Gujarat High Court
Pavitra Harshadrai Jani vs State Of Gujarat on 20 July, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/4151/2022 ORDER DATED: 20/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4151 of 2022
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 4151 of 2022
With
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDER)
NO. 2 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 4151 of 2022
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 3 of
2022
In R/SPECIAL CRIMINAL APPLICATION NO. 4151 of 2022
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PAVITRA HARSHADRAI JANI
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR CB UPADHYAY
WITH MR YASH G PATEL(9316) for the Applicant(s) No. 1
MR SUDHIR I NANAVATI, SENIOR ADVOCATE WITH MR MRUGEN K
PUROHIT(1224) for the Respondent(s) No. 4
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR.MANAN
BHATT(6535) for the Respondent(s) No. 5,6
NOTICE SERVED for the Respondent(s) No. 2,3
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/07/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present petition has been filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following relief/s:
"8.The petitioner herein, therefore, prays that:Page 1 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022
R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 A)Your Lordships may be pleased to allow this petition;
B)Your Lordships may be pleased to issue Writ of Habeas Corpus and direct the police authorities respondent No.2 and 3 to rescue the saints, Sadhvi ( women) and Devotees (Sahishnu Diksharthis) who have been wrongfully confined at Akshar Purshottam Swami Temple, Haridham Sokhada, Vadodara and also the personal belongings of the saint that are also illegally seized;
C)Grant such other and further relief/s as deemed just and proper in the interest of justice."
2. Heard learned Senior Advocate Mr. Mihir Thakore assisted by learned advocate Mr. C. B. Upadhyay with learned advocate Mr. Yash G. Patel for the petitioner, learned Senior Advocate Mr. Sudhir I. Nanavati assisted by learned advocate Mr. Mrugen Purohit for respondent No.4, learned Senior Advocate Mr. Asim Pandya assisted by learned advocate Mr. Manan Bhatt for respondent Nos. 5 and 6 and learned APP Mr. H. K. Patel for respondent Nos. 1 to 3.
3. The petitioner has filed the present petition under Article 226 of the Constitution of India as observed hereinabove in which it has been mainly stated that one Yogi Divine Society came to be registered as a Society under the provisions of the Page 2 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 Societies Registration Act, 1860 in the year 1974. It is further submitted that from the incorporation and inception of the said Trust, Guru Shri Hariprasad Das Ji was the President, Administrator and Spiritual Head of the aforesaid Trust till his last abode on 26.07.2021. It is stated that after the death of Shri Hariprasad Das Ji in the month of July, 2021, the devotees of Haridham, Sokhada, Vadodara were residing at Akshar Purshottam Swami Temple, Haridham, Sokhada, Vadodara. It is alleged that at the given point of time, approximately 400 Sadhus, Sadhavis and Devotees of Haridham, Sokhada, Vadodara were not allowed to move out from Akshar Purshottam Swami Temple, Haridham, Sokhada, Vadodara from last four months and they have been illegally confined by three persons named in para 3.6 of the petition. The petitioner has, therefore, filed present petition alleging that the concerned private respondents have illegally confined the aforesaid persons.
4. Learned Senior Advocate Mr. Thakore has, at the outset, referred to the order dated 20.04.2022 passed by this Court in the present matter. It is submitted that this Court issued urgent notice on 20.04.2022 and thereafter matter was kept on 21.04.2022. The direction was given to the concerned police authorities as well as the District Legal Services Authority to make arrangement for production of the corpora. Learned counsel Mr. Thakore thereafter submitted that later on the corpora were produced through video conference on 21.04.2022 and therefore Page 3 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 this Court passed an order on 21.04.2022. Learned counsel has referred to the relevant observations made by this Court while passing the said order. It is submitted that by way of an interim arrangement, the corpora were permitted to stay at two different places i.e. at Nirnaynagar, Ahmedabad and Bakrol, Anand. It is further submitted that this Court has specifically directed that no interference from respondent Nos. 4 to 6 be made at either of the aforesaid places. Learned counsel, thereafter, referred to the order dated 02.05.2022 passed by this Court and contended that dispute was referred to the learned Mediator for resolving the entire dispute between the parties. It is thereafter contended that a failure report has been submitted by learned Mediator before this Court and the dispute was not settled and therefore this petition is to be heard on its own merits.
5. Learned counsel for the petitioner further submitted that though the corpora are released from the illegal custody of the concerned respondents, now the permanent arrangement is to be made for their stay at the aforesaid properties of the trust i.e. at Nirnaynagar, Ahmedabad and Bakrol, Anand. It is submitted that this Court is having inherent powers under Article 226 of the Constitution of India to pass any order in the interest of justice including the order of residence/stay at the properties of the trust. It is further submitted that 179 Sadhus, Sadhvis and Hari Bhakts were not in a position to Page 4 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 stay at Haridham, Sokhada, Vadodara and therefore looking to the safety of such persons, this Court passed interim order on 21.04.2022. It is submitted that when the mediation is failed, it is the duty of the Court to workout permanent modalities.
