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Keyur D. Shah v/s Mehul Gandhi

    Civil Application for Orders No.13985 of 2010 in L.P.A. (Stamp Number) No.2443 of 2010, in Spl.C.A. No.11185 of 2010 with C.A. No.15667 of 2010 in C.A. for Orders No. 13985 of 2010 with C.A. No.13986 of 2010 in L.P.A. No.(Stamp Number) No. 2444 of 2010 with C.A. No.15668 of 2010 in C.A. for Orders No.13986 of 2010

    Decided On, 20 January 2011

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE CHIEF JUSTICE MR. S. J. MUKHOPADHAYA & THE HONOURABLE MR. JUSTICE K. M. THAKER

    For the Appearing Parties: Ansari, Saurabh G. Amin, Advocates.



Judgment Text

K. M. THAKER, J.

(1) The applicant, a member of the Gujarat Sales Tax Bar Association and Sales Tax Practitioner (hereinafter referred to as the "Association") has preferred present application seeking leave to prefer a Letters Patent Appeal against the common order dated 25-10-2010 passed by the learned Single Judge in the writ petitions being Spl.C.A. No. 11185 of 2010 and Spl.C.A. No. 7466 of 2010. The applicant has preferred similar application for similar relief in Spl.C.A. No. 7466 of 2010 hence both the applications are decided by common order.

(2) The fulcrum of the said petitions was election of the Managing Committee (hereinafter referred to as "Committee") of the said Association. The applicant claims that he was elected as President in the election held on 23-9-2010, however subsequently, the learned Single Judge passed order dated 25-10-2010, (which is, apparently, a consent order or "ad-invitum" order) in view of which fresh election of the Committee of the said Association were to be held under the supervision of an officer to be appointed by the Registrar General of the High Court. In the applications the applicant has claimed that he is a "party affected", and therefore, has sought leave to file Appeal(s) against the said common order. The applications are strenuously opposed and resisted by the respondents on diverse grounds. Having regard to the nature of the applications, Rule. Learned Advocate for the respondent/s has waived service of Notice of Rule. With the consent of the learned Advocates the applications are heard for final decision.

(3) So as to appreciate the controversy and also the vehemence and acrimony with which the applications are supported and contested, it is necessary to travel through the events which mark the trial up to the present ation of present applications. 3.1. The Association, which has approximately 1,800 members, (who are Practitioners in Sales Tax, is registered as a society under the provision of the Societies Registration Act and is also registered as a Trust under the Bombay Public Trusts Act. It is claimed that the Committee of the said Association comprises 11 members, election of which is required to be held every year in the Annual General Meeting (hereinafter referred to as the "A.G.M.") to be convened every year before 30th June. It is also claimed that the election of the Committee of the said Association was due. 3.2. As usual imminent election gives birth to two groups and present case is not different. In present case also, there are two groups hurling all types of allegations. For the sake of convenience one group is described as the "first group" (allegedly represented and led by Mr. Mehul Gandhi- respondent No. 1 in present application) and the second group is described as the "other group" (allegedly represented by Mr. Tatariya and Mr. Modi i.e. respondent Nos. 7 and 12 in present application). 3.3. The other group has claimed that though the term of the Committee elected pursuant to the election held on 23-5-2009 had expired on 22nd May, 2010 and the fresh elections were due, the Committee (which was elected pursuant to the aforesaid election held on 23rd May, 2009) did not declare fresh election and attempt was made to delay the elections. Therefore, a special general meeting was held on 12-6-2010 during which a "no-confidence motion" was passed against the Committee (elected on 23-5-2009 and whose term had expired) and, an ad-hoc Committee (Steering Committee) was appointed. 3.4. On the other hand, the first group has opposed and disputed the validity of the meeting held on 12-6-2010 as well as of the resolution allegedly passed on 12-6-2010. It is also claimed that aggrieved by the unauthorized actions of the other group, one Mr. D. R. Shah had, on 11th June, 2010, submitted a written objection, hence the meeting was not held on 12-6-2010. Subsequently, said Mr. Shah also submitted an application under Sec. 41A of the Bombay Trusts Act. According to the first group, upon being aggrieved by the said proceedings before the learned Charity Commissioner the other group preferred a writ petition being Spl.C.A. No. 7466 of 2010 on or around 28-6-2010 wherein the High Court passed order dated 30-6-2010. The first group has also alleged that as they were not heard before the order dated 30-6-2010 was passed (directing to hold election before or on 16-8-2010) therefore, Civil Application No. 6690 of 2010 was submitted before the Court, and upon hearing the said application the Court passed order dated 19-7- 2010 and recalled the earlier order dated 30-6-2010. 3.5. On the other hand, the other group has alleged that after the order dated 19-7-2010 was passed by the Court, the first group unauthorizedly issued a public notice on 10-8-2010 declaring that the election of the Association would be held on 23-9-2010. The other group has also claimed that in view of such public notice a special general meeting was scheduled for 31-8-2010. 3.6. The first group has alleged that the unauthorizedly and illegally constituted Steering Committee was not competent to call or hold the meetings and yet the meeting was held on 31-8-2010, and thereafter, the said Committee announced that the election will be held on 20-9-2010. 3.7. According to the claim of the other group a resolution to hold A.G.M. on 20-9-2010 and to hold the election during said A.G.M. was passed as per which the A.G.M. of the Association and elections of the Committee were held on 20-9-2010. The other group has also alleged that despite the "no-confidence motion" the first group, unauthorizedly declared the so-called programme of the election, according to which the election was scheduled to be held on 23-9-2010 and the first group moved an application before the Charity Commissioner and prayed for interim relief (inter alia against election which was to be held on 20-9-2010) by way of application (Exh. 4) which was rejected vide order dated 4-9-2010. The other group has then alleged that on or around 13-9-2010, the first group preferred a writ petition being Spl.C.A. No. 11185 of 2010 and prayed that they may be permitted to hold the election of the Association but the relief was not granted. 3.8. On the other hand, the first group has claimed that in pursuance of the announcement vide Public Notice dated 10-8-2010 regarding the election* of the Committee, the election were held on 23-9-2010. 3.9. The applicant claims that during the said election (held on 23-9- 2010) he came to be elected as President of the Association and that though he had not given consent for fresh election, the impugned order came to be passed.

