Gujarat High Court
Amish Sureshchandra Desai vs Sadhu Shri Premswaroopdasji on 29 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 223 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 2749 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 223 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 223 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
==============================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question 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
==========================================================
Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MR C B UPADHYAYA(3508)
for the Appellant(s) No. 1,2
MR VISHAL T. PATEL(6518) for the Respondent(s) No. 2
MR BHAGIRATH N PATEL(9016) for the Respondent(s) No. 2
MR DEVANG NANAVATI, SENIOR ADVOCATE WITH MR MRUGEN K PUROHIT
(1224) for the Respondent(s) No. 1,3,4,5,6,7,8
MS HETAL PATEL, ASST. GOVERNMENT PLEADER for Respondent No. 9
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Page 1 of 25
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Date : 29/01/2024
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard Mr.Anshin Desai, learned Senior Counsel
assisted by Mr.C.B.Upadhyaya, learned counsel for
the appellants, Mr.Devang Nanavati, learned Senior
Counsel assisted by Mr.Mrugen Purohit, learned
counsel for respondent Nos.1, 3 to 8, Mr.Vishal
Patel, learned counsel for respondent No.2 and
Ms.Hetal Patel, learned Assistant Government
Pleader for respondent No.9.
2. The present appeal arises out of a judgment
and order dated 21.02.2023 passed by the learned
Single Judge in Special Civil Application No.2749
of 2023 wherein the appellants-original
petitioners have challenged the order dated
08.02.2023 passed by the Joint Charity
Commissioner, Vadodara in the proceedings
initiated by the petitioners under Section 41A of
the Gujarat Public Trusts Act, 1950 ('the Trusts
Act, 1950' in short).
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3. The original petitioners (two in number) filed
the writ petition with the following reliefs :
"(B) This Hon'ble court may kindly be
pleased to issue a writ of mandamus or
certiorari or any other appropriate writ,
order or direction quashing and setting
aside the impugned order dated 08.02.2023
below Exhibit-5 in Judicial Misc.
Application No.60 of 2022 pending before
the Joint Charity Commissioner, Vadodara
(at Annexure-A);
(C) Pending hearing and final disposal of
the present petition, this Hon'ble Court
may kindly be pleased to stay the impugned
order dated 08.02.2023 and may further be
pleased to stay the further proceedings of
Judicial Misc. Application No.60 of 2022
pending before the learned Joint Charity
Commissioner, Vadodara and may further be
pleased to restrain the respondents herein
to interfere with the residential
accommodation granted to the Sadhus,
Sadhavisji and Sahishnus at Aatmiya
Vidhyadham Bakrol and Nirnaynagar,
Ahmedabad by virtue of order of the Hon'ble
High Court dated 21.04.2022 passed in
Special Criminal Application No.4151 of
2022, and may further be pleased to direct
the respondents herein not to interfere
with the same in any manner whatsoever;"
4. It is stated in the writ petition that the
petitioners are Sahishnus who have renounced the
world for the purpose of following the path of
Swami Narayan religion under the able guidance of
Sadhu Shri Hariprasad Dasji, who had left for his
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heavenly abode on 26.07.2021. It was contended that
the petitioners have been residing at Haridham,
Sokhada, Akshar Purshottam Temple, which was the
main place of abode of the founder of the trust
namely Hariprasad Dasji. While residing at the
aforesaid place, the petitioners are performing
rituals and following customs of Swami Narayan
Sampraday and on regular basis have been offering
their prayers and following path of Swami Narayan
religion for approximately 25 to 30 years. The
contention is that the petitioners, as such, fall
within the purview of the provisions of Section
2(10) of the Trusts Act, 1950, as "persons having
interest", in the affairs of the trust and, thus,
are well within their right to initiate proceedings
under Section 41A of the Trusts Act, 1950, which
confers power on the Charity Commissioner to issue
directions to any trustee of a public trust or any
person connected therewith, to ensure for proper
administration of the trust.
