Gujarat High Court
Hemantbhai Chandrakantbhai Patel & 2 vs Trust Of The Temple Of Shree ... on 23 March, 2015
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/4734/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4734 of 2015
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HEMANTBHAI CHANDRAKANTBHAI PATEL & 2....Petitioner(s)
Versus
TRUST OF THE TEMPLE OF SHREE LAXMINARAYAN DEV TEMPLE &
12....Respondent(s)
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Appearance:
MR N.D. NANAVATI, LD. SR. ADVOCATE WITH MR B.M. MANGUKIYA for
the Petitioners
MR SN SHELAT, LR SENIOR COUNSEL WITH MR MRUGEN K PUROHIT
FOR RESPONDENT NO.1
MR. RUTVIZ OZA LD. AGP for Respondents No.2 & 3
MR PRASHANT G DESAI, Ld. Senior Advocate with Mr. Mitul K. Shelat for
Respondents No. 7 to 13
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 23/03/2015
ORAL ORDER
1 By way filing the present petition under Article 226 read with Articles 14, 19, 25 and 26 of the Constitution of India, the petitioners have prayed as under:
34 (a) Be pleased to admit this petition
(b) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside all order or direction and to quash and set aside all orders recorded by the Election Officer of rejecting the objections against preliminary list of voters and Page 1 of 23 C/SCA/4734/2015 ORDER also quash and set aside the final list of voters prepared by the Election Officer and declaration as such all further steps taken by him in furtherance of and conduct of the election process.
(c) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to set aside the appointment of Mr. B.M. Modi as Election Officer of Vadtal Temple Trust;
(d) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriatet, order or direction and to appoint any Officer of this Hon'ble Court not below the rank of Deputy Registrar as Election Officer for holding the election of the Board of Trustees of VadtaTemplele Tru Trust and be pleased furtherect that the list of voters shall be prepared by him, ignoring the preliminary list of voters prepared by the Board of Trustt ees and be pleased to direct to hold election afresh accordingly.
(e) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direct and to direct that the wrongful exclusion of 20000 persons or more who wanted to pay their Namvero and Dharmadavero have been wrongfully restrained by the Board of Trustees be permitted to pay their Namvero and Dharmadavero at a time of last five years and their eligibility as voters be examined in accordance with the Scheme by the Election Officer so appointed d by this Hon'ble Court.
Page 2 of 23 C/SCA/4734/2015 ORDER(f) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct the Election Officer so appointed by this Hon'ble Court to examine and verify the place of residence of each and every voters before including the name in the list of voters and persons those who are not residing in Vadtal Pradesh, be directed not to be included in the list of voters.
(g) Pending admission and final disposal of the present petition, be pleased to stay the further process of election of Vadal Temple Trust with the direction that Mr. B.M. Modi or Mr. P.B. Raval or any other officer shall not take any steps in direction of holding election of temple of Trust, Vadtal.
(h) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. Brief history with regard to the respondent - Trust arise from the record are as under:
1 "In the early part of 19th Century, the great Saint SwamiSahajanandji had founded the Swaminarayan Sect and had established 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 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 Page 3 of 23 C/SCA/4734/2015 ORDER 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 Swaminaryan Temple at Vadtal as Principal Seat. He had prepared treaties known as "Deshvibhag-no-lekh", wherein he had laid down the scheme for management of these temples. Southern Vibagh was placed by him in the charge of one nephew with the Principal seat at Vadtal and Norther 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 householder 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 "Acharya" on special occasions in order to provide for the upkeep and maintenance of the institutions.
2 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 the Trust, as stated hereinafter.
3 The Trust in question is a public charitable Trust as evidenced by four basic documents, namely, (a) a writing known as Desh Page 4 of 23 C/SCA/4734/2015 ORDER Vibhag Lekh dividing the entire country in two diocese; (b) Satsangi Jivan; (c) Shiksh Parti and (d) Vanchanamrut . By the judgment 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 Chartiable Trust and all the properties including Namvero and Bhets as Trust properties. By their further judgment 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 judgment 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 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, jewelery, shares and securities which are extensive.