(4) Thus, when the petition being Spl.C.A. No. 11185 of 2010 was taken up for hearing after 23-9-2010 : (1) already two elections by two groups of same Association were already held; (2) there were two election results before the Court; (3) there were two Managing Committees, both claiming to be duly elected in accordance with M.O.A. and the settled Rules of the Association; and (4) both the groups alleged that the action of the opposite side including the election held by the opposite side are unauthorized and illegal. 4.1. The impugned order is required to be examined in light of the above-noted facts. 4.2. Before we advert to the submissions by the Counsel, it is necessary to note that on or around 11-11-2010 the applicant filed the application seeking leave to appeal, and thereafter, on or around 10/13-12-2010, the applicant preferred two Civil Applications seeking permission to amend the two applications seeking leave to appeal by adding Paragraphs 7(A) to 7(F) and Paragraph 10(AA) (additional relief). The applicant, inter alia, sought leave to add averments to the effect that the application seeking leave to appeal is filed at the behest of the new Committee elected on 23-9-2010 and that the fact about the declaration of the election was brought to the notice of the learned Single Judge and that the impugned order has the effect of setting aside the election held on 23-9-2010 and by Para 10(AA) the applicant prayed for stay against the election which was to be held pursuant to the impugned order. 4.3. It would be appropriate to also record that the other group had filed Civil Application being C.A. No. 11762 of 2010 seeking stay against proposed election on 23-9-2010 while the first group had filed C.A. No. 11318 of 2010 declaring the fact about election held on 23-9-2010 in which the order dated 23-9-2010 was passed.

