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[Cites 16, Cited by 0]

Gujarat High Court

Amish Sureshchandra Desai vs Sadhu Shri Premswaroopdasji on 21 February, 2023

Author: Biren Vaishnav

Bench: Biren Vaishnav

     C/SCA/2749/2023                             JUDGMENT DATED: 21/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2749 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-

==========================================================

1      Whether Reporters of Local Papers may be allowed                No
       to see the judgment ?

2      To be referred to the Reporter or not ?                         Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                        AMISH SURESHCHANDRA DESAI
                                   Versus
                       SADHU SHRI PREMSWAROOPDASJI
==========================================================
Appearance:

MR MIHIR THAKORE, SR COUNSEL with MR PERCY KAVINA, SR
COUNSEL assisted by MR C. B. UPADHYAYA and MR YASH G PATEL(9316)
for the Petitioner(s) No. 1,2

MR ROHAN SHAH, AGP for the Respondent(s) No.9

MR S.I. NANAVATI, SR COUNSEL assisted by MR MRUGEN K
PUROHIT(1224) for the Respondent(s) No. 1,3,4,5,6,7,8
==========================================================
     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                    Date : 21/02/2023
                    ORAL JUDGMENT

1. Rule returnable forthwith. Respective learned advocates Page 1 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 waive service of notice of Rule for and on behalf of the concerned respondents.

2. In this petition, under Articles 226 and 227 of the Constitution of the India, the petitioners have challenged the order dated 08.02.2023 below Exh.5 in Judicial Misc. Application No.60 of 2022. The order was passed by the Joint Charity Commissioner, Vadodara.

3. The facts in brief indicate that the petitioner nos.1 and 2 are Sahishnus and have renounced their world for the purpose of following the path of Swaminarayan under the able guidance of Sadhu Shri Hariprasad Dasji.

* The petitioners' case is that they have been Page 2 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 residing at Haridham, Sokhda, Aksharpurshottam Temple which was the main place of abode for the founder of the trust Shri Hariprasad Dasji.

* An application under the provisions of Section 41(A) of Gujarat Public Trust Act, 1950 (for short, hereinafter referred to as `the Act') was filed by the petitioners. It was their case that the respondents are trustees of two trusts namely; Yogi Divine Society and Shri Hari Ashram Trust. The basic motto of these trusts was to impart education and spread religion amongst the society and the applicants have approached the Joint Charity Commissioner with a prayer that the Joint Charity Commissioner be pleased to declare that the Sadhus and Sadhvijis are an integral part of the trust and are entitled to have a place of residence at any property owned by the Page 3 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 trust. An application with a similar prayer with interim relief was prayed for. By the impugned order, dated 8.2.2023, the application Exh.5 of the petitioners came to be rejected.

4. Mr. Mihir Thakore, learned Senior Counsel and Mr. Percy Kavina, learned Senior Counsel assisted by Mr. C. B. Upadhyaya, learned advocate have appeared for the petitioners. They made the following submissions.

* Mr. Mihir Thakore, learned Senior Counsel would invite the Court's attention to the application filed u/s.41(A) of the Act and submit that the applicants are the disciples of late Shri Sadhu Hariprasad Dasji who left for heavenly abode on 26.7.2021. The applicants renounced the world to Page 4 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 stay with the main Guru and undertake all the activities such as trading of religion, imparting education and other social activities. Having renounced the world and completely having submitted to promoting the religion they cannot go back to their families. It was in this context that the prayer was made in the application that they are entitled to a place of residence at any property owned by the trust.

* Mr. Mihir Thakore, learned Senior Counsel would further invite the attention of the Court to the trust deed of the Yogi Divine Trust and that of Hari Ashram Trust, Sokhda. He would submit that reading the objects of the trust would indicate that it has been established for the purpose of setting up and organize educational institution with technical base. A special Page 5 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 emphasise was made by Shri Thakore on the objects which provide that that the society would make known to the neighbours and people in general, the aims and ideals of life, the system of Yoga of totally secular nature and also to start and run bhojnalayas for Sadhus and devotees.

* Mr. Mihir Thakore, learned Senior Counsel would submit that having renounced the world and having surrendered themselves to propagate and promote the objectives as narrated hereinabove and also when the settler of the Swaminarayan Sampraday was desirous of establishing, maintaining and aiding temples, bhojnalayas for Sadhus and Satsangees, right of a residence in the properties of the trust of which they were an integral part was a matter directly connected with the administration of Page 6 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 the trust.

* Mr. Mihir Thakore, learned Senior Counsel would invite the Court's attention, briefly, to the controversy with regard to the litigation pending with regard to the change report filed by the respondent No.1 based on which he claimed to be the President of the trust. He would submit that appeals against such change reports are pending.

* Mr. Mihir Thakore, learned Senior Counsel would submit that approximately 170 saints, sadhvis and devotees were illegally confined at Aksharpurshottam Swami Temple, Haridham, Sokhda, Vadodara. The Secretary of the erstwhile President was constrained to file a Habeas Corpus petition before this Court. It was their case before Page 7 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 this Court in the Habeas Corpus petition that they were not allowed to move out of the temple premises and their passports, cell phones etc were confiscated.

