Gujarat High Court
Vikas Ferro & 2 vs Maharaja Sayajirao University Of ... on 7 February, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1255/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1255 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1272 of 2017
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VIKAS FERRO & 2....Petitioner(s)
Versus
MAHARAJA SAYAJIRAO UNIVERSITY OF BARODA....Respondent(s)
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Appearance:
MR ANSHIN H. DESAI, SR. ADVOCATE WITH MR HARSHADRAY A DAVE,
ADVOCATE for the Petitioner(s) No. 1 - 3
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/02/2017
COMMON ORAL ORDER
In both the captioned petitions, the facts are similar and the issue is common. Therefore they were considered and heard together and are being disposed of simultaneously by this order.
1.1 Heard learned senior counsel Mr.Anshin H. Desai for the petitioners in both the petitions assisted respectively by learned advocate Mr.Harshadray Dave and learned advocate Mr.Masoom Shah and learned advocate Mr.D.G. Chauhan for the respondent University.
2. In the Statute Book of The Maharaja Sayajirao University there exist a Statute which permits persons to become voters and caste vote in the Page 1 of 15 HC-NIC Page 1 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER election to the senate by donating rupees one lakh or property of the market value of rupees one lakh to or for the purpose of the University, thereby becoming eligible to be included in the donor's category of voters, who, in turn, amongst themselves would elect two representatives as members of the University senate.
2.1 The controversy arises in respect of inclusion of names in the list of voters of donors category. The three petitioners of Special Civil Application No.1255 of 2017 claimed that they are the juristic persons having statutory right to be represented through their representative to be included in the list of voters of donors category. Similarly, four petitioners of Special Civil Application No.1272 of 2017 are in capacity of Hindu Undivided Family (HUF) and they also want their names to be figured in the donors list. The premise of the case and the prayer of petitioners has been that they have donated amount of rupees one lakh in their above- said capacity as well as also donated the amount separately in their individual capacity, therefore, their names has to be allowed in the list of voters in the donors category accordingly for both the donations.
3. Noticing the prayer in both the petitions, the petitioners prayed to set aside communication dated 05th January, 2017. By the said impugned communication the Registrar of the University has stated that name of each of the petitioner have been Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER included at the respective serial number in the list of voters and that they could not be included twice. In the said communication dated 05th January, 2017, the Registrar has stated thus, "With reference to the above letter and subject, I am to inform you that your names are appearing at in the Electroal Roll of Donors. As under:
Shri Amit Patel at Sr.No.109, Chirag Gada office Bearer of Vikas Ferro at Sr.No.98 Sumit Bhatnagar at Sr.No.90 S.N. Bhatnagar at Sr. No.91 and Amit Bhatnagar at Sr. No.89.
The Committee has examines the names of the Donors and his Office Bearers and has decided to have only one name in the Electoral Roll even though the donors has given donation in his individual capacity/HUF etc."
3.1 As per Section 18 of the Maharaja Sayajirao University of Baroda Act, 1949, the senate of the University shall consist of the members of Class I who are ex-officio members and members of Class II, who are the ordinary members. Section 18(1) reads as under.
"18.(1) The Senate shall consist of the following members, namely:-
Class I-Ex-officio Members (A) University Officers:-
(i)to (iv).......
(B) Others:-
(i) to (xii).......
Class-II Ordinary Members
(A) Elected as specified below:-
(B) (i) to (x)......
(B) Two members to be elected in the manner specified in the Statutes from amongst themselves by donors each donating money or property of the value of not less Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER than one lakh or rupees:
(i) to, or for the purpose of, the University, or
(ii) to, or for the purpose of a constituent or affiliated college or institution recognised by the University, irrespective of whether the donation was made before or after the college was made constituent or affiliated or the institution recognised:
Provided that the right of electing members on the Senate shall not extend beyond the period of twenty years from the date of acceptance of such donation by the college, institution or , as the case may be, the University.
