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2014 DIGILAW 101 (CHH)

RISHABH DEV MANDIR TRUST v. MAHADEV LAL AGRAWAL

2014-03-04

SANJAY K.AGRAWAL

body2014
ORAL JUDGMENT 1. The substantial question of law involved in this second appeal and to be answered is as under: "Whether the first Appellate Court was justified in setting aside the finding of the trial Court decreeing the suit and thereby dismissing the suit ignoring the fact that suit accommodation is exempted from the operation of provisions of Chhattisgarh Accommodation Control Act, 1961 and for eviction of the tenant/defendant only termination of the tenancy in accordance with Section 106 of the Transfer of Property Act, 1882 is required?" [For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.] 2. Facts and circumstances giving rise to this appeal are that: (2.1) Rishabhdeo Mandir, a public trust registered under the provisions of Madhya Pradesh Public Trusts Act, 1951 (henceforth 'the Act of 1951') along with its 5 trustees filed a civil suit for eviction and arrears of rent against Mahadeolal Agrawal pleading inter alia that first plaintiff Rishabhdeo Mandir is a religious institution. The accommodation owned by the first plaintiff is exempted from the provisions of the Madhya Pradesh Accommodation Control Act, 1961 (henceforth 'the Act of 1961'). The tenancy of defendant Mahadeolal Agrawal was terminated in accordance with law by serving a notice dated 4-4-1992 (Ex.P-2) with effect from midnight of 30-4-1992 and the defendant/tenant was asked to vacate the suit accommodation with effect from 1-5-1992, but neither the suit accommodation was vacated nor the arrears of rent was paid by the defendant/tenant leading to filing of the suit for eviction and arrears of rent. (2.2) The defendant/tenant filed his written statement resisting the suit stating inter alia that though the first plaintiff is a religious institution and second to sixth plaintiffs are trustees of the first plaintiff/trust yet the trustees/second to sixth plaintiffs are not authorised to sign and verify the plaint. It was further pleaded that notification dated 7-9-1989 issued by the State Government exempting public trusts from the provisions of the Act of 1961 has been held to be ultra vires, therefore, the present suit filed for eviction and arrears of rent is not maintainable and is liable to be dismissed. 3. It was further pleaded that notification dated 7-9-1989 issued by the State Government exempting public trusts from the provisions of the Act of 1961 has been held to be ultra vires, therefore, the present suit filed for eviction and arrears of rent is not maintainable and is liable to be dismissed. 3. The trial Court, after a full fledged trial, by judgment and decree dated 4-3-2002, decreed the suit finding inter alia that- (i) the first plaintiff is a religious institution registered as a public trust under the provisions of the Act of 1951, (ii) the notification dated 7-9-1989 issued by the State Government exempting the public trusts from the provisions of the Act of 1961 was declared unconstitutional by the High Court of Madhya Pradesh in Chintamani Chandra Mohan Agarwal Vs. State of Madhya Pradesh, 1994 MPLJ 597 , but, later on, the order of the Madhya Pradesh High Court declaring the notification dated 7-9-1989 as unconstitutional was set aside by the Supreme Court in State of Madhya Pradesh Vs. Chintamani Agarwal, Civil Appeal No.9909/1995 decided on 19-10-1995, therefore, the public trust properties are exempted from the operation of the Act of 1961 and (iii) the defendant's monthly tenancy had been terminated by serving 15 days' clear notice dated 4-4-1992 (Ex.P-2) with effect from midnight of 30-4-1992 and, therefore, the plaintiffs are entitled for vacant possession of the suit accommodation and arrears of rent. 4. Feeling dissatisfied with the judgment and decree passed by the trial Court decreeing the suit, defendant/tenant Mahadeolal Agrawal preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the CPC'). The first appellate Court, by the impugned judgment and decree dated 22-12-2004, allowed the appeal finding inter alia that- (i) the first plaintiff is a religious institution and second to sixth plaintiffs are trustees of the said religious institution and they are entitled to sign and verify the plaint and (ii) the defendant/tenant has not acted contrary to the interest of the plaintiffs and, therefore, there is no ground to evict the defendant from the suit accommodation. 5. Questioning the judgment and decree passed by the first appellate Court allowing the appeal and dismissing the suit, the plaintiffs have preferred the instant second appeal under Section 100 of the CPC. 6. 