Gujarat High Court
Tushar Harshadrai Sompura vs Charity Commissioner & 27 on 19 September, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13004/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13004 of 2014
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TUSHAR HARSHADRAI SOMPURA....Petitioner(s)
Versus
CHARITY COMMISSIONER & 27....Respondent(s)
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Appearance:
MR K.S. NANAVATI, SENIOR COUNSEL FOR NANAVATI ASSOCIATES,
ADVOCATE for the Petitioner(s) No. 1
MR HARSHIT S TOLIA, ADVOCATE for the Respondent(s) No. 10 , 18
MR PARTH S TOLIA, ADVOCATE for the Respondent(s) No. 10 , 18
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 19/09/2014
ORAL ORDER
1. Heard Mr. Nanavati, learned senior counsel for the petitioner and Mr. Tolia, learned advocate for the respondents.
2. In present petitioner, the petitioner has prayed, inter alia, that:
"19(A) quashing and setting aside the judgment/order dated 30.7.2014 (ANNEXURE "M") passed by the Charity Commissioner, respondent No.1 herein, in Misc. Application No.5/2013, as well as the election programme dated 1.9.2014 (ANNEXURE "O") issued by respondent No.10 herein, pursuant to the aforesaid order and further directing to hold election only of three trustees for a term of three years, keeping one 1 C/SCA/13004/2014 ORDER post of trustee vacant on which the petitioner is already elected uncontested;
(B) declaring that the action of cancellation of election of 2012 is null and void, as the same is de hors the Trust Deed, without any authority, power or jurisdiction, arbitrary, despotic in nature, contrary to law and be further pleased to declare that the only way open to respondent No.10 was to hold byelection for rest of the trustees, as the petitioner was already declared elected uncontested, according to the election programme;
(C) to declare that the proceedings of extraordinary general meeting dated 21.3.2013 is null and void, as the advertisement convening the said meeting and the proceedings taken therein are null and void being de hors and contrary to the Trust Deed on several counts;"
3. At the outset, it is relevant and necessary to mention that having regard to the fact that the election programme is already declared and thereby the process of election has commenced, the petition does not deserve to be entertained at this stage. After the election is over, the aggrieved party can taken out appropriate proceeding against the process and/or result, etc. at appropriate stage. However, once the election process has commenced, the petition against the election does not deserve to be entertained. Besides the abovementioned reasons in view of which the petition does not deserve to 2 C/SCA/13004/2014 ORDER be entertained, it is also relevant to mention that it has emerged in light of the facts of the case that the agenda notice was issued on 16.11.2012 for Annual General Meeting on 16.12.2012. The petitioner has claimed that according to the election programme declared at the relevant time, the election officer finally scrutinised the nominee form on 12.12.2012.
4. To support and justify the relief prayed for in the petition, the petitioner has averred, inter alia, that:
"3.2 Pursuant to the aforesaid election programme, the petitioner, who is a member of the rust as well as Ex trustee of the Trust, filled in nomination form for the post of trustee of the Trust. According to the election programme, the Election Officer had to finally scrutinize the nomination form on 12.12.2012 and he found two nomination forms to be valid for the post of trustees. Accordingly, a report was submitted by the Election Officer on 12.12.2012 to the Trust, wherein the petitioner's nomination form, along with one another, was held to be valid. Moreover, according to Item No.7 of the election proramme, as there were less than 8 nomination forms, the petitioner and the other candidate were elected uncontested on 12.12.2012 itself. ANNEXUREC is a copy of the Election Officer's Report dated 12.12.2012.
3.3 Thus, as there were only two nomination finally held to be valid, there was no occasion for holding election by ballot/votes. However, on 16.12.2012, at the annual general meeting when Agenda No.6 was taken for consideration, respondent NO.10 herein as the President of the Trust announced that he is cancelling 3 C/SCA/13004/2014 ORDER the election without any rhyme or reason. This created a big hue and cry amongst the members and, therefore, the entire meeting was interrupted/disrupted and then the trustees had left the meeting hall. The members present in the meeting tried to persuade the respondent No.10 and other trustees not to cancel the election for about two yours, but in vain. However, after waiting for about two hours, the petitioners left the meeting hall, as the annual general meeting was not at all re convened nor any fruitful result was arrived at amongst the present members and the trustees.
