Mr. M.S. Joshi, Advocate for the Applicants. Mr. G. Shirodkar, Government Advocate for Respondents Nos.1 to 3. Mr. J.F. Melo, Advocate for Respondents Nos.4 & 5.

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CORAM : N.A. BRITTO, J.

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DATE : 16/12/2010

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ORDER :

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Heard learned Counsel on behalf of the parties.

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The appeal filed by defendants nos.3 & 4 has been admitted

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today by a separate order. The said appeal is directed against judgment dated 21/08/2010 of the learned Adhoc District Judge-1 in Civil Suit No.59/2005/FTC-1 by which the learned District Judge has directed that the elections whenever to be held, be held as per the list of Mahajans gazetted on 27/04/2000. The said defendants seek the stay of the operation of the said judgment in

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Civil Application No.209/2010 and the notice dated 30/11/2010 in Civil Application No.210/2010.

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There is no dispute that elections are scheduled to be held on 19^th instant. There is no dispute that from the year 2000, the affairs of respondent no.3-Devasthan are being managed by an adhoc committee. The last adhoc committee was constituted by order dated 7/03/2007 and one of the members, has been substituted by order dated 10/12/2008. They are running the affairs of respondent no.3-Devasthan, now for over three trieniums.

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There is no dispute that there was an original list prepared in the year 1962 of 68 Mahajans. The said list was subsequently revised by the managing committee, approved by the Mamlatdar and gazetted. This list is dated 27/04/2000. There was yet another list which was prepared as a tentative list in the year 2005 which is not gazetted and according to the admission made by DW1 this list contains names of people who have expired ten years back.

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There is also no dispute that an appeal was filed by the Devasthan through attorney Shri Prabhakar Gawas and Ravindranath Rauji Palkar before the Administrative Tribunal

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being Devasthan Appeal No.16/2007. This appeal was withdrawn on 28/04/2008 and a perusal of the order of the learned Administrative Tribunal dated 25/09/2007 in the said Devasthan Appeal No.16/2007 shows that what was challenged therein was the appointment of the adhoc committee. Defendants nos.3 & 4 then filed a Civil Suit No.32/2004 for a declaration that they were Mahajans of the said Devasthan but the said suit came to be withdrawn by them.

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The net result of the facts stated herein above is that there is

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a list dated 27/04/2000 prepared by the managing committee, approved by the administrator and published on gazette, as against the tentative defective list of the year 2005 in which names of Mahajans who have expired are also shown and which is otherwise not gazetted.

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Shri Joshi, learned Counsel appearing on behalf of the appellants/defendants nos.3 & 4 submits that in case the elections are held as per the list dated 27/04/2000, the appeal filed by them will become infructuous. Learned Counsel further submits that elections could be held after preparing a fresh list by taking into consideration the names appearing on all the three lists and after

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following the due procedure prescribed under the Devasthan Regulations. Learned Counsel further submits that there is nothing on record to show that the list dated 27/04/2000 which was gazetted, was gazetted after following the due procedure prescribed under the said Devasthan Regulations.

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On the other hand, Shri Shirodkar submits that the impugned judgment was delivered on 21/08/2010 and the elections are now scheduled on 19^th instant and since the appellants/defendants nos.3 & 4 have approached the Court with delay, this itself is a good ground to reject their application.

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Shri Melo, the learned Counsel appearing on behalf of defendants nos.4 & 5 referring to Article 30, Clause 7 submits that the defendants nos.3 & 4 have a remedy by way of an appeal to the Administrative Tribunal against the irregularities and nullities of the election and, therefore, their application for stay needs to be rejected. Shri Melo further submits that for almost a decade now there is no duly elected committee of the said Devasthan and the affairs are being managed by the said adhoc committee which is not a very happy state of affairs. Learned Counsel further submits that no loss can be caused to the appellants/defendants nos.3 & 4 in

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case the elections are held as per the gazetted list dated 27/12/2000 which reflects the names of 56 Mahajans.

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The learned Trial Court in the judgment dated 21/08/2010 has, inter alia, observed that defendant no.4 had admitted that though he and others filed a Civil Suit bearing No.32/2004 to declare them as Mahajans of the Devasthan and to include in the catalogue of members of the Devasthan, the said Civil suit which was withdrawn by them inspite of the observations by this Court in the Writ Petition with their status as Mahajans would be decided in the aforesaid Civil Suit. The learned Trial Court has also observed that the said list dated 27/04/2000 was published after complying with all the formalities in the official gazette and after enrolling new members as on 31/2/1999 which was duly approved by defendant no.1, the administrator, pursuant to his stamp of approval which was admitted by defendant no.1 in para 1 of the written statement and the said list is recorded in the catalogue of Mahajans.

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As already observed, the Devasthan is being managed by adhoc committee for over a decade without any elections. The course suggested by learned Counsel Shri Joshi of preparing a separate list after taking into consideration the names of all the

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three lists and inviting objections etc. is bound to take considerable more time. As on today, the list dated 27/04/2000 appears to be a

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valid list not only prepared by the managing committee but approved by the administrator and gazetted on the official gazette which would prima facie mean that it was gazetted after complying the necessary formalities. The defendants nos.3 & 4 have allowed the said list to attain finality by not challenging the same or by withdrawing the suit. Prima facie, therefore, there is no other option but to go ahead with the elections as per the said list dated 27/04/2000. However, the apprehension expressed by the appellants/defendants nos.3 & 4 can be taken care of by ordering that the elections to be held on 19^th instant and the committee elected pursuant to the said elections would be subject to the result of the First Appeal No.142/2010.

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Both the applications, therefore, are hereby disposed off on the above terms with no order as to costs. Expedite authenticated copy.

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N.A. BRITTO, J.

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NH/-

Shri. Sakharam N. Amerkar and Anr., v. the Mamlatdar, Administrator of Devasthans and 4 Ors.

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Shri. Sakharam N. Amerkar and Anr., v. the Mamlatdar, Administrator of Devasthans and 4 Ors.

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