Laljibhai Bhikhabhai Dhaduk & 2 vs Trust Of The Temple Of Shree ... on 9 January, 2015

[Cites 21, Cited by 4]

Gujarat High Court

Laljibhai Bhikhabhai Dhaduk & 2 vs Trust Of The Temple Of Shree ... on 9 January, 2015

Author: Jayant Patel

Bench: Jayant Patel, C.L. Soni

        C/MCA/3154/2009                                     CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        MISC.CIVIL APPLICATION (FOR ORDERS) NO. 3154 of 2009
                                    With
                     CIVIL APPLICATION NO. 13407 of 2014
                                     In
                  MISC.CIVIL APPLICATION NO. 3154 of 2009


FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE JAYANT PATEL


and
HONOURABLE MR.JUSTICE C.L. SONI

================================================================

1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law as
      to the interpretation of the Constitution of India, 1950 or any
      order made thereunder ?

5     Whether it is to be circulated to the civil judge ?

================================================================
           LALJIBHAI BHIKHABHAI DHADUK & 2....Applicant(s)
                                Versus
    TRUST OF THE TEMPLE OF SHREE LAXMINARAYAN DEV TEMPLE &
                          194....Opponent(s)
================================================================
Appearance:
MR ND NANAVATI,Ld. Sr. Counsel with MR BM MANGUKIYA, ADVOCATE for
the Applicant(s) No. 1 - 3



                                  Page 1 of 90
       C/MCA/3154/2009                                  CAV JUDGMENT



MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 - 3
MR HARSHEEL SHUKLA, AGP for the Opponent(s) No. 2 - 3
MR PG DESAI, Ld. Sr. Counsel with MR ASHISH H SHAH, ADVOCATE for the
Opponent(s) No. 5
MR. UTPAL A JOSHI, ADVOCATE for the Opponent(s) No. 7
NOTICE SERVED BY DS for the Opponent(s) No. 12 - 13 , 15
UNSERVED-REFUSED (N) for the Opponent(s) No. 14
MR BHUPENDRA J DWIDI, ADVOCATE for the Opponent(s) No. 67
MR C B UPADHYAYA, ADVOCATE for the Opponent(s) No. 2 - 3
MR MIHIR JOSHI, Ld. Sr. Counsel with MR MITUL K SHELAT, ADVOCATE for
the Opponent(s) No. 8
MR SN SHELAT, Ld. Sr. Counsel with MR MRUGEN K PUROHIT, ADVOCATE
for the Opponent(s) No. 1 , 4 , 6 , 8 - 11
MR KM PATEL, Ld. Sr. Counsel with MR NIRAD D BUCH, ADVOCATE for the
Opponent(s) No. 16 - 17 , 19 - 69 , 71 - 136
MR PJ KANABAR, ADVOCATE for the Opponent(s) No. 16 - 123
MR VH KANARA, ADVOCATE for the Opponent(s) No. 16 - 17 , 19 - 66 , 68 -
69 , 71 - 123 , 137 - 179
MR SHALIN MEHTA, Ld. Sr. Counsel with MR YASH N NANAVATY,
ADVOCATE for the Opponent(s) No. 180 - 195
================================================================

         CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
                and
                HONOURABLE MR.JUSTICE C.L. SONI

                           Date : 09/01/2015


                           CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. It may be recorded that when Civil Application No.13407 of 2014 had initially come up on Board, the learned Counsel appearing for both the sides had agreed to make submission for final disposal of MCA No.3154 of 2009. Hence, we have finally Page 2 of 90 C/MCA/3154/2009 CAV JUDGMENT heard MCA No.3154of 2009 as well as CA No.31407 of 2014.

A BRIEF HISTORY

2. In the early part of 19th Century, the great Saint Swami Sahajanandji had founded the Swaminarayan Sect and had established a number of temples in India, most of which are located in Gujarat and the nearby areas. For the purpose of administration of these temples, he had divided India into two parts and had styled those two parts as Northern Diocese or Vibhagh and Southern Diocese. A line was drawn joining Jamnagar in the West with Calcutta in the East and the Northern portion of this line was known as Northern Vibhagh and Southern portion was known as Southern Vibhagh. For Northern Vibhagh, Swaminarayan Temple at Ahmedabad was designated by him as the main Deity or God and for Southern Vibhagh, he had designated the main Swaminarayan Temple at Vadtal as Principal Seat. He had prepared treaties known as "Deshvibhag-no-lekh", wherein he had laid down the scheme for Page 3 of 90 C/MCA/3154/2009 CAV JUDGMENT management of these temples. Southern Vibagh was placed by him in the charge of one nephew with the Principal Seat at Vadtal and Northern Vibhagh was left by him under the charge of another nephew. Both these nephews as "Acharyas" of the Sect were permitted to marry and lead life of a house-holder and for all practical purpose, he had made each of the nephews the de facto Managing Trustee in charge of the temples and religious affairs in both these Divisions. The Founder Swami Sahajanandji at Vadtal asked his followers to pay tax known as "Darmada" being a personal contribution of income and to pay "Namvero" being an impost in the nature of a poll tax. He had also exhorted his followers to make voluntary offering to "Ácharya" on special occasions in order to provide for the upkeep and maintenance of the institutions.

3. In the year 1914, a suit was filed by one Shri Mohanlal Lalubhai and other 44 persons in the Court of Joint Judge of Ahmedabad against the then Acharya of Vadtal Seat. In the said suit ultimately a scheme had come into existence for the purpose of administration and management of Page 4 of 90 C/MCA/3154/2009 CAV JUDGMENT the Trust, as stated hereinafter.

4. The Trust in question is a public charitable Trust as evidenced by four basic documents namely; (a) a writing known as Desh Vibhag Lekh dividing the entire country in two diocese; (b) Satsangi Jivan; (c) Shiksh Parti and (d) Vachanamrut. By the judgement and decree of the Division Bench of the High Court of Bombay consisting of Martin and Prat, J.J., on November 5, 1922 in First Appeal Nos.62 of 1919 with First Appeals No.142 of 1920, held the Trust in question to be a Public Religious Charitable Trust and all the properties including Namvero and Bhets as Trust properties. By their further judgement of November 29, 1922, they settled for the management and administration of said Trust, which was modified in a minor way in 1939. The purpose of the Trust according to the judgement of the Bombay High Court in the aforesaid appeals was, amongst others, maintenance of temple at Vadtal and other places, promotions of principles and tenets of Swaminarayan Sect and the welfare of their followers. As per the said Trust, Acharya was merely a Trustee of the properties of Page 5 of 90 C/MCA/3154/2009 CAV JUDGMENT Vadtal Temple and has no personal or proprietary rights over the properties or income of the Trust and was only entitled as such be maintained by the Trust in a manner befitting his status as Acharya of the Temple. Acharya of the Temple had no right or interest in different incomes of the Temple or its properties. The said Trust owns a considerable number of immovable properties at Vadtal and in other cities and towns mainly in Gujarat and also in Maharashtra. It also owns valuable movable properties comprising of gold and silver ornaments, jewellery, shares and securities which are extensive.

5. Thereafter Civil Suit No.136 of 1963 in City Civil Court of Ahmedabad was filed under Section 50 of the Bombay Public Trust Act (hereinafter referred to as 'the Act') by some of the members of the temple committee for substituting the new scheme annexed with the plaint and it was prayed that the said scheme be substituted in place of the scheme settled by High Court of Bombay in the year 1922 A.D., for the management and administration of a public trust of Vadtal Temple. The learned Judge of the Fifth Court of Page 6 of 90 C/MCA/3154/2009 CAV JUDGMENT City Civil Court, Ahmedabad, by his judgement and decree of April 30, 1970 held that the scheme settled by Bombay High Court (hereinafter referred to as the 'First Scheme') required drastic modification in view of the various allegations of mismanagement, mal-administration and mal-variations of the Trust properties by Ex- Acharya as well as the present Acharya then and, therefore, he ordered to replace the First Scheme by the modified Scheme (hereinafter referred to as "Revised Scheme/Second Scheme").

6. The matter was carried in appeal before this Court in First Appeal No.543 of 1970. The other Tyagis and few of them Grahasthis also preferred appeal against the very decision of the learned City Civil Judge in First Appeal No.769 of 1970. The learned Single Judge of this Court (Coram: B. K. Mehta, J.) vide judgement dated 4.5.1973 in the aforesaid two appeals further modified the Scheme for administration of the Trust and the Scheme for management of the properties pertaining to the temple of Shri Laxminarayan Dev Temple and the temples subordinate thereto was settled (hereinafter referred to as the 'Third Page 7 of 90 C/MCA/3154/2009 CAV JUDGMENT Scheme').

7. The matter was further carried in LPA being LPA No.183 of 1973. There were also cross-objections filed in the said appeal. The Division Bench of this Court (Coram: S. Obul Reddi,CJ and N. H. Bhatt, J.) vide judgement dated 4.12.1976 partly allowed the appeals and cross-objections and further modified the Schemes in respect of certain clauses as mentioned in the judgement of the learned Single Judge. Consequently, the Scheme was finally settled by the judgement of the Division Bench of this Court (hereinafter referred to as the 'Final Scheme') in the Trust of Shri Laxminarayan Dev at Vadtal and temples subordinate to it. In this manner, the Final Scheme was settled as per the judgement dated 4.12.1976 in LPA No.183 of 1973.

8. As we are not much concerned with various other parts of the Scheme in the present application, the same need not be referred to in the present judgement, but as in the present application, the allegation is pertaining to the manipulation and creation of artificial majority and minority at the elections of Board of Managing Trustees, it Page 8 of 90 C/MCA/3154/2009 CAV JUDGMENT would be relevant to refer to the said part of the Scheme to that extent.

9. The Final Scheme, inter alia, provides for constitution of the Board of Managing Trustees as under:-

"IV Constitution of Board of Managing Trustees

18. (a) The Board of Managing Trustees shall consist of 8 members. Provided that the Chief Kothari shall always be a representative of the constituency of Tyagis.

(b) The Board shall be constituted as under:

(i) 4 (four) representative to be elected from amongst Grashasthis;

(ii) 3 (three) representatives to be elected from amongst ascetics so as to have one representative each from Brahmachari Sadhus and palas;

(iii) The Chief Kothari of Vadtal Temple shall be exoffice member with no right to vote in matters of appointment, reappointment, dismissal, removal, discharge or suspension of Chief Kothari and/or the other Kotharis of subordinate temples or in any matter in which action of the Kothari has been the subject matter of complaint before the Board.

