Sardar Harpreet Singh & Others vs Prem Kumar Fatlani

Manoj K. Tiwari, J

These petitions have been filed by the tenants against the judgment and order dated 14.03.2014 passed by Second Additional District Judge, Haridwar in Rent Control Appeal Nos. 99 of 2012 & 100 of 2012, whereby the judgment and orders passed by Prescribed Authority were set-aside and landlord's application seeking release of shops in question were allowed.

Since common question of law and facts are involved in these writ petitions, therefore are being taken up together and are being adjudicated by this common judgment. However, for the sake of clarity, facts of WPMS No. 679 of 2014 are being considered.

Respondent filed two release applications under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'U.P. Act No. 13 of 1972') seeking release of two shops, which are part of a building known as 'Chandan Bai Ki Dharmshala' situate at Railway Road, Haridwar.

In the release applications, respondent asserted that he inherited the property in question from his maternal uncle namely, Purushottam Lal, who was unmarried and died issueless on 17.05.2005. It was further asserted that after death of his maternal uncle, he became owner/ landlord of the said property. He further asserted that his son who is 20 years old, is unemployed and in order to support the family, he is selling toys on the roadside. It was further asserted by the respondent that he was doing business from a kiosk which too has been removed by the district administration; consequently, he has also become unemployed. On these grounds, he sought release of the two shops, which were let out to Sardar Harpreet Singh (petitioner in WPMS No. 679 of 2014) and Ravindra Mehta (petitioner in WPMS No. 680 of 2014).

Petitioners filed written statement in which they admitted their status as that of a tenant, however, they asserted that the shops in question are part of 'Chandan Bai Ki Dharamshala' in which visitors come and stay and Purushottam Lal was a trustee of the said Dharamshala. Petitioners however admitted that Purushottam Lal was landlord of the said property, who had let out the shops to them. It was further stated that they used to pay rent to Jaswanti Devi (mother of the plaintiff) in whose favour Purushottam Lal had executed a Power of Attorney, which was cancelled in the year 2005 and sometimes rent was paid to the respondent. In paragraph no. 22 of the written statement, petitioner admitted that Purushottam Lal died issueless, but stated that he had two sisters out of which one is alive and further that although plaintiff is nephew of Purushottam Lal (sister's son), however he has one brother and three sisters. In paragraph nos. 21 and 22 of the written statement, petitioners admitted that the kiosk from which plaintiff was running business was removed by the district administration and further that son of the plaintiff sells toys on the roadside.

Both the release applications, were rejected by the Prescribed Authority/ Civil Judge (Senior Division), Haridwar by separate orders dated 28.07.2012 on the ground that the shops in question are part of a Dharamshala, which is a public charitable trust, therefore Prem Kumar Fatlani (respondent herein) is not the landlord in respect of the shops in question and he collected rent only in the capacity of an agent.

Prem Kumar Fatlani challenged the judgments rendered by learned Prescribed Authority by filing two appeals under Section 22 of U.P. Act No. 13 of 1972, which have been allowed by learned Second additional Judge, Haridwar vide judgment and order dated 14.03.2014. Thus, feeling aggrieved, petitioners have approached this Court.

Heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner submits that learned Prescribed Authority was justified in rejecting the release applications in view of the provision contained in Section 2(1) (bb) of U.P. Act No. 13 of 1972. He further submits that since the shops in question are part of the Dharamshala, therefore, it can be safely inferred that building belongs to a public charitable institution. He therefore, submits that the Prescribed Authority rightly rejected the release applications and the Appellate Court erred in allowing the release applications. Section 2(1) (bb) of U.P. Act No. 13 of 1972 on which reliance was placed by counsel for the petitioners is extracted below:-

"2. Exemptions from operation of Act.-(1) Nothing in this Act shall apply to the following, namely:-

(bb) any building belonging to or vested in a public charitable or public religious institution."

For attracting the bar of Section 2(1) (bb) of U.P. Act No. 13 of 1972, the building must be belong to a public charitable institution as distinguished from 'private charitable institution'.

The expressions "charitable institution" and "religious institution" have been defined in Sections 3(r) & 3 (s) of the Act, which are extracted below for ready reference:-

"3(r). "charitable institution" means any establishment, undertaking organization or association formed for a charitable purpose and includes a specific endowment;

3(s) "religious institution" means a temple, math, mosque, church, gurudwara or any other place of public worship."

