ORDER
A.K. Trivedi, J.
1. Heard the learned senior advocate Mr. H.B. Shah with learned advocate Mr. H.M. Parikh appearing on behalf of the applicant. Rule. Mr. P.J. Kanabar learned advocate appearing with learned senior advocate Mr. V.B. Patel has waived service of rule on behalf of the opponents No. 1 to 4. Opponents Nos. 5 to 14 served as party to the proceedings of Special Civil Application No. 4026 of 1998.
2. With the consent of the learned advocates for the respective parties, this civil application is finally heard.
3. The applicant Swami Satyapprakashdasji Guru Ghanshyamprakash who is the original respondent No. 9 in the proceedings of Special Civil Application No. 4026 of 1998 has filed the present civil application with a prayer to vacate the Ad-interim relief granted on 12-5-1998 in S.C. A. No. 4026 of 1998 and, to direct the original petitioners to handover the possession of the trust
properties to original respondents No. 5 to 11 as they are elected trustees of the Trust in question.
4. It may be noted that “Shri Gopinathji Dev Mandir Trust” is a public trust registered vide No. A/245 Bhavnagar under the, provisions of the Bombay Public-Trust Act, 1950 (hereinafter referred to as “the Act”). That the District Court, Bhavnagar vide its judgment and order dated 7-10-1978 in the proceedings of trust Suit No. 1/1975 introduced a scheme for the administration of the said Trust. That under the said scheme, rules for the election of Trustees were also framed by the District Court in the proceedings of Misc. Civil Application No. 57 of 1993.
5. That the Opponents Nos. 1 to 4 were Trustees appointed under the said scheme of the said Trust prior to 14-12-1997. That election for the Trustees of the said Trust in accordance with the scheme was held on 14-12-1997. It is undisputed that applicant as well as opponents Nos. 9 to 14 were declared elected Trustees by the Returning Officer, However, the defeated members disputed the result of election by filing Civil Suit No. 126 of 1997 in the Court of Civil Judge (JD) at Gadhada, district Bhavnagar. That in the proceedings of the said suit, ad interim injunction was obtained restraining the elected members to act as a Trustees and to take management in their hands. It appears from the record that the Civil Court (JD) at Gadhada confirmed the ad interim relief after hearing and judgment and order of the said Civil Court was challenged in the proceedings of Misc. Civil Application No. 62 of 1998 filed in the District Court, Bhavnagar. That learned Assistant Judge, Bhavnagar vide his order dated 24-4-1998 vacated the interim injunction granted by the Civil Court, against which Civil Revision Application No. 771 of 1998 was filed in this Court. That vide order dated 6-5-1998, this Court granted permission to withdraw the said Civil Revision Application No. 771 of 1998 with the observation that the learned Assistant Judge, Bhavnagar in his order dated 24-4-1998 in para 15 has made certain observations to the effect that the Assistant Charity Commissioner has no powers to decide the validity or otherwise of the election as well as Section 22 of the Bombay Public Trust Act does not empower a Trustee to act as a Trustee and that newly elected Trustees has no right to takeover the charge of the Trust, are uncalled for at interlocutory stage and the said observation shall have no effect on the merits of the case.
6. That in the above stated proceedings, there was a dispute between the newly elected Trustees and old Trustees who were in charge of the Management in respect to handing over of the Trust properties and the Management of the Trust. That the newly elected Trustees submitted a change report being Report No. 15/1998 dated 9-1-1998 under Section 22 of the Act before the Assistant Charity Commissioner, Bhavnagar to which the present opponents Nos. 1 to 4 objected and moved an application Exh. 16 for the inspection of the ballot papers etc. That the said proceedings of the Change Report are still pending. It is also noteworthy that opponents Nos. 1 to 4 having apprehension that the newly elected Trustees are likely to take over the administration of Trust properties forceably; they filed a Judicial Application No. 8 of 1998 before the Joint Charity Commissioner, Rajkot on 2-3-1998 and requested for appropriate directions pending the final hearing of the said application. That the Joint Charity Commissioner, Rajkot passed the following order under Section 41A of the Act on 2-3-1998.
“It is directed to maintain status quo of PTR Schedule I with regard to the Trustees and the properties of the Trust registered at A/245/ Bhavnagar till 17-3-1998. Issue urgent notice
returnable on 17-3-1998.”
It further appears from the record that parties appeared before the Joint Charity Commissioner and the said order was extended from time to time, however, on 21-3-1998 parties have agreed that the decision given by the District Court, Bhavnagar in the pending matter challenging the interim order of election dispute shall be accepted by the parties. That the learned Chanty Commissioner recorded the said statement and passed orders fixing the further date of hearing on 6-4-1998, and extended the order of status quo.
