DARBARSAHEBSHRI Vs. RAJKUMAR COLLEGE TRUST
LAWS(GJH)-2021-9-1454
HIGH COURT OF GUJARAT
Decided on September 17,2021

Darbarsahebshri Appellant
VERSUS
Rajkumar College Trust Respondents


Referred Judgements :-

SHAJI K. JOSEPH VS. V. VISWANATH & ORS. [REFERRED TO]


JUDGEMENT

- (1.)Issue notice for final disposal to the respondents, returnable on 5/10/2021.
(2.)The petitioner, has preferred the captioned writ petition, inter alia, praying for direction that the elections to the Trust Board of respondent no.1-Trust be held strictly in compliance with the Trust Deed/Rules as also in strict compliance of the directions contained in the order dtd. 28/11/2019 passed in Application 41/15/18 by the learned Joint Charity Commissioner, Rajkot. The petitioner has also prayed for direction to the respondent nos.7 and 9 to stay the further process of elections to the Trust Board of the respondent no.1-Trust on such terms and conditions as may be deemed appropriate by this Court, in alternative, it has been prayed that the respondent no.9 be directed to keep in his custody all the votes cast during the elections either through poll or physically, in a sealed cover until such time Application 41A/7/21 along with all pending applications are finally heard and decided.
(3.)Mr. Navin Pahwa, learned Senior Advocate appearing with Ms. Siddhi Vadodariya and Mr. Ravi Pahwa, learned advocates for the petitioner has made various submissions, gist whereof is as under.
3.1 That the petitioner is the founding member of the non-salute group of the respondent-Trust and in past, has also been in the Trust Board of the respondent-Trust. The petitioner has been the voter and was also been involved in the active administration of the Trust for several years and therefore, is a beneficiary and a person having interest in the affairs of the Trust.

3.2 That as per the Trust Deed, the term of the Trust Board/governing body is five years with power to the President to extend by maximum period of one year at a time, but not exceeding three years. That an application under sec. 41A of the Gujarat Public Trust Act, 1950 (hereinafter referred to as the 'Act of 1950'), being 41A/15/18 came to be filed by three applicants from non- salute states seeking directions to hold elections to the Trust. That interim orders came to be passed which were challenged by the Trust before this Court and the said writ petition was partly allowed by the judgment and order dtd. 10/5/2019, which was carried in appeal being Letters Patent Appeal No.1461 of 2019. The said appeal was disposed of vide order dtd. 17/10/2019 with a direction to the learned Joint Charity Commissioner to decide the pending matter within a stipulated period without being influenced by the findings or observations recorded by the learned single Judge.

3.3 That pending the Application 41/15/18, the respondent nos.5 and 6 made an application to the respondent-Trust to include their names in the electoral roll of the Trust. An application, Exh.90 was made to the learned Charity Commissioner to decide the electoral roll, however, the learned Joint Charity Commissioner, vide order dtd. 13/11/2019, rejected the application, Exh.90, inter alia, holding that application is premature. The learned Joint Charity Commissioner has observed that any decision on the applications to induct the members, can be made first by the governing committee of the Trust and it is only thereafter, that an application can be made before the competent authority by the aggrieved person. Pursuant to the order dtd. 13/11/2019, the Trust by resolution dtd. 15/11/2019, rejected the application made by the respondent nos.3, 5 and 6, which was duly communicated to them.

3.4 That, on 28/11/2019, the learned incharge Joint Charity Commissioner allowed the Application 41/15/18, inter alia, directing appointment of Election Officer to hold elections considering the status as on 30/10/2019. The order categorically records that the list of registered nominated representatives of the state be prepared as on 30/10/2019 and to declare the election programme accordingly. That the respondent no.7, forwarded the election programme and also sent preliminary list of voters consisting of 23 persons.

3.5 The election programme was declared, when, the respondent nos.3 to 6 submitted an application on 13/7/2021 and 15/7/2021, requesting for inclusion of their names in the electoral roll and the Election Officer, has passed four orders, all dtd. 20/7/2021. Before deciding the application of the respondent nos.3 to 6, no opportunity of hearing was granted by the respondent no.7 to any person including the Trust. As per the election programme, the Election Officer was obliged to complete the process of examination and hearing between 17/7/2021 and 19/7/2021; however, the orders have been passed on 20/7/2021. Admittedly, the Election Officer, did not give any opportunity of hearing before taking any decision on 20/7/2021 which fact, is clear from the communication dtd. 5/8/2021.

3.6 That as per the election programme, the Election Officer was required to receive objections against the preliminary list of electoral candidates between 5/7/2021 and 15/7/2021 and was thereafter, required to examine the objections, hear the parties and decide the objections between 17/7/2021 and 19/7/2021. The Election officer, not only received additional names which were beyond his jurisdiction, but accepted the said names to be included in the electoral roll beyond the period provided in the election programme and that too without hearing the Trust Board.

3.7 That the petitioner being aggrieved, preferred an application 41A/7/21 before the learned Joint Charity Commissioner, challenging the orders, all dtd. 20/7/2021 of the Election Officer, entering the names of the respondent nos.3 to 6 in the electoral roll. Apparently, the application 41A/7/21 was filed way back in the first week of August, 2021, however, the learned Joint Charity Commissioner has not decided the same despite the fact that the election programme is declared and the election is scheduled to take place on 19/9/2021. That if the application filed by the petitioner is not heard and disposed of before the elections are held, the proceedings taken out by the petitioner, would be rendered infructuous.

3.8 That the respondent nos.3 to 6 had earlier attempted for inclusion of their names in the list, and the request was rejected by resolution passed by the Trust, however, the decision of the Trust has not been challenged and therefore, there is a finality attached to the decisions taken by the Trust. In absence of any challenge to the earlier two decisions, it was impermissible for the respondent nos.3 to 6 to have approached the Election Officer for inclusion of their names in complete defiance of the election programme, and the Election Officer to have passed the orders, all dtd. 20/7/2021, inducting the names of respondent nos.3 to 6 in the electoral roll.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.