In his release applications, respondent had asserted that he is the owner/ landlord of the building and it was the tenant who had alleged that property belongs to a trust, therefore, burden of proof was upon them to show that the property does not belong to the respondent, but belongs to a trust or a public charitable institution. Thus, learned Prescribed Authority was not justified in shifting the burden of proof to the plaintiff (respondent herein). Even otherwise also, merely because landlord of a building permits its use as a Dharamshala will not change the nature of the property as belonging to a public charitable trust. Thus, learned Prescribed Authority fell into error in holding that the Dharamshala either belongs to a trust or to a society.

Learned Appellate Court after considering the entire material on record including the extract of the Municipal Assessment Register in respect of the property in question has come to the conclusion that the property is not recorded in the name of a trust or society in the Municipal Assessment Register and Smt. Rukmani Devi was recorded as owner of the property in the year 1964. A photocopy of the relevant extract of Municipal Assessment Register has been enclosed as Annexure-4 to the writ petition. In column no. 3 thereof name of the property is mentioned as 'Chandan Bai Ki Dharmshala', and in column no. 4, Smt. Rukmani Devi w/o Fakir Chand has been recorded as owner of the said property.

Hon'ble Supreme Court in the case of Commissioner of Endowments Vs. Vittal Rao reported in (2005) 4 SCC 120 has held that mere use of the premises as a Dharamshala for a number of years could not lead to an inference that the same belongs to a public trust. Paragraph nos. 21 & 22 of the said judgment are extracted below:-

"21. In the earlier round of litigation, it was specifically held that the gift deed did not create an endowment and the Temple in question was not a public temple and the land was gifted absolutely to Gunnaji. In a private trust, the beneficiaries are specific individuals and in a public trust, the beneficiary is the general public as a class. In a private trust, the beneficiaries can be ascertained whereas in a public trust, they are incapable of ascertainment. In the present case, the ascertained individual was Gunnaji. This position is clear from the decision in Deoki Nandan v.Murlidhar.

Mere use of the premises as a "dharamshala" for a number of years could not lead to an inference that the same belongs to a public trust. Whether an endowment is of public or private nature, depends on the facts of each case satisfying certain tests and guidelines. This position is evident from the judgment of this Court in Kuldip Chand v. Advocate General to Govt. of H.P. Para 34 of the said judgment reads:

"34. Long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property by Kanwar Bir Singh in favour of the public was complete and absolute. Had such dedication been made, the same was expected to be recorded in the revenue records."

Similarly, in the case of Cambay Municipality v. Ratilal Ambalal Reshamwala reported in 1995 Supp (2) SCC 591 Hon'ble Suprme Court has held that for becoming a public trust, it should have been created by the settler or an author indicating with reasonable certainty, his intention to create a trust and transfer the trust property to the trustee. Paragraph no. 4 of the said judgment is extracted below:-

"4. 'Public trust' has been defined under sub-section (13) of Section 2 of the Act. But for becoming a public trust as defined in the Act it should have been created by a settlor or an author indicating with reasonable certainty his intention to create a trust and transfer the trust property to the trustee. None of the ingredients of creation of trust are found to be present. Jivanlal was not the owner of the land. The offer of Jivanlal to provide the fund to construct the Dharamshala on the municipal land for the benefit of the public and its acceptance by the Municipal Board was in discharge of statutory function undertaken by the Municipal Board under clause (b) of Section 56 of Bombay District Municipal Act. The basic error committed by the High Court was to read the resolution for change of site as transfer of land. There is no material on record to indicate that the Municipal Board decided to part with the property. Rather it decided to hold it in order to carry out its duties and functions under Section 56. The High Court or the Charity Commissioner were thus not justified in concluding that the Dharamshala constructed on municipal land was a public trust."

Learned counsel for the petitioners by referring to a document brought on record as Annexure-1 to the supplementary rejoinder affidavit submits that Smt. Rukmani Devi had filed an objection to the Municipality against assessment of the building for house tax in which she had stated that the property may be exempted from tax as it belongs to a religious trust.

The said submission is without any substance as the nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created, in view of the law declared by Hon'ble Supreme Court in the case Bihar State Board of Religious Trust v. Palat Lall reported in (1971) 1 SCC 7. Paragraph nos. 7, 8, 9 & 10 of the said judgment are extracted below:

"7. As early as 67 IA 1 (Babu Bhagwan Din v. Gir Har Saroop) the Privy Council distinguished between public and private endowments of religious institutions, particularly, temples and idols, and Sir George Rankin laid down certain principles to which attention may be drawn, because they were referred to in that Supreme Court ruling on which Mr Goburdhun strongly relies. Sir George Rankin said that the dedication to the public was not to be readily inferred when it was known that a temple property was acquired by grant to an individual or family. He also observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact, because worshippers would not be turned away as they brought in offerings and the popularity of the idol among the public was not indicative of the fact that the dedication of the properties was for public. This ruling was referred to in the case on which Mr Goburdhun relies.