7. That thereafter present opponent Nos. 1 to 4 have filed Special Civil Application No. 4026 of 1998 on 12-5-1998 against the State of Gujarat
Joint Charity Commissioner, Rajkot, Assistant Charity Commissioner, Bhavnagar, and present applicant as well as opponents Nos. 9 to 14 and vide para 11 have made the following prayers :
”(A) Your Lordship be pleased to admit this Special Civil Application.
(B) Your Lordship be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction declaring the illegal, improper, mala fide and high-handed actions of respondents Nos. 5 to 11 as stated hereinabove of 8th May 1998 and others and they be condemned and depricated and further quashed and set aside the same.
(C) Your Lordship be pleased to declare the inaction and failure on the part of respondents Nos. 1 and 2 in not providing protection on 8-5-1998 to the petitioners for compliance of the directions of respondent No. 2 dated 2-3-1998.
(D) Your Lordship be pleased to declare that respondent Nos. 5 to 11 are bound to follow scrupulously the directions of respondent No. 2 dated 2-3-1998 under Sections 41A and 69(a) of the Bombay Public Trusts Act, 1950 and further be pleased to direct respondents Nos. 1 and 2 to see that the said directions are followed by respondents Nos. 5 to 11 scrupulously.
(E) Your Lordship be pleased to direct respondent No. 3 to complete the inquiry under Section 22 of the Act pending with him registered as Change Report No. 15 of 1998 within a stipulated time and finalise the same in accordance with law, after affording opportunity of hearing to the parties concerned.
(F) Your Lordship be pleased to declare that respondents Nos. 5 to 11 cannot take charge of the trust properties and its administration till they are declared as duly elected in the aforesaid Change Report proceedings No. 15 of 1998.
(G) Your Lordship be pleased to declare that respondents Nos. 5 to 11 have no right or authority to interfere with the administration of the trust and its properties at the hands of the petitioners, other trustees and those saints till the respondents Nos. 5 to 11’s names are registered in the PTR Schedule 1 of the respondent trust.
(H) Pending hearing and final disposal of the present petition, respondents Nos. 1 and 2 be
directed to get the directions of respondent No. 2 dated 2-3-1998 under Section 41A of the Bombay Public Trusts Act, 1950, complied with by respondents Nos. 5 to 11 and the said respondents be restrained from interfering with the administration of the trust and its properties at the hands of the petitioners, other trustees and those saints.
(I) Your Lordship be pleased to grant any other and further reliefs as deemed fit and proper in the interest of justice.”
8. That on request of the present opponents Nos. 1 to 4 this Court passed the following Ad-interim order on 12-5-1998 in the proceedings of Special Civil Application No. 4026 of 1998.
“The matter is not on board today. On the request of the learned Counsel for the petitioners that certain untoward incidents took place in the trust premises yesterday and there is further appreciation (apprehension) of similar activities being revised today, the matter has assumed urgency and therefore it may be taken today, the request is granted. It is under these circumstances this petition is being taken up today.
Issue notice to the respondents returnable on 28th May, 1998, Direct service is permitted, till then the respondents Nos. 5 to 11 are directed to obey the order and direction dated 2nd March, 1998 passed by Joint Charity Commissioner, Rajkot strictly in letters as well as in spirit.”
9. Shri H.B. Shah, learned Senior Counsel appearing for the applicant of Civil Application has urged the following points :
(a) That the order passed by the learned Joint Charity Commissioner, Rajkot dated 2-3-1998 below Application No. 8/98 being an order passed under Section 41A of the Act and not in the proceedings of Application No. 15/98 under Section 22 of the Act is ex facie, without jurisdiction and void. That as such no interim relief as granted by this Court in the proceedings of Special Civil Application No. 4026/98 on 12-5-1998 should have been granted on the basis of the said order. That thereby the said ad interim relief granted against the applicant and opponents Nos. 9 to 14 is required to be vacated.
