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1979 DIGILAW 171 (GUJ)

JAIN DIGAMBAR CHAITYLAYA and JAIN DIGAMBAR SANGH v. SHYAMSUNDAR MANEKLAL

1979-09-25

R.C.MANKAD

body1979
R. C. MANKAD, J. ( 1 ) THE main question which arises for determination in these two appeals is whether the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) apply to the suit property which is let out to the appellants of First Appeal No. 813 of 1937 ? If the provisions of the Act apply to the suit property it is not disputed that the respondents-plaintiffs suit must fail. ( 2 ) THE suit property is a two-storeyed building bearing Survey No. 8 and Municipal Census Nos. 1465 and 1465/1 situate in Nava Madhu pura outside Delhi Gate in the city of Ahmedabad. The suit property was owned by one Jayendrarai Gulabrai Munshi. On the death of Jayendrarai Gulabrai his widow Virmukhbala inherited it. Virmukhbala died in 1958 and on her death the suit property was inherited by her daughter Suvidya and her two sons Vasant and Avinash. The respondents-plaintiffs purchased it from Suvidya Vasant and Avinash under a sale deed Exh. 100 dated May 10 1962 Before the plaintiffs purchased the suit property they gave a public notice dated March 2 1962 staving to the effect that they had entered into an agreement to purchase the suit property and inviting objections against such purchase. In response to this public notice. Advocate Mr. C. M. Pania gave a notice Exh. 101 dated March 8 1962 on behalf of Jain Digambar Mandir (temple) to the plaintiffs stating that the original landlord had let out the suit property for the purpose of the temple and that he had agreed to sell it to the temple. A right of preemption was claimed on behalf of the temple. It was stated that the owners of the suit property had no right to sell it without first offering to sell it to the temple. The notice Exh. 101 further stated that the temple that is Jain Digambar Mandir was in existence in the suit property for the last 30 years and Jain devotees used to go to the temple to worship their deity. The plaintiffs however purchased the suit property under sale deed Exh. 100 as stated above. In this sale-deed it was stated that one Ghasiram Jivanlal Choksi who was tenant was residing in the suit property and that the suit property was in his possession. The plaintiffs however purchased the suit property under sale deed Exh. 100 as stated above. In this sale-deed it was stated that one Ghasiram Jivanlal Choksi who was tenant was residing in the suit property and that the suit property was in his possession. Constructive possession was therefore given to the plaintiffs. The plaintiffs had purchased the suit property for their own use and occupation and they therefore filed a suit being H. R. P. Suit No. 2158 of 1962 against Ghasiram Jivanlal in the Court of Small Causes at Ahmedabad to recover possession of the suit properly. This suit was dismissed on December 30 1965 on the ground that Ghasiram Jivanlal was not proved to be tenant of the suit property. The plaintiffs there after gave notice Exh. 143 dated January 17 1966 to the Manager of Jain Digambar Chaityalaya or Jain Digambar Mandir terminating the tenancy of the Jain Digambar Mandir and calling upon the Manager of the Mandir to hand over possession of the suit property to them. Jain Digambar Chaityalaya or Jain Digambar Mandir was joined as defendant No. 1 in Civil Suit No. 2181 of 1969 which was later on filed by the plaintiffs in the City Civil Court at Ahmedabad. The Jain Digambar Mandir is appellant No. 1 in First Appeal No. 813 of 1973. Reply Exh. 102 dated February 14 1966 was given to this notice by Advocate Mr. A. K. Trivedi on behalf of Bansilal Surajmal who was joined as defendant No. 2 in the said suit and who is appellant No. 2 in First Appeal No. 813 of 1973. In this reply it was stated that Jain Digambar Mandir was the tenant of the suit property and that this temple was managed by a committee. It was further stated that the Jain Digambar Mandir had taken the suit property on rent at a monthly rent of Rs. 37-50. It was permitted to sublet the ground floor of the suit property and therefore it had sublet the ground floor to defendant No. 7 in the said suit who is appellant in First Appeal No. 128 of 1974. It is not necessary to refer to other statements made in the said reply. The plaintiffs again gave a registered notice Exh. 40 dated September 6 1969 terminating the tenancy and calling upon defendants Nos. It is not necessary to refer to other statements made in the said reply. The plaintiffs again gave a registered notice Exh. 40 dated September 6 1969 terminating the tenancy and calling upon defendants Nos. 1 to 6 in the said suit who are appellants in First Appeal No. 813 of 1973 to vacate the suit property and deliver possession to them. The plaintiffs thereafter filed the said Civil Suit No. 2182 to 1969 in the City Civil Court at Ahmedabad out of which the present appeals arise to recover possession of the suit property. ( 3 ) THE plaintiffs alleged that as the suit property was let out for the purpose of temple the provisions of the Act do not apply. According to the plaintiffs they having validly terminated the tenancy of the jain Digambar Chaityalaya or Mandir are entitled to possession of the suit property. Defendant No. 7 to whom ground floor of the suit property was sublet was joined as a party to the suit to obviate any objection regarding nonjoinder of necessary party. 