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5. It was contended by the learned counsel for
the appellants that the Joint Charity Commissioner
had committed an error of law in holding that the
reliefs prayed for in the application under Section
41A of the Trusts Act, 1950 are not connected with
the administration of the trust but for personal
rights and, as such, the application was not
maintainable. It was argued that once the Charity
Commissioner had reached at a conclusion that the
petitioners were aggrieved persons having renounced
their world, occupation and residing in the
premises within the precincts of the trust, it
could not have rejected the application on the
ground that suits were pending in different Courts
at Anand and Ahmedabad.
6. The submission is that having renounced the
world, 130 Sadhus, Sahishnus and Sevaks who have
been lodged in different places within the
precincts of the trust, by performing the rituals
and customs of the trust, in fact, they are
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promoting the object of the trust, which is
connected with the proper administration of the
trust. From that angle as well, it was well within
the power of the Joint Charity Commissioner to
issue directions under Section 41A to the effect
that it is the bounden duty of the trust to take
care of the Sadhus and Sadhavis, who are ardent
followers of the trust, having interest in the
trust being beneficiary disciples of the founder of
the trust.
7. Attention of the Court is invited to Clause 6
of the Trust Deed appended at page '164' of the
paper-book which lays down the purpose and object
for which the trust has been created, Clause B in
para '6' of the Trust Deed has been read out to
assert that one of the objects of the trust is to
erect, build, maintain places of worship, Ashrams,
Dharamshalas etc. The petitioners who are residing
in the Ashrams built and maintained by the trust
constitute an indispensable part of the trust and
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fall within the ambit of 'persons interested' under
Section 2(10) of the Act, 1950.
8. It was further argued that instead of
examining the issue in correct perspective, the
Charity Commissioner simply relied on the
observations made by the Division Bench of this
Court in the order dated 27.02.2022 passed in
Pavitra Harshadrai Jani vs. State of Gujarat, being
Special Criminal Application No.4151 of 2022
wherein the Division Bench noticing that Civil
Suits before the competent Civil Courts were
pending refused to interfere or accept the prayer
sought by the petitioner therein.
9. The contention is that the said observation
has no bearing at all on the issue raised by the
petitioners before the Charity Commissioner. The
pendency of the civil suit in no way affect the
case of the petitioners herein raising the issue of
maladministration of the trust, by removing the
Sadhus and Sadhavis residing in the Ashram of the
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trust, who being integral part of the trust are
entitled to have a place of residence in any of the
property owned by the trust.
10. It is vehemently argued by the learned
counsel for the petitioners that the petitioners
are raising cause of 110 Sadhavis and 130 Sadhus
who are residing in the Ashrams built in the
property of the trust and the trustees are trying
to throw them out.
11. Having noted the contentions of the learned
counsel for the appellants, we may record that the
appellants - original petitioners before us are
only two in number. There is no material on record
to demonstrate that they are espousing the cause of
other Sadhus and Sanyasis residing in the Ashrams.
The record indicates that the petitioners herein
filed a Habeas Corpus petition namely Special
Criminal Application No.4151 of 2022 with the
reliefs as under :-
"B) Your Lordships may be pleased to issue
Writ of Habeas Corpus and direct the police
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authorities respondent No.2 and 3 to rescue
the saints, Sahvi (women) and Devotees
(Sahishnu Diksharthis) who have been
wrongfully confined at Akshar Purshottam
Swami Temple, Haridham Sokhada, Vadodara
and also the personal belongings of the
saint that are also illegally seized;
C) Grant such other and further relief/s
as deemed just and proper in the interest
of justice."
12. The allegation in the Habeas Corpus petition
was that after death of Shri Hariprasad Dasji in
the month of July, 2021, the devotees of Haridham,
Sokhada, Vadodara were residing at Akshar
Purshottam Swami Temple, Haridham, Sokhada,
Vadodara. It was alleged that at the given point of
time, approximately 400 Sadhus, Sadhavis and
devotees of Haridham, Sokhada, Vadodara were not
allowed to move out from Akshar Purshottam Swami
Temple, Haridham, Sokhada, Vadodara from about four
months and they have been illegally confined by
three persons named in paragraph 3.6 of the said
petition.