6. Learned counsel has placed reliance upon the following decisions:
(i) in the case of Naresh Shridhar Mirajkar v. State of Maharashtra and another, reported in AIR 1967 SC 1;
(ii) in M.V. Elisabeth and others v. Harwan Investment and Trading Pvt. Ltd., reported in 1993 Supp (2) SCC 433;
(iii) in Asian Resurfacing of Road Agency Pvt. Ltd. and another v. Central Bureau of Investigation, reported in (2018) 16 SCC 299;
(iv) in Gian Singh v. State of Punjab and another, reported in (2012) 10 SCC 303;
(v) in Prem Shankar Shukla v. Delhi Administration, reported in (1980) 3 SCC 526;
(vi) in Dinubhai Boghabhai Solanki v. State of Gujarat and others, reported in (2018) 11 SCC 129; and
(vii) in Prateek Gupta v. Shilpi Gupta and Page 5 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 others, reported in (2018) 2 SCC 309.
7. After referring to the aforesaid decisions rendered by the Hon'ble Supreme Court, it has been mainly contended that in the facts and circumstances of the present case, this Court may exercise inherent jurisdiction by giving directions to the respondents for permanent stay of 179 Sadhus, Sadhvis and Hari Bhakts at the aforesaid two places. Learned counsel, at this stage, has submitted that though the petitioner has not made any averments in the memo of the petition about the aforesaid aspect, this Court was conscious of the fact about the aforesaid aspect when this Court passed an order on 21.04.2022. Learned counsel has placed reliance upon the observations made by this Court in para 8, 9, 10 and 11 of the order dated 21.04.2022. Learned counsel Mr. Thakore, therefore, urged that this petition be allowed and appropriate direction be issued to the respondents.
8. On the other hand, learned Senior Advocate Mr. S. I. Nanavati appearing for the respondent No.4 has opposed this petition. It is submitted that respondent No.4 is the President of the trust, whereas respondent No.5 is the trustee/secretary of the trust. Respondent no.6 is not a trustee nor he is in the administration of the trust. Learned counsel has given the brief history of the trust and thereafter contended that the petitioner has prayed in the petition that the respondent police Page 6 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 authorities be directed to produce the corpora, who have been wrongfully confined at Akshar Purshottam Swami Temple, Haridham, Sokhada, Vadodara, before this Court. It is submitted that the petitioner has not prayed for any other relief in the present petition. Thus, said relief is already exhausted and now the corpora are not in illegal custody of the concerned respondents. It is further submitted that no averment is made in the petition with regard to stay of the corpora at a particular place/property of the trust and therefore in absence of any pleadings in the petition, it is not possible for the respondents to give any reply to the said contention which has been orally made during the course of hearing of this petition. It is further submitted that interim direction given by this Court is always subject to final outcome of the petition. Learned counsel would further submit that now the petitioner is insisting for deciding the personal/private rights of the concerned Sadhus, Sadhvis and Hari Bhakts in the present proceedings. Learned counsel would further contend that for enforcing the personal and/or private right of a particular person, the petitioner has to file an appropriate proceeding before an appropriate forum. However, the same cannot be decided in the present petition. Learned counsel, at this stage, has referred to the brief note submitted by the petitioner during mediation proceedings pursuant to the order dated 02.05.2022 passed by this Court. After referring to the same, it is contended that in the proposed issue placed by the Page 7 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 petitioner before the learned Mediator, there is no reference with regard to the permanent stay of Sadhus, Sadhvis and Hari Bhakts at Bakrol or at Nirnaynagar, Ahmedabad i.e. the properties of the trust and therefore it is nothing but an afterthought on the part of the petitioner. Learned counsel thereafter contended that the said 179 corpora are permitted to stay at Haridham, Sokhada, Vadodara, however, they have refused to sign the affidavit that they will follow certain norms and rules of the trust.
9. Learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Narmada Bachao Andolan and Another, reported in (2011) 7 SCC 639, and more particularly, relied on para 8 to 16 of the said decision. Learned counsel further submitted that in absence of any pleading and/or prayer made in the petition, this Court may not exercise its inherent powers, as prayed for orally by learned counsel for the petitioner.
10. Learned counsel Mr. Nanavati would thereafter submit that petitioner has not joined the trust as party respondent in the present proceedings. The other trustees are also not joined as parties and therefore the present respondent Nos. 4 to 6, in absence of the trust and the other trustees, are not in a position to give any reply with regard to permitting the corpora to stay at the aforesaid two Page 8 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 places, as orally prayed for by the petitioner. It is further submitted that the interim order dated 21.04.2022 is always subject to the final outcome of the petition. The said order was passed by this Court because the parties initially agreed for mediation and there was summer vacation from 07.05.2022 and therefore the petitioner cannot rely upon the interim order passed by this Court.