Page 9 of 90 C/MCA/3154/2009 CAV JUDGMENT

(iv) The Board shall elect one of its members as Chairman at the beginning of each year and the Chairman so elected will hold the office for one year thereafter until a new Chairman is elected as aforesaid. The same Chairman may be elected as often as the managing trustees may choose, but not for more than three years in succession.

Provided that in the case of tie between the members of the Board in matter of election of the Chairman the same shall be decided by casting of lot.

(c) The election of first Board of Managing Trustees shall take place on Samalya day of the month of Chaitra of S. Y. 2030 and the subsequent elections shall take place on Samalya day of the month of Chaitra of every fifth year after the last election.

(d) Every election shall be held at Vadtal and such other centres as may be fixed from time to time under the Rules pertaining to election.

(e) Subject to the Rules that may be framed in behalf of the election, every adult male Grahasthi, Brahmachari, Sadhu and Pala whose names may be included in the voters' list to be prepared by the Board shall respectively elect their representatives Page 10 of 90 C/MCA/3154/2009 CAV JUDGMENT on the Board.

(f) The members retiring on expiry of the term shall be eligible for reelection.

(g) Such Rules framed by the Board as may be sanctioned by the Charity Commissioner with or without modification, may provide that no Grahasthi may vote unless he has subscribed a prescribed sum to the fund of the trust in specified preceding years. Provided that the Grahasthi member may not be in arrears in matters of prescribed subscription for the previous years.

Interim Board:

(a) The Interim Board shall take over, manage and administer this trustinstitution according to the scheme hereunder till the first Board of Managing Trustees is elected under the Election Rules that may be framed by the Interim Board and as may be sanctioned with or without modifications by the Charity Commissioner and a voters' list is prepared under the said new Rules.

(b) The Interim Board of the Managing Trustees shall consist of the following persons;

(1) Patel Bhikhabhai Zaveribhai of Dabhan Page 11 of 90 C/MCA/3154/2009 CAV JUDGMENT (2) Patel Maganbhai Chhitabhai of Simariya (3) Patel Shankarbhai Trikambhai of Surat (4) Patel Maganbhai Govindbhai of Baroda (5) Shastri Aksharvihari Prasad of Sharangpur Kothari of Sarangpur Temple (6) Bhramchari Shantanandji of Vadtal Pujari of Vadtal Temple (7) Asha Bhagat of Baroda, Kothari of Baroda Temple (8) Shastri Shri Haribaldasji (9) Shah Natverlal Mahjibhai of Ahmedabad Retired Deputy Charity Commissioner (10) Purani Shantipriyadasji of Vadtal Chief Kothari of Vadtal Temple (Ex.Officio) The Chief Kothari of Vadtal shall be its exofficio member with no right to vote in matters as specified in clause 18(b)(iii) above.

(c) the additional Registrar of the Gujarat High Court, Ahmedabad will act as a Chairman of the Interim Board, which shall take necessary measures including revision of the present voters' list uptodate for holding election of the Board of the Managing Trustees and administer the Institution according to this final Page 12 of 90 C/MCA/3154/2009 CAV JUDGMENT scheme till the first Board of the Managing Trustees is elected.

20 Qualifications for being a member on the Board of Managing Trustees:

No person shall be eligible as member of the Board;

(a) If he is not an adult male;

(b) If he is convicted of an offence involving moral terpitude;

(c) If he is an undischarged insolvent;

(d) If a Tyagi is below the age of 25 years and has not completed seven years as a Tyagi;

(e) A Tyagi who belongs to any school of Swaminarayan Sampradaya other than the one followed at Vadtal; and

(g) A Tyagi who belongs to subordinate temples of Junagadh or Gadhada or for which a separate scheme as sanctioned by competent court may be in force.

21. VACATION OF MEMBERSHIP:

(1) A member of Board shall vacate his office;

(2) If he is convicted of an offence of moral terpitude or of criminal misappropriation or breach of trust or an offence relating to the punishable with imprisonment of more than six months.

(b) If he is adjudicated as insolvent;

Page 13 of 90 C/MCA/3154/2009 CAV JUDGMENT

(c) By reason of mental or bodily infirmity he becomes incapable of acting;

(d) If he fails to attend six consecutive meetings of the Board, without the permission of Board;

(e) On his death or his resignation;

(f)Being a Satsangi member he is in arrears of his subscription on account of Namvero or otherwise for a period of more than two years;

PROVISO Provided that such Satsangi member shall be given an opportunity by the Chief Kothari of the committee of pay up the arrears of the subscription on account of Namvero or otherwise within a period of four weeks from the date of the notice inviting his attention to the non payment of said subscription. Such a notice shall be issued by the Chief Kothari suomoto or at the instance of any Satsangi member and shall be served on the member under registered Post with acknowledgement due and the vacating will ensue only if the payment is not made despite the notice and opportunity.

(As per Judgement dated 6.8.1982 of the Hon'ble Gujarat High Court in Misc. Civil Application Page 14 of 90 C/MCA/3154/2009 CAV JUDGMENT No.257/1980)

(g) Proviso if he holds the office as a trustee or as a member of any other school of Swaminarayan sect other than one followed at Vadtal Temple or the subordinate temples to;

(h) Being a Tyagi member, if he is expelled by the Acharya from amongst the constituency of Tyagis. Provided that if a Kothari of subordinate temple is elected to the Board, he will exercise his option whether to retain his post of Kothari or his membership on the Board within a fortnight of his being so elected.

Provided further that in case of the failure to so elect his membership shall stand vacated.

(b) If he is adjudicated as insolvent; Page 15 of 90 C/MCA/3154/2009 CAV JUDGMENT

(d) If he fails to attend six consecutive meetings of the Board, without the permission of Board;

(e) On his death or his resignation;

(f)Being a Satsangi member he is in arrears of his subscription on account of Namvero or otherwise for a period of more than two years;

(As per Judgement dated 6.8.1982 of the Hon'ble Gujarat High Court in Misc. Civil Application Page 16 of 90 C/MCA/3154/2009 CAV JUDGMENT No.257/1980)

(g) Proviso if he holds the office as a trustee or as a member of any other school of Swaminarayan sect other than one followed at Vadtal Temple or the subordinate temples to;

Provided further that in case of the failure to so elect his membership shall stand vacated.

21. In the event of a vacancy occurring by reason of death, retirement, incapacity, or disqualification (as mentioned in clause 21(1) of a member, the board shall have power to appoint by a majority vote any qualified person of the class represented by the outgoing, dead or disqualified member to fill in such vacancy and term of the office of such member shall be co extensive with the rest of the members or Board. EXPLANATION Page 17 of 90 C/MCA/3154/2009 CAV JUDGMENT "No trustee shall be deemed to have vacated the office under clause 21 unless a notice in writing sent under registered post with acknowledgement due is served on him by the Chairman of the committee, at least two weeks in advance before the date of the meeting where the question of his alleged vacating of office is to be considered and a reasonable opportunity of showing cause against the proposed decision about vacating the office is given to him.

10. The other aspects of the scheme which would be relevant for consideration in the present matter is for the powers of the Board and as per the final scheme, powers of the Board are under Clause-X, which reads as under:-

X POWERS OF BOARD

(i) The Board shall be in exclusive and sole charge of the day to day management of the temporal affairs of the trustinstitutions.

(ii) Without prejudice to the generality of power of management and administration under "subclause (i) above, the board shall have powers in the following matters

(a) Appointment of Chief Kothari at Vadtal or Page 18 of 90 C/MCA/3154/2009 CAV JUDGMENT Kotharis of subordinate temples from amongst Tyagis, prescribing their qualifications, conditions of service, powers and duties, including their dismissal, removal, suspension, discharge and transfer.

(b) Appointment of staff for the administration and management including managercumsecretary, Accountant, Storekeeper, Pujari, Clerks, servants, drivers, cook etc., and to determine the payscales and conditions of services including their removal, discharge, dismissal or suspension and transfer.

(c) Allotment of residential accommodation to Tyagis and extending them essential services such as water supply, electricity drainage etc;

(d) preparation of annual inventories of all immovable and movable properties of whatsoever kind and description including the gold and silver ornaments utensils, jewellery, shares and securities, vehicles, furnitures, fixtures, dead stock, live stocks etc.

(e) Framing of Rules in respect of election of the Board of Managing Trustees and preparing Voters' list accordingly.

(f) Appointment of Committees from amongst its Page 19 of 90 C/MCA/3154/2009 CAV JUDGMENT members of followers for purpose of supervision and guidance and assistance of the chief kotharis of the kotharis of subordinate temples particularly in matters of purchase of stores, disposal and sale of agricultural produce, management of kitchen and distribution of eatables and attendance of guests and visitors etc., to the temple.

(g) Appointment of advisors on the Board, Committee or otherwise with no right to vote, to advise and assist the members thereof.

(h) Investment of surplus funds in approved shares and securities and conversion thereof.

(i)sale and disposal of agricultural produce, dead stock as well as live stock of the trust.

(j) purchase of stores of all kinds, necessary for the management and administration of the trust.

(k) sale and purchase of motor cars, tractors, station wagons etc.

(l) filing and/or defending suits, appeals, revisions and taking all necessary legal proceedings in civil, criminal or revenue courts.

34 The Board may appoint a committee of such number of members as may be determined by a resolution for Page 20 of 90 C/MCA/3154/2009 CAV JUDGMENT purpose of administrations and management of the subordinate temples and their properties which has an annual income or expenditure of Rs.50,000/ or more.

35.(a) Subject to section 36 of the Act, in case of urgency or legal necessity, the Board is empowered to sell, mortgage, exchange or lease or gift any immovable property of the trust. Provided in case of immovable property of more than Rs.10,000/ in value the transfer is sanctioned by a resolution passed by 2/3rd majority of the total number of the members of the board.

(b) The Board is empowered to sell, pledge, gift or transfer any other movable property, except dead stock, live stock and agricultural produce of more than Rs.10,000/ in value provided in case of movable property the transfer is sanctioned by a resolution passed by 2/3rd majority of the total number of the members of the Board.

36. The Board shall determine from time to time above the amount of cash on hand to be kept at different subordinate temples and also given directions Page 21 of 90 C/MCA/3154/2009 CAV JUDGMENT regarding the remittances of the cash balance of the said temple.

11. The last part of the Scheme under head XIV MISCELLANEOUS would also be relevant, which reads as under: XIV MISCELLANEOUS:

45 The Board shall have power from time to time to make such Rules and Regulations as it may think fit and proper for the administration and carrying into effects all the provisions of this scheme and to provide for the management of the trust properties and also from time to time alter any such Rules or Regulations or repel any of them and substitute others in their place.