On 20.4.2022, the Division Bench of this Court was constrained to pass orders issuing notice and issued certain directions to arrange for presenting of the Corpora through Video Conferencing. He would invite the Court's attention to the orders passed on 21.4.2022 indicating the narration of sufferings set out by the Court in para 7 of the order and submit that it was their case that they appear to have been presently left out without any shelter and totally unsecured. The Division Bench observing as such made interim arrangements that the Sadhvis and the Women Sadhaks be taken to Nirnaynagar, Ahmedabad for their residence and the saints be accommodated at Bakrol, District Anand.

Page 8 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023

C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 * Inviting to the observations made by the Court in the order dated 20.7.2022 passed in Special Criminal Application No.4151 of 2022, Mr. Mihir Thakore, learned Senior Counsel would submit that mediation efforts were undertaken by appointing a Mediator i.e. Hon'ble Mr. Justice M.S. Shah (the then Chief Justice of the Bombay High Court). The mediation failed and therefore the petitioners had to insist that the interim arrangement be made final.

The Division Bench of this Court did not entertain the petition observing that the petitioners were trying to canvass a private right for which a suit was filed.

* Immediately therefore, the petitioners on behalf of approximately 130 Sadhus and Sahishnus and Sevaks who were lodged at the two places moved the Page 9 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 present application u/s.41(A) of the Act.

* Inviting the Court's attention to the impugned order, Mr. Mihir Thakore, learned Senior Counsel would submit that having agreed that the petitioners were persons interested were "aggrieved persons,"