3.4 The petitioner, therefore, made an application to respondent No.10 on the very next day, i.e. on 17.12.2012 asking for certain documents as well as copy of the resolutions, if any, passed on Agenda No.6 and thereafter. ANNEXURE D is a copy of the said application dated 17.12.2012. The petitioner again made an application on 19.12.2012 and personally remained present for obtaining said copies, however, the same was not provided to the petitioner. ANNEXURE E is a copy of the application dated 19.12.2012.
3.5 As the petitioner was left high and dry, the petitioner gave a notice on 19.12.2012 to respondent No.10 pointing out that the action of cancelling the election is dehors the Trust Deed, without any power or authority and further pointing out, illegalities committed by him during the said annual general meeting and praying for not to proceed contrary to the Trustee Deed, as it was rumored by many members that a circular/resolution was passed. It was also prayed that the resolution passed after Agenda NO.5 should be provided immediately to the petitioner. ANNEXURE F is a copy of the said notification 19.12.2012.
3.6 The respondent NO.10 under his signature gave reply dated 24.12.2012 to aforesaid notice of the petitioner, wherein it was stated that the two persons whose nominations were finally accepted are not fit to be the trustees of the Trust and, therefore, it was resolved to cancel the election and on the very day, election was cancelled as being null and void and there would be lack of quorum of trustees in the meeting of the Board of trustees. Moreover, it was replied that as per the Trust Deed, new election programme is likely to be declared within short time, wherein the petitioner can nominate himself, if so desired. Thus, the petitioner was advised to wait and participate in the same. ANNEXURE G is a copy of the aforesaid reply to the Notice dated 24.12.2012.
3.7 The petitioner had no other option, but to approach the Charity Commissioner under Section 41A of 4 C/SCA/13004/2014 ORDER the Act by preferring an application being Misc. Application No.5/2013 in the month of March, 2013. ANNEXUREH is a copy of the said application. In response to the said application having been filed along with the application for stay, respondent Nos. 9 to 21, 21 to 23 to 26 filed their reply dated 9.4.2013. Rejoinder to the said reply was filed by the petitioner on 17.04.2013, a copy of which is annexed hereto and marked as ANNEXUREJ. 3.8 The petitioner submits that pursuant to the aforesaid Resolution No.6 passed in the AGM dated 16.12.2012, the Board of Trustees, on coming to know that the petitioner has filed application under Section 41A of the Act, immediately called an Extraordinary General Meeting ("EGM" for short) on 21.03.2013 by issuing an advertisement styled public notice in "Sandesh" daily on 11.03.2013, which did not mention any agenda for convening the EGM On 21.03.2013. The said public notice is null and void, as the same is de hors the Trust Deed and is without any agenda, it is also without giving 15 days clear notice to all the members individually as required by the rust Deed and does not give clear 15 days' period as required by the Trust Deed. Moreover, such an advertisement in one daily would never reach to all the members of the Trust who are living outside Gujarat as well as outside country. Moreover, it is pertinent to note th at it is the prevalent practice to issue individual Notice of 15 days to each and every member, since the inception of the trust and never in the history of trust, any AGM or EGM is called by issuing advertisement in newspaper. The copy of the sandesh Notice is annexed hereto and marked as ANNEXURE"K". Thus, the entire proceedings of the EGM dated 21.03.2013 on the basis of such a null and void advertisement, are also null and void. The copy of the minutes of EGM dated 21.03.2013 is annexed hereto and marked as ANNEXURE "L" to this petition. Pursuant to the recommendation of the High Power Committee dated 8.3.2013, the then Board of Trustees continued themselves as Board of Trustees as well as Managing Committee for another tern. There is no provision in the Trust Deed that any such High Power Committee can select trustees for the trust, hence the constitution of such committee and the selection by such committee of the Board of Trustees is totally de hors the Trust Deed, as held by the respondent NO.1. Thus, it is very very obvious that this Board of trustees cannot, in any circumstances, be continued, as they have become so, dehors the Trust Deed and they have no other intention, but to continue themselves as Board of Trustees and Managing Committee by hook and crook.5 C/SCA/13004/2014 ORDER
3.9 The petitioner submits that in the said EGM dated 21.03.2013, the petitioner came to be removed from the membership of the Trust, without the same being on agenda, and without giving any notice to the petitioner. The said action is taken behind the back of the petitioner and without following the principles of natural justice and hence is violative of Article 14, 19 and 21 of the Constitution of India, besides being after thought. This was done with a clear malafide intention so as to deprive the petitioner from contesting elections in future. However, as the entire proceedings carried out during the said EGM right from Notice are dehors the Trust Deed, the entire proceedings itself are null and void, removal of the petitioner is also null and void.