Provided always that no such rules or regulations framed or subsequently amended shall in any manner be inconsistent with any of the clauses of this scheme or of the Act or the rules there under;

Provided further that the Rules in respect of the election of the Board shall not be effected without the sanction of the Charity Commissioner.

46. The books, records and vouchers etc., shall be kept in the custody of the Chief Kothari at Vadtal or Page 22 of 90 C/MCA/3154/2009 CAV JUDGMENT Kothari of the subordinate temples as the case may be, and they shall be open to inspection by any member of the Board and/or the Acharya at any time and to any Satsangi or Tyagi if so permitted by the Board in writing.

47. Any two members of the Board, the Acharya or any, two Satsangis, two Tyagis or the Charity Commissioner shall be entitled to apply to the High Court of Gujarat for directions and/or modification, alteration or verification of the scheme.

48. If upon the annual report of the auditor of the trust the Board is of opinion that any surplus balance of the trust has not been utilized or not likely to be utilized, it may decide by a proper resolution passed by 2/3rd majority of the total number of members of the Board, to utilize wholly or a portion of it for the following purposes;

(a) Establishment of colleges

(b) Establishment of free dispensaries and/or hospitals

(c) Founding scholarships, fellowships, prizes and lectureships, chairs in existing institutions or universities so as to encourage study of religions Page 23 of 90 C/MCA/3154/2009 CAV JUDGMENT philosophy, Sampradaya, Yoge or Darshan.

(d) Starting training centres of discourses to asatic Pujaris etc.

(e) For establishment of Gaushalas

(f) For donations of educational institutions, hospitals or orphanages or dispensaries. Provided that sub resolution shall be implemented only after obtaining sanction and necessary directions of the Court under section 56 of the Act.

49. Where anything is directed to be done under this scheme or to be done in order to carry out the purpose of the scheme in respect of the temporal affairs, the Board, shall have power to do all such acts and things."

B. THE CASE OF THE APPLICANTS IN BRIEF:-

12. As per the applicants, the Election Rules have been framed by the Trust after approval from the Charity Commissioner at the relevant point of time in the year 1974 and such Rules have been amended thereafter from time to time, but the applicants are not having any details of such Rules. As per the applicants, the Rules, which came to be published lastly through the Chairman Page 24 of 90 C/MCA/3154/2009 CAV JUDGMENT of the Temple Committee Shri Bhaskar Bhagat Guru Kothari Swami Purshottamdasji on 20.12.2004, shows that the Board of Manging Trustees (hereinafter referred to as 'the Board') is to scrutinize the nomination papers of the candidates. The said Rules provide for appointment of the Presiding Officer, but the duties are limited and such Presiding Officer is appointed by the Board and the Board is to supervise the process of voting and counting of votes. As per the said Rules, the Presiding Officer is to bring out all the ballet boxes at Vadtal and open the boxes and count the votes in the presence of the Board Members. The final result is also to be declared by the Board.

Hence, as per the applicants, the entire control of the election is in the hands of the Board. As per the applicants, the members of the Board are entitled to contest the election as many times as they wish and, therefore, those who are to contest the election are custodian of the election process. Consequently, absolute power having been vested to the Board results into corrupt practices in the election and there is no Page 25 of 90 C/MCA/3154/2009 CAV JUDGMENT fair and impartial elections since last two to three elections. As per the applicants, the dispute is going on in respect of removal of Acharya Shri Ajendraprasadji and such dispute is being vigorously contested by Shri Nautam Swami, who was Chairman of the Board. As per the applicants, if the Board is elected in free and fair election, the majority of the members of the Board may not get re-elected and as per the applicants such has happened in the case of other temple namely Junagadh Temple, which is subordinate to Vadtal Temple. As per the applicants, in Junagadh Temple, there is a separate scheme but the powers of holding election virtually is taken away from the Board and entrusted to Presiding Officer as may be appointed by the Court with the consent of the parties and the election result is also different. As per the applicants, in the election of 2005 a larger number of Tyagis and Prashads were excluded from the voters' list and the board does not like to add or continue the names of the persons, for whom the members of the Board of the managing trustees feel that they may Page 26 of 90 C/MCA/3154/2009 CAV JUDGMENT not vote for them. As per the applicants one Naranbhai Muljibhai Dabhi had addressed a letter by raising objections against preliminary voters' list for exclusion of a larger number of voters in the list of Grahasthis but such objections were not properly considered. As per the applicants, the Board has also resolved to amend the election rules in a manner that unless the identity card or documents for identity are shown they will not be permitted to cast the vote. As per the applicants, in order to manipulate the voters' list certain persons, who were desirous to donate and become voters are not permitted by the Board. Resultantly, the eligible persons are kept out of the election. As per the applicants, day-by-day the followers of Swaminarayan Sampraday are increasing, but in spite of the same, in the year Vikram Samvat 2051, the total number of voters were 21086, whereas in the next election of Vikram Samvat 2056, such voters are reduced to 17327. Further in the next election of Vikram Samvat 2061, the list of voters is reduced to 10969. The complaint was also made for exclusion of about 7000 voters, wrongly Page 27 of 90 C/MCA/3154/2009 CAV JUDGMENT deleted from the voters list, but the same is not properly attended. As per the applicants, the reduction of voters in the list is by 50% in the span of about ten years in spite of the fact that the number of followers of Swaminarayan Sampradaya are increasing day-by-day. As per the applicants, no Haribhakta or voter is permitted to inspect the record of the Trust. Therefore, unless the transparency is maintained and books of accounts are allowed to be inspected there will not be any chances of voters' list as per the scheme. As per the applicants, even diocese is by and large divided into sub-divisions of Vadtal Pradesh, Gadhada Pradesh and Junagadh Pradesh. Therefore, the persons who is Hari Bhakta and who resides in any of the aforesaid areas would be entitled to cast their vote in election in their respective temple committees. The Hari Bhaktas of Gadhada cannot take part in election of Junagadh Pradesh or Vadtal Pradesh. Vice-versa Vadtal Temple voters cannot take part in Junagadh or Gadhda Pradesh. Said principle is applicable in the election of all three Temple Committees, namely; Vadtal, Junagadh and Gadhada. Page 28 of 90 C/MCA/3154/2009 CAV JUDGMENT Wrongful inclusion of names of the persons who are the Hari Bhaktas not residing in any sub- division of Southern diocese but are residing in the area of Northern diocese; names of the persons those who are residing in the area of Nar Narayan Dev, Hari Bhaktas who are residing in Rajkot which is subordinate temple of Vadtal Pradesh are being deprived of their rights by a collusive decree obtained by consent, i.e. two Hari Bhaktas have filed Suit which is admitted within two days of filing of said suit and deprived the Hari Bhaktas from taking part in the election process. These illegalities are in respect of the constituencies of Gruhasthas. As per the applicants, large number of Tyagis and Parshads are excluded though they are voters in the earlier list and even same situation is for the list of Grahasthas. The aforesaid are sum and substance of various allegations made against the Board and the crux of the allegation is that since the Board to hold the election through the Returning Officer or the Presiding Officer, who is to be appointed by the Board and further Board also enjoys concurrent power for holding of the Page 29 of 90 C/MCA/3154/2009 CAV JUDGMENT election there are large number of manipulation at the election resulting into artificial majority or artificial minority as per the convenience of the members of the Board, who are to contest the election. Therefore, the election is not being held in a free and fair and impartial manner and, therefore, the Scheme already settled for election deserves to be modified.

13. Mr.N. D. Nanavati, learned Sr. Counsel appearing with Mr.Mangukiya, learned Counsel for the applicants, during the course of hearing submitted that the applicants have shown large number of modifications as mentioned in paragraph 31 of the application. However, he fairly conceded that the prayer of the applicants is in substance for holding of the election through any independent agency, who may not be under the control of the Board, but may be under the control of the Court or any other authority, which this Court may find it proper. He also submitted that the applicants have prayed for the larger relief of appointment of a retired Judge of this Court for holding the election by Page 30 of 90 C/MCA/3154/2009 CAV JUDGMENT modification of the scheme, but even if the District Court Judge is assigned the duty to appoint any person to hold election of the Board, the same should satisfy the applicants. He also submitted that such position prevails in one of the subordinate temples of Junagadh District. He submitted that this Court may ensure that the election is held in free and fair manner by any independent agency as this Court may find it appropriate and proper.

C. REPLY IN DEFENCE BY THE BOARD IN BRIEF:-

14. As per the Board, all allegations made by the applicants are baseless and not correct. On the aspect of reduction of voters, it has been contended that if any amount of Dharmadavero at Shikharbbha Temple is not continuously made for five year, then such person will not be entitled to be voter for election to be held of the temple. It is contended that if Parshads are not eligible to be Parshads and if they are not qualified or violated any of the eligible criteria of Parshads, their names are required to be excluded and they have been rightly excluded.

It is contended that the voters, who were Page 31 of 90 C/MCA/3154/2009 CAV JUDGMENT otherwise entitled to be included as voters under the area of Junagadh Temple, they cannot be included in the voters list of the temple and, therefore, their names have been excluded from the voters' list. The provision is made for identity card or proof of identification in order to ensure that there is no bogus voting. It is contended that any Haribhakta who is desirous to have inspection of the record has to get written permission from the Board, if proper details are not furnished the inspection may be denied. It is further contended that the temple Board duly maintain the register of Dharmadavero, amount paid by Haribhaktas. The accounts are audited by the Chartered Accountants and the audit reports are regularly furnished to the Income Tax Department and charity commissioner. It is contended that at that at no point of time objections are raised for bringing of the ballot boxes and sealing of the ballot boxes and opening of the ballot boxes. It is stated that the ballot boxes are kept in the strong room and thereafter the same is being locked and seals are applied in presence of the candidates or their Page 32 of 90 C/MCA/3154/2009 CAV JUDGMENT agents and the key of the strong room was handed over to the Police in whose custody the ballot boxes were kept in the strong room. In respect of the objections raised for exclusion of 9000 voters, it has been contended that the temple Board had received 8439 objections and out of the same, 6181 objections were without production of any evidence or receipt showing the payment to the temple Board as required as per the election rules No.3 and 4. The Board had further found that those persons have not paid requisite amount as per the election rule No.3 and 4 to be eligible for voter and all the applications were stereo-typed applications made without sufficient details about the complete name of Haribhaktas and his address and the details of the payment made to the temple Board. Certain applications were also time barred. In substance, the contention is that all actions have been taken in accordance with the Election Rules.

