Hon'ble Abhinava Upadhya,J.
The learned Single Judge while hearing this writ petition, by order dated 13.11.2007 formulated following three questions to be answered by larger Bench.
A. Whether the trust deed dated 13.12.1954 registered on 20.12.1954 executed by Shri Nand Kishore for himself and as Manager and Karta of the Joint Hindu family including his brothers and Jagan Prasad and Madan Lal, sons and heirs of Gursaran Das @ Baijnath, chela of Baba Garib Das, resident of Mathura proves the nature and origin of endowment and shows that the control and management of the dharmshala is retained with the founder or his descendants and that the property were dedicated for the purposes of maintenance of dharmshala belonging to the founder himself, to show that the endowment was of private nature?
B. Whether after vesting the management in the Gaudia Vedanta Society' and its member the founders retained any control over the management?
C. Whether the judgements in writ petition No. 54930 of 2003, Ram Ratan Sharma son of Tulsi Das Vs. District Judge, Mathura dated 17.2.2004; writ petition No. 46342 of 2007, Baldeo Raj Arora Vs. Shree Keshav Ji Gauriya Math Dharmshala dated 24.9.2007 and writ petition No. 45694 of 2007, Ashok Kumar & Ors. Vs. Sri Keshavji Gauriya Math Dharmshala Trust & Ors. Dated 3.10.2007 holding that the building was a public charitable trust exempt under section 2 (1)(bb) of the Act?
Hon'ble the Chief Justice by order dated 4.1.2008 directed the matter to be placed before a Division Bench. By order dated 8.7.2008, the matter has been placed before this Bench for answering the reference.
Brief facts of the case which are necessary to be noted for answering the reference are; a small cause suit No. 22 of 2003 was filed by Keshavji Gaudia Math (hereinafter referred as 'respondent' ) in the court of Judge Small Cause, Mathura praying for eviction from the two shops in question and for payment damages. The case of the plaintiff in the suit was that respondent in the proceedings is tenant at the rate of Rs. 45/- per month in the two shops as described in the plaint of which the plaintiff is the owner and the landlord. 30 days' notice dated 24.5.2003 was served on the tenant terminating the tenancy. The plaintiff claimed to be religious charitable trust on which provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are not applicable. It was pleaded that the Trust has passed resolution on 27.3.2003 to open a clinic, library and Pyau in the shops in question and looking to the aforesaid need, the decision was taken to terminate the tenancy. The tenant filed written statement in which it was pleaded that the provisions of U.P. Act No. 13 of 1972 are applicable on the premises in question. The allegations of the plaintiff that the property in question is a public religious charitable trust was denied. It was pleaded that the U.P. Act No. 13 of 1972 are applicable. No resolution has been passed as alleged by the plaintiff. Notice given by the plaintiff was duly replied. The suit was resisted by the tenant. The Judge Small Cause Court vide its judgment and order dated 20.2.2004 decreed the suit for eviction directing the tenant to hand over the possession within four months. The tenant filed a revision in the Court of District Judge being revision No. 17 of 2004 which revision has been dismissed by the judgment and order of the Additional District Judge dated 23.2.2007. Trial Court as well as the revisional Court held that property in question is a public religious trust and the provisions of U.P. Act No. 13 of 1972 are not applicable. It was held that the tenancy has been rightly terminated by notice under section 106 of the Transfer of Property Act. The trial court, while decreeing the suit has relied on oral and documentary evidence which was on record including the trust deed dated 13.12.1954 executed in favour of Keshavji Gaudia Math Dharmshala. The writ petitioner i.e. the tenant has filed the present writ petition challenging the judgment and order of the Judge Small Causes Court dated 20.2.2004 as well as the revisional Court judgment dated 23.2.2007.
Sri Rahul Sahai, learned Counsel for the petitioner challenging the orders passed by the courts below contended that the respondent i.e. plaintiff is not a public charitable/religious trust hence, the provisions of U.P. Act No. 13 of 1972 were applicable and both the courts below committed error in holding that the plaintiff is a public religious charitable trust. Referring to the trust deed filed as Annexure-6 to the writ petition, it is contended that various terms and conditions of the deed indicate that the trust was created with the sole object for improvement and better management of the Dharmshala and the trust was not a public charitable trust rather it was handed over to the trustee as named in the deed only for the purpose of improvement and better management of the Dharmshala, which does not change the character of a private Dharmshala into a public charitable/religious trust. Learned Counsel for the petitioner has referred to various portions of the trust deed which shall be hereinafter referred to in support of his submissions.
