JUDGMENT : 1. RULE. Learned AGP Ms Pathak waives service of notice of Rule on behalf of Respondent – State and learned senior advocate Mr Pahwa waives for Respondent No. 4. With the consent of the parties, today the matter is taken up for final disposal. 2. By way of this petition, at the relevant point of time, when the petition was preferred, the petitioners have prayed for multi-fold reliefs. Further, at the time of issuance of Notice vide Order dated 12.03.2024, learned senior advocate Mr H. M. Parikh, upon instructions, had made statement that the petitioners are praying for only the relief prayed for in Paragraph 29 (B) and rest of the prayers are not pressed. Hence, the Notice was issued in respect of prayer made in Paragraph 29 (B), which is reproduced as under: “Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and to direct the parties to this proceeding to suggest the names of three retired Judges of this Hon’ble Court each by either party for appointment of the election officer for holding the election of the Board of Trustees of the respondent Trust: 3. Heard learned Senior Advocate Mr H. M. Parikh with learned advocate Mr Kishan Dave for the petitioners and learned senior advocate Mr Mihir Joshi with learned senior advocate Mr Navin Pahwa for Respondent No. 4 and learned AGP Ms Shruti Pathak for Respondent – State and Respondent No. 2. 4. The petition is preferred by the petitioners on the ground that though the Hon’ble Supreme Court has, in respect of earlier election held in the year 2018, while passing the Order in Miscellaneous Application No. 494 of 2019 in Civil Appeal No. 12060 of 2018, passed an Order whereby, the Hon’ble retired Judge of this Court was appointed as an Election Officer and the same would amount to modifying the rules of the election of Respondent No. 4 – Trust and in respect of present election, which is scheduled on April, 2024 also, the same pattern is required to be followed and therefore, it was submitted by learned senior counsel Mr. Parikh that as it was suggested by this Court in earlier round of litigation to the parties to give three names of retired Hon’ble Judges of this Court, this Court may follow the same practice and direct the Respondent No. 4 – Trust to appoint any one retired judge of this Court to act as an Election Officer. 5. Learned Senior Advocate Mr. Parikh submitted that in earlier round of litigation, the controversy before this Court, at the relevant point of time, was in respect of First Appeal No. 765 of 2018 and allied matters arising out of the decision by the learned Additional District Judge, Bhavnagar dated 17.02.2018 in Civil Miscellaneous Application No. 140 of 2011 whereby, the application for direction and modification of the scheme of elections in Chapter 14, Sections 48/49 of the Election Scheme of Shree Gopinathji Dev Mandir Trust having Registration No. A/245 Bhavnagar was preferred and the learned Additional District Judge vide his Order dated 17.02.2018 partly allowed the Miscellaneous Civil Application No. 116 of 2011 and modified the scheme as stated in the said order and the said modification was challenged before this Court by way of First Appeal No. 765 of 2018 and allied matters. 6. The aforesaid First Appeal No.765 of 2018 and allied First Appeals were allowed to the extent of enhancement of the amount towards Dharmada i.e. from Rs.125/- to Rs.250/- but, while allowing the aforesaid First Appeal, this Court in Paragraph 63 summarized the conclusions and for the purpose of this petition, the Conclusion No. 5 is relevant, which is reproduced as under: “(v) The directions issues by the court, in my view, are just proper and tenable in law except one and that is with regard to the election officer. Instead of the District Collector, Botad, the trust board shall appoint a retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge as the election officer.” 7. Instead of the District Collector, Botad, the trust board shall appoint a retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge as the election officer.” 7. The aforesaid CAV Judgment was carried before the Hon’ble Supreme Court by way of Civil Appeal and the same was challenged before the Hon’ble Supreme Court by way of SLP (Civil) No. 30750 of 2018 and the same was decided by the Hon’ble Supreme Court vide Order dated 13.12.2018, where relevant observation for the purpose of this petition were made and ultimately, Hon’ble Supreme Court issued directions in the last 3 paragraphs, which are reproduced as under: “We further direct that let election be held under the supervision of a retired High Court Judge. Parties are in agreement to appoint Hon'ble Mr. Justice S.M. Soni, Former Judge, Gujarat High Court as Election Officer. As agreed by the parties, Hon'ble Mr. Justice S.M. Soni is appointed to conduct the election