11. Learned counsel for the respondent No.4 has thereafter contended that the decisions upon which the reliance is placed by the learned counsel for the petitioner would not be applicable to the facts of the present case. Learned counsel, therefore, urged that this petition be dismissed.
12. Learned Senior Advocate Mr. Asim Pandya appearing for the respondent nos. 5 and 6 has adopted the arguments canvassed by learned counsel appearing for the respondent No.4 and further placed reliance upon Rules 380 and 381 of the Gujarat High Court Rules, 1993. It is submitted that while passing the order dated 20.04.2022, this Court has not considered the provisions contained in the aforesaid Rules and Rule Nisi was not issued at the time of giving direction to produce the corpora before this Court. It is further submitted that petitioner is insisting for the personal right of the corpora without any factual foundation. It is further submitted that there is no pleading in the memo of the petition with regard to the same. Learned counsel has submitted Page 9 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 that there is no dispute with regard to inherent jurisdiction of this Court under Article 226 of the Constitution of India to pass an appropriate order in a given case. However, in the present case, there are two fraction in the trust and in the garb of the present petition filed for issuance of a writ of habeas corpus, petitioner cannot be permitted to agitate the other issues and therefore no additional direction can be issued in the facts of the present case. Learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Mohd. Ikram Hussain v. The State of U.P. and others, reported in AIR 1964 SC 1625, and more particularly, relied on para 13 of the said decision.
13. Learned Senior Advocate Mr. Thakore appearing for the petitioner in rejoinder submitted that the facts of the decision rendered by the Hon'ble Supreme Court in the case of Narmada Bachao Andolan and Another (supra) were different and therefore this Court may not rely upon the said decision. It is submitted that petition is filed by the petitioner for the benefit of the corpora. Once again, learned counsel Mr. Thakore has referred to the relevant paragraphs of the orders dated 20.04.2022 and 21.04.2022 passed in the present proceedings. It is submitted that though at the initial stage there was no request of stay of the corpora at a particular place, in spite of that, this court has, after considering the fact of the present case, issued direction for housing of the corpora at a particular Page 10 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 place i.e. at the properties of the trust. It is submitted that if the corpora are thrown out of the aforesaid properties then it would be difficult for them to go at Haridham, Sokhada, Vadodara. Learned counsel, therefore, urged that present petition be allowed and appropriate directions be issued to the respondents.
14. Having heard learned counsel appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner has claimed himself as a resident of Haridham Sokhada and it is stated that he has rendered his services in his capacity as the personal assistant to the main Guru. It is stated that the petitioner is residing in the same campus for a period of approximately 27 years and as the concerned private respondents have illegally confined the corpora, present petition has been filed for release of the said Sadhus, Sadhvis and Hari Bhakts from the illegal confinement of respondent Nos. 4 to 6. From the relief prayed for in the petition, it is revealed that petitioner has prayed for issuance of a writ of habeas corpus with a request that respondent police authorities be directed to produce the corpora, who have been wrongly confined at Akshar Purshottam Swami Temple, Haridham, Sokhada, Vadodara, before this Court. In the order dated 20.04.2022 passed by this Court at the time of issuance of the notice in the present proceedings, this Court has specifically observed in para 4 as under:
Page 11 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 "4. Our attention is drawn to a communication dated 20.04.2022 which contemplates a meeting today evening at 5:00 p.m. It is also clarified that the petitioner was a personal secretary to the late Guru Shri Hariprasad Das Ji and has no other agenda except attempting the freedom for all those persons who have been illegally detained for the personal interest of those three who have been named in the petition. The petitioner has also further ensured that his affidavit with regard to his position as a secretary to the late Guru Shri Hariprasad Das Ji and other necessary details which speaks of his clear intention would be filed by today evening."
15. Thus, from the aforesaid observations made by this Court while issuing notice, it is clear that the petitioner has clarified that he was a personal secretary to late Guru Shri Hariprasad Das Ji and has no other agenda except attempting the freedom for all those persons who have been illegally detained for the personal interest of those three who have been named in the petition. It is pertinent to note that at the relevant point of time the petitioner did not join respondent Nos. 4 to 6 as party respondents, however, when the order was passed on 20.04.2022, by way of an amendment, respondent Nos. 4 to 6 were joined as party respondents. Thus, from the aforesaid observations made in para 4 of the order dated Page 12 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 20.04.2022, it is clear that petitioner has specifically stated before the Court that he has no other agenda except attempting the freedom of the concerned persons. This Court has gone through the averments made in the memo of the petition and there is no pleading/prayer seeking permanent arrangement for the residence of the concerned corpora at a particular place. It is pertinent to note at this stage that during the pendency of the present proceedings also the petitioner has not amended the petition nor any other relief is prayed for by way of an amendment.