We have heard learned counsel for the petitioner and has perused the record.
The questions 'A' and 'B' as noted above being inter-related are with regard to the interpretation of trust deed dated 13.12.1954. The question 'C' relates to three judgements of this Court in which judgements, this Court held Keshavji Gaudia Math as a public charitable/public religious institution in proceedings which were initiated by the trust for eviction of three other tenants, who were tenants of the same land lord. This Court in following three judgements dismissed the writ petitions filed by the tenant challenging their eviction.
(I)Judgement dated 17.2.2004 in writ petition No. 54930 of 2003, Ram Ratan Sharma Vs. District Judge (II)Judgement dated 24.9.2007 in writ petition No. 46342 of 2007, Baldeoraj Arora Vs. Shri Keshav Ji Gauriya Math (III)Judgement dated 3.10.2007 in writ petition No. 45694 of 2007, Ashok Kumar & others Vs. Keshavji Gauriya Math In the aforesaid three writ petitions filed by tenants challenging their eviction passed in suit filed by Keshav Ji Gaudia Math, it was held that the trust was a public charitable/public religious institution and it is exempted from applicability of U.P. Act No. 13 of 1972 by virtue of Section 2(1)(bb). Learned Single Judge expressed his doubts on the ratio of the said judgements and framed question No. C in that regard.
Now questions No. 'A' and 'B' are taken together. The principles and parameters for finding out whether a trust is a public trust or a private trust, came for consideration before the apex Court in several decisions. Before we proceed to consider the fact of the present case and the trust deed dated 13.12.1954, it is useful to refer to following judgements of the apex court wherein the issue came for consideration.
The apex Court in AIR 1976 S.C. 871, Dhaneshwarbuwa Guru Purshottam-buwa owner of Shri Vithal Rukhamal Sansthan Vs. The Charity Commissioner, State of Bombay had occasion to consider the test to find out the principles of law for determination of an endowment whether public or private trust. Following was laid down in paragraphs 30,31 and 44:
"30. The principles of law for determination of the question whether an endowment is public or private are fairly well- settled. This Court observed in Deoki Nandan v. Murlidhar as follows:-
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment".
31. This Court further held:
"When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers".
44. When the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purposes, as a matter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship the accretion to the trust property by way of grants from the state of gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property, are all important elements in determination of the question whether a property is a private or a public religious endowment. We are satisfied that in this case all the above tests are fulfilled."
In AIR 1981 SC. 798 Radhakanta Deb and another Vs. The Commissioner of Hindu Religious Endowments, Orissa, the apex Court again considered the test which may provide sufficient guidelines for determination of facts of each case whether an endowment is public or private nature. Following was laid down in paragraphs 7 and 14:
7.The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment, as may appear from the facts proved in each case. The essential distinction between a private and a public endowment is that whereas in the former the beneficiaries are specified individuals, in the latter they are the general public or class of unascertained people. This doctrine is well-known and has been accepted by the Privy Council as also by this Court in a large catena of authorities. This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants. Other factors that may be considered would be the nature of right of the worshippers, that is to say, whether the right to worship in the temple is exercised as of right and not as a matter of concession. This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries; are the worshippers and not particular family. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God. Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no, issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family. Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature.
14. Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature:
(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."
The third decision, which is relevant is AIR 2003 SC 1685 Kuldip Chand and another Vs. Advocate General of Himachal Pradesh. In Kuldip Chand's case the question which was up for consideration was as to whether by mere use of a premises as a Dharmashala for about 125 years would lead to an inference that the same belongs to a public trust. One of the tests which was propounded in the aforesaid case was that a dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. It was laid down in the said case that if the complete control is retained by the owner, the dedication cannot be said to be complete. Following was laid down in paragraphs 21,39 and 40:
21.It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contra-distinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity. [See Menakuru Dasaratharami Reddi vs. Duddukuru Subba Rao (supra)]
39. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be compete or partial. A right of easement in favour a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose.
