Judgment

B.L.HANSARIA, J.

(1) A suit for eviction was filed by the respondent against the appellants in the Court of Munsif and Judicial Magistrate, Jaipur, on the averment that the tenancy of the appellants having been determined they have no right to occupy the suit premises. Prayer for vacant possession of the premises was therefore made, along with realisation of some arrears of rent, so also damages for the use and occupation of the premises by the appellants on and from 1-8-1980. The plaintiff specifically averred that provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter the Act, had no application in view of the exemption granted by the State Government vide its notification No. F. 20(14 Rev. 1/76 dated 20-8-1976 by which all the premises owned by Wakfs registered under the Wakfs Act were exempted from the operation of the Act.

(2) THE appellants took a stand that the exemption notification was void; and that the present being a case of forfeiture of tenancy, distinguished from determination of the same, they were entitled to the benefit of Section 114-A of the Transfer of Property Act, 1982.

(3) THE learned Munsifid not accept the case of the appellants insofar as the challenge to the exemption notification is concerned, but gave the relief visualised by Section 114-A of the Transfer of Property Act. The Munsif, therefore, ordered that in case the appellants would pay all the arrears within 15 days of the judgment they would not be evicted from the premises.

(4) FEELING aggrieved, the respondent preferred an appeal in the Court of District Judge, Jaipur, who took the view that the present was really a case of determination of tenancy and so the appellants were not entitled to the aforesaid benefit. This judgment of the District Judge found the appellants before the High Court of Rajasthan (Jaipur Bench), where, for the first time a plea was taken that the wakf in question being wakf-alal-aulad, the benefit of the aforesaid exemption was not available. Another point urged was that the present was in fact a case of forfeiture of tenancy and not of determination of the same. The High Court did not accept any of the contentions and so dismissed the second appeal. Feeling aggrieved, this Court has been approached under Article 136.

(5) SHRI Rajinder Sachar, learned Senior Counsel appearing for the appellants, has taken pains to submit that the appellants were wrongly debarred from the salutory provisions of Act by the courts below inasmuch as to a wakf-alal-aulad exemption from the Act permitted by its Section 2(3 is not available. The focal point of this submission is that the section empowers the State Government to exempt from all or any of the sections of the Act only those premises which are owned by any "educational, religious or charitable institution, the whole of the income derived from which is utilised for the purposes of that institution". Learned counsel urges that wakf-alal-aulad cannot be said to be either an educational, religious or charitable institute and, as such, benefit of the exemption given by the aforesaid notification to registered wakfs could not have been taken advantage of by the respondent.

(6) SHRI Sachar has put forward his submission as aforesaid on being pointed out that it was not open to the appellants to challenge the validity of the exemption notification in the absence of the State being respondent in this appeal. Learned counsel categorically stated that he was not challenging the validity of the notification (though that was the stand taken earlier throughout the proceeding), but he is confining his contention to the non-applicability of the exemption to the premises in question. As to the non-applicability, the contention is that the wakf at hand is apparently not an educational or religious institution. At best it could be said to be charitable, which it is not in view of what has been poi