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State Of Himachal Pradesh & Anr vs Padam Dev & Ors on 16 April, 2002
Article 226 in The Constitution Of India 1949

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Allahabad High Court
Swami Shivanand Awadhoot Sanyasi ... vs State Of U.P. Through Secretary ... on 9 November, 2004
Author: K Sinha
Bench: K Sinha

JUDGMENT

K.N. Sinha, J.

1. Both the writ petitions are connected, hence taken up together for hearing and disposal.

2. The writ petition No. 16292/2004 was filed on 20.4.2004 under Article 226 of the Constitution of India by Swami Shivanand Awadhoot Sanyasi Shishya Swami Jeewan Mukta, resident of Sri Swami Shivan and Muktashram, Vrindavan Police Station Kotwali Vrindavan District Mathura against (1) State of U.P. through Secretary Home Secretriate Lucknow, (2) Senior Superintendent Police Distt. Mathura, (3) S.O. Police Station Kotwali Vrindavan Distt. Mathura and (4) the contesting respondent No. 4 Ramnaresh. This writ petition was filed on the ground that the petitioner has no wife or issues as he is a Sanyasi. He, by a registered deed dated 20.9.1973, created a trust in the name of "SRI SHIVANAND AWADHOOT TRUST' Vrindavan, Mathura vesting the properties mentioned in the schedule to the trust, alleging himself to be the President, Swami Brahmanand (who are later on impleaded as Respondent No. 5) as Vice President and Sri Balvir Singh as Secretary. A supplementary trust deed was also got registered on 8.12.1986 bringing the whole of the property of Vrindavan, Saphau, Haridwar and Anup Shahar under the said trust. The respondent No. 4 was keeping the petitioner in his captivity since March/April 1999 and has been administering drugs and slow poison so much so that the petitioner has lost control over his mind. The Vice President of the Trust, Swami Brahamanand and Swami Ramanand, the Manager of Vrindavan Ashram made several efforts to get the petitioner released from the captivity of respondent No. 4 and when failed, the Vice President of the Trust Swami Brahamanand lodged a First Iinformation Report on 12.4.2004 at Police Station Kotwali Vrindavan, District Mathura. It is also not known as to how many papers were got signed by the petitioner. The respondent No. 4 is neither appointed nor holder of power of attorney, knowingly and willingly. It has also come to knowledge that properties are being sold by the respondent No. 4. On these grounds a prayer was made that this Court be pleased to issue a Writ, Order or Direction in the nature of Habeas Corpus directing the opposite party to produce the petitioner in this Court and admit the petitioner in some Nursing Home for treatment.

3. The record reveals that in pursuance of the said order, the petitioner was arrested from Haridwar (Uttranchal Province) and brought to the Ashram at Vrindavan. This fact is disclosed by the supplementary affidavit dated 15.7.2004 and various documents have been filed which shall be discussed at the proper places. It would not be out of place to mention that Swami Brahmanand moved an impleadment application, which was allowed. On 16.7.2004, a counter affidavit was filed on behalf of respondent No. 4 alleging that the respondent No. 4 has been impleaded with a wrong name and address. His name is Swami Nareshanand and is the main disciple of the petitioner and also the holder of power of attorney. The contents of the writ petition have been denied by the respondent No. 4. He further alleged that along with the writ petition, the affidavit of one Manoj Kumar was filed, who alleged himself to be the Chela of the petitioner and was authorized by Swami Brahmanand (respondent no,5). In fact Swami Shivanand Awadhoot Sanyasi was living in Haridvvar Ashram since long, out of his sweet will. He was not at all in the illegal custody of any one. The respondent No. 4 has been authorized to manage all the properties of the Ashram and the Institutions established by the petitioner. In fact Swami Brahmanand started various litigations in respect of the properties in the courts of Vrindavan, Hathras and Haridwar and in this connection, he also manufactured various documents. It is further deposed that in the garb of this Court's order that the petitioner be produced before this Court, Brahmanand has taken Swami Shivanand Awadhoot Sanyasi in his illegal custody at Vrindavan without any order of the court. The petitioner has been residing in his Ashram at Haridwar.

4. A rejoinder affidavit has been filed on behalf of the petitioner by the said Manoj Kumar denying the contents of the counter affidavit. It was deposed by the petitioner that Ram Naresh (respondent No. 4) is son of Raghubir Singh resident of Village Kachaura, District Aligarh and is presently residing in Haridwar with his wife Smt. Sushila Devi and children. It was further deposed that the alleged power of attorney has been obtained by the respondent No. 4 when the petitioner was of unsound mind and was suffering from mental infirmity. The jurisdiction of this Court in the Habeas Corpus petition would not be ousted merely for the reason that detenu was kept out of territorial limit of this High Court.