(5) Heard Mr. Vakhariya, learned Senior Counsel who has appeared with Mr. D. C. Shah, learned Counsel for the applicant and Mr. Mihir Joshi, learned Senior Counsel with Mr. S. G. Amin, learned Counsel who has appeared for the respondents. We have also perused the record. 5.1. Mr. Vakhariya, learned Senior Counsel has, submitted that though the impugned order dated 25-10-2010 appears to be, and is also shown to be a consent and ad-invitum order, actually any consent for fresh elections (after the election held on 23rd September, 2010) was not given. The learned Senior Counsel has also submitted that the applicant is the President of the Committee (elected during the election held on 23-9-2010, however, the impugned order has been passed without hearing the applicant and that the said Committee or he had not given consent. He further submitted that the applicant, having been elected during the election held on 23-9-2010 is adversely affected by the impugned order dated 25-10-2010 (in view of which fresh elections were to be held), and that therefore, the applicant has right in law to maintain and prosecute the appeal. 5.2. Per contra, Mr. Joshi, on behalf of the opposite side (respondent Nos. 7 and 12) has opposed the application. He, at the outset, submitted that the relief prayed for in the application is unfair to the learned Single Judge who passed the order at the request of and with the consent of all parties to the proceedings. He submitted that the applicant is part of/member of the first group who had filed the writ petition being Spl.C.A. No. 11185 of 2010, and therefore also, it is unfair to allege that any consensus was not arrived at and any consent was not conveyed to the Court. He also submitted that the applicant overlooks that since the relief prayed for in Spl.C.A. No. 11185 of 2010 was not granted, the so-called election held on 23-9-2010 (after the election held on 20-9-2010) was even otherwise unauthorised more so since it was held after and despite the election held earlier on 20-9-2010. He also submitted that none of the other members and/or even the petitioner Nos. 2 to 6 of Spl.C.A. No. 11185 of 2010 have filed appeal against the impugned order. Mr. Joshi, learned Senior Counsel, also submitted that all along during the hearing of the petitions the applicant was present and was attending the hearing and also instructing the Counsel. He, in particular, pointedly referred to the following observatien recorded in the order dated 30-9-2010 : "Learned Advocate Mr. Buch is instructed by one Shri Keyur Shah who claims to be the President on the basis of the result of the election which is claimed to have been held by the group of Shri Mehul Gandhi on 23rd September, 2010...." Mr. Joshi, learned Senior Counsel submitted that after the hearing of the said petition on 4-10-2010 and 5-10-2010 the said petitioners of Spl.C.A. No. 11185 of 2010 had informed the Court, through their Counsel, that they were agreeable and ready to go for fresh election. He submitted that it was in backdrop of such developments that the order dated 25-10-2010 was passed upon recording the consensus of both sides, and therefore, the applications are not only unfair but are actuated by mala fides coupled with frustration inasmuch as in the fresh election held pursuant to the order in question, none of the members of the first group including the applicant have been elected and in fact they did not even contest the election and the application deserves to be rejected with cost. 5.3. Mr. Vakhariya learned Senior Counsel has vehemently opposed the allegations regarding mala fides. He also submitted that the petitioners and the applicant did not contest the so-called fresh election because they were opposed to it.

(6) Two separate elections on different dates have been, allegedly, held by the two groups of the same Association. Consequently, two Committees came into existence. 6.1. On closer and conjoint reading of the orders dated 25-10-2010 and 30-9-2010 and the statements and reply affidavits, it transpires that all concerned parties appear to have deliberated and debated over all aspects and after matured thinking wiser counsel had prevailed over all after which the two groups seem to have realised that the solution of taking the path of golden mean (i.e. the middle path) would be not only reasonable but also a wise resolution of the conflict, and that therefore, the Court was informed about the consensus which has been recorded by the Court in the disputed order. The learned Single Judge also appear to have considered that the said decision was the best possible solution in the facts of the case, and that therefore, the Court accepted the submission and request of the parties.

(7) So as to appreciate the applicant's request and rival allegation, it would be appropriate to take closer look at the disputed order, particularly some of the aspects recorded by the learned Single Judge, which demonstrate and establish the above-noted features of the proceedings and the orders. It is recorded in the order that :

"1. All is well that ends well. The Gujarat Sales Tax Bar Association and others appointed this Court for various reliefs. After the election was held by both the fractions on different dates, a scenario emerged wherein it was felt necessary that both the fractions must give a go-bye to their respective stands and must see to it that in the common good of profession, the affairs of the Gujarat Sales Tax Bar Association are handed over to a newly elected body which may come in existence as a result of elections order. It was put to both the learned Senior Advocates, Mr. Nirupam Nanavati appearing for the petitioners with Mr. Anvesh V. Vyas, and Mr. Mihir Joshi appearing for respondent Nos. 1 to 3 with Mr. Saurabh Amin. Both the learned Senior Advocates accepting the suggestions made by the Court impressed upon their clients and their clients have responded to the suggestions with an appropriate, positive approach. As a result of which, a consensus is arrived at between the parties. 2. In light of the consensus, following order is passed : (i) Both the parties have agreed that a fresh election of the Managing Committee of the Gujarat Sales Tax Bar Association be held under the supervision of an officer appointed by the Registrar General as per the direction of this Court."

(Emphasis supplied) 7.1. It can be seen from the above extracted observations that after the elections were held on 20-9-2010 and 23-9-2010, both the groups seem to have realised that in such situation the best course of action would be to bury the hatchet in the interest of the Association, which is evident from the observations in the order viz. :

"....After the election was held by both the fractions on different dates, a scenario emerged wherein it was felt necessary that both the fractions must give a go-bye to their respective stands and must see to it that in the common good of profession...."