(b) That the applicants Nos. 1 and 9 to 14 are the duly elected trustees of the said trust in
accordance with that scheme framed by the competent Court and the rules of election made thereunder. That the interim injunction earlier granted by the Civil Court (J.D.) Gadhada against the present applicant and the opponents Nos. 9 to 14 has been vacated by the Court of learned Assistant District Judge, Bhavnagar vide order dated 24-4-1998 in the proceedings of Misc. Civil Application No. 62/98. That the said order is also confirmed by this Court on account of withdrawal of Civil Revision Application No. 771 of 1998 filed by the Opponents Nos. 1 to 4 and as such the order of Assistant District Judge, Bhavnagar dated 24-4-1998 has been confirmed by this Court vide order dated 6-5-1998 in the proceedings of Civil Revision Application No. 771 of 1998. Shri H.B. Shah, has further submitted that in view of the above said orders the Assistant Charity Commissioner holding inquiry for “change report” in respect to “public trust register” maintained under Section 17 of the Act is bound by the decision of the said order. That the elected trustees in accordance with the provision contained under the scheme of the trust could not be prevented from holding their office and participating into the management of the trust, merely on the ground that a dispute in respect to election has been raised and is pending in the Court. That the ad-interim relief granted by this Court by order dated 12-5-1998 in the proceedings of Special Civil Application No. 4026 of 1998 being contrary to the above stated accepted proposition of law is required to be set aside and the opponents Nos. 1 to 4 who are no more trustees of the said trust are required to be directed to hand over the management and the trust properties to the newly elected trustees.
10. Shri H.B. Shah, learned Advocate has referred to and relied on following authorities in support of above stated submission :
[1] 1992 (1) GLH 331, Syedna Mohmad Buranddin v. Charity Commissioner.
[2] 1982 (1) GLR 746 (Pr. 9), Maganbhai Madhabhai v. Ambalal Bhikhabhai Patel;
[3] 1984 (2) GLR 1515, Chauhan Husainbhai Alibhai v. State of Gujarat.
[4] 1992 (2) GLR 191, Chehrabhai Kalyanbhai v. Desai Dharamsinhbhai Taljibhai.
11. As against that Shri V.B. Patel, learned Counsel appearing on behalf of the opponents Nos. 1 to 4 has contended that unless an appropriate change entry is posted by the” Competent Authority in the “public trust register” maintained under Section 17 of the Act, no person even if the elected trustee of the trust could be permitted to take possession of the trust property and to participate into the management of the trust. That in the instant case the inquiry under Section 22(2) of the Act in respect to proposed change entry being pending before the Assistant Charity Commissioner and an attempt was made on behalf of the applicant as well as opponents Nos. 9 to 14 to take possession of the trust property forcibly, the Joint Charity Commissioner is justified in passing such order. That to support the said submission Shri Patel has referred to and relied on observations made by High Court which are reported in :
[1] 1962 GLR 117, Shantilal Khimchand v. Mulchand Dalchand;
[2] 1996 (3) GLR 307 : (1998 AIHC 1294), Acharyashree Mahaprabhujiniranvaswala Bethak Mandir Trust, Godhra v. Chokshi Ratilal Chandulal.
12. That while deciding the matter of Syedna Mohmad Burhanddin v. Charity Commissioner reported in 1992 (1) GLH 331, Division Bench of this Court has examined the scheme of the Act and in para 36 has held that Charity Commissioner is empowered to issue direction under Section 41A of the Act in respect to matters specified under Sections 32 to 41 of the Act only. That in the instant case it appears that the order passed by the Joint Charity Commissioner, Rajkot dated 2-3-4998 which is the subject matter of ad-interim relief granted by this Court in the proceedings of Special Civil Application No. 4026 of 1998 appears to have been passed in respect to matters other than falling under Sections 32 to 41 of the Act, and as such prima facie the order cannot be sustained in law. Under the circumstances, it is difficult to discard the submissions urged by learned Senior Advocate Shri H.B. Shah on behalf of the applicant that said order being without jurisdiction; no interim relief could be granted on the basis of such order.
13. It is true that Joint Charity Commissioner
has power to hold inquiry under Section 22(2) of the Act for the purpose of verifying correctness of the entries in the public trust register kept under Section 17 of the Act or to ascertain whether any change has occurred in any of the particulars recorded in the said register. It is also true that unless the name of newly elected trustees are posted by way of change entry in the said register kept under Section 17 of the Act the trust properties could not be said to vest in the newly elected trustees. However, the nature and scope of such inquiry depends upon the facts and circumstances involved in each case. Once the public trust is registered and requisite entries are
posted in the register kept under Section 17, the inquiry in respect to occurrence of any change is a formal inquiry to the extent that whether such change has occurred in accordance with the provision contained in the trust deed or any scheme made for the said trust. In the instant case, opponents No. 1 to 4 as trustees of the said trust had held election of new trustees on 14-12-1997. That the result of the said election was also declared by the Returning Officer in accordance with the rules for the election as contained in the scheme. Under the circumstances, unless the said election is set aside by the competent forum, the newly elected trustees cannot be denied the status of trustees of said trust and cannot be prevented from holding office to participate in the management of the trust and to manage the trust properties. That the District Court, Bhavnagar as a competent Court has given prima facie finding about the validity of the said election and has vacated interim relief granted against the applicant as well as opponents Nos. 9 to 14 to act as a trustee of the said trust. Furthermore, opponents Nos. 1 to 4 have agreed before the Charity Commissioner on 21-3-1998 as apparent from the order produced in the Civil Application vide page Nos. 10 to 19 and have admitted that parties shall abide by the decision of the Assistant Judge, Bhavnagar in respect to election dispute.
