Bombay High Court
Ravindra Subraria Kamat And Ors. vs Mamlatdar And Administrator Of ... on 19 June, 2001
Equivalent citations: 2002(1)BOMCR352
Author: K.K. Baam
Bench: K.K. Baam, A.S. Aguiar
JUDGMENT K.K. Baam, J.
1. The petitioners have filed this writ petition seeking a writ of certiorari or a writ in the nature of certiorari or any other writ or direction for quashing the letter dated 3-4-2001. The petitioners have also sought a writ of mandamus or any other writ directing respondent No. 1 to administer oath to the petitioners so that the petitioners could take charge from the outgoing committee and a further direction to respondent No. 1 to fix a date for handing over of charge by respondents No. 3 to 10 to the petitioners. The petitioners have sought a declaration that the purported relaxation of the statutory date of election of the mazanias of the Mahalasa Devasthan dated 11-2-2001 on the part of respondents No. 1 and 2 is without jurisdiction and the petitioners have sought an interim relief restraining respondent No. 1 from issuing any notification declaring fresh date of elections of the mazania/body of the Members of Mahalasa Devalaya/Sausthan and/or conducting any such elections of the mazania of the Mahalasa Devasthan.
2. This petition has been filed on 3-5-3001. On 16-5-2001 a statement was made by Mrs. A. Agni, learned Advocate appearing on behalf of the petitioners that respondent No. 1 is about to hold an election and has scheduled it for 3rd June, 2001 and it the election is held, it will create conflict, as the interest of the petitioners who have been elected on 11-2-2001 will be prejudiced and the same will entail multiplicity of proceedings. On 16-5-2001, an order was passed and the learned Advocate General appearing on behalf of respondent No. 1 stated that the elections scheduled for 3rd June, 2001 will be postponed and held later date, on 1-7-2001, due notice given to the effect that the elections scheduled for 3rd June, 2001, will be withdrawn and also a due notice of the elections of 1st July, 2001 will be given in accordance with law. The order was passed to the above effect in order that parties could appear before the Court and fix a date for hearing of the petition on re-opening of the Court. The petition is, therefore, placed on board for hearing.
3. It is the case of the petitioners herein that the elections held on 11th February, 2001 by which the petitioners have been elected as members of Managing Committee for the triennial commencing from 1-4-2001 to 31-3-2004, are valid elections and the order dated 3-4-2001 holding the elections on 11-2-2001 contrary to the order of the Government, and that elections held on 11-2-2001, cannot be considered as legal and the request to administer the oath to the committee was not granted as per the order dated 3-4-2001 which deserves to be set aside. It is vehemently urged on behalf of the petitioners that the elections were scheduled for 11-2-2001 and as per Article 26 of the Devasthan Regulation, the same were held, the petitioners have been elected and the elections have not been challenged in appeal as provided under Article 30 as the appeal was required to be filed within the time limit of 10 days from the date of the election.
4. So far as the case of the petitioners is concerned, Shri Usgaonkar, the learned Senior Advocate who appears on behalf of respondents No. 3 to 10 has urged before the Court that there is no question of challenge to the elections as the elections held are illegal, due notice has been given for the elections which were scheduled for 25th February, 2001. The elections held on 11-2-2001 being illegal, the question of preferring appeal does not arise as the appeal has to be filed challenging the legal elections. These elections not being in accordance with the order, the question of challenge by way of an appeal does not arise.
5. So far as cause of action in this petition is concerned, it is urged on behalf of respondent No. 1 and 2 by the learned Advocate General that a suit has been filed, to which the defendants are parties, i.e. a suit has been filed seeking relief pertaining to the elections held on 11-2-2001 as being legal and valid and consequential directions are sought pertaining to these elections, to which the petitioners herein are party defendants. It is contended on behalf of respondents No. 1 and 2 that there are disputed questions of fact in respect of which the parties have a recourse to civil proceedings which are already pending or that the petitioners can file independent proceedings and the same cannot be determined by the writ Court. It is also urged on behalf of the respondent No. 1 and 2 that this is a matter which requires evidence and the same cannot be determined under Article 226 of the Constitution.