40. When the complete control is retained by the owner be it be appointment of a Chowkidar; appropriation of rents, maintenance thereof from his personal funds dedication cannot be said to be complete. There is no evidence except oral statements of some witnesses to the effect that Raj Kumar Bir Singh became its first trustee. Evidence adduced in this behalf is presumptive in nature. How such trust was administered by Raj Kumar Bir Singh and upon his death by his successors in interest has not been disclosed. It appears that the family of the donor retained the control over the property and, therefore, a complete dedication cannot be inferred far less presumed. Furthermore, a trust which has been created may be a private trust or a public trust. The provisions of Section 92 of the Code of Civil Procedure would be attracted only when a public trust comes into being and not otherwise.
The present is a case where the registered trust deed dated 13.12.2004 is on record and learned Counsel for the petitioner harps on the interpretation of the aforesaid trust deed. The emphasis which has been laid by learned Counsel for the petitioner is that trust deed itself stipulates that deed of trust was created with the sole object of improvement and better management of Dharmshala. He further submits that the owner did not part with the ownership and control of the Dharmshala was handed over to the trustee for improvement and better management which cannot be read as creation of a public trust.
The main question which is to be answered in the present writ petition is as to whether the building belongs to or vested in a public charitable or public religious institution so as to take it out of purview of U.P. Act No. 13 of 1972. Section 2(1)(bb) provides for exemption from operation of the Act. Section 2(1) (bb) which is relevant is quoted below:
"2. Exemption from operation of Act.-(1) Nothing in this Act shall apply to the following, namely (bb) any building belonging to or vested in a public charitable or public religious institution;"
The present is a case where the registered deed of trust is available, which is a primary document to determine the issue by reading the trust as a whole and deciphering from the trust deed as to whether it created a public trust or private trust. Copy of the trust deed has been filed as Annexure-6. The Dharmshala earlier belonged to Nand Kishore and certain other persons, who were the owner and manager of Dharmshala, executed the trust deed. Following portion of trust deed has been relied by learned Counsel for the petitioner "Times are very hard and living has become costly. Every property is liable to decay if steps are not taken to improve it. It is not within our means to improve the Dharmshala. After mature deliberations amongst ourselves and our friends, relatives and well-wishers, we have arrived at this conclusion that for the improvement and better management of the Dharmshala we religious persons who may be in a position to improve the present condition of the Dharmshala and may not allow it to be deteriorated. Accordingly we approached Swami Bhakti Projan Keshab Maharaj and some other members of the Gaudiya Vendanta society to kindly agree to serve on the trust committee as trustees and to manage and improve the Dharmshala. The said Swamijis have out of piety agreed to our proposal, provided a regular trust deed is executed, and the powers of the trust committee and of the trustee are defined and laid down in a proper deed. We also consider this proposal to be sound, so that the trust may function properly on well defined lines. Moreover no proper trust deed has been executed and no rules and regulations have been framed for the proper management of the trust, and it is urgently necessary that a proper deed of trust should be drawn up for the purpose. We, accordingly, out of our own free will and without coercion or intimidation from any quarter, execute this deed of trust with the sole object of improvement and better management of the Dharmshala of which the full description is given below in the schedule.
We, our heirs, successors-in-interest representatives and assignees are and shall be bound down by the terms of this deed and shall never have any power to repudiate it or any of its terms. This deed of Trust will stand, last and be in force for ever."
Learned Counsel for the petitioner from the aforesaid portion of the trust deed submits that the deed of the trust was executed with the sole object of improvement and better management of Dharmshala and owner never parted with the ownership or their control and trustees were there only to manage the Dharmshala hence, it has no public character. A perusal of the above quoted portion of the trust deed clearly records that the owners were unable to manage the Dharmshala and they themselves approached the Swami Bhakti Projan Keshab Maharaj and some other members of the Gudia Vendanta society to kindly agree to manage the dharmshala as trustee. The contents in subsequent paragraph of the deeds by the Board of trustees indicate that none of the nominee or representatives of any of the erstwhile owners of Dharmshala were trustee nor they retain any kind of control in the management of the trust. There was a clear stipulation in the deed that the heirs, successors-in-interest representatives and assignees of the erstwhile owner shall have no power to repudiate the trust deed or any of its terms. The Judge Small Cause court considered the memorandum of Gaudia Vedanta Society and returned a finding that the plaintiff society is a religious charitable institution.