3.10 The petitioner submits that instead of hearing the application for stay, the Respondent No.1 insisted for finally hearing the main application after the pleadings were over. However, he did not even hear the main application immediately, but it was adjourned time and again, without any request for the same by either of the parties. Ultimately, on insistence of the petitioner, the matter came to be heard after 1 ½ years and rendered the impugned judgment/order after hearing both the parties, partly allowing the application of the petitioner, without properly appreciating and understanding the facts of the case, and without considering the provisions of Trustee Deed as well as the law as laid down by this Hon'ble High Court. Annexed hereto and marked as ANNEXURE M is a copy of the judgment/order dated 30.07.2014 passed by the I/c Charity Commissioner in Misc. Application No.5/2013. The said Order was received by the petitioner on 10 August, 2014 by post.
3.11 The petitioner submits that as per the directions given by the Charity Commissioner to hold election of the entire trustees as well as the members of the Managing Committee within a period of three months from the date of the judgment, respondent No.10 has again issued Election Programme on 1.9.2014, which was received by the petitioner on 6.9.2014 through BookPost. At the same time, respondent No.18, under his signature, issued agenda Notice calling for AGM On 21.09.2014. ANNEXURE N is the copy of the said election programme and ANNEXUREO is the copy of the Agenda Notice dated 1.9.2014."
5. Mr. Nanavati, learned senior counsel for the petitioner submitted that in pursuance of the 6 C/SCA/13004/2014 ORDER election programme which was declared in November 2012, the petitioner had filed his nomination for the post of Trustee. He further submitted that after scrutiny of the nomination papers only two nomination forms were valid and that, therefore in light of clause No.7 mentioned in the said notice, the petitioner should have been declared as elected (uncontested), however, the President of the trust cancelled the said election. Mr. Nanavati, learned senior counsel for the petitioner submitted that in March 2013, the petitioner filed application under Section 41A of the Bombay Public Trusts Act, 1950. The application was contested by the trust and finally it came to be disposed of vide order dated 30.7.2014 whereby the competent authority passed certain directions which include the direction to hold election. Mr. Nanavati, learned senior counsel for the petitioner submitted that pursuant to the said order dated 30.7.2014, election programme is declared, however, the respondent should hold election only 7 C/SCA/13004/2014 ORDER on three trustees and one post which the petitioner holds after election in 2012, now election should not be held and now the election should be conducted only for vacant posts of the trustee. Mr.Nanavati, learned senior counsel for the petitioner submitted that the competent authority should have held that cancellatino of the election held in December 2012 was illegal.
6. At the outset, it is relevant to mention that this petition is preferred after the election programme is declared and at the stage when the date of filing of nomination has already passed. At this stage, a petition seeking interference with the election and/or election programme does not deserve to be and cannot be entertained and/or the process of election which has commenced since 1.9.2014, i.e. upon declaration of election programme/schedule cannot be interfered.
7. After the election is concluded the 8 C/SCA/13004/2014 ORDER petitioner can take out appropriate proceeding under the provisions of the Act, if he feels aggrieved by the process of election.
8. It is pertinent that according to the trust deed, board of trustees comprises 8 trustees. 8.1 The trust deed also provides that 4 trustees, out of 8 trustees, would be permanent trustees and other 4 trustees will be appointed by process of election and the tenure of the elected trustees would be three years.
