JUDGMENT : Alpesh Y. Kogje, J. 1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent No. 1. Learned Advocate, Mr. S.S. Saiyed waives service of rule on behalf of the respondent No. 2. 2. Considering the nature of dispute involved in the petition and considering the submissions made on behalf of the respondent Nos. 3 and 4, though joined as respondents, are supporting the case of the petitioners and that the respondent No. 2 is on caveat, with consent of all the parties, the petition is taken up for final disposal. 3. The petition is filed under Article-226 of the Constitution of India for quashing and setting aside the order dated 6th August, 2019 passed in Judicial Miscellaneous Application No. 46 of 2019 by the Joint Charity Commissioner, by which on-going election of the petitioner - Trust - Shri Akhil Hind Shrimali Soni Mahamandal, was ordered to be canceled. 4. Learned Advocate for the petitioners submitted that the impugned order is passed going beyond the prayers made for in the application. He submitted that by the impugned direction, the election process which has begun, is canceled, whereas the application of the applicant was for considering the candidature of the applicant to contest the election. He submitted that under Section-41(A), the Joint Charity Commissioner, has entered into the dispute of deciding whether the candidature of the respondent No. 2 was correctly rejected or not, which is not permissible as the Bombay Public Trusts Act provides for separate provision for examining such issues. 5. Learned Advocate for the petitioners relied upon the judgment in the case of Navinchandra Jasani and Ors. vs. Pravinchandra Jasani reported in 2003 (1) GLR 392 and in the case of Swami Satyaprakashdasji Guru Ghanshyam Prasad Swami vs. Joint Charity Commissioner reported in 2000 (2) GLR 1450 . He also relied upon judgment of the Apex Court in the case of Shaji K. Joseph vs. V. Viswanath & Ors. reported in AIR 2016 SC 1094 . 6. As against this, learned Advocate for the respondent No. 2 submitted that the Joint Charity Commissioner itself appears to have taken a decision after having concluded that the continuing of the election on faulty voters list, would not be in the interest of the Trust. reported in AIR 2016 SC 1094 . 6. As against this, learned Advocate for the respondent No. 2 submitted that the Joint Charity Commissioner itself appears to have taken a decision after having concluded that the continuing of the election on faulty voters list, would not be in the interest of the Trust. He submitted that in the impugned order itself, on the basis of cogent evidence, the Joint Charity Commissioner has arrived at conclusion that there is duplication of members in various constituencies and therefore, continuing of election procedure on such premise, would not be in the interest of the Trust. He submitted that the petitioner - Trust had deliberately prevented the respondent No. 2 from contesting the election by relying upon the non-existent rules, which governed the membership of the Trust. He submitted that when the petitioner came out with the cogent evidence to establish his residence of Santrampur, the petitioner - Trust did not respond to such application, but only communicated that the election will be conducted in accordance with the provision of the Constitution. He submitted that at that stage only, the Trust ought to have taken a decision on the eligibility of the respondent No. 2 to contest. 7. It is argued that the application cannot be said to be an application under Section-41(A) only, as the respondent No. 2 in his application had clearly stated that the application to be under Section-69(A) and therefore, the Joint Charity Commissioner was beyond his jurisdiction to exercise the power and cancel the election in exercise of powers under Section-69. 8. Learned Advocate for the respondent No. 2 relied upon the judgment of this Court in the case of Acharya Shree Mahaprabhujini Ranavaswala Bethak Mandir Trust, Godhra & Ors. Vs. Chokshi Ratilal Chandulal & Ors. reported in 1996 (3) GLR 307 to contain that while exercising the power under Section-41(A), which are supervisory in nature, hearing of the party is not necessary. 9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the Election programme was declared, which is as under: "Notification of General Election of total 93 members u/s. 9(6), 9(7) of the Constitution of the Federation" (1) Dates to receive the Nomination Form From 20-06-2019 to 10-07-2019. (2) Last Date to submit the Nomination Form Till 06:00 o' clock in the evening of 15-07-2019. (2) Last Date to submit the Nomination Form Till 06:00 o' clock in the evening of 15-07-2019. (3) Date of verification of the Nomination Form 06:00 o' clock in the evening of 15-07-2019. (4) Date to withdraw the Nomination Form At 06:00 o' clock in the evening of 30-07-2019." 10. According to the election programme, the first election to the constituency in Panchmahal and various constituencies is to be held on 11-08-2019. Therefore, at the stage, when the process of election is at quite advanced stage, the Joint Charity Commissioner ought not to have interfered with on going election process. 