Madhya Pradesh High Court
Parsi Zoroastrian Anjuman Mhow vs Mrs.Pervin Rumi Jehangir on 6 December, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1:- First Appeal No.518/2016
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
(Single Bench)
(Hon'ble Shri Justice Vivek Rusia)
First Appeal No.518 of 2016
Parsi Zoroastrian Anjuman & Ors.
VERSUS
Mrs. Pervin Rumi Jehangir & Ors.
________________________________________________
Shri A.K. Chitale, Senior Advocate with Shri Rishi Tiwari,
Advocate for the Appellant (Non-applicant).
Shri S.C. Bagadiya, Senior Advocate with Shri
R.T.Thanewala, Advocate for the Respondent (Applicant).
Whether approved for reporting:
Reserved on 21.11.2017
*****
J U D G M E N T
( Delivered on this th day of October, 2017 ) The present appeal is filed under Section 27(3) of the Madhya Pradesh Public Trust Act, 1951 against an order dated 30.01.2016, passed by 3rd Additional District Judge, Mhow, whereby an application filed by respondent under Section 26 of the Madhya Pradesh Public Trust Act, 1951 has been party allowed.
[2] Facts of the case, in short, for effective disposal of this appeal are as under :-
-: 2:- First Appeal No.518/2016
(a) The appellant - Parsi Zoroastrian Anjuman is a
trust registered under the Act of 1951 having registration No.14/B-112/1/71-72 dated 29.01.1973. Only the members of Parsi community residing at Mhow as well as outside Mhow are the trustees and members of appellant/Trust. According to the appellants, at present appellant No.2 is a president and appellant Nos.2 to 5 are office bearers of the Trust.
(b) That on 04.02.1996 by-laws of the trust were passed by its general body meeting containing definitions, guidelines and procedure for election of managing committee etc. In the year 2009 a scheme for management of the trust was proposed by the then President of the tRust and by way of unanimous resolution 24.04.2011, the modified scheme termed as "Re Re Revised Scheme" was approved in the extra ordinary general body meeting which was sanctioned and approved by 4th Additional District Judge, Mhow vide order dated 18.05.2015.
(c) The controversy involved in the present appeal in respect of voting rights to the non-resident members by way of proxy or postal valid. Under old by laws of 1996 Clause 12 prohibits voting by proxy but a member can exercise his vote by a letter, whereas the new "Re Re revised scheme"
specifically prohibits the voting by postal valid . Clause 12 is reproduced below:
"12. Voting by proxy shall not be permitted at any Anjuman meeting. In the absence of a member, that member's vote may be exercised by letter A member permanently residing in Mhow/ unable to be present at the time of voting due to illness or being out of station may send his vote in blank sealed envelope to the Secretary. Such envelope must indicate the name of the voter and the fact that
-: 3:- First Appeal No.518/2016 it contains a vote"
(d) Clause 26 sub clause B passed at the General Meeting of Parsi Zoroastrian Anjuman, Mhow held on 04.02.2015. Clause 26 (B) is reproduced below:
"b) Voting will be in person only. Voting by any means other than personal appearance, including but not limited to, voting by proxy, letter, email, is prohibited."
(e) The election process has commenced by issuance of election notice dated 29.09.2014 as the term of the managing committee was expiring 12.11.2014 and the election of new committees are scheduled to be held on 26.10.2014. The federation of Parsi Zoroastrian Anjuman of India vide aforesaid election notice has specified that the non-resident member are not allowed to vote by letter in forthcoming election. Some of the non-resident members of of Parsi community of Mhow raised an objection about curtailment of their voting right and gave a proposal that sending a poster ballot by e-mail is safe, practical, therefore, they may be permitted to send their ballot by mail.
