LPA/505/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 505 of 2008 With CIVIL APPLICATION No. 5280 of 2008 In LETTERS PATENT APPEAL No. 505 of 2008 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SHRI GUJARAT VALAND SEVA SANGH Versus CHARITY COMMISSIONER AND OTHERS ====================================== Appearance : MR DIPAK R DAVE for Appellant. MR PR ABICHANDANI for Respondent No.1. NOTICE SERVED BY DS for Respondent Nos. 2 ­ 3. MR DV PARIKH for Respondent Nos. 4 ­ 10,12 ­ 13. MR SHAILESH C SHARMA for Respondent Nos. 4,9 ­ 13. MR MUKESH N VAIDYA for Respondent No.4, MR CG SHARMA for Respondent Nos.9 ­ 13. ====================================== LPA/505/2008 2/10 JUDGMENT CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 01/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. This appeal under Clause 15 of the Letters Patent by the original petitioner, Shri Gujarat Valand Seva Sangh (for short "the Sangh"), seeks to challenge rejection of its petition by learned Single Judge as devoid of merits and lacking in bona fide. The relevant facts and legal controversy in the case are in a narrow compass; and the order dated 10­4­2008 impugned herein is based upon two earlier orders of the Court. 2.1 The appellant ­ petitioner is a Trust, registered under the Bombay Public Trusts Act, 1950 (for short "the Act"), established with the aim of overall development of Hindu Valand caste inhabiting in Gujarat. 2.2 The annual general meeting for electing general committee of the Sangh was last held on 22­8­2004. Within two months thereof, the committee amended the constitution of the Sangh so as to give powers to the President and Secretary of the Sangh to reject applications for membership and to extend its term by three years. Therefore, respondent nos.4 to 13 made an application under Section 41­A of the Act for holding elections in October 2007, even as the new constitution was not accepted by the Deputy Charity Commissioner and was not taken on record. On 26­10­2007, an interim order staying adoption of the new constitution was made by the Charity Commissioner in the aforesaid application. The general committee of the Sangh issued an advertisement for holding election on 22nd December 2007 and to take LPA/505/2008 3/10 JUDGMENT new members by 10th December 2007. Since new members were denied admission, the said respondents made an application on which the Charity Commissioner made an order dated 3­12­2007 directing that members should be taken as per the old constitution. It was specifically directed that all persons, who applied before 10­12­2007, must be accepted as members of the trust. Applications were filed on behalf of 1778 new applicants and fees were paid on 9­12­2007. However, by letter dated 10­12­2007, the applications for membership were rejected on the ground that they were not found to be appropriate. The members of the committee did not attend the hearing before the Charity Commissioner on 10­12­2007 and an order staying the election held on 22­12­2007 was made in their absence. Attempt was made to hold election without including in the list of members those 1778 applicants. Thereafter, on 16­2­2008 directions to hold new elections on 23­3­2008, after extending the last date for membership to 10­3­2008, as per unamended constitution, was made for election under the supervision of the observers. That order of the Charity Commissioner was challenged by the appellant in Special Civil Application No.3876 of 2008 wherein consensus as under came to be recorded in the order dated 29­2­2008: "4. After some arguments and deliberations the learned Counsel for both the sides are in agreement on the following aspects: 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 LPA/505/2008 4/10 JUDGMENT 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. 4. The agenda shall be issued by the present office bearers of the trust, keeping (in) 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. "5. It appears that since it is a matter pertaining to the election of the particular trust, where the members are belonging to particular LPA/505/2008 5/10 JUDGMENT 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." 2.3 Two Misc. Civil Applications No.884 of 2008 and 1000 of 2008 for clarification and direction were made in the original petition; and they came to be disposed on 14­3­2008 with the observations as under: "2. ........... 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. 3. Mr.Raval is desirous to move appropriate application before the Observer of the Charity Commissioner to show that certain persons were already admitted on the date when the agenda was issued. If such is the position, the Observer shall decide the same, keeping in view the order passed by this Court on 29.2.2008 and confirmed today." 