Mina Sharma Vs Shri Satyanarayan Mandir Samitee

Sanjay K. Agrawal, J.

1. The substantial question of law formulated and to be answered in defendant''s second appeal states as under:--

"Whether Court below has erred in holding that provisions of Accommodation Control Act is not applicable in the case of trust property in the light of the notification dated 7-9-1989 ?"

(For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the Trial Court).

The imperative facts required to be noticed for determination of this second appeal are as under:--

1.1. Shri Satyanarayan Mandir Samiti, a public trust registered under the provision of Madhya Pradesh Public Trust Act, 1951 (henceforth "the Act of 1951") filed a suit for eviction against Smt. Mina Sharma defendant therein stating inter alia that suit accommodation owned by the plaintiff, was let out to appellant/defendant for non-residential purpose on the monthly rent of Rs. 200 and suit accommodation is required for the plaintiff/trust, therefore, by registered notice dated 9-10-2000 (Exh. P-1) defendant''s tenancy has been terminated w.e.f. 30-11-2000 directing the defendant to hand over the peaceful possession of the suit accommodation to the plaintiff on 1-12-2000, but defendant failed to deliver the peaceful possession of the land, leading to filing of instant suit seeking decree of eviction.

1.2. The defendant/tenant filed his written statement taking the principal plea though the plaintiff/trust a public trust, but the plaintiff is using the income of trust for some other purposes, therefore, plaintiff is not entitled for exemption from the provisions of the Madhya Pradesh Accommodation Control Act. 1961 (henceforth "the Act of 1961") and also not entitled for decree of eviction.

1.3. The Trial Court, after a full fledged trial, by judgment and decree dated 9-10-2002, dismissed the suit finding no ground to grant decree for eviction.

1.4. Feeling dissatisfied with the judgment and decree passed by Trial Court dismissing the suit, plaintiff filed an appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth ''CPC''), the First Appellate Court, by its judgment and decree dated 27-3-2008, allowed the appeal finding inter alia that:--

"(i) the 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 pubic 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 9-10-2000 (Exh. P-1) with effect from midnight of 30-11-2000 and, therefore, the plaintiff is entitled for vacant possession of the suit accommodation and arrears of rent."

1.5. Questioning the legal acceptability and sustainability of the impugned judgment and decree passed by First Appellate Court, this instant second appeal has been preferred by the defendant under Section 100 of the CPC, in which, substantial question of law has been formulated as mentioned in opening paragraph of this judgment.

2. Mr. B.P. Gupta, leaned Counsel appearing for the appellant/defendant would submit that the First Appellate Court is absolutely unjustified in reversing the judgment and decree of the Trial Court, dismissing the suit, as the plaintiff/trust has failed to prove its income is being utilised for religious and charitable purpose of the trust. 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 restored.

3. Combating the submissions made on behalf of the appellant, Mr. H.B. Agrawal, Senior Advocate appearing for the respondent/plaintiff would submit that the First Appellate Court is absolutely justified in reversing the judgment and decree of the Trial Court. He would further submit that the 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 plaintiff is not required to establish 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 under Section 106 of the Transfer of Property Act would entitle the plaintiff to get a decree for eviction.

4. I have heard and considered the arguments advanced by learned Counsel appearing for the parties and have also perused the record with utmost circumspection.

5. 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?

6. 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.-- * * *

(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."

7. 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)."

8. 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 (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 (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, , 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 ground 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 decision of this Court in Mangilal Vs. Shri Chuturbhuja Mandir, , 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 7-9-1989 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 Pradesh High Court in Chintamani Chandra Mohan Agarwal vs. State of M.P., 1994 MPLJ 597 (MP), Civil Appeal No. 9909 of 1995 [arising from SLP (Civil) No. 4360 of 1994] was filed it this Court, which was decided on 19-10-1995 and the decision of the Madhya Pradesh High Court was reserved with a categorical findings that the notification issued by the Madhya Pradesh Government exempting the wakf and trust properties from the operation of the Act was valid."

9. Thereafter, the Supreme Court, again in Ramgopal and Another Vs. Balaji Mandir Trust and Others, , noticed the decisions in Betibai case (supra) and Chintamani case (supra), and relying on the decision in Betibai case (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. Vs. Kanhaiyalal, , 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 and Others Vs. Nathooram and Others, , 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 Vs. State of Tamil Nadu and Another, , to which reference is made in Para 8 of the judgment in Betibai''s case (supra), 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 Vs. State of Tamil Nadu and Another, . Even this decision was not brought to the notice of the learned Judges who disposed of Mangilal Vs. Shri Chuturbhuja Mandir, .''

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 utilised for that institution is not to be found unlike the provision contained in Section 3(2) of the Act. This Court in Betibai''s 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 is not utilised for the purpose of the Trust, we do not find any merit in this submission of the learned Counsel also."

10. 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 First Appellate Court has clearly recorded a finding that the plaintiff is a religious institution registered under the provisions of the Act of 1951 for religious and charitable purposes. Shri Satyanarayan Lohiya has been examined as P.W. 1 before the Trial Court. There is no material on record on behalf of the defendant to say that the plaintiff/trust is not a public trust or is not engaged in religious or charitable activities. Thus, the finding recorded by the First Appellate Court that the plaintiff is a religious institution and is duly registered under the provisions of the Act of 1951 is a well-merited finding. Since the plaintiff is a public trust registered under the provisions of the Act of 1951, therefore, the suit accommodation owned by the plaintiff is exempted from the provisions of the Act of 1961, and consequently, the 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 her a 15 days'' clear notice.