the Joint Charity Commissioner committed an error in observing that suits were pending at the Anand and Ahmedabad Courts. The Joint Charity Commissioner further observed that the application u/s.41(A) for the reliefs which were not connected with Administration of the Trust but with personal rights was not maintainable. These observations in Mr. Thakor's submission while rejecting application Exh.5 was contrary to the intention and purpose of the provisions of section 41(A) of the Act. He would submit that having renounced their world, occupation Page 10 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 of premises within the precincts of the trust with a view to promote the objects of the trust, was connected with the proper administration as it was the bounden duty of the trust to take care of the Sadhus and Sadhvis and, therefore, in exercise of powers u/s.41(A) of the Act, it was within the powers of the Joint Charity Commissioner to issue directions as prayed for.
* Mr. Mihir Thakore, learned Senior Counsel would invite the Court's attention to the judgment of the Division Bench of this Court reported in 2016(1) GLR, 242 in the case of Pavankumar Jain v.
Priyvadan Ambalal Patel. Inviting the Court's attention to the relevant paragraphs of the judgment, he would submit that considering the scheme of the Trust Act, restricted meaning cannot be given to the Page 11 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 provisions of section 41(A) of the Act so as to narrow the scope thereof to contingencies governed by Sections 32 to 41 of the Act.
* Mr. Mihir Thakore, learned Senior Counsel would rely on a decision in the case of Navsari Taluka Halapati Shikshan Prachar Sangh v. Joint Charity Commissioner in LPA No.2/2004 dated 12.1.2004. He would submit that taking into account the decision of this Court in the case of Syedna Mohamed Burhanuddin v. Charity Commissioner reported in 1992(1) GLH, 331, the Division Bench of this Court had opined that the power that can be exercised u/s.41(A) need not be confined only to the provisions of Sections 32 to 41 of the Act.
* Mr. Mihir Thakore, learned Senior Counsel Page 12 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 drew the Court's attention to the definition of the term `person having interest' in section 2(10) of the Act and submit that on reading the trust deed and the objects thereunder what is evident is that the entire body of the trust exists as a result of the present Sadhus, Sadhvis and Sahishnus and, therefore the Joint Charity Commissioner ought to have pass orders protecting their residence.
5. Mr. P. C. Kavina, learned Senior Counsel joining in these submissions would submit that the followers, the applicants are subsumed in the trust by renouncing the world and identity therefore is clearly that of the trust and it is the job of the Joint Charity Commissioner therefore to have protected the rights.
6. Mr. S.I. Nanavati, learned Senior Counsel assisted by Page 13 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Mr. Mrugen Purohit, learned advocate for the respondent Nos.1 and 3 to 8 would briefly refer to the customs of the Swaminarayan sect and submit that the whole bogey of the applicants that they are in illegal confinement and that their passports and mobiles have been confiscated cannot be believed.
Once a Sadhu, Sadhvi or a Sahishnu adopts to follow the path of Swaminarayan religion he / she is expected to disown gadgets such as mobiles.
* Mr. S. I. Nanavati, learned Senior Counsel would submit that after the death of Shri Hariprasad Dasji, there was a leadership change as a result of which, the respondent No.1 Sadhu Shri Premswaroopdasji was the President. At the residence which was at Haridham Sokhda, certain norms needed to be followed.
Page 14 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 * Mr. S.I. Nanavati, learned Senior Counsel would invite the Court's attention to the order, first in line in the Habeas Corpus petition, wherein, a petition was moved by the petitioners therein as a Personal Secretary to the late Guru with no other agenda except attaining the freedom for all those persons who were, according to the petitioners were illegally detained.
* Inviting the Court's attention to the memo of the application for stay filed before the Joint Charity Commissioner, Mr. S.I. Nanavati, learned Senior Counsel would submit that the application was filed by the two applicants in their representative capacity.
These very applicants had filed two Civil Suits, one before the Anand Court and the other before the Page 15 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Ahmedabad Court for a declaration and protection of their personal rights. The Exh.5 applications have been pending for over four months and no attempt to have them heard has been made by the petitioners or the plaintiffs of the suit whom the petitioners represent. In fact, the Exh.5 application was listed before the Anand Court in the very recent past and it was adjourned at the behest of the plaintiff.
* With regard to the nature and scope of inquiry under the provisions of Section 41(A), Mr. S.I. Nanavati, learned Senior Counsel would invite the Court's attention to decision in the case of Syedna Mohamed Burhanuddin the 52 nd Dai-ul-Mutlaq and Head of the Dawoodi Bohra Community v.
Charity Commissioner, Gujarat State, Ahmedabad reported in 1992(1) GLH, 331. He Page 16 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 would invite the Court's attention to para 41 of the judgment to indicate that the Court specifically held that the nature of directions that can be contemplated by section 41(A) would indicate that they were purely administrative in nature. These powers cannot be used for adjudication of any controversy, dispute or lis. In the facts of the present case, no error was committed by the Joint Charity Commissioner in keeping her hands off, inasmuch as, Civil Suits for Declaration were pending where it would have to be adjudicated by leading evidence.
* Mr. S.I. Nanavati, learned Senior Counsel would thereafter inviting the Court's attention in the case of Navsari Taluka Halapati Shikshan Prachar Sangh (Supra) would submit that that in the facts of the case, powers were exercised and as observed by Page 17 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 the Division Bench which were in direct relation to the administration of the trust.
* Inviting the Court's attention to the decision of this Court in the case Devkrushnadasji Guru Dharmadasji and others v. The State of Gujarat reported in 2008(1) GLH, 427, Mr. S.I. Nanavati, learned Senior Counsel would submit that when a dispute involves an inquiry and an adjudication, as was the case on hand before the Court, when evidence had to be led, the Court had opined that that the remedy u/s.41(A) could not be resorted to.
* Mr. S.I. Nanavati, learned Senior Counsel would also rely on the decision in the case of Navinchandra Jasani v. Pravinchandra Jasani reported in 2003(1) GLR, 391, wherein, the Court Page 18 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 had once again, reiterating the principles governing section 41(A) had held on similar lines.
* As far as the case of the Division Bench in the case of Pavankumar Jain (Supra) was concerned, he would submit that though the Division Bench had opined that there can be no restricted meaning of Section 41(A), however, according to Mr. Nanavati exercise of powers u/s.41(A) have to be for the purposes as set out in paragraph no.10 of the decision and cannot be used for adjudicatory purposes, as was sought to be requested by the applicants especially when their civil suits were pending.
* Mr. S.I. Nanavati, learned Senior Counsel would rely on a decision in the case of Page 19 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Dhansukhbhai Laalubhai Patel v. Nitinbhai Gunvantbhai Patel reported in 2018 (0) Supreme(GUJ), 690, para 11 of the decision to indicate that the view of the Division Bench the parameters for deciding the controversy u/s.41(A) were set out and could be used only for issuing a direction such as one for maintaining proper accounts, administration as a trust etc. * Mr. S.I. Nanavati, learned Senior Counsel would also rely on a decision in the case of Kantilal Manibhai Patel v. Ranchhodbhai Morabhai Patel reported in 2018(1) GLR, 132 to submit that the Joint Charity Commissioner may have pervasive powers u/s.41(A) of the Act but these powers are essentially designed to regulate administration of the trust.
Page 20 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023
7. Mr. Rohan Shah, learned AGP for the respondent -
State would support the order of the Joint Charity Commissioner and state that author of the order has acted within the bounds of section 41(A) of the Act.
8. Having considered the submissions of the learned advocates for the respective parties, the question that needs to be considered is whether it is open for the Joint Charity Commissioner to pass the order that she has.
9. The case of the petitioners before the Joint Charity Commissioner was that they were disciples of late Shri Sadhu Hariprasad Dasji, who was the founder of Yogi Divine Society at Sokhda and various other trusts. It was their case that that they were accepted Page 21 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 as disciples and had renounced the world to stay with the main Guru and undertake activities such as spreading of religion and imparting education, and as one of the objects highlighted to make known to the members, the system of Yoga, to run Bhojnalayas etc. It is their case that therefore, they have to stay at isolated places from the society.
10. Perusal of the application indicates that it was their case that with a view to usurp the trust properties and gain control of the trust, the Sadhus, Sadhvis and the Sahishnus were illegally detained at Haridham Sokhda.
11. Reading the prayer in this context would indicate that it was the case of the petitioners place of residence given to them is the property of the trust Page 22 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 and they being integral part of the trust are entitled to protection of their residence.
12. In that context, the provisions of section 41(A) of the Act reads as under:
"41A. Power to Charity Commissioner to issue directions to trustees and other persons. -
(1) Subject to the provisions of this Act, the Charity Commissioner may, from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust.
(2) It shall be the duty of every trustee or of such person to comply with the directions issued to him under sub-section (1)."

13. Reading section 41(A) indicates that that the Joint Charity Commissioner can issue directions to any Page 23 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 trustees of a Public Trust or any person connected therewith to ensure that the property of the trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and the purposes of the trust.

14. It is in light of this provision, that the case law cited by the counsel for the respective parties needs to be considered.