2.4 As the voters' list for the election to be held on 23­3­2008 did not include 1778 applicants, the respondents filed application before the observers to include those applicants as members, and the observers ordered on 17­3­2008 that names of those members should be included in the voters' list. Ultimately, the election was not held on 23­3­2008 and the appellant approached this Court with the prayers to declare that LPA/505/2008 6/10 JUDGMENT the action of respondent nos.2 to 13 in preventing holding of the election was illegal and to set aside the communications dated 17­3­2008 and 19­ 3­2008 of the observers. The appellant also sought a direction to hold election under the supervision of the officers of this Court. 2.5 Aforesaid communications dated 17th and 19th March 2008, after reference to the final order dated 16­2­2008 of the Charity Commissioner, in effect, directed the appellant to include names of total 1778 members as annual members in the voters' list and authorizing them to participate in the election of the general committee. Apparently, it was those directions that prompted the appellant to approach this Court with a fresh petition in which the impugned order was made. 3. As observed by learned Single Judge in the impugned order, once the decision was taken by the observers, it was necessary for the trust to permit them to participate in the election but it appeared that the petitioner having realized that majority might not be with the petitioner ­ President of the Sangh, he did not participate in the election and had come out with a plea to order an election after setting aside the decision of the observers. The orders of the observers were found to be in conformity with the unamended constitution of the trust and it was noted that while term of the petitioner under the unamended constitution was over as far back as on 21­8­2005, the will of the majority of members ought to be allowed to prevail. Therefore, the petition of the appellant was found and held to be lacking in bona fide and devoid of merits and it was dismissed with a direction to hold election within a period of one month after rescheduling and substituting the dates mentioned in the earlier order dated 29­2­2008. The Charity Commissioner was also authorized to hold the election through same observers or by appointing other observers. LPA/505/2008 7/10 JUDGMENT 4. Learned advocate, Shri H.P.Raval with Shri D.R.Dave, appearing for the appellant, submitted that earlier order dated 14­3­2008 of this Court clearly envisaged participation by the existing members, who were admitted as such on the date when the agenda was issued and those new 1778 applicants were not admitted as members on 7­3­2008, when the agenda was issued. Therefore, the observers could not have directed the election officer to include those members in the voters' list. It was also submitted that the decision to include those applicants, whose membership applications were rejected by letter dated 10­12­2007 could not have been allowed to vote by an order of the observers, which was made without affording an opportunity of being heard to the appellant. It was contended that the appellant had, as the President representing the trust, power to decide the manner and method of election, whereas observers were appointed only to oversee free and fair election. As against that, it was argued by learned counsel Shri D.V.Parikh, appearing for respondent no.5 onwards, that new 1778 members of the community had paid their fees and fulfilled all the conditions for being members under the unamended constitution of the trust. The fees paid by them were never refunded and the Charity Commissioner had made clear order to hold election in conformity with the unamended constitution. It was submitted that, as observed in the impugned order, the appellant was abusing the process of Court by one after the other litigation with a view to hold the post by illegally restricting membership of the trust. 5. Against the above backdrop of facts and contentions, it was seen from the constitution of the Sangh that, according to clause­4 thereof, any adult who believed in the aim and object of the Sangh could be its member and if any person donated the amount of Re.1/­ or more than that at a time, he would be considered annual member. The rights of the members, as per clause­6, include the right to participate in the annual LPA/505/2008 8/10 JUDGMENT general meeting or special meeting of the Sangh by remaining present in the proceedings and to cast his vote. Therefore, under the unamended constitution, 1778 members who had applied for membership and who were eligible could not be denied membership and no valid ground was made out to deny them their right to vote. The appellant had, in fact, even expressly agreed, as recorded in the order dated 29­2­2008, that the election shall be held as per the unamended constitution of the trust and, therefore, all eligible members as per the unamended constitution