15. On the allegation of using vehicle at the time of election, it has been contended that the vehicles are being used in day-to-day activity and not for election purpose. About exclusion of Page 33 of 90 C/MCA/3154/2009 CAV JUDGMENT large number of voters, it has been alleged that the final voters' list is prepared as per the Election Rules and the retired City Sessions Judge has verified and scrutinized the voters' list before the same was finalized. The other allegations made by the applicants are denied by the Board contending, inter alia, that the election is being held in accordance with the Election Rules and the allegations made by the applicants are baseless.

16. We have heard Mr.N. D. Nanavati, learned Sr. Counsel appearing with Mr.B. M. Mangukiya, learned Counsel for the applicants, Mr.S. N. Shelat, learned Sr. Counsel appearing with Mr.Mrugan Purohit, learned Counsel for opponents No.1, 4, 6, 8-11, Mr.P.G. Desai, learned Sr. Counsel appearing with Mr.Ashish Shah, learned Counsel for Opponent No.5, Mr.P.M. Patel, learned Sr. Counsel appearing with Mr.Nirad Bunch, learned Counsel for Opponents No.16,17, 19-69, 71-136, Mr.Mihir Joshi, learned Sr. Counsel appearing with Mr.Mitul Shelat, learned Counsel appearing for Opponent No.8, Mr.Shalin Mehta, learned Sr. Counsel appearing with Mr.Yash Page 34 of 90 C/MCA/3154/2009 CAV JUDGMENT Nanavaty, learned Counsel for Opponents No.180- 195, Mr.Bhupendra Dwidi, learned Counsel for Opponent No.67, Mr.Utpal Joshi, learned Counsel for Opponent No.7, Mr.C. B. Upadhyaya, learned Counsel for Opponents No.2 and 3, Mr.P.J. Kanabar, learned Counsel for Opponent Nos.16-123, and Mr.Kanara, learned Counsel for Opponents No.16,17, 19-66, 68, 69, 71-123, 137-179. D. SUBMISSIONS:-

17. Mr.Nanavati, learned Sr. Counsel appearing with Mr.Mangukiya, contended that various averments made in the applications show that there is tendency on the part of the Board to retain power by one way or another. Those who are in power are in complete command and control of the election, inasmuch as the power to appoint the election officer vests with the Board and the election officer is to function for holding of the election after the stage of preparation of the preliminary voters' list under the Supervision and guidelines of the Board. It was submitted that there are huge monetary operations and properties of the Trust runs into crores of rupees. The members of the Board wanted to Page 35 of 90 C/MCA/3154/2009 CAV JUDGMENT retain the power. If the election is held in a free and fair manner from amongst the eligible voters, the members of the Board, who are in power may not be re-elected and, therefore, in past as per various incidents narrated the voters' list are being manipulated in a manner that there is convenient and comfortable position to get re-elected or to get supporters of the members of the Board in power for being elected. The objections have been filed in the past but they are not being considered by any independent authority but are considered by the election officer, who is to work and answer to the board itself. It was submitted that in order to maintain the transparency in the election and to ensure that the election is held in free and fair atmosphere from amongst the eligible voters the appointment of independent agency is required. In the present scheme the power is vested to the board itself and hence, the modification is called for. It was submitted that the applicants in the application at paragraph 31 has in detail shown various methods to be adopted for free, fair and transparent election. However, in the Page 36 of 90 C/MCA/3154/2009 CAV JUDGMENT prayer clause, by error instead of paragraph 31 it is wrongly typed as paragraph 27. It was submitted that after the applications were considered by this Court the advertisement was also issued as if the applicants were praying for modification with the details as mentioned in paragraph 31 of the application and it is also prayed for the direction to the effect that the election process be conducted from the stage of preparation of the voters' list by independent persons so appointed by this Court, may be retired Judge of this Court. He fairly submitted that the other prayers at paragraph 36BB and 36(B) are interim prayers. He also submitted that ultimately this Court may appropriately decide for giving such power to any independent agency for holding and supervising the election process. During the course of hearing Mr.Nanavati, learned Sr. Counsel submitted that the prayer is made for holding the election process by any retired Judge of this Court, but such prayer may also be considered for any officer who may be appointed by the learned District Judge of Kheda and such appointee may be Page 37 of 90 C/MCA/3154/2009 CAV JUDGMENT any former District Judge or any Officer of the Court. He submitted that such scheme is in operation so far as the temple committee of Junagadh is concerned and this Court, in any case, may consider the prayer of the applicants to that extent. He submitted that ultimately this Court may finalize the aspect of any independent person or authority but the essential purpose of the applicants is to get the earlier scheme modified in a manner that the election of the Board is held in a free, fair and transparent manner and is conducted and finalized by any independent person or any independent agency or any independent authority.

18. Mr.K.M. Patel and Mr.Shalin Mehta, learned Sr. Counsel appearing for the concerned respondents have supported the prayers of the applicants and have also supported that the allegations made by the applicants in the present application.

19. Whereas Mr.Shelat, learned Sr. Counsel appearing with Mr.Murgan Purohit, learned Counsel for the respondent Board submitted that there is no express prayer made for modification of the Page 38 of 90 C/MCA/3154/2009 CAV JUDGMENT Scheme. He also submitted that the other temples subordinate to Vadtal Temple are having separate Scheme. Say for Kalupur Temple of Shree Narayan Dev, scheme provides that the Election Rules shall be framed by the Committee as sanctioned by the District Court of Ahmedabad. As per the said Scheme, for Kalupur Temple, the District Judge, if finds that the election is not possible as provided under the Rules, he may fix another date for holding election and he will have all powers that the election is held on the date fixed. Until the election is held, the District Judge may continue with the then existing Committee or appoint any other Committee, wherein one of the Members shall be Mahant for time being for Shree Narayan Temple, Ahmedabad and such Committee may hold office until the election is held. Mr.Shelat, learned Sr. Counsel, by showing the scheme of Kalupur Temple, drew the attention of the Court that as per Clause 33, liberty is reserved to Acharya, for any member in the Committee, to apply to the District Court for appropriate direction for proper implementation of the Scheme. He submitted that for Gadhada Page 39 of 90 C/MCA/3154/2009 CAV JUDGMENT Temple of Shree Gopinatji Dev, the scheme is different, inasmuch as as per the scheme, Election Rules are to be framed by the Board, but to be sanctioned by the District Court. As per the scheme of the said temple, any member of the Board or Acharya or two Satsangis or 2 Tyagis or Charity Commissioner can apply to the District Court for direction for implementation or variation in the scheme. Mr.Shelat, by drawing the attention of the Court, submitted that for Junagadh Temple of Radha Raman Dev, Election Rules, which were in operation earlier are continued, but the same can be modified with the sanction of the Court. He submitted that the sanctioned Election Rules provide that after publication of the Election Programme the application is to be made to the District Court, Junagadh for appointment of the Election Officer and the learned District Judge, if finds proper, may appoint any Sr. Advocate as the Chief Election Officer and at least two or more lawyers as Election Officers with the power of the District Court to make any alteration in the names and the remuneration is to be fixed by the Page 40 of 90 C/MCA/3154/2009 CAV JUDGMENT learned District Judge. He also drew the attention of the Court that as per the said Election Rules, the District Court has power to issue any direction for smooth process of the election and the decision of the District Court would be binding to all. Mr.Shelat, learned Sr. Counsel submitted that the manner and method of holding of election in all the respective temples, including for the Board of Vadtal Temple is governed by the Election Rules. As per the final scheme settled by the Division Bench of this Court, power to frame election rules vests to the Board and the only requirement is that sanction of the Charity Commissioner is to be obtained. The Election Rules are framed after obtaining sanction from the Charity Commissioner. They are also subsequently modified from time to time. The Election Rules are framed accordingly with the sanction of the Charity Commissioner as per the said election rules. After the publication of the preliminary voters' list objections are to be submitted to the Chairman or Secretary of the Board and the Board has to take final decision and thereafter has to finalize the Page 41 of 90 C/MCA/3154/2009 CAV JUDGMENT final voters' list. As per the Election Rules power to appoint Presiding Officer at each polling station vests to the Board. Such Rules are amended from time to time and modified Rules are published on 20.12.2004 after sanction granted by the Charity Commissioner. He submitted that as per the final scheme settled by the High Court, power to frame the Rules vests to the Board and the Board has framed the Rules after getting sanction from the Charity Commissioner. The allegations made by the applicants are baseless and there is no substantial evidence produced to support the allegation. He submitted that, in any case, the respondent Board has dealt with each and every objection, but merely because the power vests to the Board, it cannot be said that the election would not be held in a free and fair atmosphere. Concerning to the allegations made against Shri Nautam Swamy, he submitted that he or majority of his group are no more in the Board as Members as per last election and, therefore, the ground on the basis of which the application was made for modification in the year 2009 no more survives Page 42 of 90 C/MCA/3154/2009 CAV JUDGMENT and he submitted that as such the application could be said as having become infructuous. He also submitted that in a religious matter when the administration is by the Board and the mechanism is provided of holding election by the Election Officer or the Presiding Officer, who may be appointed by the Board, it cannot be presumed that the Board may misuse its power or manipulate the election on the ground as alleged by the applicants. He submitted that the last election was held wherein the Presiding Officer appointed was a former City Civil Judge. In his submission the Board was desirous to see that the election is held in a free and fair atmosphere but on ipse dixit or a mere allegation the power may not be delegated to any other authority as prayed by the applicants.

20. We may record that at the conclusion of the hearing, upon further inquiry by the Court, in respect to instilling confidence in the election on behalf of the Board, following declaration in writing has been made by the learned Sr. Counsel Mr.Shelat, which has been duly signed by Mr.Murgan Purohit appearing for the Board with Page 43 of 90 C/MCA/3154/2009 CAV JUDGMENT Mr.Shelat. The same reads as under:-

(A) The Election Officer shall be appointed from amongst former District Judges and/or Former City Civil Judges and that the appointee so chosen must have no conflict of interest and that may not be Satsangi of the Lakshmi Narayan Dev Temple.

(B) The Election Officer shall be in the sole charge of conduct of election who shall be assisted by the nominee of the Charity Commissioner.

(C) The Election Officer shall consider the objection against the preliminary voter's list in the presence and with the assistance of the Chairman and Members of the Managing Committee and/or Chief Executive Kothari.

The final voter's list shall be prepared as per the direction of the Election Officer.