within a period of eight weeks from today in accordance with law. Fees to be fixed by the Election Officer or by the High Court. For any other purpose, as may be permissible, it would be open to approach the concerned High Court. Accordingly, the orders are modified to the aforesaid extent and appeals are disposed of.” 8. In the meantime, Miscellaneous Civil Applications No. 2 of 2018 and 3 of 2018 were filed. So far as the IA No.2 of 2018 in First Appeal No. 765 of 2018 is concerned, the same was disposed vide Order dated 17.09.2018 and one Mr. K J Upadhyay was appointed as the Election Officer by the Trust, who was approved by this Court while disposing of the Miscellaneous Civil Application No. 2 of 2018 whereas, by way of Miscellaneous Civil Application No. 3 of 2018, the applicants of the said application had prayed for the following reliefs. K J Upadhyay was appointed as the Election Officer by the Trust, who was approved by this Court while disposing of the Miscellaneous Civil Application No. 2 of 2018 whereas, by way of Miscellaneous Civil Application No. 3 of 2018, the applicants of the said application had prayed for the following reliefs. (A) YOUR LORDSHIPS be pleased to allow this application; (B) YOUR LORDSHIPS be pleased to recall the order and directions contained in para 63(v) of the CAV judgment and order dated 27.8.2018 made by this Hon'ble Court in F.A. No.765 of 2018 and further be pleased to make such appropriate orders as may be deemed appropriate by this Hon'ble Court, in the interest of justice; (C) YOUR LORDSHIPS be pleased to consider to recall the above directions and be pleased to substitute, the said directions by directing appointment of any other retired judicial officer as election officer as may be deemed appropriate by this Hon'ble Court, in the interest of justice; (D) YOUR LORDSHIPS be pleased to restrain the respondent Election Officer from proceeding further pursuant to the election programme, pending the hearing and final disposal of the present application;” 9. Further, Miscellaneous Civil Application No. 3 of 2018 could not be decided finally, as in the meantime, one of the contesting respondent was before the Hon’ble Supreme Court and hence, the said application was not decided finally. 10. Thereafter, one Miscellaneous Application No. 494 of 2019 in Civil Appeal No. 12060 of 2018 was preferred after the Hon’ble Supreme Court disposed of the Civil Appeal No. 12060 of 2008, arising out of the SLP (Civil) No. 30750 of 2018 vide its Order dated 13.12.2018, Miscellaneous Application No. 494 of 2019 was disposed of vide Order dated 13.12.2019. The Order passed in Miscellaneous Application No. 494 of 2019 is reproduced as under: “It is an unfortunate situation in the matter that the order passed by this Court has been effectively violated by the Trust. Their intention is apparent to flout the order, as rightly observed by the High Court while disposing of the writ petition, that was filed. Now, this interlocutory application has been filed in this Court. We are constrained to observe that the efforts made by the Trust to scuttle the decision of this Court and to delay the election was wholly uncalled for and a malafide act on the part of the chief Executive. Now, this interlocutory application has been filed in this Court. We are constrained to observe that the efforts made by the Trust to scuttle the decision of this Court and to delay the election was wholly uncalled for and a malafide act on the part of the chief Executive. The High Court has dismissed the writ application with the costs of Rs. 1,00,000/- (Rupees One Lakh). We request Hon'ble Mr. Justice S.M.Soni (Retd.) to conduct the election and to take it to logical conclusion as early as possible and preferably within eight weeks. No objection whatsoever shall be entertained in the process of election in any manner by any Court or Tribunal. Let the election be held as ordered by this Court peacefully and any dispute as to that can be raised only after election is held and fresh Body is constituted and takes charge. In case any attempt is made to scuttle the order, the same would be treated as gross contempt of this Court. As the Trust has unnecessarily delayed the holding of election, it is considered appropriate that the present Body should not manage the affairs of the Trust any further. We hereby appoint Hon'ble Mr. Justice Mohit Shah, former Chief Justice of the High Court of Judicature at Bombay, to administer the Trust. In view of the above, the Misc. Application is disposed of.” 11. The said application was preferred by Respondent No. 4 in this petition namely Shree Gopinathji Dev Mandir and its Subordinate Temples Trust. 