would be entitled to participate in the election. If any dispute was to arise at the election, the final decision was to be taken by the observer appointed by the Charity Commissioner. Thus, the decision and order of the observers conveyed by letters dated 17­3­2008 and 19­3­2008 was clearly in conformity with the constitution of the Sangh and the directions of this Court, based on a broad consensus. In fact the Charity Commissioner had, while finally allowing the application of the respondents under Section 41­A directed on 16­02­2008, inter alia, that: "In this way, if the opponent nos.1 and 2 do not convene such a meeting, the applicant nos.1 to 10 will be entitled to issue Agenda in that respect and in the noon hours on 01.03.2008 at 12­00 p.m. such meeting shall be convened; and in such a meeting, an election committee of five members who are impartial and neutral shall have to be constituted unanimously or in the alternative by way of majority. Such a committee will have to initiate proceeding during the period between 2.3.2008 and 10.3.2008 if any persons has to be the Member in pursuance of the provisions of the old Constitution of the Trust; and in pursuance of the order dated 3.12.2007 passed below application Ex.28, if any person has made an application for making him member of the Trust, they shall also be registered as members; and on the basis of the same, by declaring the Voters' list LPA/505/2008 9/10 JUDGMENT on 14.03.2008, by accepting the candidature forms for election from 15.3.2008, the opponent nos.1 and 2 are hereby directed under Section 41­A to initiate election proceedings for appointment of Mahasamiti and Execution Committee by convening the General Meeting of the Trust on 23.3.2008 at 13­00 hrs. at Ahmedabad." 6. Under the above circumstances, learned Single Judge was fully justified in observing in the impugned order that the petition of the appellant was not only devoid of merits but it was lacking in bona fide. The arguments and contentions of the appellant in the appeal are equally devoid of merits as those 1778 person were not shown in any way ineligible to be members of the Sangh or for enjoying their right to vote as members of the Sangh. The appellant Sangh, being a public trust, could not be managed or controlled except in accordance with its own constitution which clearly envisages a democratic process and free and fair election, where all eligible members could participate. 7. In the facts and for the reasons discussed hereinabove, the appeal is dismissed and interim order staying election to be held on 10­5­2008 is vacated. Accordingly, Civil Application No.5280 of 2008 is also dismissed, with the result that the directions contained in paragraph 16 of the impugned order dated 10­4­2008 in Special Civil Application No.5266 of 2008 shall operate with necessary extension of time limit for completing the process of election within one month commencing from 9th September 2008. There is no order as to costs as the appellant is a public trust. 8. In view of the apprehensions expressed at the bar about smooth and orderly holding of elections, it is clarified that it will be open for the observer appointed by the Charity Commissioner to ask for necessary LPA/505/2008 10/10 JUDGMENT police force at the time of election and general meeting of the appellant Sangh. It will be open for the parties to constitute a committee of their representatives for overseeing the process of election generally and for verification of identity of the members in particular. If such committee is constituted, it would discharge its functions subject to the orders of the observer appointed by the Charity Commissioner. And, since the election is deferred as above since March, 2008 after the original date of 23­12­ 2007, no question of payment of fees for the current year shall be raised for the purpose of claiming right to vote and election of the general committee of the Sangh. The requisite fees may be collected afterwards for continuation of the membership in accordance with the unamended constitution of the Sangh. 9. Upon decision to reject the appeal, with the above observations and clarifications, learned counsel Mr.H.P.Raval submitted that since the impugned order of learned Single Judge was stayed during the pendency of the appeal, and now, further consequential directions are issued, the operation and implementation of this order may be stayed for a period of at least one week for the appellant to avail of an opportunity of approaching the higher forum. Considering the request, the injunction granted earlier pending hearing of the appeal, is continued till 15th September, 2008. And consequently, the direction to complete the process of election within one month shall operate from that date so as to commence the period of one month from 15th September, 2008. (M.S.Shah, Actg.C.J.) (D.H.Waghela, J.) *malek