(f) The non-applicant No.1, being aggrieved by aforesaid action of the Trust filed an application under Section 26 and 27 of the MP Trust act before Registar Public Trust, Mhow in the month of March 2014 seeking permission to apply to the District Court on the issue of voting. She has declared herself as elected Trustee/Managing Committee Member on 13.11.2011. The appeallant trust filed reply to the sid applicaiton 22.04.2014 raising objection in respect of maintainblity of the
-: 4:- First Appeal No.518/2016 application under Section 26. After considering the contents of the said application vide order dated 23.05.2014, the Learned Registrar, Public Trust, Mhow accepted the application and directed her to file an application before the Court. Para 6 of the order is reproduced below:
"6. izkfFkZuh ijohu tgkaxhj dh vksj ls VªLV ,DV dh /kkjk 26 ,oa 27 ds rgr vkosnu i= izLrqr fd;kA ftldh izfr izfrizkFkhZ VªLV ds vfHkHkk"kd Jh ;ksxs'k xxZ dks iznk; dh xbZA izkFkhZ VªLV dh vksj ls fnukad 2 vizsy 2014 dks tokc izLrqrA tokc ,oa izkfFkZuh ijohu tgkaxhj ds vkosnu ds lanHkZ esa e-iz- o VªLV ,DV dh /kkjk 26 ,oa 27 dk voyksdu fd;k x;kA /kkjk 26 ds vuqlkj ;fn yksd iath;d dks yksd U;kl esa fgr j[kus okys fdlh O;fDr ds vkosnu i= ij ;k vU;Fkk ;g lek/kku gks lds fd ¼d½ yksd U;kl dk ewy mnsn~'; foQy gks x;k ¼[k½ U;kl lEifRr dk mfpr :i ls izca/ku ;k iz'kklu ugha fd;k tk jgk gS] ;k ¼x½ yksd U;kl ds iz'kklu ds fy, U;k;ky; dk funsZ'k vko';d gS rks og dk;Zdkjh U;klh dks lqus tkus dk ;qfDr;qDr volj nsus ds i'pkr ,oa U;klh dks jftLVªkj }kjk fufnZ"V le; ds Hkhrj U;k;ky; dks vkosnu djus gsrq funsZ'k ns ldsxkA mijksDr vf/kfu;e ds ifjikyu esa ;g vko';d gks x;k gS fd U;kl lEifRr dk mfpr :i ls izca/ku vFkok iz'kklu ds fy, ijohu tgkaxhj dk vkosnu Lohdkj fd;k tkosA vr% ijohu tgkaxhj dks vknsf'kr fd;k tkrk gS fd U;klh ijohu tgkaxhj fofufnZ"V le; ds Hkhrj U;k;ky; esa vkosnu izLrqr djsaA "
(g) After the aforesaid permission, the non-applicant No.1 filed an application under Section 26 before the District Judge in which also she has declared hereself as a duly elected trustee and managing member of the Committee.
(h) After notice, the present appellant filed the reply as well as parawise reply. While replying the para 1 the appellant has not denied that the applicant is not a duly elected trustee.
(i) The learned District Judge, vide final order dated 30.01.2016 has allowed the application and held that all the members of the trust is having a voting right under approved
-: 5:- First Appeal No.518/2016 scheme dated 18.05.2011. It has been further held that those members who are out of station due to illness and special reason, they can also caste their vote and further permitted the vote by way of e-mail. The operative part (para 25) is reproduced below:
" 25- fopkj.kh; iz'u dzekad 1 o 2 ds mDr fu/kkZj.kksa ds izdk'k esa vkosnd dk vkosnu va'kr% Lohdkj dj /kkjk 27 dh mi/kkjk&1] 2 ¼p½ e-iz- yksd U;kl vf/kfu;e ds varxZr fuEukuqlkj vkns'k fn;k tkrk gS& 1- ;g fu/kkZfjr fd;k tkrk gS fd ikjlh tksjk"Vªh;u vatqeu] egw ds lHkh lnL;ksa dks er nsus dk vf/kdkj fnukad 18-05- 2011 ds U;k;ky; }kjk vuqer Ldhe ds varxZr gSA 2- ;g fu/kkZfjr fd;k tkrk gS fd vatqeu ds ,sls lHkh lnL; tks vLoLFkrk ds dkj.k ;k fdlh vU; fof'k"V dkj.k ds izdk'k esa vatqeu dh eSusftax desVh ds lnL;ksa ds gksus okys pquko esa Hkkx ugha ys ikrs gSa os fnukad 18-05-2011 dh U;k;ky; }kjk vuqer Ldhe ds varxZr i= }kjk vius erkf/kdkj dk iz;ksx dj ldrs gSA 2- bZ&esy ds }kjk lnL;ksa dks ,sls pquko esa erkf/kdkj dk iz;ksx djus dh lhek rd vkosnu vLohdkj fd;k tkrk gSA bl izdj.k dk O;; mHk;i{k viuk viuk ogu djsaxsA bl vkns'k dh ,d izfr iath;d yksdU;kl] egw ftyk bankSj dks lqpukFkZ Hksth tkosA"
3. Being aggrieved by the aforesaid order dated 30.01.2016, the present appellant as well as office bearers have filed the present appeal before this Court.
