Bombay High Court
Mahavir Jaina Vidyalaya And Others vs Assistant Charity Commissioner (1 on 8 August, 2012
Author: D.Y.Chandrachud
Bench: D.Y. Chandrachud, R.D. Dhanuka
1 WP(L).1990.2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.1990 OF 2012
Mahavir Jaina Vidyalaya and Others Petitioners
versus
Assistant Charity Commissioner (1)
and others Respondents
Mr.Milind Sathe, Sr.Advocate with Mr.Ashish Kamat, Mr.Anupam
Dighe and Mr.Avikshit Moral i/by India Law Aliance for Petitioners.
Mr.D.A.Nalavade, Government Pleader for Respondents 1 and 3.
Mr.Sagheer A. Khan with Mr.Hassnain Kazi i/by Judicare Law
Associates for Respondent no.2.
CORAM : DR.D.Y.CHANDRACHUD
AND R.D.DHANUKA, JJ.
DATE : 8 August 2012 JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :-
1. Rule. Counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The Writ Petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.
2. The First Petitioner is a trust formed in 1915 and is registered under the Bombay Public Trusts Act, 1950 (`the Act'). The trust has 1 of 8 ::: Downloaded on - 09/06/2013 18:57:32 ::: 2 WP(L).1990.2012 been formed with the object of promoting the education and welfare of the Shwetamber Murtipujak Jain Samaj. The trust has been constituted in pursuance of a Deed of Trust dated 8 September 1921.
The First Petitioner has about 700 life members and 1,200 members of the managing committee. Any member of the Shwetambar Murtipujak Jain Samaj may become a life member upon payment of a fee of Rs.5,000/- and a member of the managing committee upon payment of a fee of Rs.15,000/-. The trust has framed its rules and regulations with regard to the election and tenure of trustees.
3. On 28 April 2012, an extra ordinary general Meeting was held in the course of which it was resolved to replace the erstwhile rules and regulations with new rules. Among the modifications, the tenure of the elected trustees was reduced from six years to five years. Moreover, the system of postal ballots was replaced by a requirement of holding a meeting for electing life members to the managing committee. On 26 May 2012, the Petitioners declared elections to the office of trustees and the executive committee. The election programme was to commence on 14 June 2012 with the filing of nominations. The last date for submission of ballot papers was 4 August 2012. Counting of votes was scheduled on 6 August 2012 and the results were to be declared on 11 August 2012.
4. The Second Respondent filed a nomination for contesting the election to the executive committee and her name was included in the ballot papers sent for voting to the members of the trust. On 2 August 2012, after the election process had commenced, the Second 2 of 8 ::: Downloaded on - 09/06/2013 18:57:32 ::: 3 WP(L).1990.2012 Respondent filed an application under Section 41A of the Act seeking the following directions from the Assistant Charity Commissioner :
(i) an order restraining the Petitioners from declaring the election results;
(ii) an order directing the Petitioners to conduct the elections to the General Body in accordance with the rules prescribed in the constitution of the trust; and
(iii) the appointment of an observer from the office of the Assistant Charity Commissioner to administer the election process.
5. On 3 August 2012, the application was served on the Petitioners. On 4 August 2012, the Assistant Charity Commissioner passed an order allowing the application. The Assistant Charity Commissioner was of the view that since the election process had been commenced, it could not be stayed. However, on the basis that the amendment to the rules and regulations had not been reported to or approved by the Charity Commissioner under Section 22 of the Act, the Assistant Charity Commissioner directed that counting of votes cast at the elections shall not be carried out and that the result of the election shall not be declared until the Change Report on the amendment to the constitution of the trust was accepted.
6. On behalf of the Petitioners, it has been submitted that :
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(i) The Second Respondent suppressed in her application before the Assistant Charity Commissioner that she herself was a candidate who had contested the elections to the executive committee;
(ii) The Assistant Charity Commissioner proceeded with unholy haste in proceeding to issue a summons on 3 August 2012 upon the filing of the application on 2 August 2012 and in disposing of the application on the very next day without affording the Petitioners even an opportunity to file their replies in opposition to the application;
(iii) In the application, as it was filed, there was no challenge to the resolution adopted by the General Body on 26 April 2012 and the only relief that was sought, was an order of restraint from declaring the results of the election and a direction to conduct the election process afresh;
(iv) Having regard to the parameters of the jurisdiction under Section 41A of the Act, the Assistant Charity Commissioner has not acted judicially in issuing the kind of direction that has ultimately been passed. Upon the conclusion of the election process, the Petitioners would have to submit a Change Report to the Charity Commissioner under Section 22 of the Act and at that stage it would be open to the Second Respondent to raise all objections in regard to the legality of the election. At this stage, it was urged that, no order of restraint was warranted, that too at the behest of a person who was a candidate contesting the election.