4 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 Page 5 of 23 C/SCA/4734/2015 ORDER 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 AD for the management and administration of a public trust of Vadtal Temple. The learned Judge of the Fifth Court of City Civil Court, Ahmedabad, by his judgment and decree in April 30, 1970 held that the scheme settled by Bombay High Court (hereinafter referred to as the `First Scheme') required drastic modification, 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.") 5 The matter was carried in appeal before tis 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 judgment 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 Scheme').
6 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.Obdul Reddi, C.J. And N.H. Bhatt, J.) vide judgment 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 judgment of the learned Single Judge.
Page 6 of 23 C/SCA/4734/2015 ORDERConsequently, the Scheme was finally settled by the judgment 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 judgment dated 4.12.1976 in LPA NO. 183 of 1973.
7 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 judgment, 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 would be relevant to refer to the said part of the Scheme to that extent.
8 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) representatives to be elected from amongst Grashasthis;
(ii) 3 (three) representative s 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 ex-office member with no right to vote in matters of appointment, re-appointment, dismissal, removal, discharge or Page 7 of 23 C/SCA/4734/2015 ORDER 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.
(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 Samaly 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 fifty 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 on behalf of the election, every adult male Grahasthi, Brahmachari, Sadhu and Pala whose names may be included in the voter's list to be prepared by the Board shall respectively elect their representatives on the Board.
(f) The members retiring on expiry of the term shall be eligible for re-election.
(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 not 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 Page 8 of 23 C/SCA/4734/2015 ORDER previous years.
Interim Board:
(a) The interim Board shall take over, manager and administer this trust-institution 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 modification 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 Zaverobhai of Dabhan (2) Patel Manganbhai 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 Barod, Kothari of Barod 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 ex-officio 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 up-to-date for holding election of the Board of the Managing Trustees and administer the Institution according to Page 9 of 23 C/SCA/4734/2015 ORDER this final scheme till the first Board of the Managing Trustees is elected.
20 Qualification for being a member on the Board of Managing Trustees.
(a) If he is not an adult male; (b) If he is convicted of an offence involving moral turpitude; (c) If he is an undischarged involvement;
(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 turpitude or of criminal mis-appropriation or breach of trust or an offence relating to the punishable with imprisonment of more than six months.
(3) If he is adjudicated as involvement;
(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
Page 10 of 23
C/SCA/4734/2015 ORDER
subscription on account of Namedrop 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 suo moto 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 judgment dated 6.8.1982 of the Hon'ble Gujarat High Court in Misc. Civil Application No. 257/1980).
(g) Provisio 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.
21 In the event of a vacancy occurring by reason of death, Page 11 of 23 C/SCA/4734/2015 ORDER 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 of the Board.
EXPLANATION:
" No trustee shall be deemed to have vacated the office under Clause 21 unless a notice in writing sent under registered post with acknowledgment due is served on his by the Chairman on 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 asunder:-
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 trust-institutions.
(ii) Without prejudice to the generality of power of management and administration under "sub-clause Page 12 of 23 C/SCA/4734/2015 ORDER
(i) above, the Board shall have powers in the following matters --
(a) Appointment of Chief Kothari at Vadtal or kothari 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 manager-cum-secretary, Accountant, Storekeeper, Pujari, Clerks, servants, drivers, cook etc and to determine the pay-scales and conditions of services including their removal, discharge, dismissal or suspension and transfer.
(c) Allotment of residential accommodation to Tragics and extending them essential services such as water supply, electricity, drainager, etc.
(d) preparation of annual inventories of all immovable 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 Voter's list accordingly.
Page 13 of 23 C/SCA/4734/2015 ORDER (f) Appointment of Committees from amongst its 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 eatbles and attendance of guests and visitors, etc to the temple .
(g) Appointment of advisors on the Board, Committee or otherwise with no right to vote4, 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 purpose of administration and Page 14 of 23 C/SCA/4734/2015 ORDER 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 the case of immovable property of morte than Rs. 10,000/- in value of 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.
(c) The Board is empowered to invest the trust funds and monies in accordance with Section 35 of the Act.
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 regarding the remittances of the case balance of the said temple.