8.2 The clause No.7, which makes provision related to board of trustees and for filling up the vacancies of the trustees by process election, does not contain any provision, such as the clause No.7 which was mentioned in the election notice dated 16.11.2012. 8.3 When the trust deed does not contain such provision, i.e. provision whereby merely the 9 C/SCA/13004/2014 ORDER candidate whose nomination form is found valid, will have to be declared elected / uncontested. According to the petitioner, when the scrutiny of the nomination forms was conducted in pursuance of the election programme dated 16.11.2012, only two nomination forms were found to be valid. 8.4 It is pertinent that in December 2012, the election officer / returning officer did not declare the petitioner (or other candidate whose nomination was also found to valid) as successful / elected as trustee.
8.5 It is also pertinent to recall that the election was to be held for 4 posts and according to scrutiny of nomination form, only two forms were to be found valid. In these circumstances, the election officer cancelled the said election.
9. Thereafter for almost three months the petitioner did not take any action or any steps against the said decision and thereafter 10 C/SCA/13004/2014 ORDER somewhere in March 2013, the petitioner filed an application, purportedly under section 41A of the Bombay Public Trusts Act, 1950 and prayed, inter alia, that the opponents in the said application be directed to supply him copy of the proceeding of the meeting held on 16.12.2012 and that the petitioner should be allowed to participate in the meetings of the board of trustees and in administration of the trust on the premise that he stands elected (uncontested) and that until election for vacant posts is held, the trustees should not take any policy decision and that his name may be entered into the register as trustee elected (uncontested) in December 2012. On perusal of the said application, it emerges that the petitioner did not challenge the decision taken in the meeting held on 16.12.2012 i.e. to treat the election as cancelled. He also did not pray for declaration that two candidates whose nomination forms were found, should be declared elected. The said application came to be decided by the competent authority vide order dated 11 C/SCA/13004/2014 ORDER 30.7.2014 which is impugned in present petition.
10. The competent authority, by the said order dated 30.7.2014, directed that the trust should take steps to hold election and the process of election should be completed within three months.
11. Until now, i.e. September 2014 (for almost six months), the petitioner did not take any steps to challenge the said order. After period of delay of almost six months, the petitioner has sought to challenge the said order dated 30.7.2014.
12. In the interregnum, the trust, in compliance of the directions by the said order dated 30.7.2014, declared election programme and the process is already put in motion.
13. In this context, it is relevant to note that in view of the directions issued by the competent authority vide order dated 30.7.2014, the 12 C/SCA/13004/2014 ORDER respondent trust (through respondent No.10) issued notice dated 1.9.2014 declaring the election programme. The petitioner has claimed that he received the said notice dated 1.9.2014 declaring election programme on 6.9.2014.
14. On perusal of the said notice dated 1.9.2014 declaring the election programme, it emerges that as per the declared schedule, the nomination forms were to be issued between 11.9.2014 and 13.9.2014 and the nomination forms were to be filed/submitted on or before 15.9.2014, whereas the scrutiny of the nomination forms (received from the candidates) was to be undertaken on 16.9.2014 and the last date for withdrawing nomination was 18.9.2014.
15. Now, in this context, it is relevant to note that though the election programme was declared on 1.9.2014 (which, according to his own claim/allegation, the petitioner received on 6.9.2014), the petitioner did not take any step 13 C/SCA/13004/2014 ORDER or action, including any step or action to challenge the said notice, immediately on declaration of the programme or within reasonable time thereafter.
16. Not only this, until the date on which scrutiny of the nomination forms was to be undertaken, i.e. on 16.9.2014, the petitioner did not take any step/action with reference to the said notice dated 1.9.2014.
17. Instead, the petitioner filed the petition on 17.9.2014 (i.e. a day before the date scheduled for withdrawing the nomination forms).
18. The matter was then placed for hearing for the first time on 18.9.2014, however, on the said date, the hearing was adjourned to today, i.e. 19.9.2014. Thus, until 17/18.9.2014 the petitioner did not take any step against the order dated 30.7.2014 and/or against the notice dated 1.9.2014.
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19. Moreover, the petitioner did not offer his candidature in response to the notice dated 1.9.2014, inasmuch as he did not file his nomination (without prejudice to his rights and contentions) against the respondent authority's decision to declare election in compliance of the order dated 30.7.2014 and/or against the order dated 30.7.2014 and now, when the election process is already in motion and the candidates have already submitted their nominations and scrutiny of the nomination forms is already completed, the petitioner has come forward with present petition seeking abovequoted reliefs.