1t was contended that since defendant No. 7 was inducted as tenant or sub-tenant by defendant No. 1 Jain Digambar Mandir he was liable to vacate the premises in his occupation on termination of tenancy of Jain Digambar Mandir. The plaintiffs there. fore prayed for a decree for possession of the suit property against all the defendants. ( 4 ) DEFENDANTS Nos. 1 to 5 resisted the suit and contended that the provisions of the Act apply to the suit property and therefore the city Civil Court had no jurisdiction to try the suit. They further contended that as the suit property is let out to a public trust the suit was not maintainable without notice to the Charity Commissioner. The case of defendants Nos. 1 to 5 was that the suit property was let out to Ghasiram Jivanlal and another for and on behalf of Jain Digambar Sangh. Jain Digambar Sangh had taken the suit property on rent to carry on religious activities and impart religious education to Jains. According to the above; defendants idol of Bhagwan Mahavir Swami was installed in the suit property many years after it was taken on rent. Jain Digambar Sangh had taken the suit property on rent to carry on religious activities and impart religious education to Jains. According to the above; defendants idol of Bhagwan Mahavir Swami was installed in the suit property many years after it was taken on rent. The idol was installed in the rear room on the first floor of the suit property and remaining part of the first floor was and is used for religious activities andimparting religious education to Jains. Jain Sadhus visit the temple and they give religious discourses in the temple. Thus according to the above defendants besides being a place of worship for Digambar Jains the temple or the suit property is used for religious and educational purposes. They therefore contended that the suit property being let out for one of the purposes specified in sec. 6 of the Act it is governed by the provisions of the Act. It was further contended that the predecessorin title of the plaintiffs had permitted Jain Digambar Sangh or their trustees to sublet the suit property and it was therefore that the suit property was sublet to defendant No. 7. Diffident No. 7 is using the ground floor of the suit property as a godown since past many years. It was; therefore contended that the purpose for letting cannot be said to be solely for temple and therefore also the provisions of the Act apply to it. defendants Nos. 1 to 5 have challenged the legality of the notice Exh. 40 given by plaintiffs on the ground that the tenancy was terminated as if it was a monthly tenancy. According to the defendants it was an Annual tenancy and it could not be terminated by giving 15 days notice ending with the month of tenancy as provided in sec. 106 of the Transfer of Property Act. The contention of the defendants was that the tenancy being annual six months notice was necessary and as no such notice was given tenancy is not validly terminated. The defendants therefore challenged the plaintiffs right to recover possession of the suit property on the basis of the notice Exh. 40. ( 5 ) DEFENDANT No. 6 filed his written statement stating to the effect that he had ceased to be one of the trustees of the Jain Digambar Sangh and therefore he is not a necessary party. The defendants therefore challenged the plaintiffs right to recover possession of the suit property on the basis of the notice Exh. 40. ( 5 ) DEFENDANT No. 6 filed his written statement stating to the effect that he had ceased to be one of the trustees of the Jain Digambar Sangh and therefore he is not a necessary party. ( 6 ) DEFENDANT No. 7 in his written statement pleaded that he was a lawful sub-tenant and therefore the plaintiffs were not entitled to recover possession from it. It supported the contention of defendants Nos. 1 to 5 that the suit property was not let out solely for the purpose of temple. It was further contended that even if tenancy of defendants Nos. 1 to 5 was validly terminated defendant No. 7 could not be evicted from the suit property on the basis of notice Exh. 40. The contention of defendant No. 7 was that on termination of the tenancy of defendants Nos. 1 to 5 it became tenant protected under the provisions of the Act. It is not necessary to set out other contentions raised on behalf of defendants Nos. 1 to 5 and 7 because they are not pressed in this Court. ( 7 ) THE learned trial Judge by his judgment and decree dated May 3 1972 held that as the suit property was let out for the purpose of a temple the provisions of the Act do not apply. He further held that the tenancy was monthly tenancy and it was validly terminated by the plaintiffs by giving notice Exh. 40. He further held that notice to Charity Commissioner was not necessary as contended by defendants Nos. 1 to 5. So far as defendant No. 7 was concerned the learned Judge was of the view that once tenancy of the