12. It is in this backdrop that when the Hon’ble Supreme Court had directed that the election be held under the supervision of a retired judge of this Court, who was appointed as Election Officer, this Court, in respect of the present election scheduled to be held in April, 2024, also exercised the similar powers and appointed a retired judge of this Court as an Election Officer in respect of this Election. 13. Learned senior advocate Mr. H M Parikh submitted that the order passed by the Hon’ble Supreme Court in Civil Appeal No. 12060 of 2018 as well as in Miscellaneous Application No. 494 of 2019 would amount to modifying the Election Rules of the Trust and the same has become final for all time to come and for every election after elections, which were the subject matter of challenge. At the relevant point of time, the Trust is required to undertake the election process in accordance with the direction issued by the Hon’ble Supreme Court vide its Order dated 13.12.2018 and Order dated 12.03.2019. 14. Mr. Parikh submitted that to ensure free and fair election, such directions were issued by the Hon’ble Supreme Court and therefore, this time also, in view of the manner in which the elections are now being conducted by the Election Officer appointed by the Trust, who is only a retired City Civil Judge, this Court may not allow the present Election Officer to function as the Election Officer and to appoint a retired Judge of this Court to act as an Election Officer in view of past precedents. Therefore, this petition is preferred. 15. Learned senior advocate Mr Mihir Joshi submitted that at the relevant point of time, in view of the prayer made in Miscellaneous Application No. 3 of 2018 in First Appeal No. 765 of 2018, looking to the seriousness of allegations made by one of the parties of the litigation and considering the peculiar facts, the directions were issued by this Court and in furtherance of these directions, the Hon’ble Supreme Court had appointed a retired Judge of this Court to act as an Election Officer. Mr Joshi submitted that as the said directions were given in respect of the peculiar facts of the case and the original scheme has not been modified by the Hon’ble Supreme Court. So far as the appointment of the Election Officer is concerned and the Order passed by this Court has been confirmed by the Hon’ble Supreme Court and when this Court, while modifying the scheme has directed the Trust to appoint a retired judicial officer to act as an Election Officer, that condition has already been fulfilled by the Trust and therefore, no further modification is necessary. Learned senior advocate Mr. Joshi further submitted that even this Court, once the scheme is finalized, does not have any power under Article 226 of the Constitution of India to modify the aforesaid scheme and if any relief prayed for is granted by this Court, the same would amount to modifying the scheme, which has already been upheld by the Hon’ble Supreme Court. 16. Learned senior advocate Mr. Joshi further submitted that the Hon’ble Supreme Court has passed the Order on 13.12.2018 and 12.02.2019. 16. Learned senior advocate Mr. Joshi further submitted that the Hon’ble Supreme Court has passed the Order on 13.12.2018 and 12.02.2019. At that relevant point of time, it was fairly understood by the parties that the same was only in respect of that election. Despite that, this petition is belatedly filed in the month of January, 2024, knowing fully well that the election is scheduled in the April, 2024 and today, the Election Officer has already been appointed and the election process is in very advance stage and the voters list has already been published. Therefore, at this juncture, any interference of this Court in the on-going process of election would amount to miscarriage of justice. Therefore, this Court may not interfere with the process of election, as the Election Officer has already been appointed as per the direction issued by this Court in First Appeal No. 765 of 2018 and as per the CAV Judgment dated 27.08.2018, which was confirmed by the Hon’ble Supreme Court. 17. Heard learned counsel for the parties and perused the record. Upon perusal of the record, on the basis of that, at the relevant point of time, Miscellaneous Civil Application No. 3 of 2018 was preferred with the following prayers: “(A) YOUR LORDSHIPS be pleased to allow this application; (B) YOUR LORDSHIPS be pleased to recall the order and directions contained in para 63(v) of the CAV judgment and order dated 27.8.2018 made by this Hon'ble Court in F.A. No.765 of 2018 and further be pleased to make such appropriate orders as may be deemed appropriate by this Hon'ble Court, in the interest of justice; (C) YOUR LORDSHIPS be pleased to consider to recall the above directions and be pleased to substitute, the said directions by directing appointment of any other retired judicial officer as election officer as may be deemed appropriate by this Hon'ble Court, in the