Bombay High Court
Kamlakar Darman Gharat And Ors vs The Abhinav Shetkari Shikshan Mandal ... on 25 November, 2022
Author: Sharmila U. Deshmukh
Bench: G.S. Patel, Sharmila U. Deshmukh
9-21-ASWP-14537-2022+.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14537 OF 2022
Kamlakar Darman Gharat & Ors ...Petitioners
Versus
The Abhinav Shetkari Shikshan Mandal & Ors ...Respondents
WITH
WRIT PETITION NO. 13665 OF 2022
Amol Kashinath Patil & Ors ...Petitioners
Versus
State of Maharashtra through GP & Ors ...Respondents
Mr Suhas Oak, i/b Vinod Utekar, for the Petitioner in
SHEPHALI
SANJAY WP/14537/2022.
MORMARE
Digitally signed by
Mr Surel Shah, i/b Vinayak R Patil, for the Petitioner in
SHEPHALI SANJAY
MORMARE
Date: 2022.11.29
WP/13665/2022.
11:15:11 +0530
Mr Pradeep Thorat, with Malcom Siganporia & Umair Ansari, i/b
Mohsin H Khan, for the Intervenor/Applicant in
IAL/29243/2022.
Dr Birendra Saraf, Senior Advocate, with Dharam Jumani, Mihir
Nerurkar, Kiran Mohite, Sushant Patil & Ishita Y Shah, i/b
Kiran Mohite Advocates, for Respondent No. 4 in
WP/13665/2022.
Mr Vishal Kanade,with Harshad Sathe, Saiprasad Wadkar & Omkar
Chitale, for Respondent No. 1 in WP/14537/2022 and for
Respondent No. 5 in WP/13665/2022.
Mr Ankit Lohia, i/b S Desai, for Respondent No. 5 in
WP/13665/2022.
Mr Kishor Chavan, Inspector, (Election Officer), Charity
Page 1 of 7
25th November 2022
9-21-ASWP-14537-2022+.DOC
Commissioner, Thane.
Mrs AA Purav, AGP, for the Respondent-State in both Writ Petitions.
CORAM G.S. Patel &
Sharmila U. Deshmukh, JJ.
DATED: 25th November 2022 PC:-
1. These two Petitions relate to elections to the Abhinav Shetkari Shikshan Mandal in Bhayandar (East) District Thane. This is a Public Charitable Trust registered under the Maharashtra Public Trusts Act 1950. It has two branches. It runs schools and colleges with an enrolment of 8000 students. In Civil Writ Petition No. 14537 of 2022, the 1st Respondent is the Trust. The 2nd Respondent is the Deputy Charity Commissioner, and the 3rd Respondent is the Election Officer. The 4th Respondent is the State of Maharashtra.
2. There is a controversy about who can represent the Trust and even today two Advocates have both claimed this right. We have no hesitation in denying both of them this privilege. We will decide at a later stage who should represent the Trust. That is not our concern at this stage at all.
3. Respondents Nos. 2, 3 and 4 are represented and waive service. In Writ Petition No. 13665 of 2022, the 1st Respondent is the State of Maharashtra, the 2nd Respondent is the Deputy Charity Commissioner, Thane, the 3rd Respondent is the Election Officer, and the 4th Respondent is one Mohan Madhukar Patil represented Page 2 of 7 25th November 2022 9-21-ASWP-14537-2022+.DOC by Dr Saraf. He claims to be a member of the Trust and it is said that it is at his instance that a long-delayed election programme was initiated. The 5th Respondent to Writ Petition No. 13665 of 2022 is the Trust and, similarly, while it is joined, it will presently remain without active representation. Mohan Patil is to be joined as the 5th Respondent to Civil Writ Petition No. 14537 of 2022. Leave to amend. Amendment to be carried out forthwith without need of reverification.
4. The principal complaint here is that the election, already delayed, has been announced without a proper and thorough verification of the voters lists. There is at least one intervention application. In that intervention application, the applicants represented by Mr Thorat say, for example, that they although they are members, their names are not included in the voters list. Mr Shah for the Petitioner in Amol Kashinath Patil's Petition says that there are other problems as well. The voters list includes members who have passed away. They are still shown as eligible and on the membership rolls. More importantly, he asserts that names of some 99 persons have been entered on the voters list as members although these persons have never properly gained membership.
