Gujarat High Court
Gopinathji Devmandir Trust Through ... vs The Election Authority Gadhda Dev ... on 28 January, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/1327/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1327 of 2019
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GOPINATHJI DEVMANDIR TRUST THROUGH CHAIRMAN KANUBHAI
LAKHABHAI KANANI
Versus
THE ELECTION AUTHORITY GADHDA DEV MANDIR TRUST
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Appearance:
MR SHALIN MEHTA, SR. ADVOCATE with MR D J MAHALE(5808) for the
PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 28/01/2019
ORAL ORDER
1. The petitioner Gopinathji Devmandir Trust, through its Chairman Kanubhai Lakhabhai Kanani, has preferred the present petition against the Election Authority appointed by the Supreme Court of India, seeking following prayers:-
"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct that the elections of the petitioner trust be conducted and held by the Judicial Officer appointed by the Trust Mr.Upadhyay and/or by Mr.Vakil and/or by jointly both of them as may be deemed fit by this Hon'ble Court.
B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct that the election of the petitioner trust shall be conducted from Page 1 of 7 C/SCA/1327/2019 ORDER the stage where from it was so rested.
C) Pending admission and final disposal of the present petition, be pleased to direct that the election shall be completed within the time bound period as set out by the Hon'ble Supreme Court of India by immediately by permitting the trust to appoint judicial officers as contemplated in the scheme approved by the Hon'ble Supreme Court or team of two of judicial officers as prayed in prayer clause A."
2. At the outset, it may be noted that the case has a chequered history. After a long drawn litigation before the Charity Commissioner, District Court, and the High Court, when the matter reached to the Supreme Court, challenging the judgement and order dated 27.8.2018 passed by the High Court in First Appeal No.765 of 2018 and the order dated 5.10.2018 passed in the Misc. Civil Application No.3 of 2018 filed in the said appeal, the Supreme Court had disposed of the Civil Appeal being No.12060 of 2018 along with the other two appeals on 13.12.2018 by observing as under:-
" After hearing learned counsel for the parties, we are of the considered opinion that the scheme as well as the election rules makes it clear that there are two groups one is Gruhastha and the other is Ascetics. Ascetics are subdivided into three categories i.e (i) Sadhu, (ii) Brahmchari and (iii) Parshad.
After reading the scheme and Election Rules, it is crystal clear that in Ascetic constituency a Sadhu to cast a vote for Page 2 of 7 C/SCA/1327/2019 ORDER electing Sadhu representative of that category, Brahmchari in favour of representative of that category i.e. Brahmchari and Parshad has to cast vote in favour of Parshad to represent them in the Board of Management. Three votes to each is not contemplated to each Ascetic. Sadhu has to elect Sadhu, Brahmchari has to elect Brahmchari and Parshad has to elect a Parshad. So giving each of Ascetics three votes was not appropriate, it was against the past practice also which is found to be more reasonable, proper and in accordance with law and is legally acceptable as one Sadhu, one Brahmchari and one Parshad have to be elected out of the Sadhu, Brahmchari or Parshad. The each group should elect the person to represent them. To say, in other words, Sadhu cannot vote in favour of Brahmchari or Parshad and similarly Brahmchari cannot vote for Sadhu or Parshad and Parshad cannot vote for Sadhu or Brahmchari. Each person of Ascetic has one vote only to be used only for the electing person of his own category out of Sadhu, Brahmchari or Parshad as the case may be. The direction/ scheme to the contrary as ordered by District Judge and High Court is hereby set aside.
We further direct that let election be held under the supervision of a retired High Court Judge. Parties are in agreement to appoint Hon'ble Mr. Justice S.M. Soni, Former Judge, Gujarat High Court as Election Officer.
As agreed by the parties, Hon'ble Mr. Justice S.M. Soni is appointed to conduct the election within a period of eight weeks from today in accordance with law. Fees to be fixed by the Election Officer or by the High Court. For any other purpose, as may be permissible, it would be open to approach the concerned High Court.Page 3 of 7 C/SCA/1327/2019 ORDER
Accordingly, the orders are modified to the aforesaid extent and appeals are disposed of."
3. It appears that after the said order passed by the Supreme Court, the Hon'ble Mr. Justice S. M. Soni had initiated the election proceedings, however, the petitioner claiming to be the Chairman of the petitioner Trust has tried to cause obstruction and show disrespect to the order passed by the Supreme Court, by raising controversies and dragging the Election Officer Mr. Justice Soni into the present litigation.
4. On the first date of hearing i.e. on 24.1.2018, the Court had raised the query as regards the maintainability of the petition against the Election Authority appointed by consensus by the Supreme Court, as also the locus standi of the petitioner to file the petition, as the Court had found that the petitioner had sought to re- agitate the issues already settled by the Supreme Court by making derogatory and contemptuous averments made in the petition. In response to the said queries the learned Sr. Advocate Mr.Shalin Mehta had sought time to reply and the matter was kept on 25.1.2019 as requested. On the next date of hearing i.e. on 25.1.2019, the Court had received one envelope, from the respondent Election Officer containing the letter dated 25.1.2019, in which it was stated as under:-
Page 4 of 7 C/SCA/1327/2019 ORDER"I resign as Election Officer appointed by Hon'ble Supreme Court by its order dated 23rd December 2018 in Civil Appeal No.12060 of 2018 (arising out of SLP (C) No.30750/2018.
Kindly do the needful.
I am obliged for the opportunity given to me."
5. The said letter was brought to the notice of the learned Sr. Advocate Mr.Shalin Mehta for the petitioner and the Court also drew the attention of Mr.Mehta with regard to the contemptuous tenor of the memo of the petition and asked Mr.Mehta as to who had drafted the petition. Mr.Mehta was reluctant to disclose the name of the advocate, who had drafted the petition, and stated that the advocate on record has not drafted it and that he would be unnecessarily put in trouble, if any stringent action is taken by the Court. He, however, sought time to take necessary instructions from the petitioner to amend the petition by stating that the payers sought in the petition were not appropriate. The matter was kept on 28.1.2019 i.e. today.
6. Today, Mr.Mehta has sought to submit a draft amendment seeking to incorporate documents, as also to add certain prayers in paragraph 49 of the memo of the petition.
7. Since the Court was very unhappy with the conduct of the petitioner, as also the tenor in which the petition was drafted by the concerned Page 5 of 7 C/SCA/1327/2019 ORDER advocate, which ex facie appears to have been filed with some ulterior motive and misusing the process of law, the learned Sr. Advocate Mr.Mehta fairly did not press for the draft amendment, nor did he argue the matter on merits and requested the Court to pass appropriate orders.
8. As stated herein above, the present petition clearly appears to have been filed in defiance of the order passed by consensus by the Supreme Court, by raising the issues already decided by the Supreme Court, and raising controversies against the Election Authority appointed by the Supreme Court, dragging the said Authority into the litigation, and that too, at the instance of the so-called Chairman of the petitioner Trust. The Court, therefore, is of the opinion that the petition deserves to be dismissed with cost, considering the request of Mr.Mehta not to initiate any contempt proceedings against the advocate on record, who is a junior advocate and who has not drafted the petition and has been made scapegoat by the other advocates, who are not on record.
9. In that view of the matter, without going into the merits of the matter, the petition is dismissed with cost of Rs.1,00,000/- (Rupees one lac only) to be deposited by the petitioner Kanubhai Lakhabhai Kanani with the Registry of this Court within two week from today, Page 6 of 7 C/SCA/1327/2019 ORDER noncompliance thereof shall entail further action. Office shall report the compliance of the order.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 7 of 7