Gujarat High Court
Amish Sureshchandra Desai vs Sadhu Shri Premswaroopdasji on 21 February, 2023
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/-
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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 ?
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AMISH SURESHCHANDRA DESAI
Versus
SADHU SHRI PREMSWAROOPDASJI
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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
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/02/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Respective learned advocates
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
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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
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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
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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
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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
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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
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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.
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
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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
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
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
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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
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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.
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* 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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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 :
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"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
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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
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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
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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
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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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023
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
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
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
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
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
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
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
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
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
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
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.
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023
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
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
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
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.
C/SCA/2749/2023 JUDGMENT DATED: 21/02/2023
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
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