11 The last part of the Scheme under head SIV MISCELLANEOUS would also be relevant, which Page 15 of 23 C/SCA/4734/2015 ORDER 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 repeal 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 thereunder;
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 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 Page 16 of 23 C/SCA/4734/2015 ORDER 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, chair in existing institutions or universities so as to encourage study of religions, philosophy, Sampradaya, Yoga or Darshan,
(d) Starting training centers 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, Page 17 of 23 C/SCA/4734/2015 ORDER shall have power to do all such acts and things.
(b) If he is adjudicated as involvement;
(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.
3 The case of the petitioner is that the scheme of the respondent Trust was framed by a Division Bench of the High Court, one of the petitioners, namely, Swamy Nirannmuktadasji Guru Narayanandasji (Vakil Swamy) had filed an application, being Misc. Civil Application No. 315 of 2009, for amendment in the scheme, on the allegations that some of the respondents are trying to manipulate the election process of the trustees, which takes place periodically. The said application was numbered as Misc. Application No. 315 of 2009. The said application was heard by Division Bench of this Court. Learned Senior Advocate appearing for the respondent No.1 - Trust had agreed that a retired District Judge shall be appointed as an Election Officer as far as the election for the year 2015 is concerned. The said application was disposed of by the Division Bench by CAV judgment dated 9.1.2015. It was was ordered by the Division Bench that a retired District Judge to be appointed as an Election Officer to conduct the election. The said order dated 9.1.2015 passed by the Division Bench was challenged by the petitioners by way of filing Special Leave to Appeal (C) No. 2522 of 2015 before the Hon'ble Apex Court. The same was not entertained and disposed of with certain observations. It is the case of the petitioner that Page 18 of 23 C/SCA/4734/2015 ORDER the officer - private respondents are trying to manipulate the voters list and trying to add number of voters, who were not eligible to become members of the Trust and having any voting right in the election and visa - verse. Accordingly, written objections were filed before the Election Officer on 13.12.2014. The Election Officer did not entertain the objections raised by the petitioners with regard to the inclusing of certain voters and entering into the names of certain persons as voters though they are not entitled to become even members of the Trust and vise verse. Since the objections were not entertained by the Election Officer, the petitioner did file another application, being Miscellaneous Application No. 108 of 2015 in Misc. Civil Application No. 315 of 2009 before the Division Bench about the illegality committed by the Election Officer. The said application came to be withdrawn for filing appropriate proceedings before appropriate forum. Hence this petition.
4 Learned Senior Counsel Mr. Nanavati assisted by learned Advocate Mr. Mangukia has assailed the last order of January 2015 passed by the Election Officer rejecting the objections raised on behalf of the petitioner mainly on the ground that the decision of the Election Officer is a biased one, since Chief Kothari and other trustees had remained present before the Election Commissioner at the time of hearing of objections. It is the case of the petitioner that the objections raised, including the names of those devotees (around 20,000) which is not properly considered, though, they were not entitled to become members under the scheme. The Election Officer has also erred in rejecting the objection with regard to entitlement of certain persons for their admission as members. Learned Advocate Mr. Nanavati by taking me through the memo of petition, tried to submit that the manner and method in which the influential trustees are controlling the trust, so that Page 19 of 23 C/SCA/4734/2015 ORDER the trustees elected as per their choice and submitted that such practice is required to be deprecated. He would submit that the preliminary objections raised by other side with alternative remedy is concerned the same is not efficacious and sufficient and decisions in such alternative remedy take years together and, therefore, the petitioners have no other alternative remedy but to file the present petition before this court.
5 He would submit that by submitting written objections about those devotees, who were not entitled to become the members of the Trust and, therefore, the final list prepared be cancelled, however, the same has not been prepared in accordance with the scheme framed. He would, therefore, submit that the petitioner be allowed and the election proceedings be quashed and set aside. He has also urged that pending hearing this petition, elections of Trust may be stayed.