(Emphasis supplied) 7.2. The petitioners appear to have accordingly instructed their Counsel which is evident from the observations in the order that : "...and their clients have responded to the suggestions with an appropriate, positive approach. As a result of which, a consensus is arrived at between the parties." (Emphasis supplied) 7.3. The fact that parties had arrived at a consensus is also evident from the observations in the said order to the effect that "both the parties have agreed that fresh election of..... under the supervision of an officer appointed by the Registrar General" and also from the further observations that "the parties have agreed and undertaken to this Court through their respective Senior Advocates that they will co-operate..." (Emphasis supplied) 7.4. The fact that the order in question was passed on consensus between the parties and upon consent conveyed to the Court is also evident from the observations recorded by the Court in Paras 5 and 8 which more empathetically establishes the said aspects. The observations read thus : "5. This order is passed as an endeavour to see that the Gujarat Sales Tax Bar Association stands unified and the members of the Gujarat Sales Tax Bar Association maintain professional brotherhood with the same spirit in which it prevailed prior to present temporary rift. 8. Learned Senior Advocate Mr. Nanavati, as a goodwill gesture, states on instructions from his clients that his clients will not claim any expenses incurred by them since the present rift surfaced in the Gujarat Sales Tax Bar Association." (Emphasis supplied) Under the circumstances, it is unpalatable, and we fail to appreciate, that how can any one, in face of the observations in the orders dated 30-9-2010 and 25-10-2010, claim or allege that any consent was not given by the petitioners. 7.5. It is also incomprehensible that a person who had been actively instructing the petitioner's Counsel (as recorded in the order passed on week after the election on 23-9-2010) and who also contested the election on 23-9-2010 and was allegedly elected as President would not know anything about the proceedings in the Court and/or about the order passed in the Court on 25-10-2010.

(8) The consensus between the parties and the consent placed before the Court are, on perusal of the order, writ large and are abundantly clear and one need not scratch even the surface, much less probe deeper to find the consensus and consent which was conveyed to the Court and in light of which the Court passed the order.

(9) When in both the petitions the petitioner No. 1 was the Association and the petitions were filed in the name of the Association (a trust/registered society) then the question of individual consent or occasion of hearing each and every member of the Association did not and would not arise, more so when no one, including the applicant, had come forward with the request for being impleaded and/or for being heard. Now, individual member(s) of the Association cannot come forward and claim that each individual member has a right to maintain appeal because he was not heard and/or his consent was not obtained before the impugned order came to be passed. 9.1. Furthermore, so far as the applicant is concerned, it is recorded in the order dated 30-9-2010 that it was he who was instructing the Counsel of the petitioner-Association. Thus, he was not only aware about the petition, but he was actively participating in the proceedings. 9.2. The aforesaid facts and the observation would not permit us to believe and accept that the applicant was not aware about the proceedings and/or about the orders, including the order dated 25-10-2010. Now, the applicant cannot be heard to allege and claim that he was not heard or that any consent as recorded in the order, was not given. More so, when the applicant did not oppose the order or did not even get his objection, if any, recorded in the order (while it was being passed/dictated or even immediately thereafter). Even no one else (i.e. any of the other petitioners or any other members of the Association) did so. The entire conspectus of facts, in our view, do not lend any support or credence to the allegations and claim of the applicant, and to say the least, the allegations and the manner in which they are made, are unfair to the Court.

(10) Besides, what is noted hereinabove, it is most pertinent to note that no one, including the applicant, has until not moved any application before the learned Single Judge and/or have not filed appeal alleging that the record of the order dated 30-9-2010 and/or 25-10-2010 is not accurate and/or there is any error in what is recorded in the order. 10.1. Needless to state that not only in propriety but in ordinary course of legal proceedings as well the party claiming that what is recorded in the order is not accurate reflection of the fact-situation, must first approach the same Court. So far as we are concerned we would, in propriety and in all seriousness, be guided by and accept what is recorded by the Court in the orders and not by the submission or allegation (about the observations in the order) by a person who is shy of going to the same Court which passed the order and/or claims that he was not heard at the time of, and thus not aware about the order.