* In the case of Syedna Mohamed Burhanuddin (Supra), a head priest of Dawoodi Bohra Community called Dai-ul-Mutlaq is the sole trustee of the trust and has exclusive rights to manage and administer the trust. The facts of the case indicates that Gallas, (Iron Safes) where offerings are deposited were kept at various places and they were Page 24 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 opened at the directions of the head-priest to check the collections and keep accounts. The Joint Charity Commissioner, based on several complaints in connection with the collections issued certain directions. The directions included sealing of Gallas etc. The case of the petitioners was that the details of the offerings were matters relating to religion and therefore the Joint Charity Commissioner could not interfere with the sole discretion of the head-priest.

In this context, one needs to reproduce paragraph 41 of the judgment which reads as under:

"41. So far as the nature of directions, contemplated by section 41A is concerned, on analyzing its contents and comparing them with the provisions of Sections 32 to 41 of the said Act, we have little doubt in our mind that they are administrative in character. They are intended to be issued for better and more efficient administration of a public trust. No question of adjudication of any controversy, dispute or lis arises thereunder. The object of section Page 25 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 41A, as discussed earlier, is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the said Act. Under these circumstances, since they are not quasi judicial directions, the question of complying with principles of Natural Justice does not arise. We, therefore, cannot infer compulsion to hear a trustee before directions are issued to him under section 41A as in the cases of quasi- judicial matters."

15. The Court opined that so far as the nature of directions contemplated by section 41(A) is concerned, they are administrative in nature. They are intended to be issued for better and more efficient administration of a Public Trust. No question of adjudication of any controversy, dispute or lis arises thereunder.

16. A coordinate bench of this Court, in the case of Navinchandra Jasani (Supra) was considering a case of the trustees of Shri Veraval Dasshrimali Page 26 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Vanik Gnati Trust. Applications were filed by some families contending that though they were required to be staying outside the city for professional purposes, they had applied for becoming members of the trust.

The applications were so made. The memberships were denied. While discussing the jurisdiction of a Joint Commissioner u/s.41(A) in context of restraining the trustees from using properties and for a direction to admit them as members considering the decisions in the case of Syedna Mohamed Burhanuddin (Supra), the Court held that whether the original applicants before the Charity Commissioner were staying at Veraval or not was the dispute which had to be adjudicated. In paras 5 and 6 of the decision, the Court held as under:

"5. Before I consider the alternative contention of Mr. Nanavati regarding the merits of the case, it is necessary to examine the first Page 27 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 contention of Mr. Nanavati on the question of jurisdiction of Jt. Charity Commissioner under Section 41A of the Act. In case of Syedna Mohamed Burhanuddin v. Charity Commissioner, Gujarat State and Ors. (supra), the Division Bench of this Court, after taking into consideration the provisions of Section 69 of the Act while construing Section 41A of the Act, has observed as under:
"A quick glance at these provisions to which all religious trust are subject makes it clear beyond any doubt that the three matters which Section 41A provide for - (a) proper administration of a public trust, (b) proper accounting of its income and (c) due appropriation and application of the income to the objects and for the purposes of the trust are abbreviated expressions of those very matters which Sections 32 to 41 provide for. The only purpose which, therefore, Section 41A serves is to issue directions in respect of matters falling under Sections 32 to 41. It is therefore, merely an enabling and ancillary provision intended to make the implementation and enforcement of the provisions of Sections 32 to 41 more effectively."

However, the Division Bench at Para 41 has observed as under :

Page 28 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 "So far as the nature of directions contemplated by Section 41A is concerned, on analysing its contents and comparing them with the provisions of Sections 32 to 41 of the Act, there is little doubt that they are administrative in character. They are intended to be issued for better and more efficient administration of a public trust. No question of adjudication of any controversy, dispute or lis arises thereunder. The object of Section 41A is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the Act. Since they are not quasi-judicial directions, the question of complying with principles of natural justice does not arise."
Further, at Para 42, the Division Bench has observed as under :
"A general direction which may be necessary to be issued to all public trusts will not ordinarily be left to the desertion of the Charity Commissioner. Its very nature will require it to be made the subject-matter of a statutory rule under the said Act. Issuance of such a direction can hardly be left to the human weakness of the Charity Commissioner. Section 41A contemplates cases of individual Page 29 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 trusts which may be suffering on account of the human weaknesses or lapses of the trustees. Section 41A is to be brought into play where some exceptional, unforeseen, unexpected or peculiar situation has arisen in the administration of a public trust which is required to be cured by a remedial direction or where circumstances have arisen foreboding such a situation which requires a preventive measure in the form of a direction."

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 Page 30 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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."

17. Reading para 6 indicates that in the opinion of the Court an inquiry needs to be held for such purposes, therefore it would not fall within the parameters of section 41(A) of the Act as the Joint Charity Commissioner will be entitled to exercise the powers u/s.41(A) in respect to the items which are specified u/ss.32 to 41 of the Act. The Court therefore held that the order of the Joint Charity Commissioner was Page 31 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 without jurisdiction which had directed the application of the trustees be allowed and they be directed to be registered as trustees.

18. Both the learned senior advocates appearing for the respective parties have extensively relied on the Division Bench decision in the case of Pavankumar Jain (Supra). The contention of the learned advocate for the petitioners was that in light of this judgment, there could not be restrictive reading of Section 41(A). Mr. Nanavati, learned senior counsel for the respondents would have reservation on this submission and would submit that there is no diversion from the view that this Court took in the decision of Syedna Mohamed Burhanuddin (Supra).

