Gujarat High Court
Prataprao Shankarrao Bhoite vs Vice Chancellor & 34 on 7 February, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1251/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1251 of 2017
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PRATAPRAO SHANKARRAO BHOITE....Petitioner(s)
Versus
VICE CHANCELLOR & 34....Respondent(s)
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Appearance:
MR INDRAVADAN PARMAR, ADVOCATE for the Petitioner(s) No. 1
MR BAIJU JOSHI, ADVOCATE for the Respondent(s) No. 8 - 10 , 15 - 16 , 18 -
24 , 26 - 35
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 3
MR HARSHADRAY A DAVE, ADVOCATE for the Respondent(s) No. 14
MR MASOOM K SHAH, ADVOCATE for the Respondent(s) No. 4 , 6 , 25
NOTICE SERVED BY DS for the Respondent(s) No. 5 , 7 , 11 - 13 , 17
RONAK D CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/02/2017
ORAL ORDER
Heard learned advocate Mr.Indravadan Parmar for the petitioner, learned advocate Mr.D.G. Chauhan for respondent Nos.1 to 3; learned advocate Mr.Baiju Joshi for respondent Nos.8-10, 15-16, 18-24, 26-35; learned advocate Mr.Masoom Shah for respondent Nos.4, 6, 25 and learned advocate Mr.Harshadray Dave for respondent No.14. Notice is served to respondent Nos.5, 7, 11-13, 17, none appears.
2. In the Statute Book of The Maharaja Sayajirao University there exist a Statute which permits persons to become voters and caste vote in the Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER election to the senate by donating rupees one lakh or property of the market value of rupees one lakh to or for the purpose of the University, thereby becoming eligible to be included in the donor's category of voters, who, in turn, amongst themselves would elect two representatives as members of the University senate.
2.1 The controversy in this petition arises in respect of eligibility to become voter in the above category, where the petitioner herein has prayed that private respondent Nos.5 to 35 are wrongly included in the electoral roll in the list of donors. It is prayed to declare the recognition of respondent Nos.5 to 35 as eligible voters to be illegal. Further prayer is made to strike-off their names from the electoral roll.
3. It is the case of the petitioner that respondent Nos.5 to 35, in all 31 persons, were erroneously recognised to be wrongly included in the list of donor-voters published on 28th December, 2016. According to the contention of the petitioner, the said 31 persons cannot be regarded as valid voters in the list of donors category in asmuch as they have made payment of Rs.01.00 lakh to private respondent No.4 which is a private firm and that this payment cannot be treated as donation made to respondent No.3 University so as to entitle them to become voters in the senate elections.
3.1 As per Section 18 of the Maharaja Sayajirao Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER University of Baroda Act, 1949, the senate of the University shall consist of the members of Class I who are ex-officio members and members of Class II, who are the ordinary members. Section 18(1) reads as under.
"18.(1) The Senate shall consist of the following members, namely:-
Class I-Ex-officio Members (A) University Officers:-
(i)to (iv).......
(B) Others:-
(i) to (xii).......
Class-II Ordinary Members
(A) Elected as specified below:-
(B) (i) to (x)......
(B) Two members to be elected in the manner specified in the Statutes from amongst themselves by donors each donating money or property of the value of not less than one lakh or rupees:
(i) to, or for the purpose of, the University, or
(ii) to, or for the purpose of a constituent or affiliated college or institution recognised by the University, irrespective of whether the donation was made before or after the college was made constituent or affiliated or the institution recognised:
Provided that the right of electing members on the Senate shall not extend beyond the period of twenty years from the date of acceptance of such donation by the college, institution or , as the case may be, the University.
Explanation: For the purpose of this paragraph, the value of the property means the market value of the property at the date of acceptance and the decision as to the market value shall rest with the Syndicate and shall be final."
3.2 Statute 181 of the University deals with preparation of list of voters in the donors category.Page 3 of 12
HC-NIC Page 3 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER The relevant portion of Statute 181 is reproduced hereunder.
"(i) The Registrar shall prepare a list of donors, each of whom has donated money or property of the market value of not less than Rs.1/- lakh to or for purposes of the University, or to or for purposes of constituent college or institution recognised by the University.