6. On behalf of the petitioners, it has been vehemently argued by learned Advocate Mrs. Agni that when the elections were scheduled for 11th February, 2001 which were under the Devasthan Regulation, the Government or the Administrator cannot change the statutory date. It is contended and urged on behalf of the petitioners that by letter dated 8-2-2001, the elections were postponed to 25th February, 2001 and that this date cannot be changed unless and until the general body meeting is called, as power to change the date of elections vests with general body under the Devasthan Regulation and the Government has no power to extend the date. It is also urged on behalf of the petitioners that on 11-2-2001 when the elections were held 145 members were present and the same has been recorded in the minutes on the subsequent date i.e. 25th February, 2001, which was the date fixed for elections. At that meeting 439 members were present and they have accepted the elections of the committee held on 11-2-2001 which has not been challenged by an appeal. Due publicity has been given to the elections held on 11-2-2001 and, therefore, it is contended on behalf of the petitioners that the Order dated 3-4-2001 deserves to be quashed and set aside. It is urged on behalf of the petitioners that it was an error of jurisdiction on the part of respondent No. 1 to adjourn the elections for 25th February, 2001 by Order dated 8-2-2001 and, therefore, the respondents having committed the error of jurisdiction, the petitioners are entitled for grant of relief and the issue of writ of certiorari. It is also urged on behalf of the petitioners that the question pertains to the interpretation of the Devasthan Rules and Regulation and, therefore, the petitioners are entitled to file this petition.
7. So far as the respondents are concerned, it is vehemently urged on behalf of the respondent No. 1 and 2 by learned Advocate General that the petitioners have not challenged the order dated 8-2-2001, and, therefore, so far as the petitioners are concerned, the reliefs sought cannot be granted to them. In support of this contention, reliance has been placed upon the ruling in Surinder Singh v. Central Government and others, , wherein it is observed :
"Whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order."
In this backdrop, the dispute which is there between the petitioners and respondents as per the arguments advanced on behalf of the petitioners and the respondents is whether the petitioners were entitled to hold elections on 11-2-2001 when the said vide order dated 8-2-2001 were postponed to 25-2-2001, due notice of elections being scheduled for 25-2-2001 having been given, the petitioners were not entitled to hold elections. The question, therefore, arises as to whether the petitioners' elections held on 11-2-2001, are legal, is a question of fact which requires to be investigated for which filing suit is an adequate remedy. It is also urged on behalf of the respondents No. 1 and 2 that the Devasthan Rules and Regulations have been framed by the Government who can change the date of elections for the purpose of administering the terms of these Rules and Regulations as reasons for changing the date of elections from 11-2-2001 to 25-2-2001 was not a mala fide action on the part of the Government who is respondent Nos. 1 and 2 herein as from 11-2-2001 the annual festivities i.e. annual Zatrosava and Suvarn Shikhar Kalashas festivity, were to commence and in order to ensure smooth functioning of the elections, the date was postponed to 25th February, 2001.
8. Reliance has been placed on behalf of the respondent on Article 70 of the Devasthan Regulation which deals with the powers given to the Administrator relating to the control and superintendence over the Devasthan. A reference is also made to sub-section (17) of Article 70, which provides as under :
"Article 70---It shall be incumbent on the Administrators of Talukas (concelho), as Administrators of the bodies of members (mazanias);
(17) To transmit Government decisions to the Managing Committee;"
Reliance is also placed on behalf of the respondents on Article 4, under which the respondents have the powers in the course of administration and in order to control the administrative matters, to decide issues. Article 4, reads as under :
"Article 4---The Taluka (concelho) Administrators shall be the Administrators of the bodies of members (mazanias) and as such legitimate authorities to control their administrative matters."