19. Reading of the relevant paragraphs of Pavankumar Page 32 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Jain (Supra) indicate that though the Division Bench opined that there is no absolute proposition of law laid down by the Division Bench in the said decision, in paragraph nos.8, 8.1, 8.2, 10, 11 and 12, the Court held as under:

"8.0. It cannot be disputed that the administration and management of the Trust can always be as per the provisions contained in the Trust Deed and in accordance with provisions of the Act and Rules. Therefore, considering the provision of Section 41 A of the Trust Act whenever it is found by the Charity Commissioner that the Trust and / or its Trustees are not managing the affairs of the Trust as per the provision contained in Trust Deed and / or as per the provisions of the Act and Rules, the Charity Commissioner can in exercise of powers under Section 41 A of the Act issue direction for appropriate administration and management of the Trust. However, it is the case of the appellants relying upon the decision of the Division Bench of this Court in the case of Syedna Mohamed Burhanuddin (supra) that even while exercising the powers under Section 41 A of the Trust Act, the Charity Commissioner can issue Page 33 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 direction only in respect of the matter falling under Sections 32 to 41 of the Trust Act. However, considering the aforesaid decision of the Division Bench in detail and the observations made by the Division Bench with respect to question posed before the Division Bench in the case of Syedna Mohamed Burhanuddin (supra), we are of the opinion that as such there is no absolute proposition of law laid down by the Division Bench in the said decision that in exercise of powers conferred under Section 41 A of the Trust Act, the Charity Commissioner can issue the direction in respect of the matters falling under Sections 32 to 41 of the Trust Act only. In the case before the Division Bench while challenging the certain directions issued by the Charity Commissioner, Gujarat State, under Section 41 A of the Trust Act, vires of Section 41 A of the Trust Act also were challenged on the ground that it violates Articles 25 and 26 of the Constitution of India. Before the Division Bench the petitioner challenged the constitutional validity of Section 41 A of the Trust Act mainly on the following grounds / contentions:
(1). Section 41 A of the Bombay Trusts Act, 1950, in so far as it applies to trusts of religious denominations, is ultra vires 25 and 26 of the Constitution.
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C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 (2). Section 41 A is not ultra vires Arts. 25 and 26, the impugned directions are wholly beyond the purview of Section 41A and are in conflict with Arts. 25 and 26.

(3). Such directions cannot be issued without hearing the party affected thereby either on the ground of principles of Natural Justice if they are quasi judicial or on the ground of principles of Fair Play if they are purely executive or administrative in character. While dealing with the aforesaid contentions, the this Court also noted / considered subsection (1) of Section 41 A of the Trust Act and firstly observed that subsection (1) of Section 41 A of the Trust Act empowers the Charity Commissioner to issue direction only for the following purpose and no others.

(A) Proper administration of a public trust (B) Proper accounting of its income (C) Due appropriation and application of the income to the objects and for the purpose of trust.

While dealing with the contention on behalf of the petitioners that Section 41 A of the Trust Act impinge upon any fundamental right of a person or religious denomination and is suffers from constitutional infirmity, the Court observed Page 35 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 that Section 41 A of the Trust Act is merely enabling and ancillary provision intended to make implementation and enforcement of provisions of Sections 32 to 41 more effective. It is to be noted that There was no controversy before the Division Bench that whether the powers of the Charity Commissioner to issue direction shall confine in respect of matters falling under Sections 32 to 41 only. It will be misreading of decision of the Division Bench if it is read like that. On the contrary, in the aforesaid decision, it is further observed that by enacting Section 41 A, the Legislature has not introduced any new principle which is not there elsewhere but has merely filled in the lacuna for effective implementation of the provision of Act.

8.1. Even it could not have been the intention of the Legislature to restrict the powers of the Charity Commissioner while issuing the direction under Section 41 A of the Trust Act in respect of matters under Sections 32 to 41 of the Act only. If the legislature had intended to restrict the exercise of the Charity Commissioner's powers under Section 41A to only matters contained in Sections 3241, there was absolutely no reason for the Legislature to have provided under Section 41A the categories of situations under which the powers Page 36 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 can be exercised. The fact that Section 41 A enumerates the situations in which powers can be exercised i.e. to ensure that such Trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the Trust, itself shows that Section 41A is a provision that stands by itself and that directions can be given under Section 41A as long the same are given for the matters specified in the said provision i.e in Section 41A. If such a restrictive meaning as sought to be contended on behalf of the appellants is accepted, it will negate that part of the Section 41 A which confers power upon Charity Commissioner to issue direction from time to time, to ensure that such trust is properly administered, however subject to provision of the Trust Act. The presence of the words "Subject to other provisions of this Act, the Charity Commissioner may issue..." can only mean that the Charity Commissioner cannot issue directions that may violate or run contrary to some other provision of the Act and can never mean that Section 41A is restricted to the matters contained in Sections 3241 only.

8.2. As observed herein above, there was no controversy before the Division Bench in the aforesaid decision that whether the powers of the Charity Commissioner to Page 37 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 issue direction under Section 41 A of the Trust Act, shall be restricted to matters in respect of Sections 32 to 41 only.