13. It seems that on issuance of notice by the
Division Bench and the directions given to the
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concerned Police authorities as well as District
Legal Services Authority, corpora were produced
through Video Conferencing on 21.04.2022. By way of
an interim arrangement, the corpora were permitted
to stay at two different places, i.e. Nirnaynagar,
Ahmedabad and Bakrol, Anand. A direction was given
by the Court to respondent Nos.4 to 6 therein not to
interfere in the said arrangement. Mediation
proceedings were undertaken but no results came out.
14. When the Habeas Corpus petition was taken up
on 20.07.2022 for final hearing, it was stated by
the learned counsel for the petitioner, as recorded
in the order, that the corpora were released from
the illegal custody of the concerned respondents
and a permanent arrangement was to be made for
their stay at the aforesaid properties of the trust
namely at Nirnaynagar, Ahmedabad and Bakrol, Anand.
It was argued that 179 Sadhus, Sadhvis and
Haribhakts were not in a position to stay at
Haridham, Sokhada, Vadodara and therefore, the
Court dealing with Habeas Corpus petition had made
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interim arrangement vide order dated 21.04.2022.
15. The Division Bench while disposing of the
Habeas Corpus petition vide judgment and order
dated 20.07.2022 has noted that there was no
pleading in the petition with regard to permanent
stay of the corpora at a particular place. The said
relief was sought by way of amendment of the writ
petition, however, the amendments were not carried
out either in the pleading or the prayer clause.
The trust has not been joined as party respondent.
It is, thus, not permissible for the Court to pass
order against the trust. It was further noted that
the petitioner was trying to canvass the private
and personal rights of the corpora for their stay
at a particular place and such dispute cannot be
entertained within the scope of the Habeas Corpus
petition.
16. Noticing that the interim arrangement made
vide order dated 21.04.2022 by the Court was
subject to final outcome of the petition, it was
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observed that it would not be proper for the
petitioner to contend that the said interim
arrangement is to be made permanent. Moreover, the
petitioner himself had stated before the Court at
the time of issuance of notice on 20.04.2022 that
he had no other agenda except attempting the
freedom of those persons who have been illegally
detained by the private parties.
17. Further, recording that the petitioner and/or
corpora have already filed civil suits before the
Civil Courts wherein they have prayed for
injunction not to evict them without due process of
law, the Division Bench refused to entertain the
oral request made by the learned counsel for the
petitioner to make the interim arrangement of stay
as permanent. The observations in paragraph '27' of
the judgment and order dated 20.07.2022 passed in
Special Criminal Application No.4151 of 2022, as
noted by the Joint Charity Commissioner are
relevant to be extracted herein under :-
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"27. At this stage, learned counsel
appearing for the petitioner, under the
instructions, submitted that the petitioner
and/or corpora have already filed Special
Civil Suit before the concerned Civil Court
in which the concerned persons have prayed
that they may not be removed without due
procedure of law. Thus, once the concerned
persons have already filed a Civil Suit
before the competent Civil Court, we are
not inclined to entertain the oral request
made by learned counsel appearing for the
petitioner. It is open for the concerned
Civil Court to pass an appropriate order in
accordance with law without being
influenced by any of the observations made
in the present order."
18. The learned Single Judge has noted that the
case of the petitioners (two in number) 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 Sokhada
and various other trusts. It was their case that
they were accepted as disciples and had renounced
the world to stay with their Guru and undertake
activities such as spreading of religion and
imparting religious education, as one of the
objects of the trust. It was their case that with a
view to usurp the trust properties and keep control
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of the trust, the Sadhus, Sadhavis and Sahishnus
were illegally detained at Haridham, Sokhada.