interest of justice; (D) YOUR LORDSHIPS be pleased to restrain the respondent Election Officer from proceeding further pursuant to the election programme, pending the hearing and final disposal of the present application;” 18. The aforesaid prayers were made in view of the averments made in the said application and more particularly, the averments made in Paragraph 10 to 14, which reads as under: “10. The applicant submits that in the Misc. The aforesaid prayers were made in view of the averments made in the said application and more particularly, the averments made in Paragraph 10 to 14, which reads as under: “10. The applicant submits that in the Misc. Civil Application No. 2 of 2018, the applicants demonstrated that the persons managing the affairs of the Trust are the persons who are not eligible or entitles to administer the Trust made request to modify the order and directions to the extent prayed therein. This Hon’ble Court however was pleased to dispose the said application by order dated 17.9.2018 while making certain observations at Page 13 of the order. 11. The applicants submit that the facts above stated however would demonstrate that the election officer is not discharging his duties in the manner expected by this Hon’ble Court. The facts above submitted would demonstrate that the election officer is rather showing undue favour to the person managing the affairs of the Trust. The stand taken by the election officer would result into elections not being conducted in a fair and transparent manner. 12. The applicants submit that not only the election officer has demonstrated that he is virtually acting on the suggestions of the Trust by filing affidavit and vakalatnama through the advocates of the Trustees of the Trust and apparently being guided by the same advocates, the election officer is seemingly also acting contrary to the programme declared by him. The election programme, the extract of which is reproduced in the order dated 17.9.2018 by this Hon’ble Court contained a stage of submitting objections by 25.9.2018 and determining the objections on 26.9.2018. The applicants submit that large number of persons have filed objections to the list of voters published by the election officer. Some of the objections are placed at Annexure-G Colly to this application. 13. The applicants submit that on 26.9.2018, the objectors including the applicant no.2 personally. approached the office of Election Officer at 11:00 am. They were in the office of Election Officer upto almost 5:00 pm. The Election Officer was present for some time and he conveyed that he would decide the objections on 27.9.2018. These objectors engaged Shri P.B. Barot, Advocate to represent them on 27.9.2018 before the Election Officer and request him for the decision on the objections. He remained present at 11:00 am. He was asked to come after 2 hours. The Election Officer was present for some time and he conveyed that he would decide the objections on 27.9.2018. These objectors engaged Shri P.B. Barot, Advocate to represent them on 27.9.2018 before the Election Officer and request him for the decision on the objections. He remained present at 11:00 am. He was asked to come after 2 hours. After 2 hours Shri Chhaganbhal Borad who was in the office of Election Officer Informed the advocate that the decision would be available only on 30.9.2018 The Election Officer did not come to the office on 27.9.2018. 14. The applicants submit that 30.9.2018 is the date of publication of final list of voters. The stage of decision on the objections which is a very important stage is completely given a go-bye. The Election Rules are also given a complete go-bye. There is no decision taken on the objections. The applicants submit that these facts would demonstrate that the Election Officer is showing undue favour to the contesting respondents. The election is not being conducted in a fair and transparent manner.” 19. On consideration of the aforesaid averments, if the prayers in the Miscellaneous Civil Application No. 03 of 2018 is considered, the same would give an idea that the prayer was made in respect of the election, which was scheduled in 2018 only. Further, I have considered the Order passed by this Court and more particularly, Order dated 26.11.2018 in Miscellaneous Civil Application No. 03 of 2018, which reads as under: “Mr.Harshadrai A.Dave, the learned counsel appearing for the opponents nos.1 to 7 (original appellants), pointed out that the Special Leave Petitions came to be filed before the Hon'ble the Supreme Court on 26th October 2018 and 29th October 2018 respectively. The defects in the same were cured on 30th October 2018 and 17th November 2018 respectively. The advocate on record has informed Mr.Dave that the Special Leave Petitions are likely to come up for hearing within a period of one