Bench: A.J.Desai, Nirzar S. Desai
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.825 of 2021
In
R/SPECIAL CIVIL APPLICATION NO.13251 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 825 of 2021
With
R/LETTERS PATENT APPEAL NO. 826 of 2021
In
SPECIAL CIVIL APPLICATION NO. 13251 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 826 of 2021
=========================================
SHRI PADMARAJSINHJI GHANSHYAMSINHJI JADEJA
Versus
DARBARSAHEBSHRI SATYAJITKUMAR SHIVKUMAR KHACHAR
=========================================
Appearance :
Letters Patent Appeal No.825 of 2021
MR PERCY KAVINA, SENIOR COUNSEL ASSISTED BY SUJAY J ADESHRA for
the Appellants.
MR N.K. PAHWA, SENIOR COUNSEL ASSISTED BY MR RAVI PAHWA for the
Respondent No.1.
MR MIHIR THAKORE AND MEHUL SHAH, SENIOR ADVOCATES ASSISTED BY
MR NIKUNT RAVAL for the Respondent No.2.
for the Respondent Nos.3,4,5,6,7,8,9
Letters Patent Appeal No.826 of 2021
MR DEVANG NANAVATY, SENIOR COUNSEL ASSISTED BY MRUGEN K.
PUROHIT for the Appellants.
MR N.K. PAHWA, SENIOR COUNSEL ASSISTED BY MR RAVI PAHWA for the
Respondent No.1.
MR MIHIR THAKORE AND MEHUL SHAH, SENIOR ADVOCATES ASSISTED BY
MR NIKUNT RAVAL for the Respondent No.2.
for the Respondent Nos.3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A. J. DESAI) C/LPA/825/2021 ORDER DATED: 19/09/2021
1. By an order dated 18.9.2021, Hon’ble the Acting Chief Justice has constituted this Special Bench for hearing the present appeals. Accordingly, the present appeals have been taken up for hearing in the Court premises today i.e. Sunday.
2. The order which is under challenge in the present appeals is passed on 17.9.2021 by learned Single Judge. However, copy of the said order is not available. What has been stated by the appellant in paragraph 1 of the present appeal memo is that by an order dated 17.9.2021, learned Single Judge has issued notice for final disposal making it returnable on 5.10.2021 and further passed order to keep four votes of original respondent Nos.3 to 6 in sealed cover and ordered that the result of the election could not be declared till further orders.
3. About the contents of the order under challenge in the present appeals, as stated in the memo of appeals, learned advocates appearing for the respondents on caveat have agreed for the same. Hence, the appeals are taken up for hearing.
4. Since the main writ petition is fixed for final hearing by learned Single Judge, the present appeals were argued in detail on factual aspects. We have considered the memo of Special Civil Application No.13251 of 2021 filed at the instance of the respondent No.1 herein. We have also considered the prayers prayed for in the said petition by one of the beneficiary of the Trust and several orders passed in connection with regard to the election of the Trust which has not taken place since 2018 – 19.
5. The prayer in Special Civil Application No.13521 of 2021 sought by the petitioner is for issuance of a writ, order or C/LPA/825/2021 ORDER DATED: 19/09/2021 direction directing that the election of the Trust Board of respondent No.2 Trust be held strictly in compliance with the Trust Deed / Rules as also in compliance of the directions contained in the order dated 28.11.2019 in Application No.41/15/18 made by Joint Charity Commissioner, Rajkot. In paragraph 2.35 of the said petition, the original petitioner has referred to an order dated 20.7.2021 by which names of the appellants of these two appeals were included by Election Officer. This order is not challenged by the original petitioner. The said decision was challenged by the Trust by way of Special Civil Application No.10967 of 2021 and allied matters. The said writ petitions were not entertained by learned Single Judge by common CAV judgment dated 2.9.2021 on the ground of non-maintainability of the writ petitions under Article 226 of the Constitution of India.
6. We have been told that Letters Patent Appeals filed at the instance of the Trust i.e. original petitioner of Special Civil Application No.10967 of 2021 and allied writ petitions have been withdrawn.
7. We have also considered the election programme published by the Election Officer on 17.6.2021. As per the said programme, the date for publishing the list of voters was fixed on 22.7.2021. As per the order dated 20.7.2021, names of the present appellants were included and, therefore, their names were mentioned in the final list of voters. The date of publishing the names of candidates for the election was fixed on 17.8.2021. Neither the Trust nor the original petitioners of Special Civil Application No.13251 of 2021 raised any objection with regard to inclusion of names of the present appellants in the voters list nor publication of their candidature on 17.8.2021.
It appears from a C/LPA/825/2021 ORDER DATED: 19/09/2021 communication dated 5.8.2021 issued by the Election Officer which was addressed to the Trust about the objection, the Trust did not file any application under Section 41-A of the Bombay Public Trusts Act. However, the original petitioner of writ petition who had never raised any objection about the inclusion of the names of the appellants in the voters list, did file an application under Section 14 (1) (A) of the Bombay Public Trusts Act on 7.8.2021. During the pendency of the said application, the present appellants filed an application raising preliminary objection about the maintainability of such application. However, neither the application filed by the original petitioners nor by the appellants came to be decided and are pending.
8. Considering the above aspects and particularly when the original petitioners had not raised any objection with regard to inclusion of the names of the appellants herein by an order dated 20.7.2021 and subsequent thereto, at any point of time and considering the fact that several questions raised by the petitioner are pending for consideration before the learned Single Judge in Special Civil Application No.13251 of 2021, we deem it fit to pass following order at this stage, without examining the merits of the case and keeping in mind about the election which is to be held today before 16.00 O’clock :-
(I) The direction issued by learned Single Judge by order dated 17.9.2021 in Special Civil Application No.13251 of 2021 not to declare the result of the election and keeping four votes of original respondent Nos.3 to 6 in sealed cover is hereby quashed and set aside.
(II) The Election Officer shall proceed further with the process of
C/LPA/825/2021 ORDER DATED: 19/09/2021
election as per the programme and declare the result of the election which is scheduled today.
(III) We further direct that till the final disposal of the Special Civil Application No.13251 of 2021, the elected body of the respondent No.2 Trust shall not take any policy decision with regard to the management of the Trust and its properties and shall work for the benefit of the Trust. Further, the elected body of the respondent No.2 Trust shall also not make any expenditure more than Rs.50,000/- and even for the same, separate account shall be maintained by the elected body – Managing Committee.
(IV) The Charity Commissioner is hereby directed to decide the application filed by the original petitioner under Section 41-A along with the application preferred by the present appellants raising preliminary objection about maintainability of application under Section 41-A, as early as possible, preferably within a period of 10 days from today without being influenced by any of the observations made by learned Single Judge or in the present order.
(V) The result which may be declared by the Election Officer today pursuant to the election shall be subject to final decision in the application filed under Section 41-A.
(VI) It is needless to state that the order which may be passed by the Charity Commissioner below the application filed at the instance of the original petitioner can be challenged before the appropriate forum.
9. With the above observation and directions, the present appeals accordingly stand disposed of. Connected civil applications C/LPA/825/2021 ORDER DATED: 19/09/2021 also stand disposed of.
10. Request made by learned Senior counsel Mr. Navin K. Pahwa appearing for the respondent on caveat to stay implementation of the present order is refused in view of catena of decisions of the Hon’ble Apex Court as well as this Court about the stage of interfering the election process as well as in view of the above directions issued by this Court.
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