Explanation: For the purpose of this paragraph, the value of the property means the market value of the property at the date of acceptance and the decision as to the market value shall rest with the Syndicate and shall be final."
3.2 Statute 181 of the University deals with preparation of list of voters in the donors category.
The relevant portion of Statute 181 is reproduced hereunder.
"(i) The Registrar shall prepare a list of donors, each of whom has donated money or property of the market value of not less than Rs.1/- lakh to or for purposes of the University, or to or for purposes of constituent college or institution recognised by the University.
(ii) The Registrar shall also include in the said register, the donors each of whom has donated money or other property of the market value of not less than Rs.1/- Lakh to, or for the purpose of the college or Institution prior to the date on which such college or Institution was deemed to be affiliated or recognised and admitted to the privileges of the University.
(iii) If the donor is an undivided Hindu Family, trust, firm, company, or body corporate, for the purpose of representation on the Senate, the name of the representative nominated from time to time by each such undivided Hindu Family, trust, firm, company, or body corporate shall be entered on the register maintained by the University.
(iv) In the case of donations given jointly in the Page 4 of 15 HC-NIC Page 4 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER name of two or more persons, the name of only one representative will be enrolled in respect of that donation, if other conditions are fulfilled.
(v) In case of the donations given by instalments the total of such donations being Rs.1 Lakh or more, the date of acceptance of the first instalment will be taken as the date of acceptance for purpose of enrolment. The person so entitled shall not, however, be entitled to vote or stand for election till the full amount of Rs.1 Lakh or more has been paid.
(vi) If the number of names enrolled under sub-
clause (B) of Section 18(1)-Class II is less than three each person whose name is so enrolled subject to the provisions herein contained be deemed to have been elected. If the number exceeds two, the persons whose names are enrolled on the register shall elect two members to the Senate. The election shall be held at a place or places in the manner prescribed in the Statute 169.
(vii) The Registrar shall ask the manager of an undivided individual Hindu Family, the trustees of the trust, the Managing Director of the Company, joint donors or the representative of any body corporate as the case may be, to intimate to the University before 49 clear days from the date fixed for election, the name, degree and address of the representative for the purpose of inclusion of his name in the electoral roll.
(viii) The names of such representatives shall be put on the electoral roll which shall be published at least 42 clear days before the date of election.
(ix) to (xiii) ... ... ...
(xiv) The Registrar shall send a list of valid
nominations to all electors at least 10 clear* days before the date of election.
Proviso.
The karta/Coparcener of Hindu Undivided Family (HUF), and office bearer of the Trust, the Company, Joint Donors or the executive member of any Corporate as the case may be can contest the election. A donor who had Donated the Donation in his/her individual name are eligible to contest the election under Section 18(1) Class-II(B) by himself/herself."
Page 5 of 15HC-NIC Page 5 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER 3.2 Adverting in brief the case pleaded by the petitioners, it is stated that Faculty of Fine Arts was in dilapidated condition and required renovation; with the assistance of an agency called VADFEST, which managed funds for the University, the necessary work of renovation was carried out. It appears that accordingly a private party named Art and Culture Foundations, Vadodara spent Rs.38.00 lakh approximately in relation to an event held in the University towards the track lights, renovation and other works. It is towards such expenses that the petitioners herein appears to have donated money to fourth respondent.
3.3 The above private agency VADFEST had addressed a communication dated 16th July, 2016 to the Registrar of the University as under.
"Dated:16.07.2016 To, The Registrar Maharaja Sayajirao University, Vadodara.
Sub. Donation of Spot/track lights for Faculty of Fine Arts during Vadfest 2015 Sir, We the undersigned have donated spot/track lights worth Rs.38 lacs approx; we had also spent a large amount on Art work, renovation and delivered Manpower to the festival. We request you to kindly register us a registered Donor.
We have also forwarded request for the list of People attached who donated Rs.1 lacs each for clearing payments of Rs.38 lacs which was due to Light suppliers as after installation of these lights we were informed that MSU does not have any budget for the above said lights and without the lights the exhibition cannot happen and a permanent display facility in Fine Arts Page 6 of 15 HC-NIC Page 6 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER was not feasible which was very much required after this large renovations.