(ii) The Registrar shall also include in the said register, the donors each of whom has donated money or other property of the market value of not less than Rs.1/- Lakh to, or for the purpose of the college or Institution prior to the date on which such college or Institution was deemed to be affiliated or recognised and admitted to the privileges of the University.
(iii) If the donor is an undivided Hindu Family, trust, firm, company, or body corporate, for the purpose of representation on the Senate, the name of the representative nominated from time to time by each such undivided Hindu Family, trust, firm, company, or body corporate shall be entered on the register maintained by the University.
(iv) In the case of donations given jointly in the name of two or more persons, the name of only one representative will be enrolled in respect of that donation, if other conditions are fulfilled.
(v) ... ... ...
(vi) ... ... ...
(vii) The Registrar shall ask the manager of an
undivided individual Hindu Family, the trustees of the trust, the Managing Director of the Company, joint donors or the representative of any body corporate as the case may be, to intimate to the University before 49 clear days from the date fixed for election, the name, degree and address of the representative for the purpose of inclusion of his name in the electoral roll.
(viii) The names of such representatives shall be put on the electoral roll which shall be published at least 42 clear days before the date of election.
(ix) to (Xiv) ... ... ..." Page 4 of 12 HC-NIC Page 4 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER 3.3 It appears that the fourth respondent-Art & Culture Foundations, Vadodara, spent Rs.38.00 lakh
approximately in relation to an event held in the University towards the track lights, renovation and other works. It is towards such expenses that the private respondent Nos.5 to 35 appears to have donated money to fourth respondent.
3.4 Respondent No.4 had addressed a communication dated 16th July, 2016 to the Registrar of the University as under.
"Dated:16.07.2016 To, The Registrar Maharaja Sayajirao University, Vadodara.
Sub. Donation of Spot/track lights for Faculty of Fine Arts during Vadfest 2015 Sir, We the undersigned have donated spot/track lights worth Rs.38 lacs approx; we had also spent a large amount on Art work, renovation and delivered Manpower to the festival. We request you to kindly register us a registered Donor.
We have also forwarded request for the list of People attached who donated Rs.1 lacs each for clearing payments of Rs.38 lacs which was due to Light suppliers as after installation of these lights we were informed that MSU does not have any budget for the above said lights and without the lights the exhibition cannot happen and a permanent display facility in Fine Arts was not feasible which was very much required after this large renovations.
Accordingly, since our team also had to such financial provisions we took contribution of Rs.1 lacs each from these donors and cleared the payments supposed to be cleared by MSU, we are enclosing their list and the bills which were paid by us from funds coordinated from Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER them.
Kindly note this list only comprises of Capital Goods donated to MSU and only relates to the Donation coordinated by us & does not include as running costs of Vadfest or any other costs.
We request to you to kindly register them as Donor as this property is now donated to MSU by these donors.
Yours sincerely For Art and Culture Foundations."
3.5 It is in view of above that in the election to the senate, in the donors category list, respondent Nos.5 to 35 came to be made voters by applying Statute
181. 3.6 It is stated that in order to scrutinise the names of the list of donors, the Vice Chancellor appointed a Scrutiny Committee for verification which consisted 11 members. A copy of Circular dated 22nd December, 2016 constituting such committee is produced on record along with the affidavit-in-reply. The committee appears to have finalise the names and the list on 22nd December, 2016. Thereafter the Vice Chancellor, in exercise of powers under statute 143, issued election notice dated 04th January, 2017 and the election is now scheduled to take place on 09th February, 2017 after exhaustion of intervening stages in the process.
4. Learned advocate for the petitioner submitted that the payment was essentially made to private agency and they could not be treated as donations to the University. In his submission, respondent Nos.5 to 35 had no eligibility to be Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER included and to elect senate members.