(11) We may hasten to add that besides the aforesaid procedural aspect and propriety, on careful consideration of the orders, we are of the considered view that the order is apparently passed in view of the consensus between the parties and at their behest. The order is, ex-facie, in nature of an ad-invitum order. 11.1. It has come on record that in pursuance of the impugned order dated 25-10-2010 the programme for fresh election was notified on 23-11- 2010 as per which the voting, counting of votes and declaration of results were to be held on 19-12-2010. It has been submitted that the fresh election (wherein everyone, including the applicant had the opportunity and option of voting and even contesting) pursuant to the impugned order was held on 19-12-2010 and the results have been declared. Therefore also, in our view, the application does not deserve to be entertained at this stage. 11.2. It also deserves to be noted that besides the Association as petitioner No. 1 there were other five persons named as petitioner Nos. 2 to 6 in Spl.C.A. No. 11185 of 2010. Thus, if at all any of the petitioners had or has any grievance against the said order dated 25-10-2010 and/or about the observations recorded therein then all or any one of them could very well have preferred an application before the learned Single Judge or could have filed an appeal. However, any application or appeal (except present applications) against the said order does not appear to have been filed.

(12) When none of the petitioners in any of the two petitions have come forward with an appeal and any one of them have not even filed any application making grievance about what is recorded in the order, then in our view, there is no justification to grant leave to file appeal to a member or few members of the Association. At this rate, all members of the Association may start filing applications seeking leave to appeal on same or similar allegations and claiming that they are affected party and/or they were not heard during the hearing of the two petitions. Such submissions and request, in the facts of the case and more particularly when the Association was the petitioner, would amount to abuse of the Court proceedings.

(13) As regards the objections raised by way of Amendment that the applicant/Committee elected pursuant to election held on 23-9-2010 has not been heard before the order came to be passed, the important aspect to be noted is that neither the applicant nor any other member of the Committee elected on 23-9-2010 had come forward, during the interregnum i.e. from 23-9-2010 to 25-10-2010 (the date of the order) with any application/request for being impleaded in either of the petitions i.e. Spl.C.A. No. 11185 of 2010 or Spl.C.A. No. 7566 of 2010 or for being heard. They never opted to be party to the proceedings of the said petition(s) nor did they make request for hearing. Thus, when during the period of almost one month after the election no one amongst the said persons took any action in the petitions, now it does not lie in their mouth to allege that they were not heard or to claim any relief on such ground. As noted above, both the sides in Spl.C.A. No. 11185 of 2010 and Spl.C.A. No. 7466 of 2010 had, apparently conveyed their consent for fresh election to the Court and it was in view of the consent conveyed to the Court by both the sides the said order for fresh election was passed. Hence, when order for fresh election is passed with the consent of all the parties, including the Association, in the two petitions, then it cannot be alleged or contended that the Court has by t

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he order in question, set aside the election and by referring to and citing the order (passed with consent of the parties) it cannot contend that the Court has set aside the election or such order cannot be construed as an order setting aside the election, as the applicant now intends to claim. The parties to the election gave consent for the direction to hold fresh election, and that therefore, the contention sought to be raised by the applicant is misconceived and unjustified. 13.1. Besides this, the respondents appear to be justified in contending that the fact that subsequent application seeking amendment is preferred after almost 2 weeks signifies that the applicant has come out with the application after the discussions in the Court during the hearing on 24-11-2010 i.e. as an afterthought. 13.2. So far as the said Civil Applications seeking amendment in the applications seeking leave to appeal are concerned, the respondents have opposed the said applications and submitted that the amendment does not deserve to be granted, since apparently, the applications have been moved in view of and after taking into account the initial discussions in the Court at the time of hearing of the applications seeking leave to appeal. We have, despite the said objection, taken into account the averments sought to be introduced by way of amendment and for the purpose of present order we have proceeded by treating the applications, seeking amendment, despite respondents' objection, as granted. 13.3. For all the aforesaid reasons, we are of the view that the applications are not maintainable and do not deserve to be entertained. We are not inclined to accept the request or grant the permission. Hence, except the Civil Application Nos. 15667 and 15668 of 2010 (seeking amendment) the other applications - seeking leave to appeal - fail and are hereby rejected. Consequently, the respective appeals shall not be duly registered/numbered with final/pakka number and shall stand disposed of. (14) Before parting, we should note that for a while we were inclined to also pass order imposing cost, particularly having regard to the fact that the proceedings have been taken out by member(s) of legal profession who, as officers of the Court, are supposed to be more conscious about the time of the Court and procedural propriety and fairness to the Court. However, only with a view to preserving the object with which the order was passed and with a view to maintaining the spirit behind the consensus recorded by the learned Single Judge in the order which is reflected in the observation i.e. "all is well that ends well", we have refrained from passing any order imposing cost. Applications dismissed.
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