9. The election of the Managing Committee being a subject matter which pertains to the administration of the Devasthan, the respondents were thus entitled under these provisions to pass necessary orders, more particularly when it is not that the elections have been postponed indefinitely, but the date of elections has been adjourned to the next available Sunday, being 25th February, 2001, after the festivities were over. Further it is necessary to note the fact that the elections were postponed from 11-2-2001 to 25-2-2001, notice has been given, and the same has been published in the news papers. Therefore, the contention of the petitioners that on 11-2-2001 members were present and election was validly held, is unwarranted as notice of postponement having been published in four local daily, it is well nigh impossible for Mahajans or voters to remain present in the Sausthan on 11-2-2001. Further, so far as the meeting of 25-2-2001 is concerned, a perusal of the minutes of the meeting, which were signed by the mamlatdar, clearly reflects that there was chaos and the members who attended the meeting, were asked to remove themselves as a large number of non-catalogued persons from outside Goa physically assaulted, pushed their way in the hall, created chaos and confusion, law and order problem was created. This was the situation in hall on 25-2-2001 that prevailed, is in sharp contrast with the Minutes of the Meeting-recorded by and relied on behalf of the petitioners which state that the elections of 11-2-2001 were confirmed by the members present on 25-2-2001. Therefore, the contents of two minutes are matters which require investigation and evidence and cannot be determined at this stage. It is also urged on behalf of the respondents that there was a dispute as to whether there was a quorum, as the members present on 11-2-2001 were not catalogued members. They did not constitute the quorum as contended by the petitioners.
10. The fact that the notice was given in the news papers to postpone the meeting and no notice was published by the petitioners herein to the effect that the meeting was scheduled for 11-2-2001 for holding the elections. The petitioners not having given due notice of the meeting of 11-2-2001 it is not open to the petitioners to contend that they have been validly elected for which no notice of time for holding election was also given, as laid down under Article 38(4) of the Devasthan Regulation. Further notice of the meeting to be held on 25-2-2001 at 11 a.m. has been given in the Official Gazette. In the absence of any notice having been given of the elections on 11-2-2001 and the time, so far as the petitioners are concerned, they were not entitled to hold the elections. On behalf of the petitioners, reliance has been placed on Union of India and another v. State of Haryana and another, . However, so far as this ruling is concerned, the same does not apply to the facts of the present case as it is not a question of interpretation of the Rules, but the question pertaining to the order dated 8-2-2001 which has not been challenged. Further, in view of the fact that notice of postponement was published in the papers, the question arises as to whether the meeting held on 11-2-2001 when the purported elections were held, was valid or not, is a matter which requires evidence. On behalf of the petitioners, reliance is also placed on State of U.P. v. Mohammad Nooh, A.I.R. 1958 S.C. 86. So far as this ruling is concerned, the same does not apply to the facts of the present case inasmuch as the challenge is not made to the letter of 8-2-2001. The declaration sought is in respect of the letter of 3-4-2001 and a declaration to the effect that the elections are valid. Further, so far as these order dated 8-2-2001 which is the basis for holding elections on 25-2-2001 instead of 11-2-2001 because, though, it is contended on behalf of the petitioners that they have sought a declaration under prayer (c) that the purported relaxation of the statutory date of election of the mazanias of Mahalasa Devasthan dated 11-2-2001 on the part of respondents No. 1 and 2 is without jurisdiction and though the said order has been referred to in the petition, there is no challenge to the order dated 8-2-2001.
11. So far as the petitioners are concerned, no prejudice would have caused to the petitioners had the elections been conducted on 25-2-2001 which was in accordance with the terms prescribed, as noticed of the elections on 25-2-2001 was published in the news papers, and Members were put to notice of the elections, which was not so in the case of elections of 11-2-2001. Hence, so far as the petitioners before this Court are concerned, they are not entitled to any relief in this petition as the elections held on 11-2-2001 are not as per provisions of law. There is no reason why the elections should not be conducted on 1-7-2001 as scheduled. The petitioners can participate in the said elections, if they command majority, then they would be elected and if the petitioners have any grievance, they are at liberty to approach Court. However, the petitioners are concerned, they are not entitled for any relief in this petition. The petition stands dismissed.