11. From the facts, it appears that the respondent No. 2 was the member of the Trust since 1997 under Receipt No. 25723 at Godhra. He had also became the member since 2013 under Receipt No. 87939 from Santrampur. It appears that the respondent No. 2, according to the petitioners, was residence of Godhra, but had filed nomination both from Godhra and Santrampur. Thereafter by letter dated 27-06-2019, respondent No. 2, sought cancellation of his membership of Godhra constituency and retain his membership with Santrampur constituency. It appears that in response to such application, the communication was addressed on 11-07-2019 by the petitioners calling upon the respondent No. 2 to furnish the documentary evidence to establish his residence in Santrampur. The Constitution of the petitioner-Trust more particularly, Clause-25(7) provides for eligibility to register the candidature for the committee from the constituency in which such candidate resides. It appears that in the said communication, respondent No. 2 was also required to produce verification letters from local office bearers of the local office namely Santrampur and Godhra along with other evidence viz. electricity bills, Aadhar card, Election card of the Government of India to establish his residence within Santrampur to back his candidature. In response to this, it appears that the respondent No. 2 did produce the verification certificate both from the local office of the petitioner - Trust at Santrampur and Godhra to certify that during his service, he was residing at Godhra, but after retirement, had started residing at Santrampur. However, the documents of tax bill and electricity bill, produced were not running in the name of the petitioners, but his relatives. Aadhar Card and Election Card did not mention about the residence of the respondent No. 2 at Santrampur, but at Godhra. 12. However, the documents of tax bill and electricity bill, produced were not running in the name of the petitioners, but his relatives. Aadhar Card and Election Card did not mention about the residence of the respondent No. 2 at Santrampur, but at Godhra. 12. This Court in the judgment of Navinchandra Jasani (supra) considering the powers under Section-41(A), has held as under: "6. Keeping in view the aforesaid observations made by the Division Bench, it is clear that the Jt. Charity Commissioner will be entitled to exercise the power under Section 41A of the Act in respect to the items which are specified under Sections 32 to 41 of the Act. If the averments made in the application are considered then it appears that the basis of the application was that the applicants therein before the Jt. Charity Commissioner were ascertaining that they have a right to be admitted as the members of the Trust since they are natives of Veraval and because of the conservative interpretation given by the Trustees of the Trust, they are not being admitted as the members. Therefore, if while administering the Trust, the question arises regarding the interpretation of making any expenses or running day-to-day affairs of the Trust, it might fall under the scope of Section 41A of the Act. However, the question of right to be admitted as the members of the Trust is an independent right which a person may be claiming upon the terms and conditions of the Trust against the Trustees of the Trust. In assertion of such right an inquiry is required to be held for the purpose of establishing the case as to whether the applicants who are ascertaining the right, are covered by the eligibility criteria of becoming the members or not. Such process in my view would require adjudication of the facts, and therefore, in view of the ratio of the Division Bench in case of Syedna Mohamed Burhanuddin v. Charity Commissioner, Gujarat State and Ors. (supra) the adjudication process is not envisaged under Section 41A of the Act. 7. Even if the matter is examined from the viewpoint of the contention raised by both the sides before the Jt. (supra) the adjudication process is not envisaged under Section 41A of the Act. 7. Even if the matter is examined from the viewpoint of the contention raised by both the sides before the Jt. Charity Commissioner on merits, it is clear that the Trust provides for two types of membership; (1) persons belonging to the community who are originally native of Veraval, and (2) persons who are belonging to the community and who have settled in Veraval from outside. The applicants raised the contentions from both the angles namely that those who are original native of Veraval who are required to go outside Veraval and some persons belonging to the community who have settled in Veraval. Whereas the contention raised on behalf of the Trust was that trust was disputing the stand of the original applicants that they are natives of Veraval or they have settled in Veraval. Therefore, even if the applicants or other persons, on