Therefore, if the judgment of the Division Bench in the case of Syedna Mohamed Burhanuddin (supra) if read as a whole and its true prospective, as such it does not hold that Section 41 A is restricted to Sections 32 to 41 only. As such, in the aforesaid decision, the Division Bench has not restricted the powers under Section 41 A of the Trust Act to the matters contained in Sections 32 to 41 of the Trust Act only. As per the catena of decision of the Hon'ble Supreme Court, more particularly in the case of Zee Telefilms Limited v. Union of India reported in AIR 2005 SC 2677 ((para 275-

278)); in the case of Natural Resources Allocation, In Re Special Reference No. 1 of 2012, reported in (2012) 10 SCC 1 (para

73) and in the case of Mehboob Dawood Shaikh v. State of Maharashtra reported in (2004) 2 SCC 362 (para 12), a judgment is to be read as a whole and that it is not a precedent for a question that was not before the Court. Under the circumstances and for the reasons stated above, we are of the opinion that the Division Bench in the case of Syedna Mohamed Burhanuddin (supra) does not hold that powers conferred under Section 41 A of the Trust Act to issue direction by the Charity Commissioner is restricted to Sections 32 Page 38 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 to 41 of the Trust Act only.

10. For the reasons stated above and considering the scheme of the Trust Act and object and purpose for which Section 41 A of the Trust Act is enacted, restricted meaning as canvassed on behalf of the appellant that in exercise of powers under Section 41 A of the Trust Act, the Charity Commissioner can issue the directions only in respect of the matters under Sections 32 to 41 of the Act cannot be accepted. As observed herein above, the Legislature has never intended to confer such narrow powers to the Charity Commissioner. The Charity Commissioner can issue the directions in exercise of powers under Section 41 A of the Act with respect to (A) Proper administration of a public trust (B) Proper accounting of its income (C) Due appropriation and application of the income to the objects and for the purpose of trust however, subject to provisions of the Act and Rules how even as observed in the case of Syedna Mohamed Burhanuddin (supra) and other decisions, while issuing direction under Section 41 A of the Act Charity Commissioner has no adjudicatory powers and cannot decide lis between the parties. Therefore, subject to the aforesaid rider, for administration of the Trust, the Charity Commissioner can issue the directions to the Trust / Trust Deed and can issue the directions to them to act as per the Page 39 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 scheme of the Trust or provision of the Trust Deed and / or Trust Act

11. The contention on behalf of the appellant that aggrieved person in the present case respondent no.1 had remedy to challenge the resolution of the Trust by which he has been suspended pending inquiry under Section 50 of the Act, has no substance. If provision of Section 50 of the Act is considered, it confers power upon the Charity Commissioner, to approach the Civil Court and / or more than two persons interested in the Trust to approach the Charity Commissioner for permission to institute the suit with respect to dispute mentioned in Section 50 only. Under the circumstances, in the present case, Section 50 of the Act would not be applicable as sought to be contended on behalf of the appellant herein.

12. Now, so far as direction issued by the Charity Commissioner in the present case, which is reproduced herein above is considered in light of what is observed and held, firstly it can be said that same is absolutely in consonance with the provisions of Section 41 A of the Act and the directions are issued for proper administration of the Trust as per the provision of Trust Deed. By the aforesaid direction, the Joint Charity Page 40 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Commissioner has never adjudicated the dispute between the parties and has not decided any lis between the parties and even has not considered the legality and validity of the resolution passed by the Trust. Under the circumstances, direction issued by the Joint Charity Commissioner which was impugned in the petition, cannot be said to be in any way contrary to the powers conferred under Section 41 A of the Act. Therefore, the learned Single Judge has rightly dismissed the petition preferred by the appellants herein and has rightly confirmed the direction issued by the Joint Charity Commissioner. We are in complete agreement with the view taken by the learned Single Judge dismissing the petition and confirming the direction, passed by the Joint Charity Commissioner."

20. Reading the aforesaid paragraphs would unequivocally indicate that the Court observed that section 41(A) enumerates the situations in which powers can be exercised, that is, to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and Page 41 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 applied to the objects and for the purposes of the trust. The division bench observed that the Joint Charity Commissioner cannot issue directions that may violate or run contrary to the provisions of the Act. In para 10 of the judgment, the Court held that the Charity Commissioner can issue the directions in exercise of powers u/s.41(A) of the Act with respect to (A) Proper administration of a Public Trust (B) Proper accounting of its income (C) Due appropriation and application of the income to the objects and for the purpose of the trust. While issuing directions u/s.41(A) the Charity Commissioner has no adjudicatory powers and cannot decide lis between the parties.

21. This Court speaking through Justice Bela M. Trivedi, (as she then was) in the case of Dhansukhlal Patel Page 42 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 (Supra) considered the facts. The petitioner therein had filed an application u/s.41(A) of the Act before the Charity Commissioner seeking injunction against the co-trustees from alienating or parting with the land. Paragraph nos.11 and 12 of the decision read as under:

"11. So far as the merits of the petitions are concerned, it cannot be gainsaid that the Charity Commissioner has powers under Section 41-A of the said Act to issue directions, subject to the provisions of the said Act to any trustee of the public trust or any person connected therewith to ensure that such trust is property administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust. As observed by the Division Bench of this Court in the case of Syedna Mohamed Burhanuddin versus Charity Commissioner reported in (1992) 1 GLH 331, Section 41- A of the Trust Act is enabling provision intended to make implementation and enforcement of the provisions of Section 32 to 41 more effective. Of course, in case of Pavankumar Jain and Others versus Priyavadan Ambalal Patel and Others Page 43 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 (supra), relied upon by the Mr. Thakore, it is observed inter alia that powers of Charity Commissioner under Section 41-A are not restricted to the matters contained in Section 32 to 41, and that the words 'subject to other provisions of this Act' contained in Section 41-A would mean that the Charity Commissioner cannot issue directions that may violate or run contrary to the other provisions of the Act.
12. In the instant cases, the Joint Charity Commissioner has rightly considered the scope and powers of Section 41-A of the said Act and rejected the Judicial Misc.

