2015 Supreme(Raj) 1163
RAJASTHAN HIGH COURT
Vineet Kothari, J.
Ram Chandra S/o Narayan Lal Khaldelwal - Appellant
Versus
Mandir Shree Vishwanath Mahadev and another - Respondent
S.B. Civil Second Appeal No. 290 of 1998.
Decided On : 6-01-2015
For the Appellant:Jagdish Vyas, Advocate.
For the Respondent:Shreyansh Mardia on behalf of Pradeep Shah, Advocates.
Headnote:Civil Procedure Code, 1908 – Section 100 Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Section 2(3) – A second appeal is filed against the Decree of eviction by the tenant – On concurrent finding, it was found that the respondent trust temple got exemption decreed on 24.11.1997 under the Transfer of Property Act 1882, which was filed in 1996 – It was held in the present matter that the Notification dated 15.11.1995 has no retrospective effect and cannot divest tenant from his vesting rights which was granted to him – Thus the second appeal of the tenant is dismissed as it was based on the misconceived notion of the tenant.
Civil Procedure Code, 1908 – Section 100 Transfer of Property Act, 1882 Section 106
The religious trusts are exempted from the operation of Rent Control Legislation of 1950, as per the Notification dated 15.11.1995 – The Suit for eviction is filed after serving notice on the tenant by following the procedure of Section 106 of Transfer of Property Act – It was held that challenging the validity of notification cannot be allowed in second appeal as the same issue would have been raised before the High Court by tenant but was not raised – Thus, second appeal dismissed.
Civil Procedure Code, 1908 – Section 100 Rajasthan Public Trust Act, 1969, Sections 53 and 61(2)(g)
The issue raised in the present matter was whether the Mahant of temple has locus standi to file a suit for eviction – The argument was raised that he can’t do so under Section 53/61 of the Act and the same can be done only by the managing committee of the temple – The court rejected this argument and held that Mahant has locus standi to file a suit as he is authorized to manage affairs under Order dated 17.11.1981 passed by Assistant Commissioner Devsthan.
Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sections 2(3) and 13(1)
The decree for eviction was challenged by second appeal and the question arose whether the plaintiff can seek eviction without following the provisions of 1950 Act, if he has been granted immunity by the State Government to do the same – It was held that the provision of Section 13 is non-obstante in nature and it restricts the eviction of tenants i.e., the eviction is allowed only if the specific grounds mentioned in Section 13 are proved – By allowing the decree of eviction in favour of plaintiff the applicability of provisions of Act of 1950 itself is ruled out and therefore the provisions of Act of 1950 cannot be invoked- Thus, the Appeal is dismissed.
JUDGMENT
1. - This second appeal is arising out of the judgment and decree dated 30.07.1998 passed by the learned Additional District Judge, Sojat in Civil Appeal No.11/1998 Ram Chandra v. Mandir Shree Vishwanath Mahadev & Anr. who dismissed the appeal filed by the present appellant-defendant-tenant and affirmed the judgment and eviction decree dated 24.11.1997 passed by the learned Civil Judge (Junior Division), Udaipur (South) in Civil Original Suit No.110/1996 Mandir Vishwanath Mahadev, Bapu Bazar, Udaipur & Anr. v. Ram Chandra .
2. The present appellant-defendant-tenant Ram Chandra, who is carrying on the transport business under the name and style of M/s Gayatri Roadways in the suit premises situated at a busy area of Delhi Gate, Udaipur has filed the present second appeal under Section 100 of the Code of Civil Procedure against the concurrent decree of eviction passed against him under the provisions of Transfer of Property Act, 1882. The present second appeal was admitted by a co-ordinate bench of this Court on 17.09.1998 and the following substantial questions of law were framed by this Court for consideration:-
"(i) Whether a Mahant or Pujari of the Temple can maintain the suit of eviction on behalf of a registered public trust under the Rajasthan Public Trusts Act, 1959;
(ii) Whether the State Government Notification dated 15th January, 1995 governs the present case and grant immunity to the present plaintiffs to seek eviction without following the provision of Rajasthan Premises (Control of Rent and Eviction) Act, 1950."
3. The present suit was (No.110/1996) instituted by the respondent Temple namely, Mandir Shree Vishwanath Mahadev, Bapu Bazar, Udaipur and the plaintiff No.2 Shri Shyam Priya Sharan Shastri, the Mahant of the Temple, in the year 1996 after the tenancy of the appellant-defendant-tenant was terminated by serving a notice under Section 106 of the Transfer of Property Act dated 27.02.1996 w.e.f. 31.03.1996 on account of default in payment of rent of February and March, 1996. The suit shop was given to the defendant-tenant Ram Chandra on a monthly rent of Rs. 400/- per month. Receipt of the notice dated 27.02.1996 as well as the default in payment of rent was admitted by the defendant-tenant and, therefore, treating the tenancy as terminated under the provisions of Section 106 of the Transfer of Property Act, the learned Trial Court has granted the decree of eviction on 24.11.1997 in Civil Original Suit No. 110/1996 Mandir Vishwanath Mahadev, Bapu Bazar, Udaipur & Anr. v. Ram Chandra S/o Narayan Lal Khandelwal .
4. The first appeal (No.11/1998) filed by the defendant-tenant Ram Chandra was also dismissed by the learned District Judge, Udaipur on 30.07.1998 and being aggrieved of these two orders and concurrent decree of eviction, the present second appeal was filed by the defendant-tenant in this Court on 14.09.1998 which was admitted upon framing of the aforesaid substantial questions of law on 17.09.1998.
5. The learned counsel Mr. Jagdish Vyas appearing for the appellant-defendant-tenant urged that : (1) the exemption from applicability of the provisions of the Rajasthan Rent Control Act, 1950 given to the respondent-plaintiff Public Trust was registered as a public trust under the provisions of Rajasthan Public Trust Act, 1959 under the order dated 17.11.1981 of the Assistant Commissioner, Devasthan Department, Udaipur but the exemption which was given by the State Government to the respondent-plaintiffs Temple by issuing a Notification dated 15.11.1995 (Exhibit-9) could not be given any retrospective effect as this is a subordinate legislation and secondly, the vested rights of the defendant-tenant under the provisions of Rajasthan Rent Control Act, 1950 could not be divested or disturbed by such exemption to the landlord respondent-temple or the Trust and, therefore, in the absence of any regular suit instituted under the provisions of Rajasthan Rent Control Act, 1950 by establishing the specific gro
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