16. Keeping in view the aforesaid factual aspect, if the facts of the present case are examined, it is revealed that while passing the order dated 21.04.2022, this Court has noticed that passports as well as mobile phones were retained by the concerned respondents and therefore an order was passed directing the concerned respondents to handover the passports and mobile phones of the concerned corpora to them. This Court has further observed in the order dated 21.04.2022 that presently the corpora have been left without any shelter and totally unsecured and therefore by way of an interim arrangement it was directed that the corpora shall be placed at two places i.e. at Nirnaynagar, Ahmedabad and Bakrol, Anand. Thereafter, this Court referred the dispute to learned Mediator after getting consent from the parties. However, as observed hereinabove, a failure report was submitted by the learned Mediator. The Page 13 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 said report is already placed on record.
17. Now, at this stage, for the first time, learned Senior Counsel appearing on behalf of the petitioner has insisted that interim arrangement made by this Court vide order dated 21.04.2022 be made permanent and since the corpora are residing in the Trust properties at Nirnaynagar and Bakrol, Anand, appropriate directions be issued to the concerned respondents for their permanent stay at the aforesaid places. While contending the same, learned counsel has submitted that this Court is having inherent jurisdiction under Article 226 of the Constitution of India to pass an appropriate order.
18. In support of the aforesaid submissions, learned counsel has placed reliance upon various decisions as observed hereinabove.
19. In the case of Naresh Shridhar Mirajkar (supra), the Hon'ble Supreme Court has observed in para 59 and 60 as under:
"59. We have referred to these decisions to illustrate how the jurisdiction to issue writs of certiorari has been exercised either by the High Courts under Art. 226 or by this Court under Art. 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Art. 32. We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should Page 14 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related to the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in ,one sense is inter- partes, because it was passed after hearing arguments on both the sides. In another sense, it is not inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Goda's evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the -,Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers -are who affected by the order to move this Court under Art. 327. The order, no doubt, binds the strangers; but, nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can move this Court by appeal under Art. 136 of the Constitution. Principles
-of Res judicata have been applied by this Court in dealing with petitions filed before this Court under Art. 32 in Daryao and Others v. The State of U. P. and Others(1). We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Art. 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings.Page 15 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022
R/SCR.A/4151/2022 ORDER DATED: 20/07/2022
60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Art. 215, shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No. I of 1964(2). In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument, this Court observed that in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited juris- diction, the superior Court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that "primafacie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.
* Halsbury's Laws of England, Vol.9, p.349. If the decision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by -a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ Page 16 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 jurisdiction of this Court."
19.1.In the case of M.V. Elisabeth and others (supra), the Hon'ble Supreme Court has observed in para 63, 65 and 66 as under:
"63. In tracing the history of admiralty law in India, it is likewise misleading and incorrect to confine it to statutes. Statutes have been codifications of rules of law as developed by usage, practice and custom. As stated by Westropp, C.J., of the Bombay High Court in Bardot & Anr. v. The American Ship Or Vessel `Augusta', 1873(x) Bombay High Court Reports, 110, at p. 113:-
"...If we have jurisdiction to entertain this suit, it must be sought for in the general maritime law administered by Courts of Admiralty .... we must hold it to be quite clear that the Statutes 3 & 4 Vict. c. 65 (1840), 24 Vict. c. 10 (1861), and 26 & 27 Vict. c. 24 (1863), do not increase or in any wise affect our jurisdiction either in Admiralty or Vice-
Admiralty, and that if we have jurisdiction to entertain this cause, that jurisdiction must be sought for outside those Statutes."
xxx xxx xxx 65 It is likewise within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law with all persons and things found within their jurisdiction. The power of the court is plenary and unlimited unless it is expressly or by necessary implication curtailed. Absent such curtailment of jurisdiction, all remedies which are available to the courts to administer justice are available to a claimant against a Page 17 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 foreign ship and its owner found within the jurisdiction of the concerned High Court. This power of the court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment.
66. The High Court in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. (See Naresh Shridhar Mirajkar and Ors., v. State of Maharashtra and Anr., [1966] 3 SCR 744. As stated in Halsbury's Laws of England. 4th edition, Vol. 10, para 713 :
"Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court."
19.2. The Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. and another (supra), observed in para 53, 63 and 64 as under:
"53. Also, in Ratilal Bhanji Mithani v. Assistant Collector of Customs, 1967 SCR (3) 926 at 930-931, this Court had occasion to deal with the inherent power of the High Court under Section 561-A of the Code of Criminal Procedure, 1898, which is equivalent to Section 482 of the Code of Criminal Procedure, 1973. It was held that the said Section did not confer any power, but only declared that nothing in the Code shall be deemed to limit or affect the Page 18 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 existing inherent powers of the High Court. The Court then went on to hold:
"The proviso to the article is not material and need not be read. The article enacts that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to administration of justice "shall be" the same as immediately before the commencement of the Constitution. The Constitution confirmed and re-vested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted "law" within the meaning of Art. 21 as explained in A. K. Gopalan's case (1950 SCR 88). The inherent powers of the High Court preserved by Sec. 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Art.21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were continued in force by Article 372 of the Constitution. The order of the High Court canceling the bail and depriving the appellant of his personal liberty is according to procedure established by law and is not violative of Art. 21."