whose behalf application was made to the Jt. Charity Commissioner for ascertaining their right to be admitted as the members, it was required to be examined as to whether they are natives of Veraval or whether they have settled in Veraval. Both these aspects can be examined only if a full-fledged inquiry is held and the parties are given opportunity to lead evidence. In absence of any finding of fact and proper evidence on record, it cannot be said that merely because certain persons are belonging to a particular community, and hence, they would be eligible to be admitted as the members of the Trust. Ms. Mandavia has contended that there is an admission in the order of the Charity Commissioner, which has been recorded on internal page No. 5 as if it was the stand of the petitioners before the Charity Commissioner that it appears that the applicants have settled in Veraval from outside. However, the perusal of the written submission submitted on behalf of the petitioners before the Charity Commissioner does not show such admission. It is not recorded by the Charity Commissioner that any concession or admission was made during the course of arguments by the learned Counsel appearing on behalf of the petitioners herein. However, the perusal of the written submission submitted on behalf of the petitioners before the Charity Commissioner does not show such admission. It is not recorded by the Charity Commissioner that any concession or admission was made during the course of arguments by the learned Counsel appearing on behalf of the petitioners herein. Therefore, it can be said that the admission recorded by the Charity Commissioner in the order is not supported by the record of the case or otherwise, and therefore, when such admission is not supported by the record of the case, I cannot accept the contention of Ms. Mandavia that there was admission by the petitioners regarding the settlement of the applicants in Veraval, and therefore, no evidence was required to be led." 13. In the judgment of this Court in the case of Swami Satyaprakashdasji Guru Ghanshyam Prasad Swami (supra), this Court has held that the issue with regard to the change in the office of the Trustee on the basis of the election, has to be decided while deciding the change report and to decide whether election itself is valid or not and notice to concerned Party is necessary. 14. In the application filed by the respondent No. 2, prayer clause is as under: "A. Be pleased to issue direction to the respondents of the case i.e. the Electoral Officer to accept my nomination form of Sr. No. 9 for the seat of Lunavada - Santrampur, Panchmahal and not to prevent me from contesting the election to be held on 11/08/2019." 15. Therefore, in the opinion of the Court, such issue could not be the subject matter of application under Section-41(A), as it would require adjudication on the basis of evidence laid down by the respective parties as to whether the candidature of the respondent No. 2 was rejected in consonance with the provision of Constitution of the Trust. 16. The Joint Charity Commissioner has therefore, misdirected himself in taking into consideration the evidence on record, which was furnished to substantiate the claim of the respondent No. 2 whether he belongs to a particular constituency or not and arrived at the finding of fact based on evidence that the candidature of the respondent No. 2 could not have been canceled. This exercise could not have been undertaken under Section-41(A). 17. This exercise could not have been undertaken under Section-41(A). 17. The Joint Charity Commissioner did not stop at that and further proceeded to examine the same evidence and exercise the power under Section-41(A) to cancel the process of election, which, as recorded earlier, was at very advanced stage. While doing so, it was necessary for the Joint Charity Commissioner to afford an opportunity of hearing as the same was never question even before the Joint Charity Commissioner in the application which was being decided. The Apex Court in the judgment in the case of Shaji K. Joseph (supra) has held as under: "14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent No. 1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent No. 1 for contesting the election is concerned, though prima facie it appears that Respondent No. 1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election." 18. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election." 18. Accordingly, this Court is of the view that merely on the issue of deciding about the validity of candidature of respondent No. 2, the Joint Charity Commissioner ought not to have cancel the entire election. 19. In view of the aforesaid, the Court is inclined to interfere and quashed and set aside the impugned order dated 6th August, 2019 passed in Judicial Miscellaneous Application No. 46 of 2019 passed by the Joint Charity Commissioner. It is accordingly quashed and set aside. The petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs. Direct service is permitted.