4. Shri A.K. Chitale, learned senior counsel appearing on behalf of the appellant submitted that learned Additional District Judge has travelled beyond their jurisidiction to entertain the application filed under Section 26 of the Act of 1951. The Registrar, Public Trust could have filed an application before the District Judge only in case the working trustee fails to file an application before the District Judge or in absence of working trustees. The non- applicant No.1 being a non-working trustee, having no right to file an application before the Registrar, Public Trust as well as before District Judge in respect of election dispute.
-: 6:- First Appeal No.518/2016 The working trustees are defined under Section 2(9). The scope of Section 26 is very limited under which the Registrar is required to record satisfaction that the original object of public trust has failed, trust of the property is not being managed or the direction of a Court is necessary for administration of the public trust, then only, he may direct such trustee to apply to a court for direction. In support of his contention he has place reliance over the judgment passed by this Court in case of Shri Ram Mandir Trust Vs. State of M.P, reported in 2012(2) MPLJ 560.
5. He further submits that even under the old by laws ballot by letter is permissible only in a condition that the voter is ill or out of station during election under the scheme of management approved by the Additional District Judge. Voting will be in person only and voting by means their then person belongs like voting by proxy, letter of e- mail is prohibited.
6. Shri Chitale further submits that if this Court comes to the conclusion that the postal ballot is permissible, then strict conditions of providing identity signature and postal ballot receipt only by speed post or by registered post etc should be imposed. In support of his contention, he has placed reliance over the judgments passed by the Hon'ble Supreme Court in the case of Fatma Bibi Vs. State of Gujarat, reported in (2008) 6 SCC 789, Deepak Agro Foods Vs. State of Rajasthan, reported in (2008) 7 SCC 748, B.Y. Narasimha Vs. M. Veerapa, reported in (2008) 9 SCC 372, Zuari Cement Vs. Employees' State Insurance, reported in (2015) 7 SCC 690 & Kiran Singh Vs. Chaman
-: 7:- First Appeal No.518/2016 Paswan, reported in AIR 1954 SC 340.
7. Shri S.C. Bagadia, learned senior counsel by refuting the argument of Shri Chitale emphasizes that respondent No.1 is a Trustee of appellant/Trust and this fact has not been disputed by the respondent, therefore, she can file application under Section 26 before the Registrar as well as before the District Court. The bylaws as passed in the meeting held on 04.02.2015 has not been approved by the Court and old bylaws are still in force, therefore, the postal ballot is permissible. He further submits that members of the Trust of the appellant's Trust are very limited. There are 130 members including resident and non resident and out of 130 members, 90 members are non-resident and only 40 members are residing in Mhow, therefore, non-resident members are having equal right to caste their votes, hence, prayed for dismissal of the present appeal.
