By this writ petition, the petitioner has assailed the judgment and order dated 8.11.2006 passed by the Prescribed Authority in P.A.Case No. 14 of 2000 where an application under Section 21 of U.P. Rent Control Act (No. 13 of 1972) was allowed as well as the judgment and order dated 19th July, 2010 passed by Additional District Judge, Court No.3, Unnao in Rent Appeal No. 4 of 2006.
The brief facts of the case are that the petitioner's father was inducted as tenant in house no. 328, Mohalla Jawahar Nagar, City Unnao and, on his death, his tenancy is inherited by the petitioner, who is an advocate. Thus, the house bearing Corporation No. 328(old) 361 (new) situated in Mohalla Jawahar Nagar City Unnao is the property in dispute. The opposite-party no.3 (hereinafter known as landlord) wants to construct a "Dharamshala" over the land of aforesaid house as adjacent house is already available for the purpose, so an application was moved under Section 21 of U.P. Rent Control Act for the eviction which was allowed. Being aggrieved, the petitioner filed the Rent Appeal which was dismissed by the impugned order. Not being satisfied, the petitioner-tenant has filed the present writ petition.
With this background, Sri P.K.Khare, learned counsel for the petitioner, submits that the house in dispute is a Trust property which came into existence on the basis of a registered will dated 12.5.1938 executed by Late Lala Behari Lal in favour of Sri Biharishwar Mahadeo Ji Virajman Shivala, Sadar Bazar, Jawahar Nagar, Unnao. He submits that it is abundantly clear that so-called Trust has been established by virtue of a will and is being maintained through public money which is availed by the Trust. He submits that the said Trust is a Public Charitable Trust, so the provisions of U.P. Rent Control Act (No. 13 of 1972) are not attracted. Hence, the proceedings before the lower courts were not valid. Therefore, the order passed by the lower court under Section 21 of U.P. Rent Control Act is not maintainable. According to him, the deed of the will only provides that the property in question will be utilized for temple purpose and the deed nowhere requires the house to be converted into a "Dharamshala". For the demolition and re-construction of the house, the opposite-party no.3 has no financial capacity. Being Public Charitable Trust, it does not fall within the purview of U.P. Rent Control Act, 1972. He also submits that the respondent no.3 is already having its Dharamshala in the other part of District Unnao and that building is utilized for commercial purposes like Guest House, Marriage Hall etc. In these circumstances, according to him, the premises in question is not to be released. The need is not bona fide but is for the purpose of multiplying the income of an individual, particularly, nothing has been shown as to how the Trust is being managed and to what extent its annual income is utilized. Again, he submits that the Trust is for public purpose and is outside the clutches of Rent Control Act. For the purpose, he relied on the ratio laid down in the following cases-
1.Shri 1008 Murti Bhagwanji Mahavir Swamiji Mahraj Virajman Mandir & another v. Komal Prasad Jain (Deceased) by L.Rs. & others (2010 All. C.J. 525) wherein it was observed that if it is established that building in question is a religious institution and is meant for public charitable purposes, no further elucidation is required. Temple in question is covered within purview of Section 3(s) of Act.
2.S.Nihal Singh v. Vith Addl. D. and S.Judge, Saharanpur and others (1978 All. C.J. 425) wherein it was observed that public Dharamshala comes under expression "Public Charitable Trust" and entitled to file application under Section 21(1)(a).
3.Baba Jamuna Das Mahanth v. Prescribed Authority and others (1984 All. C.J. 529) wherein it was observed that it is necessary that it should be a trust and that vacant land is a public charitable or religious trust.
4.Shri Bajrang Bali Ji Maharaj Virajman v. Rent Control and Eviction Officer and another, 1998 (UP) RCC 142 wherein it was observed that whether trust in question is Private Religious Trust or Public Religious Institution and it was held that intricate question of law to be decided by competent Civil Court and not by the authorities under the Rent Act.
5.Sri Ganesh Prasad Dalal Dharmshala, Kanpur Nagar & others v. Kailash Nath Gupta [2009 C A R 720 (All.)] wherein it was observed that 'public charitable trust' comes within ambit of Section 2(1) (bb).
Lastly, he made a request that the impugned judgments and orders dated 8.11.2006 and 19.7.2010 (Annexures No. 1 and 2 to the writ petition) be set aside.
