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SCA/2984/2010 1/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2984 of 2010
=======================================================
SHREE
GITA WOOD WORKS & SAW MILL - Petitioner(s)
Versus
AHMEDABAD
EDUCATION SOCIETY & 7 - Respondent(s)
=======================================================
Appearance :
MR
MB GANDHI for Petitioner(s) : 1, MR CHINMAY M
GANDHI for Petitioner(s) : 1,
MR SN SOPARKAR with MR MERCHANT for
Respondent(s):
1-8.
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/03/2010
ORAL
ORDER
Leave
to amend the prayer clause by challenging the order at Annexure-A
and leave to produce the xerox copy of the partnership deed, wherein
the petitioner is shown as one of the partners of the partnership
firm of Shree Gita Wood Works & Saw Mill.
The
petitioner has filed this petition under Article 226 of the
Constitution of India seeking declaration from this Court that the
electoral roll prepared and published by the respondent no.1-trust
is absolutely illegal one and in turn the election which is to be
held on 10.03.2010 be also directed to be stayed till the correct
electoral roll is prepared and till the electoral roll in which the
objections are properly and legally decided. By way of oral request,
the petitioner has also challenged the impugned order at Annexure-A
passed by the Charity Commissioner.
Heard
Mr.M.B. Gandhi, learned advocate appearing for the petitioner and
Mr.S.N. Soparkar, Learned Senior Counsel with Mr.Merchant, learned
advocate appearing for the respondents after a copy is being served
on them as per the oral direction of this Court.
Before
filing the present petition, the petitioner has moved an application
before the Charity Commissioner, which after hearing the parties,
was rejected by an order dated 10.02.2010. Mr.Gandhi submitted that
all issues which are raised by the petitioner before the Charity
Commissioner, were not properly considered. He has further submitted
that several objections were raised, however, same were not
appreciated by the Charity Commissioner. The correctness of the
electoral roll is also not examined by the Charity Commissioner
dispite the fact that specific instances were pointed out. Mr.Gandhi
further submitted that though all the documents with regard to the
petitioner are on record, the petitioner’s name was wrongly deleted
from the electoral roll and thereby the petitioner was deprived from
casting his vote in the election, which is said to be held on 10th
March, 2010.
Mr.Gandhi
has also referred to earlier proceedings and submitted that since no
elections were held, raising various issues and for better and
proper management of the trust, the present petitioner and other had
filed Misc. Application Nos.35/2005, 52/2005 & 55/2005 before
the Charity Commissioner. The said applications were allowed and the
directions were issued by the Charity Commissioner vide order dated
28.04.2006. Being aggrieved by and dissatisfied therewith, the
respondent no.1-Trust preferred three Special Civil Applications
before this Court namely Special Civil Application Nos.10722/2006,
10723/2006 & 10725/2006, wherein the orders passed by the
Charity Commissioner were upheld. As per the order of the Charity
Commissioner, the Assistant Charity Commissioner was appointed to
manage the election process. Instead of that by consent, an
amendment was made by the High Court and certain directions were
issued. Thereafter, one Misc. Application was filed, in which, issue
arose about the scrutiny of 935 objections, which the society had
received and in the said application, the Court gave direction for
scrutinizing the same. Mr.Gandhi further submitted that even
thereafter the respondent-Trust did not do anything for dealing with
the objections nor invited anybody to present the documents in
support of their say that they are the members of the Trust and
without any scrutiny, the provisional list was sorted out and a
short list of 482 was declared. Originally when the provisional list
was published, 546 members were shown. The society previously had
made an electoral roll wherein in the year 2001, there were 774
members. So far as the election of January, 2007 is concerned, the
said election was absolutely illegal and the Change Report
No.416/2007 filed by the respondent no.1-Trust was challenged by
filing objections and the same is still pending and evidence is
recorded of the trustees of the trust.
Mr.Gandhi
submitted that inspite of pendency of the previous Change Report
application, the notification of the new election has been declared
and public notices were published and the election is fixed on
10.03.2010, wherein several irregularities were committed by the
respondents in as much as dead persons and non-existing firms are
included in the electoral roll in spite of the knowledge to that
effect and legitimate and existing members are excluded without any
reasons and 935 objections which were received by the respondent are
yet to be decided properly. He, therefore, submitted that entire
programme of election is illegal and such election cannot be
permitted to be held.
Mr.Gandhi
further submitted that so far as the petitioner is concerned, he has
produced all relevant documents. Inspite of that the name of the
petitioner’s firm is not included in the list nor the petitioner is
informed about its objections. He has therefore submitted that the
relief as prayed for in the present petition is required to be
granted and the election be postponed till the irregularities are
removed and till the petitioner and many other, whose names were
wrongly deleted from the electoral roll, are included.