5. So far as the Writ Petition No. 24193/2004 is concerned, it was filed on 3.7.2004 when the petitioner was brought from Haridwar and kept at the Vrindavan Ashram since 28.6.2004. This petition was also filed on behalf of the first petitioner Swami Shivanand Awadhoot and Swami Naresha Nand was shown as petitioner No. 2, who was respondent No. 4 in the previous petition.

6. For the sake of convenience, the petition No. 16292/2004 shall be referred to as the 'first petition' and petition No. 24193/2004 shall be referred to as the 'second petition'.

7. The second petition was moved on the ground that for several years, the petitioner No. 1 was not in a position to move and as such he appointed Swami Nareshnanad, the petitioner No. 2 for managing the property of the Ashram. The respondents No. 3 and 4 are other associates, interested to take over the properties of the Trust created by the petitioner No. 1 and as such several suits have been filed. The detail of three suits is given in paragraphs 6, 7 and 8 of the second petition. The petitioner No. l Swami Shivanand Awadhoot Sanyasi was residing at Haridwar Ashram out of his own sweet will, but the respondents No. 3 and 4 were in the look out of opportunity to take petitioner No. 1 in their custody so that they may get some documents prepared. Consequently they filed the first petition (Writ No. 16292/2004) praying thereby for Court's order for production of the petitioner No. 1. The respondents No. 2, 3 and 4 went to Haridwar Ashram in the night of 27/28th June 2004 and forcibly arrested petitioner No. 1 from the Ashram and brought him to Mathura without any authority and detained him in their illegal custody at Vrindavan District Mathura. The petitioner No. 1 is in the illegal custody of respondents No. 2, 3 and 4 since 28.6.2004, where he isnot taking any food on account of ill treatment given to him by the respondents No. 2, 3 and 4. It is also clear that the affidavit with the first petition was filed by one Manoj Kumar at the instruction of Swami Brahmanand, who is already respondent in the petition. No such order was passed by this Court that the petitioner be taken to Vrindavan and be kept in the custody of respondents No. 2, 3 and 4. The arrest of the petitioner No. 1 has been entered in the G.D. of Police Station Kotwali, Haridwar and the true copy of the same has been annexed as Annexure No. 6. The petitioner No, 1 has been kept there, without any authority and without following any procedure established by law. It has been prayed that the writ in the nature of habeas corpus be issued to respondents to produce petitioner No. 1 before this Court so that he may be set at liberty from the illegal custody of respondents No. 2, 3 and 4. It was also prayed that a writ be issued to admit the petitioner No. 1 in some suitable hospital or nursing home for his proper treatment and he may be given in the custody of the petitioner No. 2 for proper treatment. On this writ petition, the Court ordered for production of petitioner No. 1 on 15.7.2004.

8. A counter affidavit was also filed by Swamy Brahmanand (respondent No. 3) on the ground that he is the Vice President of Swami Shivanand Awadhoot Ashram, Vrindavan district Mathura. He denied the allegations set forth in the petition and submitted that petitioner No. 1 was found in the confinement of Ram Naresh on 27.6.2004 by the police and on the direction issued by this Court on 26.4.2004, 11.5.2004 and 25.5.2004, in the first petition he was brought to Vrindavan and thereafter this second writ petition has been filed as a counter blast. The petitioner No. 2 is neither the Chela (disciple) of Swamiji nor he is a Sanyasi. He is living with his wife and children at Haridwar, where he has detained Swami Ji. He has kept Swami Ji in his illegal detention since long and has been administering drugs to Swamiji so much so that a year later Swami Ji became insane. In the mean time petitioner No. 2 sold away some land of the Ashram at Sahpau for a sale consideration of Rs. 36 lacs through a registered deed. He also executed an agreement to sale the plot at Vrindavan Ashram after receiving Rs. 1 lac and one sale deed after receiving Rs. 11 lacs.

9. I have heard Sri K.S. Chauhan, learned counsel for the petitioner of the first petition and Sri Viresh Mishra for respondent No. 2 and Sri D.S. Mishra for respondent No. 5. Accordingly, the learned counsel for the parties were also heard in the second writ petition.