week from today. However, the advocate on record is not sure about the same. Mr.Pahwa, the learned senior counsel appearing for the applicants, has furnished a list of retired Hon'ble Judges of this Court pursuant to the order passed by this Court dated 5th October 2018. The list reads as under : 1. Honorable Mr.Justice M.S.Shah 2. Honorable Mr.Justice S.M.Soni 3. Honorable Mr.Justice R.R.Tripathi 4. Honorable Mr.Justice K.A.Puj 5. Mr.Pahwa, the learned senior counsel appearing for the applicants, has furnished a list of retired Hon'ble Judges of this Court pursuant to the order passed by this Court dated 5th October 2018. The list reads as under : 1. Honorable Mr.Justice M.S.Shah 2. Honorable Mr.Justice S.M.Soni 3. Honorable Mr.Justice R.R.Tripathi 4. Honorable Mr.Justice K.A.Puj 5. Honorable Mr.Justice B.J.Shethna 6. Honorable Mr.Justice K.R.Vyas" As the opponents are before the Supreme Court, they have not furnished names of any retired Hon'ble Judges of this Court. Post this matter for further orders on 3rd December 2018. On 3rd December 2018, this Court shall pass an order appointing one of the retired Hon'ble Judges of this Court as the Election Officer. In the mean time, it shall be open for the opponents also to furnish few names if they are desirous to do so.” 20. The aforesaid Order passed in Miscellaneous Civil Application No. 3 of 2018 would further indicate that in view of the averments made in the Miscellaneous Civil Application No. 03 of 2018, the Court passed the Order on 26.11.2018, but as observed before this Court in second last paragraph that as the opponents are before the Hon’ble Supreme Court and one of the parties did not furnish the name of the retired judges of this Court, the matter was adjourned. 21. In the meantime, vide Order dated 13.12.2018 in Civil Appeal No. 12060 of 2018, the Civil Appeal was disposed of and as the parties agreed before the Supreme Court, the Hon’ble Mr Justice S. M. Soni, former judge of this Court was appointed as the Election Officer by the Hon’ble Supreme Court. Thereafter, vide Order dated 12.03.2019 passed in Miscellaneous Application No. 494 of 2019, the Hon’ble Supreme Court disposed of the Miscellaneous Application No. 494 of 2019 in Civil Appeal No. 12060 of 2018 with a request to Hon’ble Mr Justice S. M. Soni to conduct the election and to take it to a logical conclusion as early as possible, preferably within the period of 8 weeks. 22. 22. The aforesaid observations made by the Hon’ble Supreme Court in its Order dated 13.12.2018 and in the Order dated 12.03.2019 would clearly indicate that the directions issued by the Hon’ble Supreme Court wherein, in respect of the elections which was supposed to be held in 2018 but could not be held in 2019 till the Miscellaneous Application No. 494 of 2019 was disposed of vide Order dated 12.03.2019 and further considering the fact that the Hon’ble Supreme Court has modified the Orders passed by this Court to the extent stated in the Order dated 13.12.2018, as the CAV Judgment of this Court was confirmed by the Hon’ble Supreme Court, I do not see any reason to take a view that for all time to come, the Hon’ble Supreme Court had directed the parties that the election be conducted by appointing the retired Judge of this Court as an Election Officer. I am taking this view keeping in mind the fact that while delivering CAV Judgment dated 27.08.2018 in First Appeal No. 765 of 2018, this Court while summarizing the conclusion, had categorically modified the Order passed by District Court whereby, the District Court had directed that the District Collector, Botad be appointed as the Election Officer and the said direction was modified and this Court thought it fit to direct the Respondent No. 4 – Trust to appoint a retired District Judge or City Civil Judge to act as an Election Officer. As the learned senior advocate Mr H M Parikh failed to point out that the aforesaid findings have been disturbed by Hon’ble Supreme Court and more particularly, upon the perusal of the Miscellaneous Application No. 03 of 2018 preferred in First Appeal No. 765 of 2018, I have no hesitation in holding that the directions issued by the Hon’ble Supreme Court were issued in respect of the election held in 2018 only and the same would not be applicable in respect of the coming elections, as the scheme modified by this Court in CAV Judgment dated 27.08.2018 in First Appeal No. 765 of 2018 has not been modified in respect of the appointment of the Election Officer by the Hon’ble Supreme Court. 23. 23. In view of the above, the present petition is required to be dismissed and the same is dismissed as no case is made out for appointment of any retired Judge of this Court in consonance with the scheme of the Trust. 24. Accordingly, the present petition is dismissed. Rule discharged. No order as to cost.