Accordingly, since our team also had to such financial provisions we took contribution of Rs.1 lacs each from these donors and cleared the payments supposed to be cleared by MSU, we are enclosing their list and the bills which were paid by us from funds coordinated from them.
Kindly note this list only comprises of Capital Goods donated to MSU and only relates to the Donation coordinated by us & does not include as running costs of Vadfest or any other costs.
We request to you to kindly register them as Donor as this property is now donated to MSU by these donors.
Yours sincerely For Art and Culture Foundations."
3.4 Petitioners of Special Civil Application No.1255 of 2017 donated in the name of the company as well as in their individual capacity and in both respect claimed to be included in the list of donor category voters. As already stated, petitioners of other petition donated in the name of Hindu Undivided Family as well as individually and wanted to become voters for both the donations.
3.5 It is stated that in order to scrutinise the names of the list of donors, the Vice Chancellor appointed a Scrutiny Committee for verification which consisted 11 members. A copy of Circular dated 22nd December, 2016 constituting such committee is produced on record along with the affidavit-in-reply. The committee appears to have finalise the names and the list on 22nd December, 2016. Thereafter the Vice Chancellor, in exercise of powers under statute 143, issued election notice dated 04th January, 2017 and the Page 7 of 15 HC-NIC Page 7 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER election is now scheduled to take place on 09th February, 2017 after exhaustion of intervening stages in the process.
4. Learned senior counsel emphasised the aspect that the petitioners had donated separate amounts in two different capacities. He submitted that in individual capacity donation of rupees one lakh was given and in capacity of Karta of HUF or the office bearers of the company, amount was donated. Therefore the right to vote should be made available having regard to two distinct jural capacities. In order to bring his point home that in donating two amounts, petitioners had two legal capacities, learned senior counsel relied on decisions in (i) Praga Tools Corporation v. C.V. Imanual [AIR 1969 SC 1306], (ii) Jain Merchants Co-op. Housing Society Limited v. H.U.F. Of Manubhai Kalyanbhai Shah through its Manager Harishbhai Manubhai Shah [1995 (1) GLR 19] and (iii) Dadasaheb Rawal Co-op. Bank of Dondaicha Ltd. v. Ramesh Jawrilal Jain [2009 Cri.L.J. 67] to deduce such proposition. He thereafter highlighted the amended Proviso to Statute 181 to submit that there was no bar in donating in two different capacities and becoming voter. He pressed his alternative prayer also that a different person could be named as representative voter.
4.1 The respondent University filed affidavit- in-reply contesting the petitions. It was contended that petitioners are not entitled to caste more than one vote in the same name, that is, as an individual Page 8 of 15 HC-NIC Page 8 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER donor as also in capacity of Karta of HUF or office bearers of the trust or the company, as the case may be. It was contended that name of the petitioners in both the petitions have already been included in the list of voters and therefore it is not open to them to again request for re-inclusion of their names.
4.2 In the affidavit-in-reply, the University has mainly contended thus, extracting from affidavit- in-reply in Special Civil Application No.1272 of 2017, "6. ......the petitioners have donated the donation to the University as required under Section 18(1) Class-II (B) read with statutes 181 and therefore, the names of the petitioners have already been included in the voter list and the petitioners have right to cast their votes and can contest the election. It is settled law that in any democracy election, one person can cast one vote only.
7. .........The petitioner has no legal or statutory right to claim that the petitioners are entitled to cast more than one vote in the same name as a donor (individual) or in any capacity viz. Karta of HUF, office bearer of the trust, the company, Joint Donors or the executive member of any corporate as the case may be in the Donors constituency.....
8. ........The committee after considering the entitlement and eligibility of each Donor, found that "some names, including the names of the petitioners appeared more than one time in the said list. Under the circumstances, the committee decided that one name be considered only only in Electoral List. Accordingly, on 28.12.2016 a final Electoral Roll was prepared and published with prior approval of the Vice Chancellor........"
