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Ashok Kumar & Others v. Sri Keshavji Gauriya Math Dharmshala Trust - WRIT - A No. - 45694 of 2007 [2007] RD-AH 16217 (3 October 2007)

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(Judgment reserved on 26.09.2007)

(Judgment delivered on 03.10.2007)

Civil Misc. Writ Petition No.45694 of 2007

Ashok Kumar and others Vs. Sri Keshavji Gauriya Math Dharmshala Trust, Kausteela and others

Hon'ble S.U. Khan, J.

This is tenants' writ petition. Respondents No.1 to 8 filed S.C.C. Suit No.72 of 1996 against Ganga Ram Kardam, original tenant since deceased and survived by the petitioners and proforma respondents No.9 to 12. Respondents No.7 & 8 in this writ petition were proforma defendants in the suit. In the plaint of the suit it was claimed that plaintiff trust was a pubic charitable and religious institution, hence U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 was not applicable to the building in dispute by virtue of its Section 2(1)(bb) of. The said sub section is quoted below:-

"Nothing in this Act shall apply to any building belonging to or vested in a public charitable or public religious institutions"

J.S.C.C./ Civil Judge, Junior Division, Mathura held that the aforesaid provision was attracted, hence Act was not applicable to the building in dispute and that the tenant had paid rent irregularaly. Accordingly, suit for eviction was decreed through judgment and decree dated 27.09.2004. Against the said judgment and decree, tenants filed S.C.C. Revision No.29 of 2004. The revision was dismissed on 04.04.2007 by A.D.J. Court No.2, Mathura, hence this writ petition (filed on 17.09.2007).

The courts below held that the tenant himself admitted in his cross-examination that there was Math and Mandir in the plaintiffs institution and Sadhus and Sanyasies also come there and stay and Math/ Dharmshala in question is public dharmshala and on the occasions of Janmastami and Radha-astami a big crowd is gathered, who are also served food. Courts below also observed that tenant did not deny the assertions that the expenses of the temple were borne from public contribution and the fact that during religious ceremony, general public participated.

Learned counsel for the petitioner has supplied a copy of the trust deed dated 13.12.1954, which was executed by Nand Kishore, as Manager and Karta of the Joint Hindu Family. It is mentioned in the said deed that father of the Nand Kishore and one Baba Garib Das constructed a two storied dharmshala and Baba Garib Das bequeathed the property (or his his share therein) to the father of the Nand Kishore and since 1944 when father of the Nand Kishore died he and his brothers, who constituted Joint Hindu Family became owners in possession of dharmshala. Thereafter, it was mentioned that as the executant and his family members were not in a position to maintain dharmshala, the trust in question was being created for better management of the dharmshala and for the said purpose, they contacted two Swamies, who agreed to manage the Dharmshala provided that proper trust was constituted. It was further stated in the trust deed that actual possession was delivered to seven named trustees out of whom, six were religious personalities and only one trustee, i.e. Madan Lal, one of the executants (or family member of the executant). In clause 9 of the deed, it was mentioned that the Board of Trustees should have the right to put the dharmshala to any religious or charitable purpose. In clause 10, it was mentioned that trustees shall adopt all such means as will enhance the income of dharmshala for its betterment and improvement. Property in dispute is a shop of dharmshala, which was subject matter of the aforesaid trust deed. Copy of the resolution of the Board of Trustees dated 31.03.1983 has also been supplied, in which it was mentioned that there was a temple and it was also decided that the shops should be got vacated and hospital must be constructed on their site. As mentioned above, tenant had admitted that there was a temple in the property in dispute. It is also mentioned in the judgments that through documentary evidence, that a temple was established on 03.11.1956. Learned counsel for the ltenants petitioners has argued that the deed in question was got registered under Trusts Act and under Trusts Act, only private trusts can be registered, hence it must be presumed that the trust in question is private trust.

It is not disputed that after two years of execution of the trust deed, temple was constructed and in the trust deed itself, itself there was a provision that temple could be established. In view of this, the mere fact that trust deed was got registered under Trusts Act will not make much difference. Tenant admitted that there was a temple and it was public temple.

In view of the above, the institution in question is squarely covered by Section 2(1)(bb) of the Act.

Accordingly, there is no merit in this writ petition, hence it is dismissed.

Tenants-petitioners are granted six months time to vacate provided that :-

1. Within one month from today tenants file an undertaking before the J.S.C.C. Mathura to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlords-respondents.

2. For this period of six months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs. 3,000/-(at the rate of Rs. 500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. Mathura and shall immediately be paid to the landlords-respondents.

3. Within one month from today tenants shall deposit entire decreetal amount due till date before J.S.C.C. Mathura for immediate payment to landlord s-respondents.

In case of default in compliance of any of these conditions tenants-petitioners shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or decreetal amount and Rs. 3,000/- are not deposited within one month then tenants-petitioners shall be liable to pay damages at the rate of Rs. 1,000/- per month since after one month till the date of actual vacation.

Similarly if after complying with the above conditions shop in dispute is not vacated on the expiry of six months then since after months till actual vacation tenants shall be liable to pay rent/ damages for use and occupation @ Rs.1,000/- per month.




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