4.1 In the affidavit-in-reply, the University has stated as under.
"as per the provisions of Section 18(1) Class-II (B) read with Statute 181 of the Statutes as amended, two members are to be elected on the Senate by the donors who have donated not less than Rs.1 lakh to the University.... the VADFEST Art and Cultural Foundation, Vadodara had organized VADFEST Event in the year 2015 and Faculty of Fine Arts of the University had participated in the event to create awareness among the citizens of Vadodara about the extra-ordinary work of the Act and Culture done by the Faculty of Fine Arts and also for the upliftmnet of Faculty of Fine Arts of the University. For the said event, the respondent no.5 to 35 had made payment of Rs.38 Lakhs to the Vendor on behalf of the respondent University and that amount has been considered as a donation of the University. Admittedly the respondent no.5 to 35 have donated Rs.1 lakh as donation to the University. Therefore, the respondent Nos.5 to 35 have statutory and legal right to franchise their votes in the category of donors."
4.2 It was submitted that name of the petitioner is at Serial No.20 in the electoral roll and he has been duly nominated as candidate for the election to the senate from the category of donors. It is further stated that similarly respondent No.29 is also nominated as a candidate from the very category. The list of voters published on 28th December, 2016 contains 130 persons as donors including the name of respondent Nos.5 to 35. It was submitted that the petition suffered from the vice of suppressio veri and suggestio falsi as it is not revealed that the petitioner is himself a candidate nominated. The suppression of above fact is an uncontroverted aspect and could have been a singular ground to dismiss the petition.
5. As the controversy as highlighted above Page 7 of 12 HC-NIC Page 7 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER unfolds, the crux is that the elections from the category of donors to the members of the senate has been called in question, on the ground that private respondent Nos.5 to 35 could not have been treated as voters, to be included in the donors category and that statute 181 was wrongly applied to their case to treat them as voters in the said category. What is sought to be suggested is that it cannot be said that the said private respondents have donated to the University or for the purpose of the University and that their payment was to a private entity-respondent No.4 and also not in the manner required under statute 181.
5.1 Section 60 reads as under.
"60. Where any question arises as to-
(1) the interpretation of any provision of this Act, or of any Statute, Ordinance or Rule, or (2) whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University.
(a) it may be referred to the State Government if it relates to a matter specified in clause (1), and
(b) it shall be referred to the State Government if it relates to a matter specified in clause (2), and the State Government shall after making such inquiry as it deems fit (including giving an opportunity of being heard where necessary) decide the question and its decision shall be final."
5.2 The aforesaid Section provides that where any question arises for interpretation of any provision of the Act or any statute of the University or the question arises where a person has been duly elected or is entitled to be a member of any body or authority of the University, such question may be referred to the State Government and the State Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER Government shall decide the same by conducting inquiry in which opportunity of hearing would be given where necessary. The question which is raised in this petition directly falls within the arena of Section
60.
6. In respect of similar provision in form of Section 58 of the Gujarat University Act, the Supreme Court in Gujarat University v. Shri N.U. Rajguru [AIR 1988 SC 66] held that challenge to the election of certain members to 'court' of Gujarat University by way of writ petition was not maintainable in view of mandatory provision of Section 58. It was observed, "Under S.58 of the Gujarat University Act if a dispute arises with regard to the constitution of any of the authorities of the University, it should be referred to the State Government for determining the same. It firstly provides that where any question arises as to the interpretation of any provision of the Act, or of any Statute, Ordinance, Regulation or Rules, it may be referred to the State Government. Secondly, it lays down that if a question arises whether a person had entitled to be or ceases to be entitled to be, been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University, it shall be referred to the State Government. S.58(2)(a) provides that the dispute relating to interpretation of any provision of the Act or Statute Ordinance, Regulation or Rules may be referred to the Government while cl.(b) of sub-sec. (2) of S.58 contains a mandatory provision that if the dispute relates to the question whether a person has been duly elected or appointed to any authority of the University such a dispute shall be referred to the State Government. There is no option or discretion. If such a dispute arises, it has to be referred to the State Government for determining the same. If 20 members of the Court raise a dispute relating to a matter specified in Cl.(1) or Cl. (II) of S.58 it shall be referred to the State Government and thereupon the State Government shall after making such enquiry as it may deem fit, decide the question. The legislative intent is manifestly clear that any dispute relating to the matters covered by S.58 should be referred to the State Government for its decision and such decision shall be final. By enacting S.58, the Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER legislature has constituted a forum for the determination of the disputes in respect of matters specified therein. Since the "Court" is an authority of the University as declared by S.15 of the Act, S.58 provides an effective remedy for challenging the election of a member to the court of the University. Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with S.58."