The submission on which much emphasis has been pressed by learned counsel for the petitioner is that the owners never parted with their ownership or control, has no legs to stand in view of the specific contents in the trust deed to the contrary, which is recorded after paragraph 12 of the trust deed. While describing the property the executor clearly recorded that all their right, title or interest vests in the Board of trustees henceforth which is a clear indication of severance of rights and title of the executors from the property in question. Following is stated, while describing the property after paragraphs 12 of the deed:
" Pucca two storied Chaukhandidar building including gate, steps and four shops known as Dharmshala, water rate No. 1977 (Old No. 1848) and the Municipal Tax per year Rs. 83/- situate in the Mohalla Ganeshpura, Kanstila, Mathura of which possession has been given to be trustees and all our right, title, interest and managerial rights including the right to collect rent etc. in the said property now vest in the said Board of Trustee."
The present being a case where trust deed clearly indicates severance of rights of erstwhile owners from the property. The submission that it is not a public trust has rightly been rejected by the Courts below. The finding recorded by the courts below that the property is a public religious and charitable trust is based on consideration of relevant materials including the registered trust deed dated 13.12.1954 and memorandum of association of society and other materials on record. The submissions on the basis of which the petitioner sought to impugn the judgment have been found to be without any substance.
Now comes the question No. C as to whether the three judgements of this court noted above holding that the provisions of Act No. 13 of 1972 are not applicable on the Dharmshala, are to be followed or not in this writ petition. Hon'ble Single Judge while referring the matter vide reference dated 13.11.2007 has shown his respectful disagreement with the view taken by Hon'ble Single Judge in the aforesaid three judgements in so far as the three judgements held the Dharmshala to be a public religious and charitable trust. In view of what has been stated above, we are of the view that Dharmshala is a public religious trust and there is no reason to disagree with the three judgements of Hon'ble Single Judge concerning the same Dharmshala in judgment of this Court dated 24.9.2007 in writ petition No. 46342 of 2007, Baldeoraj Arora repelling the similar contention, the Hon'ble Single Judge of this Court held as follows:
"Copy of the trust deed has been annexed as Annexure'2' to the writ petition. The argument of the learned counsel for the petitioner is that even tough through the Trust deed management of the Trust and its property ws handed over to the plaintiff, however, the ownership continued to be of that person who created the trust i.e. Nand Kishore. I do not accept this argument. First of all, after creation of trust owners/executors of the trust deed are divested of their ownership and secondly in the Trust deed (at page 17 of the paper book) it is specifically mentioned........."
in view of the aforesaid, the answer of the questions ABC is as follows:
A. The trust deed dated 13.12.1954 registered on 20.12.1954 executed by Shri Nand Kishore for himself and as Manager and Karta of the Joint Hindu family including his brothers and Jagan Prasad and Madan Lal, sons and heirs of Gursaran Das @ Baijnath, chela of Baba Garib Das, resident of Mathura proves the nature and origin of endowment and shows that the control and management of the dharmshala is not retained with the founder or his descendants and that the property was dedicated for the public charitable purpose to a public charitable institution to which trust right, title and ownership was transferred. The trust deed dated 13.12.1954 cannot be read as creating any private endowment.
B. After vesting the management in the Gaudia Vedanta Society' and its member the founders did not retain any control over the management.
C. The judgements in writ petition No. 54930 of 2003, Ram Ratan Sharma son of Tulsi Das Vs. District Judge, Mathura dated 17.2.2004; writ petition No. 46342 of 2007, Baldeo Raj Arora Vs. Shree Keshav Ji Gauriya Math Dharmshala dated 24.9.2007 and writ petition No. 45694 of 2007, Ashok Kumar & Ors. Vs. Sri Keshavji Gauriya Math Dharmshala Trust & Ors. Dated 3.10.2007 holding that the building was a public charitable trust exempt under section 2 (1)(bb) of the Act lays down correct law.
In view of the above discussions and our answers, we find that there is no merits in any of the submissions of learned Counsel for the petitioner and the judgement of Judge Small Cause Courts does not suffer from any error which may warrant any interference by this Court in exercise of writ jurisdiction. The writ petition is dismissed . The interim order stands discharged.
Order Date :- 7.8.2012 LA/-