xxx xxx xxx
63. According to us, despite what is stated in paragraphs 25, 29 and 32 supra, the ratio of the judgment is to be found in paragraph 38, which is an exposition of the law correctly setting out what has been held earlier in Madhu Limaye (supra). A judgment has to be read as a whole, and if there are conflicting parts, they have to be reconciled harmoniously in order to yield a result that will accord with an earlier decision of the same bench strength. Indeed, paragraph 30 of the judgment sets out a portion of paragraph Page 19 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 10 of Madhu Limaye (supra), showing that the Court was fully aware that Madhu Limaye (supra) did not approve Amar Nath (supra) without a very important caveat - and the caveat was that nothing in Section 397(2) can limit or affect the exercise of the inherent power by the High Court.
We, therefore, read paragraph 38 as the correct ratio of the said judgment not only in terms of the applicability of Section 482 of the Code of Criminal Procedure, but also in terms of how it is to be applied.
64. Insofar as petitions under Articles 226 and 227 are concerned, they form part of the basic structure of the Constitution as has been held in L. Chandra Kumar v. Union of India and others, (1997) 3 SCC 261 at 301. Here again, the judgment of a Constitution Bench in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at 714, puts it very well when it says:
"Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the Act 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters."
This aspect of Kartar Singh (supra) has been followed in Girish Kumar Suneja (supra) in paragraph 40 thereof and we respectfully concur with the same. In view of the aforesaid discussion, it is clear that the Delhi High Court judgment's conclusions in paragraph 33 (a), (b) and (d) must be set aside."
19.3.In the case of Gian Singh (supra), the Hon'ble Supreme Court observed in para 52 and 54 as under:
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52. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
xxx xxx xxx
54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.
19.4.In the case of Prem Shankar Shukla (supra), the Hon'ble Supreme Court observed in para 3 and 9 as under:
"3. A condensed statement of the facts may help concritise the legal issue argued before us. A prisoner sent a telegram to a judge of this Court (one of us) complaining of forced handcuffs on him and other prisoners, implicitly protesting against the humiliation and torture of being held in irons in public, back and forth, when, as under-trials kept in custody in the Tihar Jail, they were being taken to Delhi courts for trial of their cases. The practice persisted, bewails the petitioner, despite the court's direction not to use irons on him and this led to the telegraphic 'litany' to the Supreme Court which is the functional sentinel on the qui-vive where 'habeas' justice is in jeopardy. If iron enters the soul of law and of the enforcing agents of law-rather, if it is credibly alleged so-this court must fling aside forms of procedure and defend the complaining individual's personal liberty under Arts. 14, 19 and 21 after due investigation. Access to human justice is the essence of Art. 32, and sensitized by this dynamic perspective we have examined the facts Page 21 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 and the law and the rival versions of the petitioner and the Delhi Administration. The blurred area of 'detention jurisprudence' where considerations of prevention of escape and personhood of prisoner come into conflict, warrants fuller exploration than this isolated case necessitates and counsel on both sides (Dr. Chitale as amicus curiae, aided ably by Shri Mudgal, and Shri Sachthey for the State) have rendered brief oral assistance and presented written submissions on a wider basis. After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in Art. 5 of the Universal Declaration of Human Rights, 1948:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
And read Art. 10 of the International Covenant on Civil and Political Rights:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Of course, while these larger considerations may colour our mental process, our task cannot over flow the actual facts of the case or the norms in Part III and the Provisions in the Prisoners (Attendance in Courts) Act, 1955 (for short, the Act). All that we mean is that where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage, if within the reach of the judicial process. In this jurisdiction, the words of Justice Felix Frankfurter are a mariner's compass:
"The history of liberty has largely been the history of observance of procedural safeguards.
And, in Maneka Gandhi's case it has been stated:
'the ambit of personal liberty protected by Art. 21 is wide and comprehensive. It embraces Page 22 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 both substantive rights to personal liberty and the procedure provided for their deprivation.' Has the handcuffs device-if so, how far- procedural sanction? That is the key question.
xxx xxx xxx
9. Here is a prisoner-the petitioner-who protests against his being handcuffed routinely, publicly, vulgarly and unjustifiably in the trips to and fro between the prison house and the court house in callous contumely and invokes the writ jurisdiction of this Court under Art. 32 to protect, within the limited circumstances of his lawful custody. We must investigate the deeper issues of detainee's rights against custodial cruelty and infliction of indignity. within the human rights parameters of Part III of the Constitution, informed by the compassionate international charters and covenants. The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. No longer is this liberating writ tramelled by the traditional limits of English vintage; for, our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in America, the broader horizons of Habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates Arts. 21, 14 and l 9 enlivened by the Preamble."