10. What transpires from both the writ petitions, that the petitioner (Swami Shivanand Awadhoot Sanyasi) was living at Haridwar since March/April 1999, as is apparent from the paragraph No. 5 of the first writ petition and same paragraph in the supplementary affidavit dated 15.7.2004. It would mean that Swami Ji was at Haridwar Ashram for about 51/2 years. It is also clear from paragraphs No. 6, 7 and 8 of the second writ petition, that various litigations by way of suits were going on before the civil courts. No question of any illegal detention or captivity ever arose. It would be pertinent to note that in the first writ petition no place of detention has been mentioned. The supplementary affidavit dated 15.7.2004 was also silent about the place of alleged detention. The Ashram, where petitioner was living is at Haridwar in the province of Uttaranchal. It appears that in the first petition, it has been purposely concealed that the petitioner is at Haridwar apprehending that the jurisdiction of this Court may be ousted. The learned counsel for the petitioner in the first writ petition could not give plausible reply for the same.

11. Along with the first petition, an affidavit of Manoj Kumar was filed. A supplementary affidavit dated 15.7.2004 was also filed by Manoj Kumar. In both the affidavits, Manoj Kumar, deponent has stated that he was authorized by Swami Brahmanand to file this petition. Surprisingly enough Swami Brahmanand has also applied in this petition for being impleaded as respondent No. 5 and the petitioner has no objection hence the application was allowed. If the instructions on behalf of Brahmanand were actually given to Manoj Kumar, there was no occasion for Brahmanand to be impleaded as respondent. The impleadment application has been moved only when the Swami Shivanand Awadhoot Sanyasi was arrested from Haridwar Ashram and brought to Vrindavan and kept there for 17 days before production in this Court.

12. I have perused the order passed by this Court and find nowhere that this Court had ordered for arrest of the petitioner and keeping him at Vrindavan Ashram. It would also not be out of place to mention that in the first petition address of the petitioner has nowhere been given that of Haridwar Ashram whereas admittedly petitioner was living at Haridwar Ashram since March/April 1999. No date of confinement has been given. If confinement was since 1999, why no petition was brought earlier. What specific happened in April 2004 which prompted Brahmanand to get a petition filed through Manoj Kumar. There is no explanation with the petitioner as to why this fact has been concealed and the address of Haridwar has not been given in the title or body of the petition. There is also no explanation on the part of the petitioner of the first writ petition that when petitioner was not living at Vrindavan Ashram nor he was confined by the respondent No. 4 at Vrindavan, then what was the purpose for giving the address of Vrindavan. The second petition for production of the petitioner was filed only on 3.7.2004, which was presented before the Court on 5.7.2004 when petitioner No. 1 of second petition was brought from Haridwar Ashram and kept confined at Vrindavan Ashram. There was no purpose of keeping Swami Shivanand Awadhoot Sanyasi at Vrindavan Ashram. If, in pursuance of the order of the Court, he was taken from Haridwar, he should have been produced before the Court. The act of keeping petitioner at Vrindavan Ashram, inspite of there being no order to this effect indicates the malafide on behalf of Swami Brahmanand who is said to have instructed Vinod Kumar to file this petition. The second petition came into existence only when Swami Shivanand was kept at Vrindavan Ashram, which is primarily managed by Brahmanand and others. This action is sufficient to make an inference that pupils connected with the affairs of Vrindavan Ashram, were in the look out of an opportunity of either manufacturing some of the documents or some otherwise motive that he was kept at Vrindavan Ashram for about 17 days before production in the Court. The contention, set forth in the second petition is not far from truth.

13. The first petition does not appear to have been filed under the instructions of Swami Ji. Swami Ji was never and nowhere illegally confined at Haridwar Ashram where he was living since March/April 1999 out of his sweet will.

14. Sri K.S. Chauhan, learned counsel for the petitioner in the first petition, has submitted that respondent No. 4 (petitioner No. 2 in the second petition) has sold the property of the trust and he was never given power of attorney. In this connection, he has filed trust deed and supplementary trust deed and also the photo copy of the sale deed executed by Swami Nareshanand in favour of Vairagya Swaroop Brahmachari for Rs. 36 lacs. Photo copy of the another agreement to sell has also been filed. The first sale deed was executed by Swami Nareshanand in the capacity of attorney holder of petitioner Swami Shivanand Awadhoot in which a recital has been made that it was executed for the personal expenditure of the attorney holder. Almost the same recital finds place in the alleged agreement to sale in respect of the property of the Haridwar. The photo copy of sale deed of 26.4.2004 in which the recital is almost the same that the property was sold for his own expenditure and also some other need. The photo copy of the power of attorney has also been filed on record. So far as the dispute regarding the trust property or the power of attorney is concerned, this is the matter of civil suit. The various suits in this connection are going on, hence this matter shall be decided therein.