temple was validly terminated he was liable to be evicted. In the result he decreed the suit of the plaintiffs. Being aggrieved by this decree defendant Nos. 1 to 5 have preferred First Appeal No. 813 of 1973 and defendant No. 7. First Appeal No. 128 of 1974. . . . . . . . . . . . . In the result he decreed the suit of the plaintiffs. Being aggrieved by this decree defendant Nos. 1 to 5 have preferred First Appeal No. 813 of 1973 and defendant No. 7. First Appeal No. 128 of 1974. . . . . . . . . . . . . [ His Lordship after discussing the facts of the case further-observed:- ] ( 8 ) THE defendants evidence proves that there is idol of Bhagwan Mahavir in the rear room on the first floor of the suit property and front room is used for religious activities such as imparting religious education to Digambar Jains and their children. Jain Sadhus visit the temple and give religious discourses to the Digambar Jains and Digambar Jains worship the idol. They also use the front and rear rooms for meditation. As pointed out above the premises let for residence education business trade or storage are governed by the provisions of the Act. The suit property is not used for residence. Part of the suit property which is not sublet that is the first floor of the suit property is admittedly not used for business trade or storage. Two questions arise for consideration namely (i) whether the activities which are carried on the first floor of the suit property could be said to be educational activities. In other words could it be said that by reason of the activities carried on the first floor of the suit property the suit property was let for education; and (ii)whether by reason of subletting the ground floor of the suit property the suit property could be said to be let for business trade or storage. It was argued by Mr. Vyas that the Act puts restrictions on the landlords right to recover possession of his property let out to a tenant and therefore the provisions of the Act must be strictly construed. He argued that the word education used in sec. 6 must be understood to mean systematic training to a person or body of persons to prepare him or them for art science or some speciality. Mr. Vyas submitted that temple is used only for worship or Darshan of idol and no educational activity is involved in such worship or Darshan. Mr. 6 must be understood to mean systematic training to a person or body of persons to prepare him or them for art science or some speciality. Mr. Vyas submitted that temple is used only for worship or Darshan of idol and no educational activity is involved in such worship or Darshan. Mr. Vyas submitted that since no training was being imparted to a person or persons in the temple no educational activity could be said to be carried on in the temple. According to Mr. Vyas education must only be formal education where a teacher teaches a taught. On the other hand Mr. M. D. Pandya urged that word education should be liberally construed and it should be understood to mean education of any kind. According to Mr. Pandya worship and meditation help an individual to develop his spiritual and moral capacities. In that sense worship Darshan and meditation afford self-education. Therefore according to Mr. Pandya word education would take in its sweep worship and/or Darshan also. In any case in the present case it is established by evidence that besides worship and Darshan Digambar Jains are imparting religious training and education in the temple. It must therefore be held that the suit property was let out for education. ( 9 ) SEC. 6 of the Act casts wide net to cover premises let out for various purposes. It would appear that intention of the legislature was to apply relevant provisions of the Act to as many premises as possible. It is therefore that sec. 6 provides that premises let for wide range specified purposes such as residence education business trade and storage would be governed by the relevant provisions of the Act. The object of the Act is to give protection to the tenants and prevent the landlords from exploiting them. In my opinion having regard to the object of the Act and wide range of premises which are sought to be brought within the purview of the Act word education must be given liberal construction by the Court. The object of the Act is to give protection to the tenants and prevent the landlords from exploiting them. In my opinion having regard to the object of the Act and wide range of premises which are sought to be brought within the purview of the Act word education must be given liberal construction by the Court. Various meanings of word education given in Shorter Oxford English Dictionary are as follows:- The process of nourishing or rearing; the process of bringing up (young persons; the manner in which a person has been brought up; the systematic instruction schooling or training given to the young (and by extension to adults) in preparation for the work of life; also the whole course of scholastic instruction which a person has received also culture or development of powers formation of characterit would thus appear that word education has a very wide meaning. It is therefore not correct to say that