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2014 DIGILAW 3660 (ALL)

Harbhaj Ram Kripa Devi Trust Thru Vinod Kumar v. Ramesh Chandra Bava

2014-12-08

MAHENDRA DAYAL

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JUDGMENT Mahendra Dayal,J. Both the aforesaid writ petitions involve similar controversy as to whether the petitioner no.1 is a public charitable trust and is, therefore, exempted from the operation of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. The petitioners filed two different suits against the opposite parties of both the writ petitions claiming that the petitioner no.1 is a public charitable trust and is, therefore, exempted from the purview of the Act. Both the aforesaid suits were dismissed by two separate judgments and orders dated 31.03.1999 on the ground that the petitioner no.1 is not a public charitable trust and the provisions of the Act No.13 of 1972 are applicable to the building in question. On the aforesaid finding, it was concluded that the petitioners were not entitled to a decree for ejectment on the ground that the petitioners could not institute a suit for ejectment against the opposite parties as they were not in arrears of rent. 3. Feeling aggrieved by the dismissal of their suits, the petitioners preferred revision under Section 25 of Provincial Small Cause Court Act before the District Judge, Lucknow. The revisional court also upheld the finding of the trial court that the petitioner no.1 is not a public charitable trust and with the aforesaid finding, the revisions were also dismissed. Thereafter the petitioners preferred a review petition which was also dismissed on 02.08.2003. 4. I have heard Sri Deepak Seth, learned counsel for the petitioners and Sri Farhat Husain who appeared on the behalf of the contesting opposite parties. 5. Learned counsel for the petitioners has submitted that both the courts below have recorded a concurrent finding that the petitioner no.1 is not a public charitable trust and this finding is based on misconception of law as well as mis-reading of evidence. He submits that in a trust which has been created for the benefit of general public, it is not necessary that in the management of the trust, some independent person not belonging to the family of the creator of the trust, should be made at least one of the trustees. He has also drawn the attention of the Court towards the trust-deed which is on record and in the beginning of the trust-deed itself, the objects of the trust have been indicated. He has also drawn the attention of the Court towards the trust-deed which is on record and in the beginning of the trust-deed itself, the objects of the trust have been indicated. The first object is to contribute towards medical relief by opening, aiding and maintaining, Allopathic, Ayurvedic, Unani and Homeopathic Hospitals, Dispensaries and institutions to promote and aid education in general, including that relating to Engineering and other technical studies. Another object of the trust is to establish and aid charitable institutions such as Dharamshalas, Gowshalas, Maternity Homes, Chief Welfare Centres, Poor Houses, Orphanages, Institution for the blinds and for old and infirm people, widow's Homes, Training Centres, Libraries. It is also one of the objects of the trust to uplift and promote the the interest of backward classes in general. 6. Sri Seth, learned counsel for the petitioners has further submitted that aims and objects indicated in the trust-deed clearly prove that the trust was created not only for the benefit of the family of the creator of the trust, but for the benefit of the general public. A trust will not become a private trust merely because all the trustees belong to the family of the creator of the trust. Both the courts below have held that the petitioner no.1 is not a public charitable trust only on the ground that none of the trustees is from the public and the management and other affairs of the trust are being looked into by the family member of the person who created the trust. 7. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court rendered in Mulla Gulam Ali & Safiabaid Trust Vs. Deelip Kumar & Co. reported in (2003) 11 SCC 772. In this case, the Hon'ble Supreme Court has held that whether an institution has a public character or a private character, cannot be determined except by reference to the control exercised by the trustees. If the trustees have total control over the institution and do not permit the public as a matter of right to interfere, it is obvious that it is not a public institution. If the trustees have total control over the institution and do not permit the public as a matter of right to interfere, it is obvious that it is not a public institution. If from the trusts, it is shown that the objects of the trust are to give donation to educational and charitable institutions, to open and maintain schools and colleges for imparting general or technical education, the purpose would be for the benefit of the public. The Hon'ble Supreme Court has further gone to hold that mere fact that the control in respect of the administration of the trust vested in a group of people, will not itself take away the public character of the trust. If the trust is not being administered properly and the objects of the trust are not being carried out for the benefit of the public, resort can be had to Section 92 of the Code of the Civil Procedure and the civil court is fully empowered to frame a scheme for proper administration of the trust and to displace the trustees and also to appoint new trustee for proper management of the trust. 8. Thus, keeping in view the observations of the Hon'ble Supreme Court, one thing is clear that the character of a trust does not depend upon the management of the trust but upon the aims and objects of the trust. If the object of the trust is to provide benefit to the public at large, the character of the trust would certainly be public trust. It will not become a private trust merely by showing that a group of persons, belonging to the family of the creator of the trust are the trustees. The real test is as to whether the objects of the trust are charitable and the trust has been created for the benefit of the public. 9. In this case, from the perusal of the objects of the trust as contained in the deed itself, it is clear that the trust was created for the benefit of the general public. Moreover, the opposite party no.1 has admitted during his cross-examination that prior to the deposit of rent in court, he used to pay rent to the manager of the trust. Even the rent which has been deposited in the court, the same has been deposited in the name of the petitioner no.1. Moreover, the opposite party no.1 has admitted during his cross-examination that prior to the deposit of rent in court, he used to pay rent to the manager of the trust. Even the rent which has been deposited in the court, the same has been deposited in the name of the petitioner no.1. Thus, the relationship of the landlord and tenant between the parties is also not disputed. 10. Learned counsel appearing on behalf of the contesting opposite party no.1 has submitted that both the courts below have recorded a concurrent findings that the petitioner no.1 is not a public charitable trust because the administration of trust is with the group of persons who belong to the same family who created the trust. Moreover, the property has also not been disclosed in the plaint and as such the suit filed by the petitioners itself was not maintainable. 11. The trial court has dismissed the suit on the ground that the petitioner no.1 is not a public charitable trust and, therefore, the building in question is governed by Act No.13 of 1972 and as such the petitioners could not get the decree for ejectment because the rent was being deposited in the court of Munsif South, Lucknow and no rent was due to the petitioners. The petitioners since issuance of notice for termination of tenancy claimed that the building in question was a public charitable trust and was, therefore, exempted from the operation of Act No.13 of 1972. Learned trial court as well as revisional court both held that the building did not belong to the public charitable trust and as such the tenancy could not have been terminated under section 106 of the Transfer of Property Act. 12. After hearing learned counsel for the parties and going through the aims and objects of the trust as well as law laid down by the Hon'ble Supreme Court, I am of the view that both the courts below have wrongly come to the conclusion that the petitioner no.1 is not a public charitable trust. Both the courts below proceeded on a wrong assumption that since the management of the trust is with the family and a group of person belonging to the creator of the trust, therefore, the petitioner no.1 was not a public charitable trust. Both the courts below proceeded on a wrong assumption that since the management of the trust is with the family and a group of person belonging to the creator of the trust, therefore, the petitioner no.1 was not a public charitable trust. This finding of both the courts below is against the law laid down by the Hon'ble Supreme Court in the case referred to above. 13. In view of the above, both the writ petitions deserve to be allowed and the impugned judgments and orders dated 31.03.1999 passed by the II Additional Small Causes Court, Lucknow in SCC Suit Nos.353 of 1995 and 350 of 1995 as well as the judgments and orders dated 12.05.2003 passed in SCC Revision Nos.55 of 1999 and 56 of 1999 are hereby set aside. The matter is sent back to the trial court with the direction to restore both the SCC suits to its original number and decide the same afresh after giving opportunity of hearing to both the parties, according to law expeditiously.