6 On the other hand, learned Senior Counsel Mr. S.N. Shelat assisted by Mr Purohit has raised several objections including the availability of alternative remedy. The first objections raised with regard to the maintainability of the petition itself since an alternative efficacious remedy is available to the petitioner. He would submit that the Assistant Commissioner/Deputy Commissioner is empowered under Section 22 of the Bombay Public Trust Act and can decide the issues after holding the proper inquiry. By relying upon a decision of this court in the case of SWAMI SATYAPRAKASHDASJI GURU GHANSHYAM PRASAD SWAMI VS. JOINT CHARITY COMMISSIONER, RAJKOT, as reported at 2002 (2) GLR 1450 , he would submit that the Assistant Charity Commissioner would enter into inquiry with regard to the election process under the provisions of Section 22 of the Trust Act.
Page 20 of 23 C/SCA/4734/2015 ORDER7 By relying upon an oral order dated 25.3.2008 passed by a Coordinate Bench of this Court in Special Civil Application No. 5103 of 2008, Mr. Shelat would submit that the Coordinate Bench had refused to entertain similar type of petition when the issue raised about inclusion or discarding the names of persons from the voters list as raised in a writ petition. He would submit that the said order of learned Single Judge was challenged by the petitioner of that case by way of filing Letters Patent Appeal No. 310 of 2008. The Division Bench of this Court refused to entertain the appeal.
8 He would further submit that this court would be at loath to entertain a petition under Article 226 of the Constitution of India wherein only disputed question of facts are involved. He would submit that the details given by the petitioners to the Election Officer with regard to the residential status of a particular person cannot be subject matter of writ jurisdiction.
He has further submitted that the petition also suffers from delay and latches. The last order passed by the Election Officer is of January, 2015, however, the petition has been filed at a very belated stage since the elections are to be held on 4.4.20154. He would submit that the scrutiny of nominations of the candidates is completed and final voters list is already prepared and the ballot papers are also printed and, therefore, the relief prayed by the petitioner for staying the election are to be thrown at this stage. He, therefore, would submit that the petition is required to be dismissed in limine.
9 I have heard learned Advocates appearing for the respective parties. I have also considered the prayers of the petitioner. It is an Page 21 of 23 C/SCA/4734/2015 ORDER undisputed fact that the questions or dispute raised either before the Election Officer or before this Court is with regard to the criteria adopted by the Trust authorities in preparing the voters list. As per the scheme, certain persons who are residing in certain area would only be entitled for voting rights. I have gone through the written objections raised on behalf of the petitioner dated 13.12.2014. The Objection is that the persons who are in the voters list are residents of a particular city are not entitled to remain in the list since the scheme does not permit the same. I have also gone through the order of the Election Officer who has partly allowed the objections raised by the petitioner and has ordered that certain persons are not entitled to remain in the list. He has also passed the order keeping in mind certain litigations which are pending before different civil courts. Hence, I am of the opinion that the Election Officer was conscious about the entitlement of a person to become a member and further to vote in the election to be held in the recent future.
10 It is also pertinent to note that in the case of SWAMI SATYAPRAKASHDASJI GURU GHANSHYAM PRASAD SWAMI VS. JOINT CHARITY COMMISSIONER, RAJKOT, (supra), this court has held that there is an alternative efficacious remedy under section 22 of the Act and the powers are with the Assistant/Deputy Charity Commissioner and after proper inquiry, he is empowered to pass appropriate orders. As per the oral order Swami Bhatiprasaddasji Guru (supra) confirmed by the Division Bench in LPA No. 310 of 2008, the Court has refused to entertain similar petition with regard to the voters list.
11 As far as the delay and latches is concerned, I am of the opinion that the court would be at loath to interfere with the election Page 22 of 23 C/SCA/4734/2015 ORDER process since the final voters list is prepared, the nominations are scrutinized and ballot papers have already been printed. The elections are to be held on 4.4.2015. Staying the election of the Trust which is having lacs of devotees would create havoc at the hands of few which is not permissible. Therefore, the court would not like to interfere with the election process when the dispute is with regard to the voters list alone.
12 Considering the overall consideration of the case, I am of the opinion that this court would not like to exercise powers under Article 226 of the Constitution of India and, therefore, the petition is dismissed in limine.
(A.J.DESAI, J.) pnnair Page 23 of 23