4.3 Learned advocate for the University submitted that the committee had verified the names of the voters in the donors list and wherever there was a duplication of name, only one name was retained. He further submitted that the petitioners were asked to submit different name but they did not do so. He Page 9 of 15 HC-NIC Page 9 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER referred to communication dated 15th December, 2016 (Page No.111 to 114 in Special Civil Application No.1272 of 2017) and submitted that the same name was sent by the petitioners as individual as well as Karta of HUF or the office bearers of the company, as the case may be.
5. The controversy is whether the petitioners would be given two places in the list of voters on the ground that they have donated two different amount and whether a person in his individual capacity as well as in juristic capacity could secure two different votes. It is the moot question whether operation of Statute 181 would allow a person to caste one vote so as to redeem the principle of one-person-one-vote or that because of two distinct donations, same person could exercise right to vote in two capacities by figuring in the list of voters in both the capacities; whether in such case the principle of one-person-one-vote would be violated and whether such dual eligibility is permissible under the Statute.
5.1 Learned advocate for the University referred to the sub-clauses (iii), (iv), (vii) and other clauses of Statute 181 and endavoured to demonstrate that those principles were clearly indicative of permissibility of one vote per person. The question is one of application and interpretation of Statute 181.
5.2 Section 60 reads as under.
"60. Where any question arises as to-
(1) the interpretation of any provision of this Act, Page 10 of 15 HC-NIC Page 10 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER or of any Statute, Ordinance or Rule, or (2) whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University.
(a) it may be referred to the State Government if it relates to a matter specified in clause (1), and
(b) it shall be referred to the State Government if it relates to a matter specified in clause (2), and the State Government shall after making such inquiry as it deems fit (including giving an opportunity of being heard where necessary) decide the question and its decision shall be final."
5.3 The aforesaid Section provides that where any question arises for interpretation of any provision of the Act or any statute of the University or the question arises where a person has been duly elected or is entitled to be a member of any body or authority of the University, such question may be referred to the State Government and the State Government shall decide the same by conducting inquiry in which opportunity of hearing would be given where necessary. The question which is raised in this petition directly falls within the arena of Section
60.
6. In respect of similar provision in form of Section 58 of the Gujarat University Act, the Supreme Court in Gujarat University v. Shri N.U. Rajguru [AIR 1988 SC 66] held that challenge to the election of certain members to 'court' of Gujarat University by way of writ petition was not maintainable in view of mandatory provision of Section 58. It was observed, "Under S.58 of the Gujarat University Act if a dispute arises with regard to the constitution of any of the authorities of the University, it should be referred to the State Government for determining the same. It firstly Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER provides that where any question arises as to the interpretation of any provision of the Act, or of any Statute, Ordinance, Regulation or Rules, it may be referred to the State Government. Secondly, it lays down that if a question arises whether a person had entitled to be or ceases to be entitled to be, been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University, it shall be referred to the State Government. S.58(2)(a) provides that the dispute relating to interpretation of any provision of the Act or Statute Ordinance, Regulation or Rules may be referred to the Government while cl.(b) of sub-sec. (2) of S.58 contains a mandatory provision that if the dispute relates to the question whether a person has been duly elected or appointed to any authority of the University such a dispute shall be referred to the State Government. There is no option or discretion. If such a dispute arises, it has to be referred to the State Government for determining the same. If 20 members of the Court raise a dispute relating to a matter specified in Cl.(1) or Cl. (II) of S.58 it shall be referred to the State Government and thereupon the State Government shall after making such enquiry as it may deem fit, decide the question. The legislative intent is manifestly clear that any dispute relating to the matters covered by S.58 should be referred to the State Government for its decision and such decision shall be final. By enacting S.58, the legislature has constituted a forum for the determination of the disputes in respect of matters specified therein. Since the "Court" is an authority of the University as declared by S.15 of the Act, S.58 provides an effective remedy for challenging the election of a member to the court of the University. Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with S.58."