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7. On the other hand, it has been urged on behalf of the Second Respondent that :
(i) The jurisdiction of the Assistant Charity Commissioner under Section 41A is wide enough to issue directions for the proper administration of the trust and this would include a direction in regard to the proper conduct of the election process;
(ii) The original rules and regulations governing the trust are annexed to the Deed of Trust which was adopted in 1921.
Consequently, any amendment to the rules and regulations would have to be reported to the Charity Commissioner under Section 22. The conduct of the elections without the approval of the Change Report by the Charity Commissioner was illegal and the Assistant Charity Commissioner was justified in directing that the results of the elections should not be declared until the Change Report in relation to the amendment of the Trust Deed is approved.
8. The amendment to the rules and regulations of the trust was adopted on 28 April 2012. The Court is informed that the minutes were approved on 26 May 2012. The election programme based on the amended rules and regulations was declared on 26 May 2012 and was notified to the members on 31 May 2012. The filing of the nominations was to take place until 14 May 2012 and the election programme envisaged counting of votes on 6 August 2012 and declaration of results on 11 August 2012. The Second Respondent is 5 of 8 ::: Downloaded on - 09/06/2013 18:57:32 ::: 6 WP(L).1990.2012 a candidate who had filed a nomination for election to the executive committee of the trust. The fact that the Second Respondent was a candidate at the election, was not disclosed in the application filed before the Assistant Charity Commissioner by the Second Respondent.
9. The law on the subject is clear. Once the election process has commenced, Courts are extremely circumspect about interfering with the process. The underlying rationale for this principle which has been consistently followed by the Supreme Court since 1952, is that any interference with the electoral process impinges on the right of the electoral college and the democratic electoral process.
The principle of restraint was enunciated by the Supreme Court in N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem District and others1 and has been followed consistently ever since. A recent decision in that in Supreme Court Bar Association and others Vs. B.D.Kaushik 2. In the judgment in Supreme Court Bar Association (supra), the Supreme Court noted that since 1952, the Court has authoritatively laid down that once the election process has started, the Courts should not ordinarily interfere with the process by granting an injunction.
10. A person who is aggrieved by the result of an election, is not without remedy. In a case such as the present, the declaration of the election results would have to be followed by the filing of a Change Report under Section 22 before the Charity Commissioner. At that 1 AIR-1952-SC-64 2 (2011)13-SCC-774 6 of 8 ::: Downloaded on - 09/06/2013 18:57:32 ::: 7 WP(L).1990.2012 stage, it would be open to an objector, such as the Second Respondent herein, to raise such objections as are available in law in regard to the legality of the election process.
11. The Assistant Charity Commissioner was evidently conscious of the principle of law under which an election process, which has commenced, ought not to be injuncted. But none the less, the Assistant Charity Commissioner proceeded to restrain the counting of votes. The counting of the votes and the declaration of the result of the election is a part of the election process. It defies comprehension as to how the Assistant Charity Commissioner while on the one hand accepting that an election process which has commenced should not be stayed, none the less, issued a direction which has that very effect. Moreover, we are distressed at the manner in which and the haste with which the Assistant Charity Commissioner has proceeded in the present case. The application by the Second Respondent was filed on 2 August 2012. It appears from what has been stated before the Court by Counsel for the Second Respondent that the Second Respondent moved the Assistant Charity Commissioner the very next day to issue notices to the contesting Respondents. In the petition, it has been averred that the notice was served as late as 11.00 p.m. on 3 August 2012 on some of the Respondents to the application filed by the Second Respondent. Immediately on the next day, the Assistant Charity Commissioner proceeded to take up the application and to dispose of the application by a final order staying the counting of votes and declaration of results until the amendment to the rules and regulations is approved. There was absolutely no reason or 7 of 8 ::: Downloaded on - 09/06/2013 18:57:32 ::: 8 WP(L).1990.2012 justification to proceed in such haste. The election programme envisaged counting of votes on 6 August 2012 and declaration of results on 11 August 2012. Be that as it may, there was absolutely no justification for the Assistant Charity Commissioner to pass an order in deviation of the well settled norm of restraint in interfering with an election process, which has begun. No exceptional circumstances in any event were shown nor have been adverted in the impugned order of the Assistant Charity Commissioner. Once a Change Report is filed, as it has to be, following the elections, it will be open to any party, which seeks to object to the results of the election, to do so.
12. In the circumstances, in the view which we have taken, it is not necessary for the Court to enter upon a wider canvass including the question of jurisdiction of the Assistant Charity Commissioner under Section 41A. The impugned order of the Assistant Charity Commissioner which interferes with the election process is unsustainable and would have to be quashed and set aside. The petition is allowed by setting aside the impugned order of the Assistant Charity Commissioner dated 4 August 2012. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
(DR.D.Y.CHANDRACHUD, J.) (R.D.DHANUKA, J.) MST 8 of 8 ::: Downloaded on - 09/06/2013 18:57:32 :::