In that case, emphasis was laid on two matters and they are decisive of the case we have here. The first no doubt was that the dedicator in that case had no male issue, and that it would be unusual for a person to tie up the property for the use of a deity without creating a public trust, but the second was that a ceremony of Pratishtha (installation of the idol), which was equivalent to Utsarg (dedication), was performed and, therefore, the idol itself became a public idol after the ceremonies. This is not the case here where an idol had existed from before as a family idol. In the earlier case of this Court the installation of the idol and the dedication were both done at the same time and the installation was public. This, in our opinion, was a very cardinal fact in that case. This was emphasized not only by the trial Judge but also by the learned judges of the High Court. The facts here are that the idol had been in the family for a number of years and only the family was doing the Seba-puja in the Thakur Dwara, and there is no mention anywhere that the public ever looked after this idol and were allowed a share in the worship as of right. Further, by the will also the author of the dedication did not make it clear that the public were to be admitted as of right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishanava belief was to be in charge after the demise of the members of the family who were to become the Mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for the Seba-puja of the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there.

Now, if it was intended that this should have been a public endowment, it is quite obvious that when the testator died, the testator would have thought of somebody from the public instead of the ladies who could not carry on the Puja except through others. It was after his own death and his wives and sister were not available that a particular person was to be chosen for the Seba-puja. There is no arrangement here that public were to look after or manage the Thakurji. At no stage any intervention of the public is either intended or allowed by the will in question.

Two other documents were brought to our notice, but they may be disposed of summarily. The first is a mortgage deed, Exh. B, in which there is a recital about the property which was the subject of the endowment. But that document is silent about the nature of the endowment and is of no significance. The other document is a judgment of the Assistant Commissioner of Agricultural Income tax, Exh. C, in which exemption was claimed in regard to income as was set apart for charitable and religious trusts in terms of the trust deed. This is an attempt to show that the family regarded it as a public trust. What a person does with a view to claiming exemption from income tax or for that matter, agricultural income tax, is not decisive of the nature of the endowment. The nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created, the dealings of the public and the conduct and habits of the people who visit such a temple or Thakur Dwara. The claim to exemption was with a view to saving some income of the endowed property. It might have been motivated from other considerations and not that it was a public endowment."

Learned counsel for the petitioners then submits that since the plaintiff (respondent herein) has three sisters and one brother, therefore, at best his status could be that of a co-owner, therefore he alone could not have filed the applications seeking release of the shops.

This contention made on behalf of the petitioners is unacceptable. In the absence of any objection from his brother and sisters against respondent's filing the release applications, the tenants cannot raise the question of maintainability. Hon'ble Supreme Court in the case of Mohinder Prasad Jain v. Manohar Lal Jain reported in (2006) 2 SCC 724,. Paragraph No. 11 of the said judgment is extracted below:-

"11. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicines, no qualification is prescribed. Experience in the business is not a precondition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court."

Learned counsel for the petitioners then submits that the petitioners did not attorn Prem Kumar Fatlani, therefore, he was not competent to file the release applications. The said submission is bereft of any merit. Hon'ble Supreme Court in the case of Ambica Prasad Vs. Mohd. Alam and another reported in (2015) 13 SCC 13 has held that in view of Section 109 of the Transfer of Property Act, after transfer of lessor's right in favour of the transferre, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy and that the Section does not insist that the transfer will take effect only when the tenant attorns. Paragraph no. 15 of the said judgment is extracted below:-

"15. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act.

"109. Rights of lessor's transferee.-If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased."

From a perusal of the aforesaid section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor (sic transferee) landlord would be proper and so also the suit for ejectment."

Hon'ble Supreme Court in the case of Radhye Shyam Vs. Chhabi Nath reported in (2009) 5 SCC 616 has held that in exercise of power of superintendence under Article 227, orders of civil and criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Paragraph no. 31 of the said judgment is extracted below:-

"31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law."

In such view of the matter, this Court finds no scope for interference with the impugned judgment rendered by learned Third Additional District Judge, Haridwar. Consequently, the Civil Petitions fail and are dismissed.