(D) During the conduct of election the members of the Managing Committee shall not associate themselves in the conduction of election save and except where the Election Officer requires their attendance. (E) The election rules will be so modified as above and sought approval from the Charity Commissioner. Page 44 of 90 C/MCA/3154/2009 CAV JUDGMENT However, the election to be held this year shall be in accordance with what has been submitted before this Hon'ble Court.

21. Apart from the above, Mr.Shelat, learned Sr. Counsel for the Board also declared that this time the Board is to appoint former District Judge, who may not be satsangi of Laxminarayan Dev Temple as the Election Officer/Presiding Officer to conduct the election.

22. However, Mr.Shelat submitted that as per the instructions received by him, the Board is not agreeable for the prayer made by the applicants to vest the power to the District Judge of Kheda District to appoint any person as the Election Officer in place of the Board itself for conducting the election from the stage of finalization of the voters' list until the election is held and the result is declared.

23. The other Advocates, Mr.P. G. Desai and Mr.Kanabar have supported the stand taken by Mr.Shelat on behalf of the Trust by contending that some of the applicants are not having good reputation and are interested for creating Page 45 of 90 C/MCA/3154/2009 CAV JUDGMENT hurdle. It was also submitted that the proceedings for the amendment of the scheme is misconceived, since the prayer of the applicants essentially would come to the amendment of the election rules and not the amendment in the scheme, for which the power already vests to the Board.

24. Before we consider the relevant law and rival contentions of both the sides it would be appropriate to refer to the earlier development of the matter. After the present application for amendment in the scheme was preferred at the initial stage vide order dated 26.2.2010 the Division Bench of this Court, for the reasons recorded in the order, had found that for amendment in the scheme, statutory provisions under Section 50 of the Act are required to be resorted to, coupled with the aspect of bias which can be proved after leading evidence and, therefore, application was not entertained. The matter was further carried before the Apex Court against the aforesaid decision in Civil Appeal No.3278 of 2011 and the Apex Court,vide order dated 15.4.2011 found that the Scheme was not Page 46 of 90 C/MCA/3154/2009 CAV JUDGMENT created by the Trust-deed, but was created by the High Court and if anybody wishes to get the scheme modified he has to approach the High Court itself in view of Clause 47. The Apex Court did not approve that the District Judge can modify a scheme created by the High Court. Hence, the Apex Court set aside the aforesaid order and remanded the matter to the High Court to decide the modification application in accordance with law and it was also observed that if recording of evidence is necessary High Court may record the evidence. After the aforesaid order passed by the Apex Court, the matter was once again considered by this Court and the relevant aspect is that as the matter was pertaining to modification of the scheme of a Trust of the temple, a public notice was also ordered to be issued in the leading newspaper inviting persons interested in the management of the Trust of the temple of Vadtal, if they so desired. The public notice accordingly was published and some of the interested parties have also filed affidavits supporting and/or objecting to the application for amendment of the scheme.

Page 47 of 90 C/MCA/3154/2009 CAV JUDGMENT

25. We find it appropriate to refer to the relevant laws on the subject.

26. It is an admitted position that the Trust is a public charitable Trust and hence governed by Bombay Public Trust Act 1950. It is true that the scheme for operation of the Trust is settled by the High Court in the above referred judgement, but the fact would remain that the Trust for its operation, as per the scheme, would be governed by the provisions of Bombay Public Trust Act. Section 50 of the Act reads as under:-

50. Suit by or against or relating to public trusts or trustees or others. In any case,

(i) where is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,

(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, extrustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,

(iii) Where the direction of the Court is deemed necessary for the administration of any public trust, or Page 48 of 90 C/MCA/3154/2009 CAV JUDGMENT

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under subclauses (i) to (iii) , or one or more such persons in case the suit is under cubclause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following relief's :

(a) an order for the recovery of the possession of such property or proceeds thereof;

(b) the removal of any trustee or manager;

(c) the appointment of a new trustee or manager;

(d) vesting any property in a trustee;

(e) a direction for taking accounts and making certain enquiries;

(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default;

(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(h) a direction to apply the trust property or its income cy pres on the lines of Page 49 of 90 C/MCA/3154/2009 CAV JUDGMENT section 56 if this relief is claimed along with any other relief mentioned in this section;

( i ) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;

(j) the settlement of scheme, or variation or alteration in a scheme already settled,

(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;

(l) an order for winding up of any trust and applying the funds for other charitable purposes;

(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;

(n) an order exonerating the trustees from technical breaches, etc;

(o) an order varying , altering, amending or superseding any instrument of trust;

(p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof an issuing injunctions in appropriate cases; or

(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief's or is necessary in the interest of the trust:

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions Page 50 of 90 C/MCA/3154/2009 CAV JUDGMENT thereof;

Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled :

Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under subsection (4) of section 1.

27. The aforesaid provisions of Section 50 shows that the Charity Commissioner or two or more persons having interest in the trust after getting consent in writing of the charity commissioner may institute the suit in the Court within the local limits whose jurisdiction the whole or part of the subject matter of the Trust situated for the decree of the relief, inter alia, for removal of any trustee or manager on the ground available in law. One of the grounds could be the manipulations already made at the election of the members of the Board in order to create artificial majority or artificial minority so as to get the benefit at the election by the Trustees themselves directly or indirectly and consequently the breach of Trust resulting into the removal of the Trustees.

Page 51 of 90 C/MCA/3154/2009 CAV JUDGMENT

28. Apart from the above, before such manipulation at the election is made by the Board of Trustees, if the election is actually not being held as per the scheme settled by this Court and any of the beneficiaries of the Trust is seeking a relief directing the proper implementation of the scheme so far as it relates to holding of the election of the Board of Trustees, a suit can be filed seeking enforcement of final scheme settled by this Court.

29. At this stage, we may make useful reference to the decision of the Apex Court in the case of Narmadabai and Another Vs. Trust Shri Panchvati Balaji Mandir and Others, reported in 1995 (Sppl.) (3) SCC 676, wherein the Apex Court has observed at paragraph 7 as under:-

"7. The suit filed by the respondents is not for any declaration or injunction in favour of or against the public trust. It is not even for seeking a declaration or injunction in favour of or against the trustee/trustees. The appellants are, in view of the orders of the authorities under the Act, not the beneficiaries either and therefore, clause (iv) has no application whatsoever to the suit filed by the respondents. Once it is found that clause (iv) of Section 50 (supra) is not attracted, the question of the nature of reliefs claimed for in the suit being covered by clauses (e) and (p) does not arise. Keeping in view the nature of the suit, in our opinion both the trial court and the High Court were right in holding that since the trust is a registered trust and Page 52 of 90 C/MCA/3154/2009 CAV JUDGMENT the suit is filed to seek enforcement of the scheme as settled by the Joint Charity Commissioner, the suit is not covered by any of the subclauses of Section 50 of the Act and no prior written consent of the Charity Commissioner was necessary to maintain the suit. The appeal therefore fails and is dismissed. There shall be no order as to costs."

30. The aforesaid would show that apart from the provisions of Section 50 and Section 51, which may be resorted to after the manipulations at the election already made for removal of the Trustees, proceeding can be resorted to before the appropriate Court for seeking enforcement of the final scheme settled by this Court for holding the election of the Trustees in accordance with law.

31. Section 56A of the Act reads as under:-

56A. Powers of trustee to apply for directions.--

(1) Save as hereinbefore provided in this Act, any trustee of a public trust may apply to the court, within the local limits of whose jurisdiction the whole or part of the subjectmatter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property or income thereof and the Court shall give its opinion, advice, or direction, as the case may be, thereon:

Provided that, the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a Page 53 of 90 C/MCA/3154/2009 CAV JUDGMENT question not proper for summary disposal.

(2) The Court, on an application under subsection (1), may give its opinion, advice or direction thereon after giving notice to the Charity Commissioner. The Court before giving any opinion, advice or direction shall afford a reasonable opportunity of being heard to all persons appearing in connection with application.

(3) A trustee stating in good faith the facts of any matter relating to the trust in an application under subsection (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the application was made.

(4) No appeal shall lie against any opinion, advice or direction given under this section.

32. The aforesaid shows that if any dispute arises on the aspect of management of the trust properties or income thereof, which would include the aspect of manipulations of giving credit of "Dhamada" or Namvero", application can be made by any Trustee of the Public Trust to the Court within whose jurisdiction whole or part of the subject matter of the Trust is situated, seeking opinion or advice or direction of the Court. The opinion or advice or direction by the Court so expressed is to be treated as final as no appeal Page 54 of 90 C/MCA/3154/2009 CAV JUDGMENT would lie against such opinion or advice or direction given by the Court.

33. At this stage, we may make useful reference to the decision of this Court in the case of Maganbhai Madhabhai Vs. Ambalal Bhikhabhai Patel & Ors., reported at 1982(1)GLR 746, wherein after extracting the provisions of Section 56A of the Act, this Court observed at paragraphs 6, 7 and 8 as under:-

"6. I have therefore to decide whether the document presented to the learned District Judge under the caption of a civil suit and registered by the office of the District Court as the Regular Suit No. 3 of 1980 can conceivably be an application or proceeding initiated by the Trustees for the opinion, advice or direction of the Court on any question affecting the management or administration been defined in Clause 4 of S. 2 of the Act a of the trust property or income thereof. The term "Court" occurring in the Act has "the District Court." So for the purposes of S. 56A of the Act, the District Court will be competent to deal with an application, if it is made by any trustee of a public trust and if it is made for the opinion, advice or direction of the District Court on any question affecting the management or administration of the trust property.

7. To me it appears that the proceedings registered as the Regular Suit No.. 3 of 1980 in the District Court at Nadiad can be said to be the proceedings under S. 56A of the Act because they met with both the above mentioned requirements of S. 56A. They car be termed to be an application to the Page 55 of 90 C/MCA/3154/2009 CAV JUDGMENT District Court within the local limits of whose jurisdiction the whole or party of the subject matter of the trust is situate. Secondly, it can be said that, it was made to the District Court by', the original plaintiffs who were trustees and who claimed to be continuing as trustees despite the impugned resolutions. Thirdly, it could be said that the prayer clause put forth in this document presented to the Court initially was for seeking the direction of the Court on the question pertaining to the management or management of the trust properties. The fact that the District Court was requested to declare that the plaintiffs continued as trustees and the defendants Nos. 7 and 8 could not act as trustees would in substance mean that the Court's direction was sought that the plaintiffs were entitled to and the defendants Nos. 7 and 8 were not entitled to, manage and administer the trust properties.