19.5.In the case of Dinubhai Boghabhai Solanki (supra), the Hon'ble Supreme Court observed in para 7, 8 and 32 as under:
"7. During the trial, it transpired that most of the witnesses had turned hostile. This further prompted the complainant to approach the High Page 23 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 Court of Gujarat with an appropriate writ petition seeking certain reliefs including that of de novo trial. The parties requested that the hearings in the aforesaid criminal miscellaneous application (seeking cancellation of bail) be deferred to await the decision of the High Court. The High Court has decided the writ petition filed by the complainant vide its detailed judgment dated June 29, 2017. Allowing the said writ petition, the High Court has directed de novo trial of the case with the following specific directions:
"95. This writ application is disposed of with the following directions:
(1) The High Court on the administrative side shall pass an appropriate order transferring all the three CBI Sessions cases i.e. CBI Sessions Cases Nos. 1 of 2014, 2 of 2014 and 3 of 2014 as on date pending in the Court of the Presiding Officer, namely, Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to any other CBI Court. On all the three CBI Sessions cases referred to above being transferred to a particular Court, the Presiding Officer concerned shall retry all the accused persons on the selfsame charge framed.
(2) The prosecuting agency i.e. the CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.
(3) The retrial shall commence at the earliest and shall proceed on the day-to-day basis.
(4) The retrial shall be in-camera proceedings.
(5) The prosecuting agency i.e. the CBI as well as the State police machinery is directed to ensure that full protection is given to each of the witnesses and they be assured that no harm would befall upon them in any manner. For ensuring of a sense of confidence in the mind of the witnesses, and to ensure that they depose freely and fearlessly before the Court, the following steps shall be taken:Page 24 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022
R/SCR.A/4151/2022 ORDER DATED: 20/07/2022
(i) Ensuring safe passage for the witnesses to and from the Court precincts.
(ii) Providing security to the witnesses in their place of residence wherever considered necessary, and
(iii) Relocation of witnesses to any State or to any other place, as thought fit, wherever such a step is necessary.
Let me at this stage clarify something important. It could be argued that the directions issued by this Court amounts to directly or indirectly exerting pressure on the witnesses, but the answer to this is an emphatic 'No'. These directions are necessary and are in line of doing complete justice.
xxx xxx xxx "96. I conclude this judgment reminding one and all that justice is a concept involving the fair, moral and impartial treatment of all persons. In its most general sense, it means according individuals what they actually deserve or merit, or are in some sense entitled to. Justice is a particularly foundational concept within most systems of "Law". From the prospective of pragmatism, it is a name for a fair result. Injustice anywhere is a threat to justice everywhere."
8. Challenging that order, Mr. Solanki and few other co-accused persons have filed Special Leave Petitions bearing SLP(Criminal) No. 4965 of 2017, SLP(Criminal) No. 5086 of 2017, SLP(Criminal) No. 5309 of 2017 and SLP(Criminal) No. 5321 of 2017. The events described aforesaid indicate that the issues in these proceedings are interconnected with each other. For this reason, Criminal Miscellaneous Petition and the Special Leave Petitions have been heard together and we proceed to decide all these cases by the instant common judgment.
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32. We may hasten to add that normally such a retrial has to be ordered by the Appellate Court while dealing with the validity and correctness of the judgment of the trial court as this power is expressly conferred upon the Appellate Court by Section 386 of the Cr.P.C. However, in exceptional circumstances, such a power can be exercised by the High Court under Article 226 or by this Court under Article 32 of the Constitution of India. In fact, there are judicial precedents to this effect which have already been mentioned above. There are no shackles to the powers of the Constitutional Court under these provisions, except self- imposed restrictions laid down by Courts themselves. But for that, these powers are plenary in nature meant to do complete justice and to inhibit travesty of justice. Therefore, we are largely in agreement with the conclusion arrived at by the High Court to the effect that the present case was one of those exceptional cases where possibility of witnesses getting hostile because of inducement or threats cannot be ruled out."
19.6.The Hon'ble Supreme Court, in the case of Prateek Gupta (supra), has observed in para 32, 36 and 49 as under:
"32. The above excerpt would in no uncertain terms underscore the predication that the courts in India, within whose jurisdiction the minor has been brought "ordinarily" while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the preexisting order of the foreign court, if any, as only one of the factors and not get fixated therewith and that in either situation, be it a summary enquiry or elaborate enquiry, the welfare of the child is of preeminent and preponderant consideration, so much so that in undertaking this exercise, the courts in India are free to decline the relief of repatriation Page 26 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 of the child brought within its jurisdiction, if it is satisfied that it had settled in its new environment or that it would be exposed thereby to physical harm or otherwise, if it is placed in an intolerable or unbearable situation or environment or if the child in a given case, if matured, objects to its return.