On the other hand, Sri Mohd. Saeed-II, learned counsel for opposite-party no.3, relied on the orders of the lower authorities. He submits that the petitioner is an advocate and for last ten years, he is lingering on this case for one reason or another. He submits that in the lower courts, the petitioner never disputed the relationship of landlord and tenant between the parties but disputed the need of the landlord and according to the petitioner, it is not genuine and bona fide. Subsequent to the filing of the written-statement by way of amendment, further objection was raised by the petitioner about the maintainability of the release application as the stand of the petitioner was that the Trust in question was a public Trust and as such is exempted from the provisions of U.P. Rent Control Act 13 of 1972 which was contrary to the stand of opposite-party no.3 to the effect that the opposite-party no.3 is a private Trust and was not exempted from the provisions of the said Act.
According to him, the Prescribed Authority recorded a categorical finding to the effect that the Trust in question was not a Public Trust and having found it to be a Private Trust and held that the provisions of U.P. Act No. 13 of 1972 are applicable to the property in dispute and the release application as moved by the landlord was maintainable and, finally, it was allowed. In the Rent Appeal No. 4 of 2006, it was also observed that the Trust in question is a private Trust. Thus, there is a concurrent finding of the learned two courts below to the effect that the Trust is a private Trust.
About the need of the petitioner, he submits that during pendency of the writ petition, the petitioner has purchased a house in the name of his wife Smt. Urmila Devi by a registered sale-deed dated 15.10.2010 bearing land no. 4582, Corporation No. 109/1 measuring 223.04 sq. meter (about 2400 sq. ft.) situated in the same Mohalla i.e. Narendra Nagar, Jawahar Nagar, Unnao. The said house is a triple storeyed house and each floor of which as per the sale-deed has 98.51 sq. meter covered area and in all 295.53 sq. meter area. As on today, the said house is in possession of the petitioner. To this effect, a copy of the sale-deed was brought on record by way of supplementary affidavit dated 22.11.2010 (Annexure S-1), so he submits that comparative hardship is in favour of landlord.
At the cost of repetition, he submits that Trust was created by virtue of registered will and the executant established the Trust of his own fund, made an arrangement of the circumstances of his own property, control and the management of the Trust was also retained in himself and his own family. There was neither any contribution of public in establishment and maintenance nor in management of the said Trust. Thus, the Trust in question is a private Trust, as already observed by the lower courts. For the purpose, he relied on the ratio laid down in the following cases:-
1.Ram Dularey v. Fourth A.D.J., Varanasi, A.R.C. 1996 (Volume-2) pg. 459 and
2.Sri Thakur Churmer Binda Yogal Jodi v. Third A.D.J., Mathura, A.R.C. 1997 (1) pg. 216 In the above mentioned cases, the Hon'ble High Court had laid down various tests to find out as to when a trust can be treated a public or private trust.
I have heard learned counsel for the parties at length and perused the bulky record.
It appears that the petitioner is a tenant at the rate of Rs. 80 per month. The house in question consists of three rooms, one verandah, one kitchen, one store-room and one bath-room. The tenancy is inherited by the petitioner who is an advocate.
In this writ petition, the first important question that falls for the determination is whether the opposite-party no.3 is an endowment of public as alleged by the petitioner or a private family Trust as alleged by the opposite-party no.3.
In pith and substance, the argument of the learned counsel for the petitioner is that the Trust in question is maintained by the public money which put therein "Shiv temple" and that money is used to maintain "Dharamshala" which is meant for public. In the instant case, it is alleged that the income is through public money and invested to "Dharamshala" which is a religious place, so the property owned by respondent no.3 is a public Trust.
On the other hand, the trust of opposite-party no.3 is that the Trust came into existence on the basis of a registered will dated 12.5.1938 executed by Lala Behari Lal in favour of Sri Biharishwar Mahadev Ji Virajman Shivala, Sadar Bazar, Jawahar Nagar, Unnao. A photostat copy of the said will which is written in Urdu along with its translation in Hindi has been filed as Annexure No.1 to the counter-affidavit filed by opposite-party no.3. The extract of Hindi version has also made available in the counter-affidavit and written submission which was perused carefully.
On specific query made by the Bench it was clarified on behalf of the parties that the Trust in question is neither registered under the Indian Trusts Act nor under Income Tax Act and perhaps never filed any income-tax return.
Needless to mention that concept of a private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature but in India, the Trusts are divided into private Trust or Public Trust, as observed by Dr. Mukherjee in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition) p.12 that-
"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.
Accordingly, 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 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 decendants.
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.
The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. In Deoki Nandan vs. Murlidhar, 1956 SCR 756 : (AIR 1957 SC 133), Hon'ble Apex Court observed as follow:
"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."