15. In the rejoinder affidavit of the first writ petition, the voter list has been filed showing Ram Naresh as resident of village Kachaura in the year 1999. As against it, in one of the counter affidavit of respondent No. 2, the copy of the ration card has been filed in the name of petitioner Swami Shivanand relating to the District Haridwar (Annexure CA-1 A) and the voter list of 2000 is filed (Annexure CA 1-B) which shows the residence at the Haridwar Ashram at 187 Bhoopatwala and petitioner Shivanand and respondent No. 4 Nareshanand have been shown to be the residents of the same.

16. Thus, all the evidence on record and the above discussion show that petitioner of the first writ petition or petitioner No. I of the second petition was living at his Haridwar Ashram since March/April 1999 on account of his own sweet will. He was never kept in detention by Nareshanand or any one. The writ petition has been filed concealing the place of alleged detention and wrongly giving the residence at Vrindavan in the title of the petition. It was done simply on account of gaining the jurisdiction of this Court. The malafide act was done by keeping the petitioner at Vrindavan Ashram for 17 days before the production before this Court. It shows the truthfulness of the allegation of the second petition.

17. The learned counsel for the petitioner in the first writ petition has relied upon Mahendra Pratap Singh (deceased) and Anr. v. Smt. Padam Kumari Devi and drawn my attention towards various paragraphs of the judgment, which relates to the factum of power of attorney and also that 'law what applies to a minor also applies for persons found by the court on inquiry to be incapable, by reasons of any mental infirmity, of protecting their interests when suing or being sued. This is laid down in Order XXXII Rule 15:

18. I have perused the said judgment. It shall not help in the habeas corpus petition as it relates to a testamentary suit. The learned counsel for the petitioner has also drawn my attention towards paragraph 24 of the judgment wherein the court was not able to ascertain as the applicant did not show whether it was in the nature of habeas corpus petition or an application for appointment of a guardian, hence the matter was referred to Hon'ble the Chief Justice, who returned to it with the order for consideration in Original Jurisdiction dealing with Company Testamentary and Matrimonial matter. Thus the said finding was recorded quite on a different jurisdiction which was the original jurisdiction of the court and not the habeas corpus writ petition.

19. When the petitioner was produced on 15.7.2004 the court passed the order directing that petitioner Swami Shivanand be kept in some Nursing Home or private ward of Civil Hospital or Medical College and consequent thereof he was kept in Moti Lal Nehru Medical College, Allahabad. This Court enquired about the condition of the petitioner, whereupon the report was submitted by the Director of Medical College showing that the detail physical examination and supportive investigations including CT scan of brain, abdomen etc., X-ray chest, urine analysis and the blood chemistry did not reveal any significant physical illness. It was reported that the petitioner remains mute and despite the treatment his behaviour remained stationary though he is eating well. He is passing urine and stool on the bed.

20. However, the doctor recommended him to be shifted to some other Hospital like Medical College, Lucknow or All India Institute of Medical Sciences, New Delhi. Thus, according to this, in no way he can be said to be insane or of unsound mind. However, a better treatment is required which can be done at an upgraded medical institute of India. It was a writ petition on the ground of illegal detention, hence the writ petition No. 16292/2004 is liable to be dismissed and it is hereby dismissed.

21. The writ petition No. 24193/2004 was filed on account of detention of petitioner No. 1 at Vrindavan Ashram after being arrested from his Haridwar residence. The purpose of such petition has also exhausted. As 1 have already mentioned that the petitioner Swami Shivanand Awadhoot Sanyasi was wrongly, without any order or authority, kept at Vrindavan Ashram, hence it is in no way proper to give custody to Brahmanand. In fact the petitioner was never in confinement, hence it is hereby directed that he will be taken back to his Haridwar Ashram wherefrom he was arrested and be set at liberty. As the petitioner is an aged person and needs a better medical treatment, it is hereby directed that Naresha Nand, petitioner No. 2 of the second petition, who is living at Haridwar with petitioner No. 1, shall accompany him upto Haridwar Ashram and also get treatment at All India Institute of Medical Sciences, New Delhi or to some other reputed hospital of equal status. If petitioner No. 2 of the second petition apprehends any danger to the security of the petitioner No. 1 Swami Shivanand Awadhoot Sanyasi on way to Haridwar, the Senior Superintendent of Police, Allahabad shall provide him the security and the expenses shall be borne out by petitioner No. 2 of the second writ petition The District Magistrate, Allahabad and the Chief Medical Superintendent, Swaroop Rani Nehru Hospital, Allahabad shall discharge the petitioner No. 1 Swamy Shivanand Awadhoot, who was admitted in the Hospital by the order of the Court for going to live at Haridwar.

22. With these directions the writ petition No. 24193/2004^ disposed of.