Applications filed by the applicants holding inter alia that the prayers of declaration and permanent injunction in respect of the lands in question, which were adjudicating in nature could not be granted under Section 41-A and that the injunction of permanent nature as prayed for also could not be issued under Section 41-A of the said Act. Though, it was sought to be submitted by the learned Senior Advocate Mr. Thakore that the lease deed dated 09.06.2010 executed by the trustees in favour of the respondent Rameshbhai Sakaria was in contravention of Section 36 of the Act and illegal, the said submission does not deserve any consideration at this stage when the registration of the trust itself has been cancelled, and the alleged trustees are no more the trustees in the said trust. Even Page 44 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 otherwise, the petitions involving highly disputed questions of facts and that too at the instance of the petitioners whose own locus standi is doubtful, do not deserve any further consideration and deserve to be dismissed."

22. Reading the paragraphs would indicate that, the Court reiterated the position of law as set out in the case of Syedna Mohamed Burhanuddin (Supra) 1992 & Pavankumar Jain (Supra).

23. Once again in the case of Kantilal Manibhai Patel (Supra) wherein order was passed u/s.41(A) setting aside the sale deed under provisions of the Trust Act, paragraph no.7 of the order indicates and reads as under:

"7. It may be true that the Charity Commissioner has got pervasive powers under Section 41A of the Act over the administration of a Trust but these powers are essentially designed and are intended Page 45 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 for regulating the administration of the trust, and are meant to exercise control in the administrative sphere. Where the functioning of the trust falters or it travels beyond Trust Deed, application under Section 41 would lie and thereunder the Charity Commissioner is empowered to issue the remedial and preventive directions for ensuring efficient administration of the trust. While exercising powers under Section 41, the Charity Commissioner is required to act within such bounds, and cannot enter into the adjudicatory arena. The Charity Commissioner would not be justified in entering into the realm of adjudication in the name of securing better administration of the trust. He cannot proceed to decide a lis under the guise of exercising administrative control of the Trust. The Charity Commissioner has to guard himself that he does not travel into the prohibited territory of decision making process and to issue directions deciding a dispute for pronouncing upon the rights of the parties, for, the line of demarcation between the two functions often becomes thin and slippery."

24. Reading thereof would indicate that that the Court observed that it may be true that the Charity Commissioner has got pervasive powers u/s.41(A) of Page 46 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 the Act over the administration of the trust but these powers are essentially designed or intended for regulating the administration of the trust and are meant to exercise control in the administrative sphere.

25. Having set out these boundaries within which the Joint Charity Commissioner / Charity Commissioner is expected to act and applying the same to the facts of this case would indicate as under:

(1) The present petitioners had approached this Court by filing SCR.A No.4151/2022, a Habeas Corpus petition for release of approximately 170 Sadhus, Sadhvis, Sevaks, Sahishnus who according to them, were illegally confined for the personal interest of the three named in the petition at Page 47 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Aksharpurshottam Swaminarayan Temple, Haridham, Sokhda, Vadodara.
(2) According to the petitioners, having renounced the world and left their homes after accepting the path of Swaminarayan Religion, they were an integral part of the trust entitled to a right of residence. This according to them, was a facet connected with the administration of the trust.

26. What is evident from reading the oral order of this Court SCR.A No.4151 of 2022, it is clear that though the grievance was voiced by the petitioners against the three persons namely; Sadhu Prem Swaroopdas, Mr. J.M. Dave and Tyagvallabhdas, it was their case that they are being confined to the temple premises and their mobiles and passports have been seized.

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27. What strikes out from reading the orders collectively is that the petitioner therein was a Secretary to the late Guru Shri Hariprasad Dasji and had no other agenda except attempting the freedom for all those persons who were illegally detained. Reading the observations in the final order particularly paragraph Nos.14 to 17 thereof and 21 to 25 thereof, the Court came to a categorical conclusion, albeit in Habeas Corpus petition that unless and until the parties plead their case and produce sufficient evidence, it would not be for the Court to entertain the pleas. Para Nos.14 to 17 and 21 to 25 of the decision are reproduced hereunder:

"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 Page 49 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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:
"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 Page 50 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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 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 Page 51 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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 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 Page 52 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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.
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 Page 53 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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 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 Page 54 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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 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 Page 55 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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 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 Page 56 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 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."

28. In fact the Court even noted that there is no pleading in the petition with regard to the permanent stay of the Corpora at a particular place. The Court opined that while passing the orders dated 21.4.2022, it was purely an interim arrangement and it was not therefore proper on the part of the petitioners to contend that the said interim arrangement be made permanent. This was not even a submission made when the proceedings went for mediation. The Court refused to exercise its powers under Article 226 of the Constitution of India in light of the fact that the petitioners and / or Corpora have already filed Page 57 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 Special Civil Suits before the concerned Courts. The Court had clearly observed that that the purpose of the petitioner was served and the illegal confinement was over.