In the case of Radhakanta Deb v. The Commissioner of Hindu Religious Endowments, Orissa, AIR 1981, page no. 798 (Para 14), the Apex Court laid down four tests for determination of the nature of the trust as under:-
(1)Where the origin of 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 circumstances where the evidence shows that there is provision for 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 above mentioned tests can be summarized in the context of the present case.
In the first test in order to determine the nature of the trust, it is to be ascertained as to whether the user of the temple by members of public is as of rights. The Will where by the trust in question came into existence nowhere provides that user of temple by the members of the public will be as of right. Even otherwise the public has no say in the user of temple in question as of right.
In the second test, it has to be ascertained as to whether the control and management vests in large body of persons are members of the public or the founder did not retain any control over the management. A perusal of the will show that the control and management was retained by the founder in himself and his own family and it was specifically provided that any relative or outsider will have no right to interfere in the management of the trust. Thus in view of the second test the trust in question is only a private trust.
The third test as laid down is to see from the document, the nature and origin of the trust and if the control and management of the temple is retained with the founder and his descendants, and that extensive properties are dedicated for the maintenance of the temple belonging to the founder himself. It will be a conclusive proof to determine that the trust is a private trust. In the present case, a perusal of the Will shows that the control and management of the temple was retained by the founder in himself and his descendants as also extensive properties have been dedicated for the purpose of maintenance of the temple.
The fourth test is where the founder of the trust did not make any stipulation for contribution to be made by members of the public. It will be an important circumstance to indicate the private nature of the trust. A perusal of the Will by means of which the trust in question came into existence reflects that no stipulation for offering or contributions to be made by the members of the public was made by the founder in the deed.
Thus on examining the nature of the trust by applying the aforementioned tests it would be crystal clear that the trust in question is a private trust.
The Hon'ble Apex Court has already observed in the case of Deoki Nandan (supra) that the mere fact that members of the public are allowed to worship by itself would not make an endowment public. Thus, it appears that the present Trust is a Private Trust as already observed in the concurrent finding recorded by the lower courts. Consequently the trust in question is not exempted from and the provisions of U.P. Act XIII of 1972 and the same are applicable to it.
Moreover, the petitioner himself has admitted in the writ petition that there is relationship of tenant and landlord between him and the opposite-party no.3. Para 2 of the writ petition is as under:-
"That the petitioner's father was inducted as a tenant in a house situate in House No. 328 Mohalla Jawahar Nagar, City Unnao and on his death, his tenancy is inherited by the petitioner."
The petitioner is regularly paying the rent to opposite-party no.3. Thus, there is undisputed relationship of the landlord and tenant between them.
In view of the above, I find no reason to interfere with concurrent findings of the courts below that there is tenancy between the parties and the provisions of U.P. Act No. 13 of 1972 are applicable in the instant case. Hence, in this regard, the orders of the lower courts are hereby sustained.
In the petition, another question was raised by the petitioner about the comparative hardship. The petitioner stated that the opposite-party no.3 is already having its "Dharamshala" in the other part of District Unnao and that building is utilized for commercial purposes like Guest House, Marriage Hall etc. On the other hand, learned counsel for the opposite-party no.3 submits that during pendency of the writ petition, the petitioner has purchased a house in the name of his wife Smt. Urmila Devi by a registered sale-deed dated 15.10.2010 bearing land no. 4582, Corporation No. 109/1 measuring 223.04 sq. meter (about 2400 sq. ft.) situated in the same Mohalla i.e. Narendra Nagar, Jawahar Nagar, Unnao. Further, from the records of courts below, it also appears that the petitioner, who is an advocate, has agricultural land about 35 bighas. The petitioner's right of tenancy is inherited and no attempt was made by him to make an alternative arrangement. In the garb of tenancy at the rate of Rs. 80/- per month, he cannot become owner of the property in question. Hence, the comparative need is in favour of the opposite-party no.3 i.e. landlord.
Needless to mention that the petitioner is an advocate and he has lingered on this litigation from more than a decade for one reason or another which amounts to misuse of judicial process. In these circumstances, I find no reason to interfere with the impugned orders passed by the courts below and the same are hereby sustained along with the reasons mentioned therein.
The petitioner is directed to vacate the premises before 15th July, 2011, failing which the opposite-party no.3 will be at liberty to get the premises in question vacated with the assistance of the police and the Superintendent of Police, Unnao shall provide the assistance for the purpose as per law.
With the above direction, the writ petition stands dismissed. No order as to cost.
Order Date :- 4.5.2011 VB/-