5. Questioning the judgment and decree passed by the first appellate Court allowing the appeal and dismissing the suit, the plaintiffs have preferred the instant second appeal under Section 100 of the CPC. 6. Shri B.P.Sharma, learned counsel appearing for the appellants would submit that the first appellate Court has committed a serious legal error in dismissing the suit of the plaintiffs by ignoring the fact that the first plaintiff is a religious institution registered as a public trust under the provisions of the Act of 1951 and has been exempted by the notification dated 7-9-1989 from the provisions of the Act of 1961 and, therefore, the plaintiffs are not required to comply with any of the grounds mentioned in Section 12(1) (a) to (p) of the Act of 1961 and the simple termination of the monthly tenancy by serving 15 days' clear notice would entitle the plaintiffs to get a decree for eviction, therefore, the judgment and decree passed by the first appellate Court be set aside and the judgment and decree passed by the trial Court be affirmed. 7. Combating the submissions made on behalf of the appellants, Shri A.K.Prasad, learned counsel appearing for the legal representative of respondent No.1/defendant would submit that the first appellate Court is absolutely justified in reversing the judgment and decree of the trial Court by dismissing the suit holding that the plaintiffs are not entitled for a decree of eviction. 8. I have heard and considered the arguments advanced by learned counsel appearing for the parties and have also perused the record with utmost circumspection. 9. The first question which arises for consideration is whether the notification dated 7-9-1989 issued by the State Government exempting the properties owned by public trusts from the operation of the provisions of the Act of 1961 is in force or not? 10. In order to appreciate the point in question, it would be appropriate to refer to Section 3(2) of the Act of 1961, which runs thus: "3. Act not to apply to certain accommodations.- xxx xxx xxx (2) The Government may, by notification, exempt from all or any of the provisions of this Act any accommodation which is owned by any educational, religious or charitable institution or by any nursing or maternity home, the whole of the income derived from which is utilised for that institution or nursing home or maternity home." 11. The State Government, in exercise of powers under Section 3(2) of the Act of 1961, issued the notification dated 7-9-1989 and thereby exempted the properties of the trusts registered under the provisions of the Act of 1951 for educational, religious or charitable purpose from the provisions of the Act of 1961. The notification dated 7-9-1989 states as under: "Notification No.F-24-(4)-83-XXXII-I dated 7-9-1989, published in M.P. Rajpatra of the same date on p. 2144. In exercise of the powers conferred by sub-section (2) of Section 3 of the Madhya Pradesh. Accommodation Control Act, 1961 (41 of 1961), the State Government hereby exempts all the accommodation owned by- (i) the wakf, registered under the Wakf Act, 1954 (29 of 1954), or (ii) the public trust registered under the Madhya Pradesh Public Trusts Act, 1951 (30 of 1951) for an educational, religious or charitable purpose, from all the provisions of the Madhya Pradesh Accommodation Control Act, 1961 (41 of 1961)." 12. The constitutional validity of the notification dated 7-9-1989 was challenged before the High Court of Madhya Pradesh. The High Court of Madhya Pradesh in Chintamani case, 1994 MPLJ 597 (supra) held that the notification dated 7-9-1989 is ultra vires to the provisions of the Constitution and, therefore, it was declared as inoperative. The State of Madhya Pradesh filed an Special Leave Petition before the Supreme Court against the order passed by the High Court of Madhya Pradesh in Chintamani case, 1994 MPLJ 597 (supra). The Supreme Court in its order dated 19-10-1995 set aside the order passed by the High Court of Madhya Pradesh and affirmed the notification dated 7-9-1989 exempting the properties of the trusts from the operation of the Act of 1961. Thereafter, the Supreme Court in Betibai and others Vs. Nathooram and others, (1999) 6 SCC 368 , held that the religious and charitable trusts exempted by the notification under Section 3(2) of the Act of 1961 from the operation of the Act of 1961 need not file a suit for eviction of tenants on the grounds set out under Section 12 of the Act of 1961 and they can file a suit directly under Section 106 of the Transfer of Property Act, 1882 (henceforth 'the Act of 1882') after terminating the tenancy. The Supreme Court held thus: "7. The Supreme Court held thus: "7. The decision of this Court in Mangilal v. Shri Chuturbhuja Mandir, (1998) 5 SCC 597 , upon which reliance has been placed is distinguishable as the only question pleaded in that case was that since the notification dated 7-9-1989 has been held to be bad by the High Court in respect of wakf properties only, the trust properties would continue to be exempted from the operation of the Act. This plea was not accepted and it was held that the notification dated 9-9-1989 was a composite notification which