xxx xxx xxx
36. This Court in Nithya Anand Raghavan4 also had to examine as to whether a writ of habeas corpus was available to the father qua the child which was in the custody of the mother, more particularly in the face of ex-parte order of the court in U.K. against her and directing her for its return to its native country by declaring it to remain as a ward of that court during its minority or until further orders. This Court noted that this order had remained not only unchallenged by the appellant mother but also no application had been made by her before the foreign court for its modification. This Court however was firstly of the view that this order per se did not declare the custody of the minor with the appellant mother to be unlawful or that till it returned to England, its custody with the mother had become or would be treated as unlawful inter alia for the purposes of considering a petition for issuance of writ of Hebeas Corpus. In this regard, the decision of this Court, amongst others in Syed Saleemuddin vs. Dr. Rukhsana & Ors.10, was adverted to, wherein it had been proclaimed that the principal duty of the court moved for the issuance of writ of habeas corpus in relation to the custody of a minor child is to ascertain whether such custody is unlawful or illegal and whether the welfare of the child requires, that his present custody should be changed and the child ought to be handed over to the care and custody of any (2001) 5 SCC 247 person. It was once again emphasized that while doing so, the paramount consideration must be, the welfare of the child.
xxx xxx xxx Page 27 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022
49. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well- being, the principle of comity of courts, and the doctrines of "intimate contact and closest concern" notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attentuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its Page 28 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 fold.
20. From the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that this Court is having inherent powers under Article 226 of the Constitution of India to pass an appropriate order in the facts of a particular case to secure the ends of justice. We cannot dispute the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decisions, however, the said decisions are not applicable to the facts of this case.
20.1.At this stage, the decision rendered by the Hon'ble Supreme Court in the case of Narmada Bachao Andolan and Another (supra) is also required to be kept in view, wherein, the Hon'ble Supreme Court has observed in para 8 to 16 as under:
"8. It is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas.
9. In Bharat Singh & Ors. v. State of Haryana & Ors., AIR 1988 SC 2181, this Court has observed as under:-
"13.......In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support Page 29 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." (Emphasis added) A similar view has been reiterated by this Court in Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors., AIR 1998 SC 1608; M/s Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684; and Rajasthan Pradesh V.S. Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SC 2221.
10. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties.
11. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. (Vide: Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter-College & Ors., AIR 1987 SC 1242;Page 30 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022
R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
12. It cannot be said that the rules of procedural law do not apply in PIL. The caution is always added that every technicality in the procedural law is not available as a defence in such proceedings when a matter of grave public importance is for consideration before the Court. (Vide: Rural Litigation and Entitlement Kendera v. State of U.P., AIR 1988 SC 2187).
13. Strict rules of pleading may not apply in PIL, however, there must be sufficient material in the petition on the basis of which Court may proceed. The PIL litigant has to lay a factual foundation for his averments on the basis of which such a person claims the reliefs. The information furnished by him should not be vague and indefinite. Proper pleadings are necessary to meet the requirements of the principles of natural justice. Even in PIL, the litigant cannot approach the Court to have a fishing or roving enquiry. He cannot claim to have a chance to establish his claim. However, the technicalities of the rules of pleading cannot be made applicable vigorously. Pleadings prepared by a layman must be construed generously as he lacks standard of accuracy and precision particularly when a legal wrong is caused to a determinate class. (Vide: A. Hamsaveni & Ors. v. State of Tamil Nadu & Anr., (1994) 6 SCC 51; Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 280; Prabir Kumar Das v. State of Orissa & Ors., (2005) 13 SCC 452; and A. Abdul Farook v. Municipal Council, Perambalur, (2009) 15 SCC
351).
14. In the instant case, in the writ petition, an impression had been given, that some drastic steps would be taken by the authorities which would cause great hardship to a large number of persons. However, the writ petition did not disclose the factum of how many persons had already vacated their houses and handed over the possession of their land. It was contended that urgent measures were required to be taken by the Court in order to mitigate the sufferings of the people. In view of the fact that there was no Page 31 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 material before the Court to adjudicate upon the issues involved therein, the High Court passed the order dated 30.3.2007 directing the GRA to submit the report on the rehabilitation work already done and still to be done; and to disclose the consequences of the closure of radial gates of the dam and blocking of the sluice gate of the dam on the people residing in the area which would be submerged.
15. In pursuance of the said order, the GRA submitted the report dated 7.4.2007, explaining that a huge amount of several thousand crores of rupees had already been invested. The SRG had already been disbursed. Out of a total number of 4513 families to be adversely affected by the project, 2787 families had already shifted and 1726 families remained there. An amount of Rs.9924 lacs had already been disbursed among the claimants and only a sum of Rs.589 lacs remained to be disbursed. The report further explained that land in lieu of land acquired would be allotted to oustees "as far as possible" and as most of the oustees had accepted the compensation, it was not required on the part of the State to allot the land for land acquired.
The other benefits of the R & R Policy had already been given. In fact, it is in view of this report, the High Court started examining the grievances of the oustees. Several reports were submitted by the GRA before the High Court from time to time and whatever has been disclosed in those reports provided the basis for raising further queries and that, in fact, became part of pleadings of the case. In fact, the present appellants had been asked to lay factual foundation to adjudicate the issues raised by the writ petitioners.