19. Having considered the prayers made in the
application before the Charity Commissioner, it was
noted by the learned Single Judge that the case of
the petitioners was that the Sadhus and Sadhavis
whose names have been mentioned in the list
appended as Annexure-A therein being integral part
of the trust are entitled to have a place of
residence at any property owned by the trust. The
prayer in essence was that they are entitled to
protection of their residence. Noticing the powers
of the Charity Commissioner under Section 41A of
the Trusts Act, it is recorded that they are
administrative in nature and are intended to be
issued for better and more efficient administration
of a public trust. The Charity Commissioner has no
jurisdiction to adjudicate any question or
controversy or dispute or lis, within the scope of
Section 41A. The contention of the learned advocate
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for the petitioner based on the decision of the
Division Bench of this Court in Pavankumar Jain vs.
Priyvadan Ambalal Patel - 2016 (1) GLR 242, that
there could not be restrictive reading of Section
41A was considered by the learned Single Judge to
note that the Court therein has held that the
Charity Commissioner can issue directions in
exercise of powers under Section 41A of the Trusts
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 under Section 41A, the
Charity Commissioner has no adjudicatory powers and
cannot decide lis between the parties. Anther
decision of this Court in Dhansukhbhai Laalubhai
Patel vs. Nitinbhai Gunvatnbhai Patel - 2018 (0)
Supreme (Guj.) 690, was considered wherein it was
held that the Joint Charity Commissioner has
rightly considered the scope of powers of Section
41A of the Trusts Act to reject the prayer of the
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application seeking declaration and permanent
injunction of the subject lands therein, which
being adjudicatory in nature cannot be granted
under Section 41A of the Trusts Act.
20. It was noted that the petitions involving
highly disputed questions of fact do not deserve
further consideration. The learned Single Judge has
further noted that the Charity Commissioner has got
pervasive powers under Section 41A of the Trusts 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. Having set out the boundaries within which
the Joint Charity Commissioner is expected to act,
in the facts of the instant case, it was noted
that :-
"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:
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(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 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.
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. ***"
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21. The learned Single Judge has further
proceeded to take note of the prayers made in the
application under Section 41A of the Trusts Act
filed before the Joint Charity Commissioner to
observe that a bare reading of the prayer would
indicate that entitlement to residence was made on
the basis of the petitioners or their
representative being an integral part of the trust.
The assertion of the rights by the
petitioners/applicants on the basis of they having
renounced the world and being disciples of the
founder of the trust cannot itself lead to indicate
any nexus between the cause raised by the applicant
and the purposes for which Section 41A is enacted.
It was held that the plea of the petitioners about
the availability of residence in any of the
property of the trust cannot be treated as having
any connection with the proper administration of
the trust. The Charity Commissioner, therefore,
cannot be said to have committed any error in
asking the petitioners to invoke a remedy of a
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civil right which was personal and private
requiring adjudication and deciding a lis, which
was not within its domain under Section 41A of the
Trusts Act.
22. Having exhaustively gone through the judgment
of the learned Single Judge, we find it proper to
note, at the outset, that we did not find any error
in the opinion of the learned Single Judge that the
rights agitated by the petitioners by moving
application under Section 41A of the Trusts Act are
civil rights, which are required to be adjudicated
by a Civil Court on the evidence led by the
parties. The Charity Commissioner cannot be said to
have erred in relegating the appellants to pursue
civil remedy already availed by them in the shape
of various suits filed in the Civil Courts at Anand
and Ahmedabad.