So in the technical sense of the term requirements of subsee. (1) of S. 56A of the Act can be said to have been met. It is to be noted that it was not the say of Messrs. Desai and Shah that ordinarily the prayer put forth cannot fall within four corners of S. 56A(1) of the Act but the non application of the said subsection was pressed into service on the ground that the original plaintiffs had ceased to be trustees by operation of law and secondly it was alleged that the Civil Court's jurisdiction was expressly taken away by S. 80 of the Bombay Public Trusts Act read with S. 22 of the said Act. I shall examine this defence instantly.

8. The Bombay Public Trusts Act is an Act made, by the State Legislature because "It was expedient to regulate and to make better provision for the administration of public religious and charitable trusts in (the then) State of Bombay." The examination of various provisions of the Act shows that it Page 56 of 90 C/MCA/3154/2009 CAV JUDGMENT is a complete Code pertaining to the regulation and administration of public religious and charitable trusts in the State. In a way this Act can be said to be a sort of a consolidating Act because of the Religious Endowments Act, 1863 and other provisions mentioned in Schedule A appended to that Act ceased to apply to such trusts or class of trusts. In other words, the Bombay Public Trusts Act is a complete Code in so far as the public religious and charitable trusts in the State are concerned. S. 80 of the Act which creates a bar on the Civil Court's jurisdiction is reproduced below.

" 80. Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive."

The words of importance are 4'save as expressly provided in this Act" which were not taken note of by Messrs. Desai and Shah. The District Court is no doubt a Civil Court and under S. 80 of the Act its jurisdiction to decide or deal with any question which is by or under this Act Ito be decided or dealt with by any officer or authority under this Act is taken away. But this is subject to contrary provisions contained in this Act. In other words, if S. 56A of the Act itself otherwise provides, the bar contained in S. 80 would not be attracted. In my view, it is quite obvious. So if under S. 56A, the District Court has got jurisdiction to issue any direction in respect of the administration or management of the trust properties. Section 80 will not be able to step into the picture. This is a special Act containing special provisions and special provisions are given a place to meet special Page 57 of 90 C/MCA/3154/2009 CAV JUDGMENT requirements and contingencies. So the bar contained in S. 80 will not be attracted when any proceedings are initiated under S. 56A of the Act. I have already stated above that the proceedings in the District Court though clothed as a regular civil suit and pursued as such, can legitimately be taken to be the proceedings under S. 56A of the Act. If it be so, the District Court's jurisdiction is not barred."

34. The aforesaid would show that for the relief of a declaration of any action of the Board as illegal or undemocratic or violative of principles of natural justice and, therefore, nonest is available under Section 56 of the Act. It is a different matter that as per the proviso to Section 56A(1) of the Act, the Court may not be bound to give opinion or advice if the Court finds that such question cannot be decided by summary disposal.

35. Section 22 of the Act reads as under:-

22. Change :

(1) Where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report Page 58 of 90 C/MCA/3154/2009 CAV JUDGMENT shall be made in the prescribed form.

(1A) Where the change to be reported under subsection (1) relates to any immovable property, the trustee shall, along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of, the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub Registrar referred to in subsection (7) of Section 18. Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorized by him in this behalf.

(2) For the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity Commissioner may hold an inquiry in the prescribed manner.

(3) If the Deputy or Assistant Charity Commissioner, as the case may be, after receiving a report under subsection (1) and holding an inquiry, if necessary, under subsection (2), or merely after holding an inquiry under the said subsection (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State, he shall record a finding with the reasons therefore to that effect and if he is not so satisfied he shall record a finding with reasons therefore accordingly.

Any such finding shall be appealable to the Charity Commissioner. The Deputy or Page 59 of 90 C/MCA/3154/2009 CAV JUDGMENT Assistant Charity Commissioner shall amend or delete the entries in the said register in accordance with the finding which requires an amendment or deletion of entries and if appeals or applications were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made subject to any further amendment on occurrence of a change or any cancellation of entries, shall be final and conclusive.

(4) Whenever an entry is amended or the trust is removed, from the register under subsection (3), the Deputy or Assistant Charity Commissioner, as the case may be, shall forward the memorandum furnished to him under subsection (1A), after certifying the amended entry or the removal of the trust from the register, to the subregister referred to in subsection (7) or section 18 for the purpose of filing in Book No. I under section 18 of the Indian Registration Act, 1908, in its application to the State of Maharashtra.

36. The aforesaid shows that even after the election when the change report is submitted if any manipulation has already taken place at the election of creation of artificial majority or artificial minority at the election of one trustee or all the trustees of the Board, the same can be inquired into by the Deputy or Assistant Charity Commissioner, as the case may be, and thereafter only the change report may be accepted or rejected. The consequence would be Page 60 of 90 C/MCA/3154/2009 CAV JUDGMENT that the election of a particular trustee or all the trustees may be found invalid, if it is proved that in the inquiry that there was manipulation at the election of the Board. At this stage, we may usefully refer to the decision of this Court in the case of Shantilal Khimchand & Others Vs. Mulchand Dalichand & Ors., reported in 1962 GLR 117, wherein the Division Bench had an occasion to interpret the scope and ambit of Section 22 of the Act and after extracting the provisions of Section 22 of the Act, this Court observed, thus:-

"10. Under Section 22(1) it is the trustee who has to report the occurrence of the change. Under Section 22(2) the Deputy or Assistant Charity Commissioner is authorised to hold an inquiry which relates to two matters(1) verifying the correctness of the entries in the register and (2) ascertaining whether any change has occurred in any of the particulars recorded in the register. SubSection 3 of Section 22 requires the officer holding an inquiry to be satisfied that a change has occurred and is enjoined to record a finding with reasons therefor. The fundamental question before him would thus be whether a change has occurred and for that purpose it is obvious that he will have to enquire whether a change has occurred in the constitution of the trustees if the reported change relates to such a question. As a necessary consequence he will have to see that the new trustees referred to in the change have been appointed as Page 61 of 90 C/MCA/3154/2009 CAV JUDGMENT trustees in whom the trust property can legally vest. Such persons as are mentioned in the change can be trustees provided they are appointed by a body of persons authorised to appoint a trustee. Whenever therefore a question arises whether the body of persons who has appointed the trustees is not in fact the real body of persons who could appoint a trustee such a dispute will have to be enquired into and the officer holding the inquiry will have to go into that dispute because if an unauthorised group of persons or outsiders choose to appoint a trustee such a person cannot be said to be a trustee at all and it cannot be said in such a case that he has teen appointed a trustee. For the purpose of proving the correctness of the fact of a change it will have to be shown not only that the appointment of a person has been made but also that such person is appointed as a trustee. If therefore an unauthorised group of persons or outsiders have effected the change and appointed new trustees such persons so appointed cannot be said to be trustees at all and such an appointment or a change cannot be said to be an appointment or a change at all. If this were not so it would be easy to manipulate the introduction of foreign elements outside the scope of the trust in the administration of the trust and vest the trust properties in them. To give any other construction or effect to the provisions of Section 22 would create great hardship and produce results not contemplated by the section. If the interpretation sought to be given by Mr. Surti were to be accepted any persons who might choose to pose themselves falsely as persons authorised to appoint trustees and who are really outsiders without any right would be able to interfere and intermeddle with the affairs of a trust and be able to effect changes of their choice. The change contemplated by Section 22 postulates firstly a lawful cessation of the old Page 62 of 90 C/MCA/3154/2009 CAV JUDGMENT position and secondly thereafter a lawful creation of a new one. If the new state of affairs constituting the change cannot in law change or substitute the old order there is no change at all in fact and such a supposed change cannot be recorded. The change in other words must occur as contemplated above before it is recorded and an inquiry into such an occurrence must include all matters interrelated and closely connected with it and which enable the inquiry officer to come to a conclusion regarding its existence. Moreover the position of a trustee is a position of status and an inquiry into the fact of the appointment is really an inquiry into the fact whether the appointment to hold such a status has been made. The real question in such cases would he whether a change in fact has occurred in the legal status and therefore would fall within the field if inquiry under Section 22 and whenever questions or disputes such as are indicated above arise it would be necessary to inquire into such disputes and to decide them. In the present case the inquiry into the change in the constitution of the trustees must therefore include the question whether the persons who were appointed were in fact appointed as person to hold the status of trustees. Such persons could not be trustees or hold the status of trustees in they were so appointed by persons who had no power to appoint them and an inquiry into the question as was made by the Deputy Charity Commissioner and the learned District Judge was therefore proper.

37. The above referred statutory provisions read with the relevant case laws show that if in any trust any scheme for administration is in operation, but any action is taken contrary to Page 63 of 90 C/MCA/3154/2009 CAV JUDGMENT the scheme or if any action is taken by any or all of the trustees for taking any undue benefit or personal gain at the election by manipulating at the election, safeguards are already provided under the Act and there is also inbuilt mechanism under the Act for not only resolution of such dispute, but also to effect such persons are not accepted as trustees validly elected or removed as trustees and even during the course of election, mechanism has been provided to get the opinion of the Court, which would be normally District Court to finalize the issues for interpretation of any terms of the Scheme and also for appropriate implementation thereof.

38. We may now further consider the facts.

39. The final scheme as referred to herein above under Heading IV of Constitution of Board of Managing Trustees provides for various constituencies at the election as per Clause 18(b). Clause 18(f) provides for the eligibility for re-election of a member who has retired upon the expiry of the term. Such, in our view is not unknown in the management of the religious or charitable trust. The applicants have alleged Page 64 of 90 C/MCA/3154/2009 CAV JUDGMENT that since the members are eligible to be re- elected and as there is no bar for the tenure of re-election, with a view to remain in power manipulations at the election have taken place. It deserves to be recorded that the eligibility for re-election in a religious or charitable trust, pre se, cannot be said to be bad in law because every religious institution should have freedom to manage the affairs through the persons, who may be either beneficiaries or upon whom the faith is reposed by the voters in a lawful manner at the election. The eligibility for re-election may also have the benefits of experience of such member to the trust for the better administration. Therefore, merely because the members are treated as eligible for re- election, it cannot be said that the bar should be imposed for re-election. Further such contention, if considered, with the test of Article 19(1)(c) of the Constitution of India, that too, in a religious and charitable trust, which enjoys the freedom under Article 26 of the Constitution, we find that the scheme providing no bar for re-election up to a particular tenure Page 65 of 90 C/MCA/3154/2009 CAV JUDGMENT cannot be said as improper and no amendment in the scheme is called for to that extent, more particularly when, as referred to herein above, there is inbuilt mechanism provided for removal of trustees.