29. Can this order therefore be used by the petitioners to invoke and seek recourse to filing an application u/s.41(A) is the question.

30. At this stage, it will be necessary to reproduce at the cost of reiteration the prayer made by the petitioners in the application (Page 133) filed u/s.41(A) and the interim prayer (page 119 B) reproduced as under.

"11(a) This Hon'ble Authority may kindly be pleased to declare that the Sadhus and Sadhvijis, whose names have been mentioned in the list at Annexure-A are integral part of the trust and are entitled to have a place of residence at any property Page 58 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 owned by the trust considering the fact that they have renounced the world and had followed the path of the founder of the trust Sadhu Shri Hariprasadji."

"10(a) During the admission, pendency and final hearing of the present application, this Hon'ble Authority may kindly be pleased to restrain respondents herein from interfering with the place of residence given to the Sadhvijis being `at Bakrol namely; Aatmiya Vidhyadham, Aatmiya Marg, Bakrol, District Anand as well as place of resident of Sadhvijis at Nirnaynagar, Ahmedabad namely; Aatmiya Sannskardham, Arjun Ashram Road, Niranaynagar, Ahmedabad."

31. Reading the prayers would indicate that an entitlement to residence is made on the basis of the petitioners or their representatives being an integral part of the trust. In the case of Saiyed (Supra) the Court held that the powers u/s.41(A) are administrative in nature and there is no question of adjudication of any controversy, dispute or a lis.

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32. Even while the Division Bench opined that no restricted view can be taken of section 41(A) as per the Division Bench decision at the cost of reiteration the Division Bench did opine that it is only to be exercised with respect to proper administration of public trust, accounting of its income and due appropriation and application of income to the objects and purposes of the trust.

33. In the facts of the case Pavankumar Jain (Supra), it is evident that a resolution dated 6.1.2013 came to be passed suspending the respondent no.1 from acting as a trustee, secretary and prohibiting from entering into the premises of the temple complex pending the inquiry. That was a subject matter of a challenge before the Joint Charity Commissioner who in exercise of powers conferred u/s.41(A) of the Act Page 60 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 directed the trustees to act as per the Constitution of the Trust and stayed the implementation of the resolution dated 6.1.2013. A contention of the petitioner was that the order passed by the Charity Commissioner was beyond the scope of powers entrusted u/s.41(A).

34. That was a case where which the issue was directly connected with the administration of the trust and it was in this context that the Court interpreting section 41(A) of the Act though refusing to give it a restrictive meaning, set out, a Laxman Rekha by which it opined that the powers thereunder can only be exercised for the three purposes set out in para 10 of the judgment. When this decision and the facts are examined in light of the facts before this Court, what is evident is that the petitioners moved an application Page 61 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 u/s.41(A) for permanent residence, based on the premises that, the petitioners as promoting the purposes of the trust had a right to residence and it being an integral part of the trust and but for their availability of residence, they could not effectively be part of the trust and the trust too would be ineffective in execution of its objects.

35. The assertion of the rights by the applicants / petitioners on the basis of they having renounced the world and therefore being disciples of the trust cannot itself lead to the Court to indicate any nexus between the applicants and the purposes for which section 41(A) is enacted. The entire foundation to the right to reside at the two places i.e. at Nirnaynagar, Ahmedabad and Atmiya Vidhyadham, Bakrol fructified out of an interim arrangement pursuant to Page 62 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 petition invoking article 226 of the Constitution of India by a writ of Habeas Corpus. Though the observations thereunder may not be binding, the Court distinctly opined that there was no pleading even in the petition and in fact it was a petition with no other agenda except attempting the freedom of the petitioners and / or their representatives.

36. Perusal of the orders impugned therefore indicates that the Joint Charity Commissioner, in the words of this Court, was well aware and therefore did guard herself so as not to travel into prohibited territory of decision making process and to issue directions deciding a dispute for pronouncing upon the rights of the parties, the line of demarcation between the two functions often becomes thin and slippery.

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37. In the opinion of this Court, the Joint Charity Commissioner while recording a finding that the petitioners were aggrieved persons by itself did not lower the guard and go further. In fact, rightly so she found that the petitioners had invoked a remedy of a civil right which was personal and private requiring adjudication and deciding a lis which was not within its domain u/s.41(A) of the Act.

38. For all the aforesaid reasons, the order dated 08.02.2023 passed by the Joint Charity Commissioner, Vadodara below Exh.5 in Judicial Miscellaneous Application No.60 of 2022 is confirmed. The petition is dismissed with no order as to costs. Rule is discharged.

(BIREN VAISHNAV, J) FURTHER ORDER

39. At this stage, Mr. C. B. Upadhyaya, learned counsel Page 64 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023 C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023 for the petitioner requests that the interim protection granted by the Joint charity Commissioner which operates till tomorrow i.e. 22.02.2023 be extended for a period of two weeks. Mr. S.I. Nanavati, learned Senior Counsel appearing for the respondent Nos.1 and 3 to 8 on instructions states that the concerned respondents shall not take steps to enforce the order dated 08.02.2023 passed by the Joint Charity Commissioner, Vadodara and the consequential orders of this Court confirming the same upto the 10.03.2023.

Sd/-

(BIREN VAISHNAV, J) VATSAL Page 65 of 65 Downloaded on : Wed Feb 22 20:47:33 IST 2023