5. Dr Saraf on behalf of Mohan Madhukar Patil has filed an Affidavit in the Amol Patil Petition. The State Government has also filed an Affidavit. The paging errors are to be corrected. Mohan Madhukar's Patil Affidavit will have its paging commence after the end of the State Government Affidavit.
Page 3 of 725th November 2022 9-21-ASWP-14537-2022+.DOC
6. Dr Saraf submits that there is material on record to show that the Election Officer went through some exercise and this it is submitted is a verification of the voters list. The document shown to us at page 603 is a possibly inaccurate translation of the original document that starts at page 596, Exhibit "W" to the Amol Patil Petition. Prima facie this indicates that it is Mohan Patil who submitted a list of members including those who are registered from 2011 to 2014. Some registration fee receipts were also shown. Mohan Patil seems to have got his list notarised and there is mention of a comparison of the draft membership list with the original membership record book. The tabulation from page 598 has mention of a publication of a draft electoral member list, prescribing a date for filing objections and then a date for release of the final list (14th November 2022). Then there follows the programme for the conduct of the elections themselves.
7. We are not satisfied prima facie with the manner in which the draft list was addressed. Mr Shah for Amol Patil maintains that the Election Officer has apparently held that Amol Patil and other Petitioners did not submit documents establishing that certain other memberships were bogus or false. We do not see how there can be any such demand or expectation.
8. This is no way to proceed. The method of acquiring membership is usually established as per the sanctioned scheme. Even on this, in the present case, there is a controversy before us with different people saying that copies of the scheme are incomplete or are not the true copies. The scheme itself is with the Page 4 of 7 25th November 2022 9-21-ASWP-14537-2022+.DOC Charity Commissioner and it is this scheme that will govern. We would ordinarily expect the scheme to have some basic minimum criteria for membership and basic procedure for admission to membership. If none is explicitly provided, then past records will undoubtedly establish how memberships were normally sought and accepted. As an example, and we are not setting out a requirement, in a given case there could be a procedure for submission of a form with signatures, payment or stipulated fees, a receipt being issued and then the acceptance by the management presently in charge of the trust. There may be variations on this but while verifying the list, the Election Officer must apply his mind to whether persons who claim to be entitled to have their names on the members list and voters list acquired membership in consonance with a procedure that is either prescribed in the scheme or appears to be a consistent past practice. If membership records show a name for many years, this may of course be accepted. If some persons have passed away, some form of documentation showing the death must be asked for (a death certificate, an obituary announcement etc). But if new names are to be entered on the voters' list, then their membership must be verified. A mere entry in a recent membership register cannot suffice when there is a dispute about the register itself. We clarify that it is not the function of the electoral authority to decide questions of eligibility to or disqualification from membership
9. We direct the Election Officer to re-publish the voters list and to do so by 2nd December 2022. That publication must also have at its end a reference to this order with, if possible, a link to it, so that all are aware why such an exercise is being undertaken. The notice Page 5 of 7 25th November 2022 9-21-ASWP-14537-2022+.DOC must specifically call for objections by no later than by 16th December 2022. Thereafter, a final list is to be prepared and this list is also to be published.
10. When we say published, we mean only on the notice board of the Election Officer. We are not requiring the entire list to be published in newspapers. However, from the funds available with the trust a public notice is required that the draft list has been published and setting out the date for suggestions and objections. The final list is to be published and put up on the notice bard of the Election Officer by 6th January 2023. It is not to be acted upon and no election schedule is to be announced until 13th January 2023 when these Petitions will be listed high on board for directions. The reason we are taking this step is because we anticipate that there may be some level of objections that need to be addressed before the final list can be taken to an election programme. We have not disposed of the Petitions for this very reason. We do not want to delay the process and we do not want repeated or multiple petitions.
11. List the matters high on board on 13th January 2023.
12. The Interim Application by Mr Thorat is made absolute. The Respondents are allowed to intervene.
13. The Election Officer is present in Court.
14. All Affidavits are to be filed in the Registry with correct pagination.
Page 6 of 725th November 2022 9-21-ASWP-14537-2022+.DOC
15. In case of any difficulty, liberty to the Election Officer and the State Government to apply.
(Sharmila U. Deshmukh, J) (G. S. Patel, J)
Page 7 of 7
25th November 2022