23. However, to deal with the contentions of the
learned counsel for the appellants that the learned
Single Judge did not consider the clauses of the
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Trust Deed where it is mandated to maintain
Ashrams, which would invariably be occupied by
Sadhus and Sanaysis, the followers of the trust and
any act of their eviction would be a matter
relating to administration of the trust giving
powers to the Charity Commissioner to invoke its
jurisdiction under Section 41A of the Trusts Act,
suffice it to note that reading of the relevant
clause of the Trust Deed in such a manner would not
be of any benefit to the petitioners. The issue as
to whether the petitioners herein (two in number)
are representatives of Sadhus and Sanyasis
allegedly residing in the properties of the trust
cannot be examined by us in absence of any material
on record to substantiate that they have been
authorized by any such persons to institute the
writ petition on their behalf. Before the Charity
Commissioner as well, there were only two persons
(who are petitioners therein), who were agitating
the right of others to reside in the properties
owned by the trust. The fact that on the Habeas
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Corpus petition filed by one of the petitioners
herein, certain protection was granted by this
Court by way of an interim arrangement does not
give right to the petitioners to agitate that those
who were protected by the interim order dated
21.04.2022 passed in the Habeas Corpus petition are
entitled to reside in the properties of the trust,
more so, when it is categorically observed by the
Division Bench in the judgment and order dated
20.07.2022 while disposing of the Habeas Corpus
petition that the interim order merged with the
final order and the petitioners are at liberty to
pursue the civil remedy before the competent Court.
24. Further, a bare perusal of the relief sought
by the petitioners in the application before the
Joint Charity Commissioner (page 133 of the paper
book) indicates that a declaratory relief was
sought by the petitioners that Sadhus and Sanyasis
whose names were included in the list appended as
Annexure-A are integral part of the trust and they
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are entitled to have a place of residence at any
property owned by the trust. In our considered
opinion, the relief sought would require
adjudication on the lis between the parties, i.e.
the trust represented through its trustees and the
people seeking right of residence including the
petitioners herein. We find it relevant to note, at
this juncture, that the trust has not been
impleaded in any of the proceedings drawn by the
petitioners herein, either before the Charity
Commissioner or in the writ petition before the
learned Single Judge. The application under Section
41A before the Charity Commissioner and the writ
petition were directed against some private
persons, amongst whom respondent No.1 therein as
per the contention in the application under Section
41A was claiming to be a new President of the trust
being Yogi Divine Society, Sokhada, after the
demise of Guru Shri Hariprasad Dasji, its founder.
The contention in the application was that the
trustees who are otherwise guardian of the trust
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property and not the owners were harassing the
Sadhus and Sadhavis residing in the trust property.
The entire basis of relief sought before the Joint
Charity Commissioner as is evident from the perusal
of the application under Section 41A, was the order
passed in the Habeas Corpus petition filed by the
petitioners namely Special Criminal Application
No.4151 of 2022 decided finally vide order dated
20.07.2022.
25. We find it apt to note that the application
under Section 41A of the Trusts Act, 1950 along
with an interim application was filed before the
Joint Charity Commissioner on the next day, i.e. on
21.07.2022, of dismissal of the Habeas Corpus
petition (Special Criminal Application No.4151 of
2022) by this Court, i.e. on 20.07.2022. It is
evident that the petitioners who instituted Habeas
Corpus petition on the premise of illegal detention
of Sadhus and Sanyasis by some private persons
managing the trust, have approached the Joint
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Charity Commissioner to agitate their civil rights
and that of some private persons to occupy the
properties of the trust as their place of
residence.
26. Indisputably, civil suits are pending before
the Courts of Ahmedabad and Anand pertaining to the
properties of the trust. The copies of the
pleadings in the civil suits have not been brought
on record. Moreover, it is open for the petitioners
to agitate their rights before the Civil Court by
availing civil remedy in a proper manner. In any
case, no lis can be adjudicated within the scope of
Section 41A of the Trusts Act. We, thus, find no
infirmity in the order passed by the learned Single
Judge. The appeal is dismissed being devoid of
merits. Consequently, the connected Civil
Applications also stand disposed of.
27. The prayer for continuation of the interim
arrangement granted in the instant appeal based on
the observations by the learned Single Judge in
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paragraph '39' of the impugned order is hereby
rejected. It is clarified that the dismissal of the
instant appeal and the writ petition by us and the
learned Single Judge in no way would affect the
right of the petitioners/appellants in the pending
civil proceedings. The Civil Court shall be under
obligation to deal with the issues before it
independently without being influenced by any of
the observations made in this order or the order
passed by the learned Single Judge.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
GAURAV J THAKER
