the application was kept on 3.9.2021, however, considering the two

C/SCA/13251/2021 ORDER DATED: 17/09/2021

weeks' time granted by this Hon'ble Court in the CAV judgment dated 2.9.2021, the hearing of the application was kept on 18.9.2021. Therefore, it is incorrect on the part of the petitioner to contend that the learned Joint Charity Commissioner, has tried to delay the proceedings, rendering the petitioner remediless.

7.1 It is further submitted that till the hearing of the application under Section 41A is pending before the learned Joint Charity Commissioner and this Hon'ble Court being seized of the issue raised by the petitioner, course would be that the elections be conducted subject to the outcome of the present writ petition, or the votes received from the respondent nos.3 to 6 which are capable of being identified separately, be kept in a sealed cover.

7.2 It is reiterated that the application and the preliminary objection raised in the application under Section 41A before the learned Joint Charity Commissioner, could not be decided considering the two weeks' extension granted by this Court and that there was no attempt on the part of the learned Joint Charity Commissioner either to delay the proceedings or is stultify the proceedings before this Court.

8. Heard the learned advocates for the respective parties and perused the material available on record.

9. In the captioned writ petition, the petitioner is seeking direction, directing the elections to the Trust Board of the Trust to be held strictly in compliance with the Trust Deed/Rules, so also in conformity with the directions contained in the order dated 28.11.2019 passed in application 41/15/18 by the learned Joint Charity Commissioner. The prayers relevant for the present purpose are reproduced herein below for the ready reference:

"8. xx

C/SCA/13251/2021 ORDER DATED: 17/09/2021

A. YOUR LORDSHIPS be pleased to issue an appropriate writ, order, order or direction, directing the elections to the Trust Board of Respondent no.1 Trust is held strictly in compliance with the Trust Deed/Rules as also in strict compliance of the directions contained in the order dated 28.11.2019 in Application 41/15/18 made by the Ld. Joint Charity Commissioner, Rajkot, in the interest of justice and equity;

         B.    xx
         C.    xx
         D.    YOUR LORDSHIPS be pleased to direct the respondent

no.9 to keep in his custody all the votes cast during the election either through poll or physically in a sealed cover until such time Application 41A/07/21 along with all pending applications is finally heard and decided and pending the admission, hearing, further orders and disposal of this petition;

         E.    xx
         F.    xx"

10. The issue in the present writ petition revolves around the election of the Managing Committee consisting of 7 members, namely, 4 members of salute states and 3 members from non-salute states. The total electorate consist of 27 states, out of which, 11 are salute states and 16 are non-salute states. The 11 salute states would cast their votes for 4 seats and 16 non-salute states would cast their votes for 3 seats.

11. Respondent nos.5 and 6 had made applications to the Trust to include their names in the electoral roll of the Trust and the Trust, submitted an application, Exh.90 before the learned Charity Commissioner to decide the electoral roll. Since applications were received for inclusion of the names in the voters list, the learned Joint Charity Commissioner, vide order dated 13.11.2019 rejected the application, Exh.90, inter alia, observing that the decision is to be taken by the governing body of the Trust and it is only thereafter, that application can be made before the competent authority by the aggrieved person. Apropos the order dated 13.11.2019 by the learned Joint Charity Commissioner, the trust vide resolution dated 15.11.2019, rejected the application made by the respondent nos.3, 5 and 6 which was duly communicated to

C/SCA/13251/2021 ORDER DATED: 17/09/2021

them. It is discernible from the record that the rejection by the Trust for induction of the names, has not been challenged by the respective respondents. The contention raised by the learned counsel Mr. Mihir Joshi and Mr. Navin Pahwa that in past, the application of the respondent nos.3, 5 and 6 were rejected and such rejection was not challenged, has not been disputed by the learned counsel appearing for the respondent nos.3 to 6.

12. Vide order dated 28.11.2019, learned Joint Charity Commissioner, directed holding of election of the Managing Committee, considering the registered nominated representatives as on 30.10.2019, which order has also attained finality. In the present writ petition, the petitioner has sought for direction to the Trust to hold the elections strictly in compliance with the Trust Deed/Rules, so also the directions contained in the order dated 28.11.2019, which is pending consideration before this Court.

13. The election programme was published on 17.6.2021 and as per the election programme the objection against the preliminary list of electoral candidates was to be received between 5.7.2021 and 15.7.2021. The respondent nos.3 to 6 submitted applications dated 13.7.2021 before the Election Officer. The stage of examining the objections, hearing the parties was between 17.7.2021 and 19.7.2021. The Election Officer has passed four orders, all dated 20.7.2021, including the names of the respondent nos.3 to 6 in the electoral roll. As is discernible from the contents of the communication dated 5.8.2021, the Election Officer has decided the inclusion of the names of respondent nos.3 to 6 on the basis of their application and documentary evidence supplied along with it. The Election Officer, has observed that the proceedings have been initiated as per the election programme dated 17.6.2021 and therefore, there was no need of any hearing to be given to any parties. Being aggrieved, the petitioner has preferred the application before the learned Joint Charity Commissioner and the

C/SCA/13251/2021 ORDER DATED: 17/09/2021

same is kept for hearing the preliminary objection on 18.9.2021.

14. Therefore, the issues, namely, (i) whether the election is to be conducted as per the directions contained in the order dated 28.11.2019, and (ii) whether the names of the respondent nos.3 to 6 were rightly included in the electoral roll, are yet to be decided. If the result of the elections are allowed to be declared, it is likely that it may prejudice the case of the petitioner before this Court, so also before the learned Joint Charity Commissioner.

15. Further, this Court is mindful of the fact that once the election programme has been declared, the same should not be stalled and therefore, this Court is of the opinion that the interest of the respective parties is required to be protected while maintaining the equilibrium, pending the disposal of the captioned writ petition. Therefore, this Court deems it fit to pass the following order.

16. In the peculiar facts and circumstances of the case, the respondent nos.3 to 6 are allowed to cast their votes, however, the votes cast by them shall be kept in a sealed cover. Further, the result of the election shall not be declared until further orders that may be passed in the captioned writ petition. The respondents are directed to file an affidavit on or before 24.9.2021 with an advance copy to be served to the petitioner and rejoinder affidavit, if any, with an advance copy to the respondents on or before 30.9.2021.

17. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI