Basic Shiksha Parishad vs Prescribed Authority/Addl. City Magistrate (IIIrd) and Others

Sudhir Agarwal, J.—Heard Sri K. Shahi, learned counsel for the petitioner and Sri Manish Tandon, learned counsel for the respondents. The dispute relates to residential accommodation i.e. House No. 105/91 situated at Siddh Nath Jajmau, Kanpur Nagar (hereinafter referred to as "disputed premises") which is in tenancy of petitioner. The petitioner has stated in para 6 of the writ petition that he is regularly paying rent to respondent No. 3 since 01.01.1963 and therefore, respondent No. 3 answers the description of term "landlord" as defined u/s 2(j) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as "Act, 1972").

The landlord filed a suit for enhancement of rent u/s 21(8) of Act, 1972 claiming itself to be a "private trust". The Rent Control and Eviction Officer, Kanpur Nagar (hereinafter referred to as "RCEO") vide order dated 7th February, 2000 rejected the said application holding that no evidence has been placed to show that it is a "private trust". A "public trust", religious or charitable, is exempted u/s 2(1)(bb) of Act, 1972 hence the provision of the Act, 1972 are not applicable to the disputed premises.

An appeal was preferred which has been allowed by IXth Additional District Judge, Kanpur Nagar vide order dated 28th August, 2001, impugned in this writ petition, holding application maintainable and determining rent to Rs. 4,365/-per month w.e.f. October, 1998.

The appellate order has been assailed by the petitioner-tenant on the ground that Appellate Court appears to have got impressed only with the fact that trust has its title as "Sankat Mochan Hanuman Ji Maharaj Bhagwan" and therefore it is a trust. Since it has been claimed to be a "private trust", therefore it is not exempted u/s 2(1)(bb) of Act, 1972. He submitted that relevant factors and aspects have not been considered by Appellate Court at all to find out whether respondent "trust" satisfy requirement so as to constitute a "public religious institution" u/s 2(1)(bb) read with Section 3(s) of Act, 1972 which defines the "religious institution". In absence of any consideration thereto, the impugned judgment applying Section 21(8) of Act, 1972 is wholly illegal, without jurisdiction and is liable to be set aside.

The landlord, in the present case, is admittedly an institution namely "Shri Sankat Mochan Hanuman Ji Maharaj Virajman Mandir" which is said to be a "trust" constituted by the trust deed dated 6th May, 1953. Copy of the trust deed has been filed as Annexure CA-2 to the counter affidavit of respondent No. 3. A perusal thereof shows that settlors namely Smt. Baikunthi Devi, widow of Late L. Kanhaiya Lal Garg and few others of the family were desirous of making settlement and creating a Trust for religious and charitable purposes and objects mentioned in the said trust deed. They appointed some of the settlors as trustee namely, Shri Naveli Sharan Garg, Shri Hit Sharan Garg, Shri Sukmari Sharan Garg, Shri Bhagwat Sharan Garg, Shri Mukut Sharan Garg and Shri Pramod Sharan Garg, all Hindu inhabitants.

Clause 1 of Trust deed declares it a "private trust" and not "public", so much so that no person, who is not the direct descendant of late Lala Kanhaiya Lal Garg, can be appointed as Trustee. However, clause 6 provides that all trust properties, whether moveable or immoveable, will be used for Shri Sankat Mochan Hanuman Ji Bhagwan. The Trust deed shows that land, building and garden called Lala Kanhaiya Lal''s garden and all the properties included therein in the name of "Shri Sankat Mochan Hanuman Ji Maharaj" was assigned and made over to the trustees.

Apparently, property in question vested in "Shri Sankat Mochan Hanuman Ji Maharaj" but for the purpose of management etc., owners constituted a trust and assigned and made over the property, already vested in Shri Sankat Mochan Hanuman Ji Maharaj to the trustee, for management of property. It is/was to be used for the said Deity. This is fortified from Clause 6 of the deed.

Mere fact that Trust was declared to be a "private trust" ipso facto would not result in so as to treat itself to be owner of the property which already belong to/vested in Shri Sankat Mochan Hanuman Ji Bhagwan. The trustees only were assigned the same and made over for management. Neither it made the owner nor vest the property in trust or trustee which was already vested or belong to "Shri Sankat Mochan Hanuman Ji Maharaj".

These aspects have neither been clearly said in the pleading nor examined by the Courts below in correct perspective. Even relevant provisions of Act, 1972 dealing as to how and in what circumstances property vested in public religious institution or public charitable trust would be exempted have not been referred to and considered at all.

Though the petitioner has come up only against appellate order but, in my view, the aforesaid issues are mixed questions of law and fact and can be decided effectively after giving parties opportunity to lead their evidence, documentary or oral, as the case may be. Therefore, it would be appropriate that the matter, at the first instance, should be considered by Trial Court. In view thereof, both the judgments deserve to be set aside and the matter needs be remanded to the Trial Court.

The writ petition is accordingly allowed. The Appellate Court''s judgment and order dated 28.8.2001 (Annexure 2 to the writ petition) and Trial Court''s judgment dated 07.02.2000 (Annexure 1 to the writ petition) passed by Rent Control and Eviction Officer, Kanpur Nagar are hereby quashed. The case is remanded to the Trial Court to consider question of applicability of Act, 1972 in respect to the building in question in the light of the observations made above and in accordance with law and in the light of the findings on this aspect it shall proceed to decide the matter. The Trial Court shall endeavour to decide the case expeditiously and in any case within six months from the date of production of a certified copy of this order before it.