20. It becomes clear from the abovementioned fact that in the facts of the case, the petition is not only hit by delay and latches but also by acquiescence or by principle analogous to estoppel by conduct.
21. After the competent authority passed the 15 C/SCA/13004/2014 ORDER order dated 30.7.2014 which contained the directions to the respondents to start and complete the election programme within three months, the petitioner did not challenge the said order in reasonable time.
22. In certain cases, having regard to the facts, delay of even one week or even a day would make world of difference.
23. In present case, though the time consumed between the date of the order and the date of institution of this proceeding is about one and half months but in view of the facts of the case the said delay is substantial and material inasmuch as when the authority issued directions to complete the process of election within three months, the petitioner did not take any action until the election programme came to be issued and that too until the election process was in motion and half of the process already got concluded (since, scrutiny of the nomination 16 C/SCA/13004/2014 ORDER forms was over by the time when the petitioner initiated the action).
24. Thus, by the time the petitioner filed the petition, the order is acted upon and has been implemented and carried out by declaring election programme.
25. In this view of the matter, the petition does not deserve to be entertained at this stage, i.e. when the election process is in motion - progress.
26. Furthermore, it is also relevant to note that by the directions in the order dated 30.7.2014, the authority made it clear that the trust should conduct the election and the election process should be completed within three months and that, therefore, when the election programme came to be declared, the petitioner could have, without prejudice to his contention/objection (viz. the contention that in view of the fact that at 17 C/SCA/13004/2014 ORDER earlier point of time, when he had offered his candidature, he should have been considered as elected in view of the clause No.7 in the notice dated 16.11.2012), the petitioner could have offered his candidature by submitting nomination form and he could have, without prejudice to the said contentions, contested the election.
27. However, by his conduct, i.e. by not offering his candidature and not contesting the election, the petitioner consciously waived his right and/or contentions and objections and now the petitioner has preferred present petition after declaration of election programme. In view of the said fact and for the said reason the petition does not deserve to be entertained at this stage.
28. It is relevant and appropriate to mention that the petitioner had taken out proceeding under Section 41 of the Act and in the said proceeding, the order dated 30.7.2014 came to be 18 C/SCA/13004/2014 ORDER passed.
29. The said proceeding was taken out by the petitioner on the ground that in view of the provisions, he should be treated as having been elected. Meaning thereby the petitioner was aware about the fact that he is not treated as elected. He was aware about the said fact in view of the fact that in December 2012 the election was treated as cancelled and he was aggrieved by the said action/proceeding of the trust and therefore, he has been taken out proceeding under section 41 of the said Act. The competent authority rejected the said application. The said rejection of the petitioner's application, vide order dated 30.7.2014, was another indication that the petitioner's contention that he should be treated as elected, has not been accepted. In this backdrop, when the respondent Commissioner directed the trust to conduct the election, upon rejecting the petitioner's application, the said 19 C/SCA/13004/2014 ORDER direction was further / additional indication that the petitioner's contention is not accepted.
30. Despite such clear situation, the petitioner neither offered his candidature, even with protest or without his contention, nor did the petitioner challenge the said order dated 30.7.2014 until the election programme came to be declared and the process was put in motion.
31. In this view of the matter and for the foregoing reasons, the relief prayed as by the petitioner does not deserve to be entertained at this stage.
32. Besides this, by the order dated 30.7.2014, the Commissioner directed the trust to conduct the election. The fact viz. that until election programme to be declared and the election officer came to be nominated, the petitioner did not challenge the said order for almost two months, disentitles the petitioner to seek any relief 20 C/SCA/13004/2014 ORDER against the election and/or to challenge the said order after election programme is declared and at this stage, the Court would not interfere with the election process.
33. The petitioner's challenge against the impugned order dated 30.7.2014 after declaration of election programme would amount to Court interfering with the election process and therefore, such request cannot be considered at this stage.
For the foregoing reasons, the petition fails and is accordingly rejected.
(K.M.THAKER, J.) Bharat 21