8. The appellant No.1 is a trust and its members are belonging to the community Parsi/Irani Zoroastrian. The non-appellant No.2 to 6 are other trustees and respondent Nos.2 to 4 are Trustees. As per the bylaws, the appellant Trust requires a managing committee comprises of 11 member. 10 to be elected and 1 Rule over member selected from the last managing committee. The members residing outstation shall not require to become member of managing committee. In the year 2009, a scheme of introduce the amendment in the bylaws was member before the Additional District Judge, Mhow by the then President and the Trustee. It was upto by some of the trustees and extra original General Body meeting was called and a unanimous
-: 8:- First Appeal No.518/2016 resolution was passed in approving the scheme as amended a joint application there made court seeking sanction of the scheme as amended and title as Re Re Revised scheme (Final Scheme). By order dated 18.05.2011, the Additional District Judge, Mhow has sanctioned the scheme.
9. Shri Bagadia, learned senior counsel appearing on behalf of the respondent produced an order sheet dated 27.04.2015, passed by the 3rd Additional District Judge, Mhow in MJC.No.03/2015 by which application filed under Section 26 & 27 of the Act of 1951 seeking approval of the amended scheme has been rejected, therefore, the scheme as proposed in the year 2011 has not been approved by the Court and the same is required to be approved by the Registrar under the provisions of the Act of 1951.
10. The Federation of Parsi Zoroastrian Anjuman vide notice dated 27.04.2014 has issued the election schedule for the election of 9 members of managing committee. In this notice, the vote by letter of the office bearers was not allowed.
11. Being aggrieved by the aforesaid notice, the respondent filed an application under Section 26 & 27 of the Public Trust Act before the respondent No.1 on 10 March 2014. Vide order dated 23.05.2014, the Registrar has directed her to approach the Civil Court.
12. Thereafter, the respondent No.1 filed an application before the District Court, Mhow under relief of the members of __ resident or non resident permitted to vote, therefore, postal ballot in terms of bylaws. She has further prayed that the postal ballot send by e-mail are ballot after
-: 9:- First Appeal No.518/2016 due registration of email and ID etc. The aforesaid application was opposed by the present appellant by filing reply.
13. During the pendency of the application before the District Judge, the appellant/society has framed the Bylaws which is Bylaws - 2015. In these bylaws also the voting will be in person only and voting by any means of democracy, letter, e-mail is prohibited.
14. The main contention of Shri Chitale, learned counsel is that the respondent No.1 was not a working trustee, therefore, the Registrar ought not to have pass the order directing her to approach the Civil Court. Section 26 of the Madhya Pradesh Public Trusts Act, 1961 is reproduced below:
""
As per Section 26 of the Public Trust Act, if the Registrar on the application of any person interested in the Public Trust or otherwise is satisfied that the direction of the Court is necessary for the administration of the public trust, he may after giving the working trustees liberty to be heard from direct such trustees to apply to the Court for direction. Under Sub-Section 2, if the trustee so directed fails to make an application as required, or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the Court. The Trustee and working trustee both are defined under Section 2 (7) & (9). As per definition of the Trustee a person in whom either alone or with association of other persons the trust property is vested and as per the definition
-: 10:- First Appeal No.518/2016 of the working trustee for the person who for the time being either alone or in association with some other person or persons or administers the trust property of any public trust.
15. The list of working trustees is to be provided under form is required to be furnish to the Registrar but in this case, no such list has been published that who are the working trustee. The respondent No.1 has described herself as a trustee and said fact has not been defined by the appellant either before the Registrar or before the Civil Court, therefore, in absence of any material before the Registrar about the name of the working trustee, he has directed the respondent No.1 to approach the Civil Court. The present appellant has never raised any objection before the District Court and participated in the entire proceedings. No issues have been framed in respect of allegations of the respondent No.1 to approach the District Court, therefore, at this stage the appellant cannot be permitted to raise such an objection.