(para 5) 6.1 It was further stated by the Supreme Court that the order of the High Court in setting aside of the election and directing holding of fresh election was fraught with error in view of mandatory provision of Section 58.
"Where the teachers of the colleges affiliated to the Gujarat University, in spite of the mandatory provision in S.58 of the Gujarat University Act for reference of dispute relating to election to any Authority of the University to the State Govt. challenged the election of certain members to the 'Court' of the University, by writ petition and the High Court set aside the election and directed holding of fresh election the High Court committed an error in entertaining the writ petition and interfering with the election. 1984(1) 25 Guj LR 349, Reversed."
(Paras 4 and 8) 6.1.1 Laying down the proposition of law, the Apex Court clearly stated, "It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies 1984 (1) 25 Guj LR 349. Reversed." (Para 6) 6.2 The decision in Shri N.U. Rajguru (supra) came to be followed by Division Bench of this Court in Rajesh Mahendrabhai Joshi v. Bhavnagar University [2004(4) GLR 3042]. In consideration therein was a similar Section 15 of the Bhavnagar University Act, 1978.
6.2.1 The Division Bench in Rajesh Mahendrabhai Joshi (supra) observed, "13. It could very well be visualized that the legislature in its wisdom has evolved a separate mechanism for the resolution and determination of the dispute in respect of the matters specified therein. Since the "Court" is authority of the University, as declared by the provisions of Sec. 14, of the Bhavnagar University At, Section 67 provides an effective remedy for challenging the election of a member to the Court of the University. In the present case, the claim of the petitioners is that he is entitled to be member of Court of the Bhavnagar University, as he has been elected and secured majority votes. This fact therefore, shall not fall within the ambit of the Provision of Sec. 67 of the Bhavnagar University Act. Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with law. Provisions of Section 67 which provides the effective, expeditious remedy."
"14. Instead of raising the dispute, by way of reference, before the State Government as contemplated by the provisions of Section 67 of the Act, the petitioner raised the challenge before this court under Article 226 of the Constitution. In our opinion, the petitioner ought to have raised the dispute for being resolved before the appropriate forum, which is the State Government, in view of clear provisions of Sec.67 of the Bhavnagar University Act. He has, therefore, to pursue his remedy before the appropriate forum provided by the Statute. While considering an election dispute, it may be kept in mind that right to vote, contest or dispute relating to election is a statutory right regulated by the statutory provisions and dispute relating to election is not a fundamental right.
Page 11 of 12HC-NIC Page 11 of 12 Created On Wed Feb 08 02:34:30 IST 2017 C/SCA/1251/2017 ORDER Obviously, therefore, Court at loath to permit the party having statutory rights being infracted and having mechanism in its redressal to invoke extraordinary, plenary equitable, discretionary writ jurisdiction under Article 226 of the Constitution, bypassing the statutory mechanism, provided for meeting with such situations and contingencies for the effective and speedy resolution of such dispute of election matters. Therefore, we are of the clear opinion that ordinarily, statutory mechanism provided for evolvement of statutory rights must be followed before the authority described therein or special forum or mechanism provided for. ....."
6.3 It is thus on two outweighing ground that the petition is not liable to be entertained. The first is that the elections are underway and the final stage of actual voting is to take place on 09th February, 2017. Secondly, a statutory remedy in form of Section 60 of the Maharaja Sayajirao University of Baroda Act, 1949 available.
7. In view of above factual and legal position obtaining, leaving it open to the petitioner to approach the State Government under Section 60 of the Act, and without expressing any opinion on the merits of the case, this petition is not entertained. The same is hereby dismissed.
Notice is discharged.
(N.V.ANJARIA, J.) Anup Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Feb 08 02:34:30 IST 2017