word education must be understood to mean only systematic training to a person or body of persons to prepare him or them for art science or some speciality as urged by Mr. Vyas. Cultural development of a person is also education. Education means to train mentally and morally. Education is not confined to education by a teacher in a class room and it need not be connected with teaching or education in the conventional sense. Any activity which trains a man mentally and morally is education. Furtherance of religious and mental improvement is education. Any activity to build character of a person or any activity tending to improve mental and moral capacities of a person is education. If education is understood in this sense there cannot be any doubt that the suit property is let for education. The evidence discloses that religious education is imparted to Digambar Jains since the time when the suit property was taken on lease. Jain Sadhus visit the temple in the suit property and give religious discourses. The fact that the entire suit property was taken on lease indicates that the trustees who took the property on lease did not want to confine their activity to running a temple that is installation of idol for worship by Digambar Jains. Only one room is used as temple in this strict sense. The fact that the entire suit property was taken on lease indicates that the trustees who took the property on lease did not want to confine their activity to running a temple that is installation of idol for worship by Digambar Jains. Only one room is used as temple in this strict sense. As pointed out above idol of Bhagwan Mahavir is kept on a table in the rear room on the first floor and Digambar Jains offer prayers before the idol. They also meditate in front of the idol and the front room. The temple is not used merely for worship or Darshan as urged by Mr. Vyas. Religious or educational activities which are carried on in the temple are aimed at building character and improve mental and moral capacities of those who visit the temple. Even in worship and meditation there is self-education as rightly urged by Mr. Pandya. D. W. I Bansilal has stated that he has been imparting religious education to boys for the last 43 years. Ghasiram Jivanlal was doing this work before he took over this work from him. This activity of imparting education is carried on right from the inception in the temple. Therefore even if education is understood in a narrow sense and is confined to education by teacher such education is being imparted in the temple. There is no doubt that it was with the object of carrying on various religious activities including imparting of religious education by teachers and Sadhus that the suit property was taken on lease. In my opinion therefore the suit property was let for education which is one of the purposes specified in sec. 6 of the Act. ( 10 ) IT further appears that the ground floor of the suit property was sublet to defendant No. 7 with the consent and approval of the predecessorin title of the plaintiffs. It is not disputed that defendant No. 7 is using the ground floor as godown to store its goods. Defendant No. 7 is carrying on business and storage of goods of the ground floor of the property is on account of or part of his business. It is not disputed that defendant No. 7 is using the ground floor as godown to store its goods. Defendant No. 7 is carrying on business and storage of goods of the ground floor of the property is on account of or part of his business. ( 11 ) THEREFORE though the defendants have not been able to establish the exact year in which ground floor of the suit property was sublet to defendant No. 7 there is no doubt that defendant No. 2 is in possession thereof at least since 1945. There is no reason to disbelieve the evidence of the defendants which discloses that the godown was sublet to defendant No. 7 with the consent and approval of the predecessor-in-title of the plaintiffs. It is obvious that when the landlord gave his consent to sublet the ground floor to defendant No. 7 the purpose for letting even if it initially was for temple did not remain solely for temple. The purposes of letting became twin (i) for temple; and (ii) for storage. If one of the purposes for letting is the purpose specified in sec. 6 the suit property would be governed by the provisions of the Act. The entire property need not be for the specified purpose. Even if a part of it is proved to be let for specified purpose the entire property would be governed by the provisions of the Act. In my opinion therefore subletting of ground floor for the purpose of godown with the consent and approval of the landlord brings the suit property within four corners of sec. 6 of the Act and it is governed by the provisions of the Act. ( 12 ) IN the view which I am taking it is not necessary to deal with other contentions raised inthese two appeals. The plaintiffs suit must fail on the ground that the suit properly is governed by the provisions of the Act and their remedy if any lies in the Rent Court. ( 13 ) IN the result both these appeals are allowed and the plaintiffs suit is dismissed with costs throughout. Appeals allowed. .