applied not only to the wakf properties but also to other charitable trust properties, and since this notification has been held to be bad in respect of the wakf properties, it would be bad for all other properties, including trust properties, which were sought to be exempted from the operation of the Act. The validity of the notification was not questioned in that decision. Moreover, it was not brought to the notice of their Lordships, who decided that case, that against the decision of the Madhya Pradesn High Court in Chintamani Chandra Mohan Agarwal v. State of MP., 1994 MPLJ 597 (MP), Civil Appeal No. 9909 of 1995 [arising from SLP (Civil) No.4360 of 1994] was filed in this Court, which was decided on 19-10-1995 and the decision of the Madhya Pradesh High Court was reversed with a categorical finding that the notification issued by the Madhya Pradesh Government exempting the wakf and trust properties from the operation of the Act was valid." 13. Thereafter, the Supreme Court, again in Ramgopal and another Vs. Balaji Mandir Trust and others, (2003) 5 SCC 17 , noticed the decisions in Betibai case, (1999) 6 SCC 368 (supra) and Chintamani case, 1994 MPLJ 597 (supra) and relying on the decision in Betibai case, (1999) 6 SCC 368 (supra), held that a religious institution registered under the provisions of the Act of 1951 is entitled for eviction without taking recourse to Section 12(1) of the Act of 1961. The Supreme Court held as under: "9. In the case of State of M.P. v. Kanhaiyalal case, 1970 MPLJ 973, the exemption notification issued under Section 3(2) of the Act was of 22-5-1963, with which we are not concerned. The notification governing the present case is dated 7-9-1989. Even otherwise, that case was rightly distinguished on facts. The Supreme Court held as under: "9. In the case of State of M.P. v. Kanhaiyalal case, 1970 MPLJ 973, the exemption notification issued under Section 3(2) of the Act was of 22-5-1963, with which we are not concerned. The notification governing the present case is dated 7-9-1989. Even otherwise, that case was rightly distinguished on facts. We respectfully agree with the decision in Betibai v. Nathooram, (1999) 6 SCC 368 , since we do not have any good reason to differ. Having regard to all aspects in the present case, we are unable to accept the submissions of the learned counsel for the appellants to refer the matter to a larger Bench for consideration. The learned counsel tried to make a distinction on the basis of language used in the exemption notification, which came up for consideration in S. Kandaswamy Chettiar v. State of T.N, (1985) 1 SCC 290 , to which reference is made in para 8 of the judgment in Betibai case which reads: (SCC p. 371) "8. It may be mentioned that similar notifications issued in other States, by which wakf and trust properties were exempted, have already been upheld by this Court. As for example, the notification issued by the State Government of Tamil Nadu exempting wakf and trust properties, was upheld by this Court in S. Kandaswamy Chettiar v. State of T.N., (1985) 1 SCC 290 . Even this decision was not brought to the notice of the learned Judges who disposed of Mangilal v. Shri Chuturbhuja Mandir, (1998) 5 SCC 597 ." 10. The learned Senior Counsel for the appellants tried to draw a distinction on the ground that the provision for issuing exemption notification in the case of Tamil Nadu is different inasmuch as the whole of the income derived from which is utilized for that institution is not to be found unlike the provision contained in Section 3(2) of the Act. This Court in Betibai case as already noticed above, has rejected the contention. That apart, when the appellants have not challenged the validity of the notification and when they have failed to plead that whole of the rental income derived from the accommodations in question is not utilized for the purpose of the Trust, we do not find any merit in this submission of the learned counsel also." 14. That apart, when the appellants have not challenged the validity of the notification and when they have failed to plead that whole of the rental income derived from the accommodations in question is not utilized for the purpose of the Trust, we do not find any merit in this submission of the learned counsel also." 14. Thus, there is no iota of doubt that the notification dated 7-9-1989 is constitutionally valid and fully applicable to the facts of the present case. The trial Court has clearly recorded a finding that the first plaintiff is a religious institution registered under the provisions of the Act of 1951 for religious and charitable purposes and the registration certificate has been filed vide Ex.P-1C. The five trustees arrayed in the plaint were duly authorised to sign and verify the plaint. The fifth plaintiff, who is one of the trustees, has been examined as a witness before the Court. There is no material on record on behalf of the defendant to say