40. Clause 18(9) provides for the power with the Board to framing election rules, but such is to be sanctioned by the Charity Commissioner. Therefore, it cannot be said that there is absolute power vests to the Board to frame election rules, but rather it can be said that the Rules framed or may be framed by the Board are subject to the sanction, with or without modification, as ordered by the Charity Commissioner, who is in charge of the affairs of all the Trusts in the State. If the applicants feel that any of the election rules are not in conformity with the objects of the Trust, objection could be raised at the time when the rules are put up for sanction or even if sanction is granted, the Charity Commissioner may modify the Rules, if it is so satisfactorily demonstrated before the Charity Commissioner that operation of any election rules would be illegal Page 66 of 90 C/MCA/3154/2009 CAV JUDGMENT or against the objects of the Trust.

41. The election rules (hereinafter referred to "Rules/Election Rules") so sanctioned by the charity commissioner shows that as per clause 2, the Board is to finalize the date of the election and to issue notice in the newspaper about the time and the mode of filing nomination papers at the election and also the eligibility of the voters to contest at the election. Preliminary voters' list is to be prepared by the Board and such voters' list is to be displayed. Any person whose name is not included to voters' list has right to submit application to the Board and such application is to be decided by the Board, but the relevant aspect is that as per Clause 13, the Board has to appoint one Presiding Officer at every polling station. It is true that as per the existing Rules, the final decision is to be taken by the Board upon the application or objection filed by any voter but it has been provided that the same will be after giving opportunity of hearing. It is also true that the power vests to the Board for declaring that the nomination paper is lawful or not. Therefore, as Page 67 of 90 C/MCA/3154/2009 CAV JUDGMENT per the latest election rules of 2004, which are brought to our notice, the declaration of the election programme, preparation of preliminary voters' list, inviting of application or objection for inclusion or exclusion in the voters' list, decision to be taken upon such objections or applications for inclusion or exclusion in the voters' list and the decision to be taken as to whether the nomination form is legal or not is to be finalized by the Board. It is also true that as per the said Rules the Presiding Officer has to be appointed by the Board and the result of the election is to be declared by the Board. However, as per Rule 16 after the declaration of the result, if any objection is raised, such objections are to be finalized by the Presiding Officer and the decision of the Presiding Officer shall be final. Therefore, as per the mechanism provided under the Election Rules 2004 all powers up to the stage of declaration of the result of the election, including appointment of the Presiding Officer at the polling station vests to the Board, except that after the declaration of the Page 68 of 90 C/MCA/3154/2009 CAV JUDGMENT result of the election, objections can be filed pertaining to the election within one week and the same be finalized by the Presiding Officer within one month and his decision shall be final.

42. The applicants have made large number of allegations for the arbitrary decision by the Board for inclusion or exclusion in the voters' list and have also made allegation that in spite of the fact that the followers or disciples of Swami Narayan Sect are increasing day-by-day, number of voters has been reduced within a span of ten years. There is no evidence produced by the applicants for showing the genuineness of the allegations, save and except the applications made by certain persons for so-called misdeeds for inclusion or exclusion as voters and the affidavits in support thereof, which are denied by the concerned respondents. As such, in normal circumstances in absence of any satisfactory evidenced led, this Court cannot proceed on the basis that the contents of the applications are true and correct, but at the same time, majority of such applications preferred by the applicants were accepted and as per the respondents, such Page 69 of 90 C/MCA/3154/2009 CAV JUDGMENT applications were considered and appropriate decision was taken. This Court wanted to take care of instilling of confidence in the election process of the Board. We find that unless the manipulation at the election is satisfactorily demonstrated inference cannot be drawn to the effect for manipulation merely because the Trustees, who were earlier members of the Board, are re-elected at the election or the number of voters have gone down. But at the same time, instilling confidence in the election would be an aspect, which Court may consider if the Court finds that such confidence is shaken amongst large number of voters or independent of it, the confidence of the voters is required to be instilled in the election process.

43. At this stage, we may record that after the Rules of 2004, which were sanctioned by the Charity Commissioner at the relevant point of time, the Board vide its Resolution No.9 dated 22.9.2010 after filing of the present application for modification of the Scheme has resolved to amend the Election Rules and the copy of the same is supplied by Mr.Shelat during the course of the Page 70 of 90 C/MCA/3154/2009 CAV JUDGMENT hearing. As per the proposed amendment of the Election Rules vide Clause (Rule) No.2, it has been provided that after the publication of preliminary voters' list, Board shall appoint former District Judge and Sessions Judge or City Sessions Judge as Election observer and the said election observer shall supervise the whole process of election and shall also undertake the aspect of consideration of the objections and finalization of the voters' list, counting of votes, printing of ballet boxes, objections against the nomination forms, and the finalization thereof and the declaration of the result of the election. As per the said proposed Rules, the Board shall request the Charity Commissioner to appoint one person from his office to assist at the election at the cost of the temple board. But as per Rule 5 of the proposed Election Rules, objections are to be finalized by the Board and the decision of the Board shall be final until election, which, in our prima facie view, may not be in conformity with entrusting power as per Clause 2 of the proposed Election Rules to former District and Page 71 of 90 C/MCA/3154/2009 CAV JUDGMENT Sessions Judge or City Sessions Judge, who may be appointed as observer but if interpreted by reconciliation of both the provisions of proposed Rules of Rule5 with Rule 2, it can be said that the power of the Board to take final decision upon the objections to the preliminary voters' list is maintained, but such power shall be subject to the supervisory power of the election observer. At the initial stage, during the course of the hearing, attempt was made by Mr.Shelat to contend that the election observer to be appointed as per the proposed Rule is not expressly given power to have complete command of the situation in the process of election, but Mr.Shelat submitted that as such it is intended to give power to the election observer, who may be former District and Sessions Judge and City Sessions Judge. However, thereafter, at the conclusion of the hearing by way of a clarification and/or to instill confidence in the process of election, the declaration has been made on behalf of the Board, which is reproduced in the earlier paragraph. As per the said declaration, the Election Officer is to be Page 72 of 90 C/MCA/3154/2009 CAV JUDGMENT appointed by the Board from amongst the former District Judge or former City Civil Judges, who may not have conflict of interest or may not be Satsangi of Laxminarayan Dev Temple. It is also declared that the Election Officer shall be in sole charge of the conduct of election, who is to be assisted by the nominee of the Charity Commissioner. Further, it is declared that such Election Officer shall consider the preliminary voters' list and the final voters' list is to be prepared as per the direction of the Election Officer. It is declared that during the conduct of the election, the managing committee shall not associate with the conduct of the election, save and except where the Election Officer requires their assistance. It is declared that the Election Rules will be so modified as above and the approval will be sought from the Charity Commissioner. Such is stated to be for the future election, but election to be held this year shall be in accordance with what has been submitted before this Court.

44. At this stage, we may also record that the prayer of the applicants through their learned Counsel Page 73 of 90 C/MCA/3154/2009 CAV JUDGMENT was that the power should be given to District Court for appointment of any former District Judge or City Civil Judge or any lawyer or any officer or Charity Commissioner, but it should not be with the Board. We may further record that on behalf of the Board, delegating such power to the District Court as suggested by the applicants, has not been accepted, but they have maintained the above referred declaration for appointment of the Election Officer and the power to be given to the election officer without association of any members of the managing committee/Board.

45. In light of the aforesaid fact situation we need to further examine as to whether the declaration made on behalf of the Board for instilling confidence in the election process would be sufficient or whether any further order deserves to be passed for modification of the final scheme settled by this Court or otherwise.

46. It is not the case of the applicants, nor it has been satisfactorily demonstrated before the Court that the final scheme providing for constitution of the Board of Managing Trustees is Page 74 of 90 C/MCA/3154/2009 CAV JUDGMENT not workable or the same deserve to be alerted, save and except to the extent of suggesting of the alterations based on the premise that the Board, which is in power vests with the power to prepare the preliminary voters' list, decision to be taken upon the objections for inclusion or exclusion in the voters' list, the appointment of the Presiding officer, who is to supervise the polling at the polling station and the declaration of the result by the Board. As submitted by the learned Counsel appearing for the applicants and other parties to the proceedings through Mr.K.M. Patel and Mr.Shalin Mehta, learned Sr. Counsel, the principal grievance is against the retention of the power by the Board and as in the past, malpractices or manipulations have taken place at the election of the Board, such power be given to any independent agency or the election officer to be appointed to completely supervise the election independently and the power to appoint such election officer be entrusted to the District Court and not with the Board. Apprehension was voiced that if the Board is to appoint the election officer even as Page 75 of 90 C/MCA/3154/2009 CAV JUDGMENT suggested in the last declaration, chances of interference by the Board or the loyalty will be towards the members of the Board, who are re- contesting the election or their supporters may contest the election. Therefore, it was submitted that the power to appoint may be left to the District Court and not to the Board.

47. The aforesaid submission made on behalf of the applicants show that as per the applicants there is no grievance to the procedure of the formation of constituencies, eligibility of the voters, method of holding of election and the process to be undertaken in furtherance thereto, including that of preparation of the preliminary voters' list, consideration of the objections and finalization of the objections for inclusion or exclusion from the voters list, submission of the nomination forms, scrutiny of the nomination forms, polling, declaration of the result, etc, but the only grievance remains is with the power to be retained by the Board in such process of election and not to any independent agency or through any independent agency, which may be appointed by the District Court. At this stage, Page 76 of 90 C/MCA/3154/2009 CAV JUDGMENT we may also record that the prayer on the part of the applicants is to appoint any independent agency to get the election undertaken through a former Judge of this Court. As against the same, as per the last declaration made on behalf of the respondent board, to which we have reproduced herein above in earlier paragraph, the election officer is to be appointed from amongst former District Judge or former City Civil Judge and such appointee shall be such person, who must not have any conflict of interest or may not be Satsangi of Laxmi Narayan Dev Temple. We find if any person, who was former District Judge or former City Civil Judge, it would be expected that he would independently discharge his duty and as it has been stated that such person so chosen would not have any conflict of interest and he may not be a satsangi of Laxmi Narayan Dev Temple, such, in our view, would maintain the independence of the former District Judge or former City Civil Judge, who may be appointed as the Election officer. The second important aspect as per the last declaration is that the Election officer shall be in the sole charge of Page 77 of 90 C/MCA/3154/2009 CAV JUDGMENT conduct of election and during the course of the conduct of the election, the members of the managing committee shall not associate themselves in the conduct of the election, save and except where the election officer requires their attendance. Such second aspect would further show the independent functioning of the election officer. Further as the final authority in the matter of election is to vest with the election officer and any member of the managing committee is not to associate in the conduct of election, unless it is required by the election officer, we find that the purity of election will be maintained and the majority of the grievance raised by the applicants for manipulations at the election would no more survive, since the election officer is a separate independent person of the cadre of former District Judge or City Civil Judge and the final authority to take decision in any matter of election is to vest with the election officer. Morevoer, it has been declared as per clause 3 of the aforesaid declaration that the objections against the preliminary voters' list is to be finalized by Page 78 of 90 C/MCA/3154/2009 CAV JUDGMENT the election officer namely for inclusion or exclusion of the voters and the final voters' list is to be prepared as per the direction of the election officer, hence we find that the grievance raised by the applicants for the manipulations in consideration of the objections and the finalization of the voters' list shall be appropriately taken care of. It appears to us that the declaration made as referred to herein above from 1 to 4 if complied with by the Board and the election rules are modified accordingly, such would ensure the sanctity to be maintained at the election of the Board of trustees by appointment of the election officer, who has formerly worked as judicial officer in the cadre of former District Judge or City Civil Judge, more particularly when he is to be in the sole charge of the conduct of election and is to be assisted by the nominee of the charity commissioner, that too, in dis-association with the members of the managing committee unless the election officer so requires their attendance for his functioning in any manner. In our view, if the election is conducted after compliance of the Page 79 of 90 C/MCA/3154/2009 CAV JUDGMENT aforesaid declaration in a right spirit, such would instill confidence of the voters in the process of election generally.

