ORDER
Jayant Patel, J.
1. The petitioner has preferred the petition for appropriate writ to hold and declare the action of the respondent Nos. 2 to 13 in preventing holding of the election as illegal and it is further prayed by the petitioner to direct that the election be held under the supervision of the officers of this Court as per the order passed by this Court. It is further prayed to quash and set aside the communication dated 17.03.2008 and 19.03.2008 of the respondent Nos. 2 & 3 who were Observers of the Charity Commissioner and to direct that the action of the petitioner in not considering of the said communication of the respondents Nos. 2 & 3 is absolutely just, proper and correct.
2. Heard Mr. Dave for the petitioner, Mr. Abichandani for respondents Nos. 1 to 3 and Mr. Vaidya for respondents Nos. 5 & 7.
3. The contention raised on behalf of the petitioner is that the Observers of the Charity Commissioner should not have permitted the participation of about 1700 persons whose membership fees were tendered, were not accepted by the Trust. It was submitted that after the cut-off date, no person could be permitted to be admitted as the member, and therefore under these circumstances, the decision of the Observers were illegal and were also in contravention to the orders passed by this Court.
4. It was submitted that the observers ought to have permitted to proceed with the election excluding the aforesaid 1700 persons. It was also submitted that since the complication arose on account of the participation of such 1700 persons, the petitioner had health problem and as a result thereof, he was to be hospitalised and the election could not be held. It is therefore submitted that this Court may interfere and grant the relief as prayed in the petition.
5. It deserves to be recorded that the constitution of the Trust is admittedly not amended and this Court on 29.02.2008, issued the following directions:
1. The election shall be held as per the unamended provisions of the Constitution of the trust. Therefore, accordingly all eligible members as per unamended Constitution shall be entitled to participate at the election.
2.The election shall be held by the present office bearers of the trust under the observation and supervision of two representatives, as appointed by the Charity Commissioner in the impugned order namely Shri A.M. Solanki and Shri. G.K. Gowani.
3. It is further clarified that if any dispute arises at the election, the final decision shall be taken by the observer of the Charity Commissioner.(Emphasis supplied)
4. The agenda shall be issued by the present office bearers of the trust, keeping view the minimum period of 15 days to the existing members of the general board for holding the meeting of the general board and for holding election on 22.03.2008.
5. The meeting for election shall be convened in the manner that at the very meeting, the subject of nomination, acceptance of the candidature, voting and the declaration of the result be completed on the same day.
6. After the result of the election is declared, newly elected body shall be entitled to assume the office from 1st April 2008.
7. The observer shall also report to the Registrar of this Court the proceedings of the election latest by 28.03.2008.
6. It deserves to be recorded that the aforesaid order came to be passed upon the consensus of the parties including the present petitioner herein and the Court did observe in para 5 inter alia that ‘where the members are belonging to particular community, and the contesting parties are also agreeable, and the aforesaid agreement and the terms recorded are in the larger interest of the functioning of the trust, therefore the same can be permitted to operate by substitution of the order of the Charity Commissioner’. Hence, the order was passed accordingly.
7. It appears that thereafter, prior to the holding of the election, one Misc. Civil Application No. 1000 of 2008 came to be filed before this Court and in the said Misc. Civil Application, on 14.03.2008, this Court inter alia passed the following order at para 2, relevant of which is as under:
it appears that as per the direction No. 4 of the order dated 29.2.2008, all existing members on the date of agenda would be entitled to attend the meeting. If any dispute arises, the same is to be finalized by the Observer of the Charity Commissioner. The order is clear and no further direction is required. Any person, who was not admitted as Member on the date when the agenda was issued would not be entitled to participate in the election and it is only those members, who are already admitted on the date when the agenda was issued would be entitled to participate in the election.
8. In view of the aforesaid observation, Mr. Rawal who was representing the applicant therein was desirous to move appropriate application to the observers of the Charity Commissioner to show that certain persons were already admitted on the date when the agenda was already issued and therefore, it was also observed that the observers shall decide the same keeping in view the order passed by this Court on 29.02.2008.
9. The aforesaid direction clearly goes to show that the observers were entrusted with the power not only to oversee the election, but to decide the dispute at the election with a view to see that the election may not be held up on account of inter se dispute amongst the voters parties or rival candidates or of the rival groups, etc. as the case may be.
10. It appears that the grievance was raised before the observers by those persons who had already tendered membership much prior to cutoff date, but they were not shown as member. Therefore, the observers had found that they were legitimately entitled to claim membership since membership fee were tendered. Therefore, the observers by the impugned decision dated 17.03.2008, decided the dispute permitting those 1700 persons to participate at the election. Once the decision was taken by the observers, it was required for the petitioner Trust to permit them to proceed with the election leaving aside the dispute at the later state to be considered. It appears that on account of the petitioner having realised that the majority will not be with him, instead of facing the election, did not participate at the election and now has come out with the stand that the election be ordered by setting aside the decision of the observers.
11. It deserves to be recorded that the Trust is belonging to a particular community and the constitution provides that any person belonging to a particular community, by paying Rs. 1/- fee can become the member and such fees were tendered by about 1700 persons to become member. It prima facie appears that with a view to have an artificial majority, membership fees were not accepted. Therefore, the decision of the observers of the Charity Commissioner keeping in view the constitution of the Trust read with the order passed by this Court, entrusting the power to them to adjudicate the dispute at the election, cannot be said as wholly without jurisdiction or competence. Nor such decision can be said as against the interest of the Trust as sought to be canvassed on behalf of the petitioner.
12. Under these circumstances, the decision of the observer of the Trust, if considered in light of the constitution of the Trust as was unamended and keeping in view the spirit of the order, it cannot be said that the same is arbitrary or unreasonable.
13. It deserves to be recorded that as declared by the petitioner during the Court of hearing as per the unamended provisions of constitution, the term is over as back on 21.08.2005. Therefore, the election as such had become due long back and since no steps were taken, the litigation arose before the Charity Commissioner and ultimately, ordered by this Court. In a body representing a particular community, the basic principles of democracy having will of the majority, must be allowed to operate and those whose term is over, cannot be allowed to continue to hold the office under one reason or another. Therefore, the election was required to be held and was so ordered by this Court. It was required for the Trust to proceed with the election keeping in view the decision of the observer of the Charity Commissioner, but instead of proceeding with the election, it appears that complications as are shown were created and as a result thereof, the election has not been held.
14. In view of the above, apart from the merits of the challenge to the order passed by the observer, it can be said that the petition lacks bonafide on the part of the petitioner for not holding the election of the Trust though it was so specifically ordered by this Court upon the consensus of the parties including the petitioner herein who was the petitioner therein.
15. Hence, in view of the above, so far as the challenge to the order passed by the observers is concerned, there is no merits in the petition and the petition deserves to be dismissed.
16. As the election has not been held, the observer/the Charity Commissioner shall reschedule the election on the same line by substituting the date as was ordered by this Court in its order dated 29.02.2008 in Special Civil Application No 3876/08. Suffice it to state that the Charity Commissioner through same observer or by appointing other observer shall ensure that the election as was ordered by this Court in its order dated 29.02.2008 in Special Civil Application No. 3876/08 is held and completed within a period of one month from the receipt of the order of this Court.
17. Subject to the aforesaid observation and direction, the petition is dismissed.