16. In view of the above, it is evident that there were no pleadings before the High Court on the basis of which the writ petition could be entertained/decided. Thus, it was liable to be rejected at the threshold for the reason that the writ petition suffered for want of proper pleadings and material to substantiate the averments/allegations contained therein. Even in Page 32 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 the case of a PIL, such a course could not be available to the writ petitioners.
21. From the aforesaid observations made by the Hon'ble Supreme Court, it would be clear that a party has to plead his case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. It is further held by the Hon'ble Supreme Court that it is settled legal proposition that, as a rule, relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties.
22. In the present case, as discussed hereinabove, there is no pleading in the petition with regard to permanent stay of the corpora at a particular place. The petitioner has also not prayed for any relief for the said purpose even by way of amending the petition. It is pertinent to note that the proceedings are pending since April, 2022 and the corpora were produced before this Court after issuance of the notice on the very next day i.e. on 21.04.2022 and during the interregnum period from April 21, 2022 till today, the petitioner has not cared to amend the prayer and to make appropriate pleading in the petition. Thus, in absence of any pleadings or relief prayed for in the petition, the learned counsels appearing for the respondents are right in contending that it was difficult for the Page 33 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 private respondents to give any reply.
23. It is further pertinent to note that the concerned Trust is also not joined as party respondent in the present proceedings nor the other trustees of the Trust are joined as respondents. Therefore, in absence of the Trust, it is not permissible for this Court even to pass any order against the Trust. At this stage, it is pertinent to note that the petitioner is trying to canvass the private or personal right of the corpora for their stay at a particular place. However, such dispute cannot be entertained in the present petition filed under Article 226 of the Constitution of India, wherein the petitioner has prayed to issue a writ of habeas corpus. However, it is always open for the petitioner to file an appropriate proceeding before an appropriate forum.
23.1.The Hon'ble Supreme Court, in the case of Mohd. Ikram Hussain (supra), observed in para 13 as under:
"13. Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under S. 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the Page 34 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ."
24. It is also required to be noted that while passing the order dated 21.04.2022, this Court has specifically observed that by way of interim arrangement the corpora were permitted to stay at two places as observed hereinabove. Such interim arrangement is always subject to final outcome of the petition and it is not proper on the part of the petitioner to contend that the said interim arrangement is to be made permanent. It is pertinent to note that the petitioner has also not made any submission with regard to the same while submitting the note before the learned Mediator. We have gone through the brief note for mediation process submitted by the petitioner before the learned Mediator and there is no reference with regard to the aforesaid aspect in the said note. Thus, interim arrangement for stay/residence of the corpora at two places made vide order dated 21.04.2022 cannot be continued once this petition is disposed of.
25. Thus, in the facts and circumstances of the present case, when the petitioner himself has declared before this Court at the time of issuance of notice on 20.04.2022 that he has no other agenda except attempting the freedom of all those persons, who have been illegally detained for the personal Page 35 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 interest of the concerned private party and while filing further affidavit as per the aforesaid order, the petitioner has once again stated in his additional affidavit that he has approached this Court for release of all these religious persons from illegal confinement of respondent nos. 4, 5 and 6. Thus, in the facts and circumstances of the present case as discussed hereinabove, this Court is of the view that though this Court is having inherent jurisdiction/powers under Article 226 of the Constitution of India to pass an appropriate order, the present is not such a case where this Court would like to exercise such powers under Article 226 of the Constitution of India in absence of any pleading and/ or relief prayed for in the petition. Accordingly, we are not inclined to entertain the oral request made by the learned counsel appearing for the petitioner. It is pertinent to note that the relief prayed for in the petition is already exhausted and the corpora are not in alleged illegal confinement of the concerned respondents.
26. It is once again clarified that it is always open for the parties to file appropriate proceedings before appropriate forum for enforcement of their personal/private right.
27. At this stage, learned counsel appearing for the petitioner, under the instructions, submitted that the petitioner and/or corpora have already filed Special Civil Suit before the concerned Civil Court Page 36 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022 R/SCR.A/4151/2022 ORDER DATED: 20/07/2022 in which the concerned persons have prayed that they may not be removed without due procedure of law. Thus, once the concerned persons have already filed a Civil Suit before the competent Civil Court, we are not inclined to entertain the oral request made by learned counsel appearing for the petitioner. It is open for the concerned Civil Court to pass an appropriate order in accordance with law without being influenced by any of the observations made in the present order.
28. In view of the aforesaid discussion, the petition stands disposed of. In view of disposal of the main petition, no further order is required to be passed in connected civil applications and accordingly the same stand disposed of.
29. Learned advocate Mr. Upadhyay for the petitioner, at this stage, requested that this order be stayed for a couple of weeks so that the petitioner can approach before the higher forum. However, in view of the discussion made hereinabove, we are not inclined to entertain the request made by learned counsel appearing for the petitioner.
(VIPUL M. PANCHOLI, J) (SANDEEP N. BHATT,J) LAVKUMAR J JANI Page 37 of 37 Downloaded on : Mon Jul 25 21:16:39 IST 2022