that the first plaintiff/trust is not a public trust or is not engaged in religious or charitable activities. Thus, the finding recorded by the trial Court that the first plaintiff is a religious institution and is duly registered under the provisions of the Act of 1951 is a well merited finding and on appeal by the defendant, this finding has not been disturbed by the first appellate Court. (Kindly see paragraph 18 of the judgment of the first appellate Court). Since the first plaintiff is a public trust registered under the provisions of the Act of 1951, therefore, the suit accommodation owned by the first plaintiff is exempted from the provisions of the Act of 1961 and consequently, the first plaintiff, in order to get eviction of the tenant/defendant from the suit accommodation, is not required to file a suit detailing the grounds mentioned in Section 12(1) (a) to (p) of the Act of 1961. All what is necessary is to terminate the monthly tenancy of the defendant/tenant under Section 106 of the Act of 1882 by giving him a 15 days' clear notice. 15. Therefore, the next question would be whether the plaintiffs have terminated the tenancy of the defendant in accordance with Section 106 of the Act of 1882. Section 106(1) of the Act of 1882 provides as under: "106. 15. Therefore, the next question would be whether the plaintiffs have terminated the tenancy of the defendant in accordance with Section 106 of the Act of 1882. Section 106(1) of the Act of 1882 provides as under: "106. Duration of certain leases in absence of written contract or local usage.-(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice." 16. A close reading of Section 106(1) of the Act of 1882 would reveal that a lease of immovable property for any purpose other than agricultural or manufacturing purposes shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. 17. On reverting back to the facts of the instant case, it would appear from the plaint that the monthly tenancy starts from 1st date of each English Calendar month and ends on the last date of that particular month. Therefore, tenancy would be monthly tenancy terminable by giving 15 days' notice as enumerated under Section 106(1) of the Act of 1882. The fifth plaintiff, examined as a witness before the trial Court, deposed that the notice dated 4-4-1992, terminating the tenancy, was issued to the defendant/tenant on behalf of the first plaintiff vide EX.P-2 giving him 15 days' time for terminating the tenancy with effect from the midnight of 30-4-1992 requiring the defendant to hand over vacant possession of the suit accommodation on 1-5-1992. The said notice (Ex.P2) was received by the defendant on 6-4-1992 vide acknowledgment (Ex.P3) and thus, in considered opinion of this Court, the monthly tenancy of the defendant has validly been terminated giving him the 15 days' clear notice dated 4-4-1992 vide EX.P-2 which was received by him on 6-4-1992 (Ex.P-3). Thus, upon valid termination of the tenancy under Section 106 of the Act of 1882, the plaintiffs arc entitled for vacant possession of the suit accommodation. 18. Thus, upon valid termination of the tenancy under Section 106 of the Act of 1882, the plaintiffs arc entitled for vacant possession of the suit accommodation. 18. Thus, the first appellate Court has committed a serious legal error in reversing the well-merited findings of the trial Court and, therefore, the judgment and decree passed by the first appellate Court, being perverse and contrary to the record, is set aside. The judgment and decree passed by the trial Court, decreeing the suit, is hereby affirmed and restored. The instant appeal is allowed. The parties to bear their own costs. 19. A decree be drawn-up accordingly. 20. At this stage, at the request of Shri A.K.Prasad, learned counsel appearing for the legal representative of respondent No.1/defendant, 5 months' time upto 3rd August, 2014 is granted to vacate the suit accommodation subject to following conditions: 1. The legal representative of respondent No.1/defendant shall submit an usual written undertaking before the trial Court within 3 weeks from today that he shall deliver vacant and peaceful possession of the suit accommodation to the plaintiffs. 2. The legal representative of respondent No.1/defendant shall deposit a sum at the rate of Rs. 1100/- per month with effect from 1st of April, 2014 till the actual date of vacation of the suit accommodation before the trial Court during the aforesaid period of 5 months for payment to the plaintiffs towards damages for occupation and use of the suit accommodation by the defendant, and 3. The legal representative of respondent No.1/defendant shall deposit the entire arrears of rent before the trial Court within 3 weeks from today for payment to the plaintiffs. If the aforesaid three conditions are not complied with, the decree granted in favour of the plaintiffs shall be executable forthwith in accordance with law. Appeal Allowed.