Mr.Soparkar
appearing for the respondents on the other hand submitted that the
present petition is not maintainable. The respondent no.1 and its
trustees are the private individuals against whom no petition is
maintainable before this Court. He has further submitted that the
Charity Commissioner has examined all the issues, which were raised
before him and has given a specific finding to the effect that as to
why the petitioner’s name is deleted from the electoral roll list
and also submitted that all objections raised were duly considered
and, thereafter, the electoral list is published. It is true that
the electoral list is finalized on 02.02.2010, however, for the
benefit of the members at Bombay, further time was extended and the
Bombay Office was also opened only with a view to smoothen the
electoral process. He has further submitted that the petitioner has
suppressed certain facts. As a matter of fact, the petitioner,
before filing the present petitioner, has approached this Court by
way of Special Civil Application No.13505/2009, which was disposed
of by this Court on 30.12.2009 permitting the petitioner to raise
all these contentions before the Competent Authority, under which,
the respondent-Trust is functioning. Before issuance of such
directions, the Court has referred to the decision of the Apex Court
in case of Election Commissioner of India V/s. Ashokkumar & Ors.
reported in 2000(8) SCC 216, wherein it is held that once the
election process is put into motion, the Court should not normally
interfere. He has therefore submitted that once the election is
over, the petitioner can raise all these disputes before the
Competent Court. After the said order, the petitioner has filed an
application before the Charity Commissioner, which was rejected and
the election is scheduled to be held on 10.03.2010 and before the
said election is over, the present petition is filed, which is not
to be entertained by this Court.
Mr.Soparkar
further submitted that the petitioner has also suppressed very
relevant aspects that earlier the Division Bench in Letters Patent
Appeal No.1494/2006 with Letters Patent Appeal No.1495/2006 has
specifically held that the grievances of the respondents about the
validity of the electoral roll cannot be gone into at this stage so
as to stall election process in exercise of power under Article 226
of the Constitution. The issues raised for challenging the election
of the respondent no.1-Trust with regard to nature and character of
Trustees, Councilors and Governing Body can also be raised and
decided by the Charity Commissioner under various provisions of the
Act. The Division Bench after considering various authorities on the
issues had held that the directions of the Learned Single Judge to
postpone the election of the Trust scheduled to be held on
18.11.2006 vide impugned order dated 17.11.2006 was contrary to law
laid down by the Apex Court.
This
order was challenged by the present petitioner before the Apex Court
and the Apex Court also dismissed the SLP by holding that it would
be open to the petitioner to challenge the election before the
appropriate forum in accordance with law and any observations made
in the impugned order as to the firm will be of no consequence.
Even
on merit, Mr.Soparkar has submitted that the respondent-Trust has
acted in accordance with law and as per the provisions laid down
under the Act. All the objections were properly dealt with and
appropriate decision is taken in the matter. Since the petitioner
failed to produce necessary documents with regard to continuance of
the partnership firm, the name of the petitioner was deleted. The
Charity Commissioner has already dealt with this aspect and taken
view that the petitioner could not furnish the relevant documents so
as to satisfy the respondent-Trust that the partnership firm of
which the petitioner is a partner is existing. He, therefore,
submitted that no inference be called for in the present petition
and the petition deserves to be summarily dismissed.
Having
heard learned advocates appearing for the parties and having
considered the documents on record and the legal authorities cited
before the Court, the Court is of the view that the election is
scheduled to be held on 10.03.2010, all formalities are over and at
this state to postpone the election is not in the interest of
anybody and that too at the instance of the petitioner, whose name
is deleted from the electoral list. This very issue has come up
before the Court in earlier round of litigation and at that time
also, the Court has taken the view that the Court should not
interfere once the election process is put into motion. The Division
Bench has at length discussed this issue and gave specific finding
on this issue. Even the Apex Court also did not interfere with the
view taken by the Division Bench. Considering these aspects of the
matter, there is no reason for this Court to take different view in
the matter. Even otherwise, the petitioner is not remedyless as once
the election result is declared, it is always open for the aggrieved
parties to challenge the said result before the appropriate forum.
Issue regarding the deletion of the petitioner’s name from the
electoral list can also be agitated before the appropriate forum
after the result is declared. Issue raised on behalf of the
petitioner with regard to casting of vote by dead person and/or
firm, which are not in existence can also be gone into by the
competent forum. Even otherwise, these are the disputed questions,
which cannot be allowed to be raised or to be considered in the
present proceedings.
Considering
the entire facts and circumstances and further considering the scope
and ambit of the present petition in light of the exercise of powers
by this Court under Article 226 of the Constitution of India, the
Court does not find any substance in the present petition and,
hence, the petition is accordingly dismissed with no order as to
cost.
[
K. A. Puj, J. ]
/patil
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