1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6971 OF 2008 Sachin Madhukarrao Mule and another. .. Petitioners Versus Aurangabad District Cricket Association Aurangabad through its Secretary and others. .. Respondent ------ Mr. V.J. Dixit, Senior Counsel holding for Mr. A.N. Nagargoje, Advocate for petitioners Mr. S.B. Talekar, Advocate for respondent Nos. 1 and 3. Mr. V.D. Sapkal, Advocate for respondent Nos. 9, 34 and 36 Mr. S.S.Ladda and D.S.Manorkar, for respondent Nos. 27 and 29 Mr. Suresh Mundhe, Advocate for respondent No.4 Mr. S.D. Kaldate, AGP for respondent State Authorities. CORAM : B.R. GAVAI, J. DATE : 24TH JUNE, 2009. ORAL ORDER :- 1. The petitioners have filed the present petition in the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. The main reliefs prayed for in the present petition are as under :- 2 A] For a writ of Certiorari order or direction in the nature of Certiorari calling for the record and proceeding of the voter list of the respondent NO.1 association and after examining the legality, validity and propriety thereof the names of the additional voters i.e. respondent Nos. 5 to 51 referred at Exhibit G be deleted from the voters list of the respondent no.1 association. B] For a writ of prohibition order or direction in the nature of prohibition, the additional members referred at Exhibit G be prohibited from taking any part including voting and contesting the election of the respondent No.1 association, which is scheduled on 30/11/2008. C] For writ of mandamus order or direction in the nature of Mandamus directing the respondent Nos. 1 to 3 herein to hold the election of the respondent NO. 1 association on the basis of the valid voters list, which at Exhibit D. . The petitioner has also prayed for interim relief for stay to the election of the respondent No.1 association. This court vide order dated 27th November, 2008 had issued certain interim directions. It was directed that the Returning Officer shall segregate the ballots. The first packet shall contain ballots of members listed at Exhibit H and second packet shall contain ballots of members listed at Exhibit G. It was further directed that the said envelops 3 would be sealed by the Returning Officer and along with his report should be submitted to the Registrar (Judicial). The Registrar (Judicial) was directed to keep the same in his custody. 2. The respondent No.1 association is registered under the Bombay Public Trust Act, so also, the Societies Registration Act. It appears that there were certain disputes between the two groups over the management of the society. Writ Petition bearing No. 6242/2007 was filed before this court arising out of the said dispute. However, when the matter was heard on 29th November, 2008, the learned counsel for the petitioner submitted that there is a partial settlement on 29th September, 2008 and it was decided to hold the elections prior to end of November, 2008 in a cordial atmosphere. In that view of the matter, this court found that there is no point in keeping the petitions pending. However, this court had observed that this court had not considered anything on merits of the matter and in case any of the grievance of the petitioner still survive, they will be entitled to approach this court by way of fresh petition. . Shri Dixit, learned counsel for the petitioner submits that in view of the liberty granted by this court, since the election of the respondent No.1 was being conducted in a manner totally contrary to the provisions of the constitution, the present petition was filed. He submits that the persons who are newly enrolled as members and who were enrolled without complying with the requirements of bye law No.6, were also included in the voters list. It is submitted that in this extraordinary situation wherein the entire elections were conducted in an arbitrary manner, the recourse is taken to the extraordinary jurisdiction of this court. 4 . However, the learned counsel for the respondents dispute this position. It is submitted by them that the members, whose names are included at Exhibit G were validly enrolled after following the due formalities under the constitution of the Trust and as such, they were entitled to vote in the elections. 3. At the outset, I have my own doubts as to whether the petition would be tenable before the Single Judge of this court. The jurisdiction of the Single Judge of this court is governed by Chapter 17 Rule 18 of the High Court, Appellate Side, Rules. On perusal of the prayer clauses, I prima facie find that the same would not answer the requirement of any of the clauses of Chapter 17 Rule 18. However, from the record, it appears that this objection regarding tenability of the petition before the Single Judge was raised before this court when the order dated 27th April, 2008 was passed. It further appears that the parties were heard at length on the the said objection and after considering the rival submissions, this court found that the petition was tenable before the Single Judge of this court. 4. As a Coordinate Bench, it is not permissible for this court to sit in an appeal over the finding given by the another learned Judge of this court. Be that as it may, it is informed that a Letters Patent Appeal challenging the said order is pending before the Division Bench. Since the interim orders are passed by this court in the present petition, the learned counsel appearing on behalf of the parties requested this court to proceed further with the hearing of 5 the matter on merits. Hence, the matter is heard on merits. 5. From the perusal of the prayer clauses it would reveal that the prayer clauses pertain to the deletion of certain voters from the voters list, seeking prohibition that the said members should not be permitted to vote and contest the elections. No doubt that the elections of the society are required to be held in accordance with the constitution. However, a complete code is prescribed under the Bombay Public Trust Act for determining the validity of the elections including the validity of the membership. 6. This court, in the extraordinary jurisdiction under Article 226 and 227 of the Constitution is not expected to embark upon an enquiry upon a disputed question of fact, as to whether some of the members are entitled to vote or not or as to whether they are entitled to contest the elections or not. These questions can very well be gone into by the learned Assistant Charity Commissioner, while making an enquiry when the change report is filed before him, after the elections are over. I am afraid, the present petition which is filed at a premature stage, is nothing but an attempt to forestall the electoral process. It is otherwise open for the parties, when change report is filed, to raise the objections regarding the entitlement of the members to vote or contest the elections. In writ jurisdiction, all these questions cannot be gone into at such a premature stage. It is equally not possible for the superior courts to embark upon a fact finding enquiry as to whether some of the members have applied or not or as to whether they have paid their subscription or not. Taking into consideration the constitutional duties enjoined to this court, I 6 am afraid, whether such an exercise would be permissible in the extraordinary jurisdiction. In that view of the matter, I find that the present petition which involves adjudication of various disputed questions of fact is not tenable in the extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution of India. In any event, the persons aggrieved by the elections would have an alternate efficacious remedy by raising a dispute under the provisions of the Bombay Public Trust Act. The petition is therefore dismissed. 7. The Registrar (Judicial ) is directed to hand over the packets containing the ballot papers to the Returning Officer who shall proceed with the counting and declare the results in accordance with the constitution of the Trust. . At this stage, the learned counsel for the petitioner prays for continuation of the order passed by this court dated 27th November, 2008 for a period of 4 weeks. The said prayer is vehemently opposed by Shri Talekar, Shri Sapkal and Shri Laddha, on the ground that though the elections are held, the persons who would be elected and entitled to manage the affairs of the trust are deprived because of the non declaration of the results. However, taking into consideration the fact there was an interim order operating for a considerable length of time, the same is continued for a period of two weeks. . An authenticated copy of this order be given to the learned counsel for the parties. grt/ [B.R. GAVAI,J.]