48. The prayer insisted by the applicant for delegating the power for appointment of the election officer to be entrusted to the District Court and not with the board cannot be readily accepted on a mere apprehension that the person, who has worked in the cadre of former District Judge or City Civil Judge would not independently discharge his duty, only because he has been so appointed by the board and not by the District Court. A person, who has worked in the judiciary in the cadre of District Judge or City Civil Judge is supposed to be aware about all statutory provisions and the legal aspects in the process of election. As observed by us in the earlier paragraph, there is inbuilt mechanism provided in the Act by virtue of the provisions referred to herein above read with the above referred decision, the application can be made under Section 56A of the Act to the District Court for appropriate direction in a given case such situation arises. But it is true that as per the Page 80 of 90 C/MCA/3154/2009 CAV JUDGMENT scheme of Section 56A such application is to be made by any trustee of the trust and as the said election officer is not the trustee of the trust or member of the board, he may not be in a position to apply to the District Court under Section 56A of the Act directly for any appropriate direction. Similarly, as per the above referred provisions of Section 50 of the Act, suit for removal of the Trustees or the manager can be undertaken by the charity commissioner or two or more persons having interest in the Trust, but after obtaining consent in writing of the charity commissioner as provided under Section 51. In any case, the election officer is not the person, who would have interest in the Trust and, therefore, may not be in a position to apply to the charity commissioner under Section 51 for removal of any trustee or manager of the trust, even if he finds that the situation is so created by any trustee or manager. In above referred Section 22 when any change report is submitted, the deputy or assistant charity commissioner, though has power to hold the inquiry may hold inquiry but such Page 81 of 90 C/MCA/3154/2009 CAV JUDGMENT would be after the election is over and the result is declared by the election officer and the election officer thereafter may not have any role to play even if something wrong has taken place in the process of election. In our view, as per the discussion made by us in the earlier paragraph for considering the inbuilt mechanism of the Act such mechanism or provisions can be resorted to by any trustee of the trust or the charity commissioner or the person having interest in the trust including the beneficiary of the trust. As the election officer is not the person, who could be said to have any interest in the trust, we need to further examine the resolution of any dispute which may arise between the election officer and the board after his appointment when the election process is on or such election officer has not properly discharged his duties for holding of the election. In a case where election is to be held by the trustees themselves or any ordinary person appointed by the board or the trustees, it might stand on a different footing and different consideration, but when a person so appointed is such who has Page 82 of 90 C/MCA/3154/2009 CAV JUDGMENT formerly worked in the judiciary in the cadre of the district judge or city civil judge and if he finds any difficulty in the process of election either by way of interference through the members of the board though otherwise not permissible as per the election rules or he finds that the board is to terminate his power, because he is discharging the duties independently which is not comfortable or convenient to the board or its members, who are in power or who are having majority, we find it appropriate to make one additional provision to the effect that once the election officer is so appointed by the board his appointment shall not be terminated or any other person shall not be appointed as the election officer by the board in his place, unless such permission is expressly granted by the District Court. We also find it appropriate to make provision for giving liberty to the election officer to apply to the district court or any direction if such election officer finds that it is necessary for him to discharge his duties by maintaining the sanctity of the election process so as to properly discharge the confidence of the Page 83 of 90 C/MCA/3154/2009 CAV JUDGMENT voters upon him for conducting the election as per the election rules. In our view, such an appointment if so incorporated would give sufficient protection to the election officer in discharge of his duties without any interference by anyone, may be of any of the group, either in power or rival to the group in power and it would also rule out any interference by any persons to the election officer in properly discharging of his duties. Hence, for resolution of any dispute may be between the board and the election officer and for smooth discharge of the duties by the election officer for maintaining the sanctity in the election, we find that appropriate additional provision deserve to be made.

49. Mr.Shelat, learned Counsel appearing for the respondent Board did rely upon the decision of the Apex Court in the case of Bhogaraju Venkata Janaki Rama Rao Vs. The Board of Commissioners for Hindu Religious Endowments, Andhra Pradesh, Hyderabad, reported in AIR 1965 SC 231 and contended that when no evidence is led in support of the allegation made for manipulations at the election by the members of the board, scheme may Page 84 of 90 C/MCA/3154/2009 CAV JUDGMENT not be modified on a mere affidavit or pleading. He also relied upon another decision of the Apex Court in the case of Ahmad Adam Sait and Ors. Vs. M. E. Makhri and Ors., reported in AIR 1964 SC 107 for contending that there should be supervening consideration, justifying the alteration or modification in the scheme and the scheme, which is in operation since long or the scheme which is already settled by this Court should not be readily interfered with or amended. He also relied upon the decision of Madras High Court in the case of Namburi Venkatarama Chetty and Ors. Vs. Vemur Thiruvengadathan Chetty and Ors., reported in AIR 1916 Madras 530 and contended that the affidavits filed by both the sides are not sufficient for altering the scheme and the circumstances should be so satisfactorily demonstrated for non-workability of the scheme. He also relied upon another decision of Bombay High Court in the case of Vasantrao S/o Vishwanathrao Mane Vs. Apparao S/o Baibanna Sidore and Anr., reported in 2007(109)Bombay LR 2787 for contending that when the scheme is in existence the Court would be slower and conscious Page 85 of 90 C/MCA/3154/2009 CAV JUDGMENT before disturbing or altering the settled scheme and for further contending that if the election is not held such would be a ground of failure on the part of the board of trustees to execute the scheme and the same cannot be an instance of inadequacy or insufficiency of the scheme.

50. Mr.Shelat also relied upon another decision of the Bombay High Court in the case of Mallikarjun Basvanappa Masute and Anr. Vs. Dattatraya Krushnath Wadane and Ors., reported at 2005(2) Maharashtra Law Journal for contending that if any of the trustees have erred in discharging of their duties it would not be proper to frame a new scheme instead taking against the trustees for removal, otherwise such trustees may go scot- free. Mr. Shelat, for supporting his contention, further relied upon another decision of the English Court in the case of Attorney General Vs. Stewart, reported in Vol. XIV Equity Cases 17 and contended that for alteration or amendment in the scheme the court must proceed with utmost possible caution in what has been done by the court earlier should not be disturbed except the most substantial grounds are demonstrated that Page 86 of 90 C/MCA/3154/2009 CAV JUDGMENT the scheme does not operate beneficial.

51. In our view, the observations have been made in the above referred decisions in view of the facts of those cases and in any case even if such principles are accepted we find that appropriate protection deserves to be extended to the election officer, who is to be in sole charge of the election until the results are declared as per the discussion made by us herein above. After the appointment of the election officer it would be obligatory on the part of the election officer to discharge his duties independently irrespective of any group of the members of the board in power or not in power. Any action by him in furtherance to the discharge of the duties for maintaining the sanctity at the election may not find favour with or may be objectionable to the group of the majority of the board, but irrespective of the same, the election officer has to act in an impartial manner as per the scheme for finalization of the voters' list and also for conducting other process of the election until the result is declared. Under these circumstances, the decision upon which the Page 87 of 90 C/MCA/3154/2009 CAV JUDGMENT reliance is placed , even if considered, would not create a situation of extending no protection to the election officer, that too, a person, who has worked in the judiciary in the cadre of District Judge or City Civil Judge. When the declaration is made by the board that it is to get the election conducted through him as the election officer and when this court finds such declaration made generally instill confidence in the process of election, it would be appropriate to further extend protection to such officer, not only to instill confidence of the voters, who are ultimate beneficiary of the trust, but also to maintain the sanctity at the election through a person, who is to work as election officer at a particular election.

52. In view of the above, we find that the following directions shall meet with the ends of justice:-

(1)Respondent No.1 i.e. Trust of Shree Laxminarayan Dev Temple at Vadtal and the Temples subordinate to it shall abide by the declarations made as reproduced in above referred paragraph No.20 (A) to (E), and the Page 88 of 90 C/MCA/3154/2009 CAV JUDGMENT election rules shall be modified accordingly.

(2) It is further directed that following second proviso shall be added to Clause No.45 under the Head of (xiv) Miscellaneous of the final scheme with the further words as under:-

But the election officer so appointed for the particular election by the Board shall not be removed or substituted after the process of election has started until the result is declared of such election, unless permission is granted for his removal or substitution by the Court, considering the facts and circumstances of the case upon the application made by the Board.


                    Further,       the     election            officer          shall

                    also    be   at      liberty         to    apply         to   the

                    Court     for      any         opinion,           advice       or

direction on any question to the Court.

                    The     Election       Officer            and      the      Board

                    shall act accordingly.

53.      The        earlier      Scheme           shall       stand         modified


                                 Page 89 of 90
         C/MCA/3154/2009                                    CAV JUDGMENT



        accordingly.

    54.        Misc.        Civil   Application     No.3154        of     2009

        shall      stand      partly      allowed   to    the    aforesaid

        extent.           Considering the facts and circumstances

        of the case, no order as to costs.

55. In view of the disposal of the main MCA No.3154 of 2009, Civil Application No.13407 of 2014 shall not survive and shall stand disposed of accordingly.

(JAYANT PATEL, J.) (C.L.SONI, J.) vinod Page 90 of 90

Legal Document View

Unlock Advanced Research with PRISMAI

Gujarat High Court