(para 5) 6.1 It was further stated by the Supreme Court that the order of the High Court in setting aside of the election and directing holding of fresh election was fraught with error in view of mandatory provision of Section 58.
"Where the teachers of the colleges affiliated to the Gujarat University, in spite of the mandatory provision in S.58 of the Gujarat University Act for reference of dispute relating to election to any Authority of the University to the State Govt. challenged the election of certain members to the 'Court' of the University, by Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER writ petition and the High Court set aside the election and directed holding of fresh election the High Court committed an error in entertaining the writ petition and interfering with the election. 1984(1) 25 Guj LR 349, Reversed."
(Paras 4 and 8) 6.1.1 Laying down the proposition of law, the Apex Court clearly stated, "It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies 1984 (1) 25 Guj LR 349. Reversed." (Para 6) 6.2 The decision in Shri N.U. Rajguru (supra) came to be followed by Division Bench of this Court in Rajesh Mahendrabhai Joshi v. Bhavnagar University [2004(4) GLR 3042]. In consideration therein was a similar Section 15 of the Bhavnagar University Act, 1978.
6.2.1 The Division Bench in Rajesh Mahendrabhai Joshi (supra) observed, "13. It could very well be visualized that the legislature in its wisdom has evolved a separate mechanism for the resolution and determination of the dispute in respect of the matters specified therein. Since the "Court" is authority of the University, as declared by the provisions of Sec. 14, of the Bhavnagar University At, Section 67 provides an effective remedy Page 13 of 15 HC-NIC Page 13 of 15 Created On Wed Feb 08 02:34:43 IST 2017 C/SCA/1255/2017 ORDER for challenging the election of a member to the Court of the University. In the present case, the claim of the petitioners is that he is entitled to be member of Court of the Bhavnagar University, as he has been elected and secured majority votes. This fact therefore, shall not fall within the ambit of the Provision of Sec. 67 of the Bhavnagar University Act. Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with law. Provisions of Section 67 which provides the effective, expeditious remedy."
"14. Instead of raising the dispute, by way of reference, before the State Government as contemplated by the provisions of Section 67 of the Act, the petitioner raised the challenge before this court under Article 226 of the Constitution. In our opinion, the petitioner ought to have raised the dispute for being resolved before the appropriate forum, which is the State Government, in view of clear provisions of Sec.67 of the Bhavnagar University Act. He has, therefore, to pursue his remedy before the appropriate forum provided by the Statute. While considering an election dispute, it may be kept in mind that right to vote, contest or dispute relating to election is a statutory right regulated by the statutory provisions and dispute relating to election is not a fundamental right. Obviously, therefore, Court at loath to permit the party having statutory rights being infracted and having mechanism in its redressal to invoke extraordinary, plenary equitable, discretionary writ jurisdiction under Article 226 of the Constitution, bypassing the statutory mechanism, provided for meeting with such situations and contingencies for the effective and speedy resolution of such dispute of election matters. Therefore, we are of the clear opinion that ordinarily, statutory mechanism provided for evolvement of statutory rights must be followed before the authority described therein or special forum or mechanism provided for. ....."
6.3 It is thus on two outweighing ground that the petition is not liable to be entertained. The first is that the elections are underway and the final stage of actual voting is to take place on 09th February, 2017. Secondly, a statutory remedy in form of Section 60 of the Maharaja Sayajirao University of Baroda Act, 1949 available.
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7. In view of above discussion and the position of law, neither of the two petitions are entertained. The prayers therein could not be granted, leaving the respective petitioners at liberty to invoke the provision of Section 60 of the Maharaja Sayajirao University of Baroda Act, 1949 by approaching the State Government. This Court has not expressed any final opinion on the controversy.
Both the petitions are dismissed. Notice in both the petitions are discharged.
(N.V.ANJARIA, J.) Anup Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed Feb 08 02:34:43 IST 2017