In view of the said fact it is difficult to hold that the opponents Nos. 1 to 4 have any bona fide dispute in respect to occurrence of change in the names of trustees to be posted in the public trust register maintained under Section 17 of the
Act during the inquiry proceedings under
Section 22 of the Act.
14. It may be noted that in the matter of Chehrabhai Kalyanbhai v. Desai Dharamsinhbhai Taljibhai, 1990 (2) GLH 191 (paras 6 and 7) this Court has observed as under :
“6. ………….. The election procedure and
process involves several stages and it is not difficult for an intelligent man to raise ground for challenging the election. However, merely because arguable questions are raised, it does not necessarily mean that the elected candidates are to be prevented from holding their elected office. It would be virtually stay against democratic process and functioning of democracy before coming to the conclusion that the democratic process was materially vitiated and that the election is required to be set aside ……….”
“7. ………… In this country, we have adopted
democratic principle in many public institutions, right from the parliament to panchayat and Cooperative Societies, Market Committees and many other local authorities, Judicial notice also be taken of the fact that persons aggrieved by the election results and democratic process seek to challenge the election results in different forum and more often, this challenge fails, and therefore, until any challenge succeeds, no elected candidate should be prevented from occupying the elected office except in extraordinary circumstances because that would be virtually injunction against functioning of democratic process and there would be irreparable loss not only to the elected candidate, but to the electorate which elected such candidate and to the public interest which has followed such democratic principles. On the other hand, there is no irreparable loss to the persons who are aggrieved by the election result. If they succeed in their challenge, the election can be set aside, but if the challenge to the election fails after a long litigation, the interim relief, if granted, would irreparably harm the elected candidates and their democratic function.”
15. Furthermore in the matter of Chauhan Husainbhai Alibhai v. Stale of Gujarat reported in 1984 (2) GLR 1515, vide paras 4 and 5 this Court has observed as under :
“…..Even if election cannot be held for
technical reasons or for any other valid reasons, the persons in position of power have no legitimate
democratic right to continue in office. Such persons cannot be heard to say that there are illegalities in the election which is to take place or which has already commenced, and therefore, direct the authorities concerned to refrain from holding election. To uphold such contention even prima facie and allow them to continue in office would only mean that persons who have no legal or moral right to hold and sit in the elected office, be permitted to sit in position of power.”
“…..In a given case, when it becomes
necessary to stay the election, even then a person who does not have the mandate of the people and whose term is not extended by the Government, ordinarily, cannot and should not be allowed to occupy the position of power. This will be against the basic tenets of democracy and against the provisions of the statute.”
16. Following the above stated dictum of this Court, in my opinion, the ad-interim relief granted against the applicant and opponents Nos. 9 to 14 vide order dated 12-5-1998 cannot be sustained in law and as such is required to be vacated. However, the applicant as well as opponents Nos. 9 to 14 cannot be permitted to take forcible possession of the trust property pending the inquiry under Section 22(2) of the Act by competent authority. Under the circumstances, the applicant is not entitled to claim the direction against opponents Nos. 1 to 4 to hand over the possession of the trust property unless change is recorded in the register kept under Section 17 of the Act. But the opponent No. 7, the Assistant Charity Commissioner is required to be directed to expedite the proceedings of enquiry regarding “change report”, and to conclude the same preferably within two weeks from the date of receipt of this order.
17. On the basis of above stated discussions, the Civil Application is partly allowed. Adinterim relief granted in the proceedings of Special Civil Application No. 4026 of 1988 is hereby vacated. Rule made absolute accordingly. In the facts and circumstances of the case parties to bear their own costs. Copy of this order be sent to Charity Commissioner, State of Gujarat, Ahmedabad for due compliance of direction given to Assistant Charity Commissioner, Bhavnagar.