16. That as per the Bylaw 12 of Bylaws of 1996, the voting by proxy was not permitted but a member of permanently residing members in the Mhow unable to vote at the time of voting due to illness or being out of station may send his vote in a blank sealed envelope to the Secretary. The mode of sending the vote has not been described in Rule 12. The member can send the vote in the blank sealed envelope to the Secretary. At the time when these rules were framed there was only one mode available that is by postal service. Now, the other modes are also available likewise courier, e-mail etc. Under Rule 12, the
-: 11:- First Appeal No.518/2016 voting right has been restricted to a member permanently residing in Mhow who is unable to be present at the time of voting due to illness or being out of station.
17. The voting right has been restricted to a member permanently residing at Mhow. The word "Permanently Residing" is different from the "Permanent Residence". The member may have a permanent residence in Mhow, but he might have migrated to some other place for the purpose of job, marriage, business etc., but in rule 12, the word which has been used as a member permanently residing in Mhow unable to vote at the time of voting, therefore, the voting right has been restricted only to a member who is residing at the time of election. A person may be having a residence in two or more places but by special law, his certain rights can be restricted subject to his residence like in a Representatives People Act, Panchayat act Municipalities Act etc. where the local residents are permitted to participate in the election or caste the vote because there names are required to be included in the voter list at one place but they may have residence in several places. There is no restriction for number of appellant/trust to have a residence in other places also. They may have a residence in Mhow and even at other places, therefore, the word "Permanently residing"
cannot be given a narrow meaning to confine the voting right to those person who are residing in Mhow. The members who are being out of station at the time of election are also permitted to caste the votes.
18. The members of the trust are very limited i.e. 130 and out of 130, 90 members are living outside Mhow,
-: 12:- First Appeal No.518/2016 therefore, in a democracy, the members who are not present at the time of election cannot be denied the voting right. Even in the Bylaws of 2015 the membership in the Parsi Zoroastrian Anjuman Trust is classified into two categories namely resident members & non-resident members. The resident members are defined as those Parsi Zoroastrian Anjuman members who are either permanently assembly association or those who own property in their names in Mhow Tehsil and who are not member of any other Parsi Zoroastrian Anjuman and those who do not fall in these categories are the non-resident members, therefore, as per the aforesaid definition, if the members who owns the property in Mhow in their names would be called as a resident member.
19. It is not disputed that the respondent No.1 do not own any property in Mhow. The Re Re Revised Scheme also provides that the membership of Parsi Zoroastrian Anjuman would be limited to those who have their roots in Mhow. As per definition 2(b) of the Bylaws of 1996, the Parsi Zoroastrian Anjuman, Mhow shall comprise all Parsis residing in Mhow Cantonment, Township or Tehsil as well as the Parsis staying out of such territory, who have become member of Parsi Zoroastrian Anjuman and as per Section 8(c) that the member who has been a resident of Mhow for a period of not less than six months. Therefore, in conjoint reading of Bylaws of 1996, Re Re Revised Scheme and Bylaws of 2015, any Parsi who is having roots, residence and lived for a period of six months is a member of appellant/Trust.
-: 13:- First Appeal No.518/2016
20. Therefore, the voting rights are not limited to the members who are only residing in Mhow. If he/she is qualified to become member, he is having right to vote. When the ntoice of election was issued on 26.10.2014, the old Bylaws were in force. Under the Re Re Revised Scheme, current Bylaws of 1998 of the Parsi Zoroastrian Anjuman remain applicable so far as they are not consistant with the scheme. New Bylaws came into force in the year 2015.
21. The elections were due prior to the new Bylaws, therefore under Bylaw 12 by ballot post is permissible, therefore, the learned 3rd Additional District Judge has rightly permitted all members of Parsi Zoroastrian Anjuman Trust to caste their votes under the scheme approved by the Court by order dated 18.05.2011. The Court has only restricted votes by e-mail.
22. Hence, I do not find any merits in this appeal and accordingly, present appeal is dismissed. The order dated 30.01.2016, passed by 3rd Additional District Judge, Mhow is hereby upheld.
[ VIVEK RUSIA ] JUDGE Jasleen Jasleen Singh Saluja 2017.12.12 13:39:53 +05'30'