11. Therefore, the next question would be whether the plaintiff has 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 an 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."

12. 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.

13. 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. Shri Satyanarayan Lohiya has been examined as a witness (P.W. 1) before the Trial Court, deposed that the notice dated 9-10-2000, terminating the tenancy, was issued to the defendant/tenant on behalf of the plaintiff vide Exh. P-1 giving her 15 days'' time for terminating the tenancy with effect from the midnight of 30-11-2000 requiring the defendant to hand over vacant possession of the suit accommodation on 1-12-2000. The said notice is Exh. P-1 and thus, in considered opinion of this Court, the monthly tenancy of the defendant has validly been terminated giving her the 15 days'' clear notice dated 9-10-2000 vide Exh. P-1. Thus, upon valid termination of the tenancy under Section 106 of the Act of 1882, the plaintiff is entitled for vacant possession of the suit accommodation.

14. The next question raised by Mr. B.P. Gupta is that the plaintiff-trust has failed to prove that its income is being utilised for religious and charitable purpose.

15. In the Madhya Pradesh High Court, there was conflict of opinion whether in each and every case a registered religious charitable pubic trust is obliged to prove that its income is being utilised for religious and charitable purpose of the trust and the finding conflict with decision in case of Boolchand vs. Atal Ram Sindhi Dharamshala Trust, 1998 (I) MPWN 113, and Reg. Vidhichand Dharamshala Trust through its Reg. Vidhichand Dharamshala Trust Vs. Shyam Singh and Others, , the matter was referred to the Division Bench in case of Scindia Devesthan Registered Charitable Trust Vs. Praveen Kumar Nigam and Others, , on the following question of law:--

"Whether in each and every case a registered religious charitable public trust is obliged to prove that its income is being utilised in religious and charitable purpose of the Trust?"

16. Resolving the conflict, the Division Bench of Madhya Pradesh High Court in case of Scindia Devasthan, Regd. Charitable Trust (supra), held as under:--

"31. In the aforesaid decision of the Division Bench, it was held that ''Finality in litigation and public policy both require that a litigant should not be permitted to challenge validity of the provisions of the Act or notification at different times on different grounds. Once the notification has been considered by the Supreme Court and the validity of the same was upheld it must be presumed that all grounds which could validly be raised were raised and considered by the Court and the decision would be binding under Article 141 of the Constitution''. It was further held that the law laid down by the Apex Court is binding on all notwithstanding the fact that it is against or in favour of the party and it is binding on even those who were not parties before the Court. It is also held that once an authority of law is laid down it is no longer open to re-canvass the same on new grounds or reasons that may be put forth in its support. Every new discovery or argumentative novelty cannot undo a binding precedent. It does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned. It was held that the law which has been declared by the Apex Court under Article 141 of the Constitution is binding. It can only be substituted or clarified or reconsidered by the Supreme Court and not by this Court on the doctrine of per incuriam and sub-silentio, which are in the nature of exceptions to the rule of precedent in relation to law declared under Article 141 of the Constitution. Thus, in such premises also, by giving any further interpretation to the above mentioned decisions of the Supreme Court the public trust could not be directed to prove in each case that its received income is being utilised for the object and purpose of the trust.

32. In view of the aforesaid discussion our answer on the question referred is:-- ''that in each and every case a registered religious and charitable public trust is not obliged to prove that its income is being utilised in religious and charitable purpose of the trust''. Accordingly, after such answer of the question referred, the Registry is directed to place this matter before the Single Bench for further hearing and adjudications of these appeals on merits."

17. The Madhya Pradesh Accommodation Control Act, 1961 was in force in the State of Madhya Pradesh and upon formation of new State of Chhattisgarh w.e.f. 1-1-2000, it has also been made applicable to the State of Chhattisgarh and there is no legislative change in Section 3(2) of the Act of 1961 in the State of Chhattisgarh. Thus, the decision of the Division Bench in Scindia Devasthan, Regd. Charitable Trust (supra), squarely applies to the facts of the present case against appellant/defendant.

18. Keeping in view the law laid down in the aforesaid cases, it cannot be held that plaintiff/Trust is obliged to prove that its income is being utilised in religious and charitable purpose of the Trust. Thus, the submission raised by Mr. B.P. Gupta, learned Counsel for the appellant/defendant have no force.

19. Resultantly, the second appeal filed by the appellant/defendant fails and is accordingly dismissed. No order as to cost(s).

20. A decree be drawn-up accordingly. At this stage, at the request of Shri B.P. Gupta, learned Counsel appearing for the appellant/defendant, 5 months'' time up to 20th August, 2014 is granted to vacate the suit accommodation subject to following conditions:--

"(1) The appellant/defendant shall submit an usual written unconditional undertaking before the Trial Court within 3 weeks from today that she shall deliver vacant and peaceful possession of the suit accommodation to the plaintiff;

(2) The appellant/defendant shall deposit a sum at the rate of Rs. 300 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 plaintiff towards damages for occupation and use of the suit accommodation by the defendant; and

(3) The appellant/defendant shall deposit the entire arrears of rent before the Trial Court within 3 weeks from today for payment to the plaintiff.

(4) If the aforesaid three conditions are not complied with, the decree granted in favour of the plaintiff shall be executable forthwith in accordance with law."