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2013 Supreme(MP) 366
HIGH COURT OF MADHYA PRADESH
U.C. Maheshwari and G.D. Saxena, JJ.
Scindia Devesthan Registered Charitable Trust v. Praveen Kumar Nigam and others
Miscellaneous Appeals No.762 and 884 of 2012 (Gwalior) : against the orders of Sixth Additional District Judge, Gwalior, passed in
Civil Regular Appeals No.16-A of 2012 and 7-A of 2012;
Decided on 5.7.2013.
Ankur Modi for appellants;
Harish Dixit for respondent No.1.
Headnote:Constitution of India -- Art.141 -- M.P. Accommodation Control Act, 1961 -- S.3(2) -- Transfer of Property Act, 1882 -- S.106 -- Notification of State Government to exempt the religious and charitable trust from the provisions of M.P. Accommodation Control Act held intravires and valid by the Supreme Court -- no need to prove in each case the utilisation of whole income of trust in its religious and charitable purpose.
Held : Mere perusal of the language of sub-section (2) of section 3 of the Act, it is apparent that it gives the right to the State Government to issue the notification exempting any educational religious and charitable institution or nursing or maternity home, the whole of the income derived from which is utilized for that institution or nursing home or maternity home, from all or any of the provision of the Act. So, the requisite satisfaction in this regard, whether the income of the public trust is being utilized by it for the object of trust, is required to be examined by the State before issuing the notification and once the notification was issued by the State and all the public trusts and other stated institutions have been exempted by the State from the provisions of the Act, then any of such public trust is not under obligation or bound to plead and prove that the income received by the trust is utilized for fulfilling the object and purpose of such trust. In such premises, the Court entertaining such civil suit or it’s appellate authority could neither direct nor expect from such plaintiff/public trust to plead and/or prove the income received by such trust is being utilized for the object and purpose of such trust.
As such in view of the aforesaid notification of exemption, such public trust has a right to terminate the tenancy of the premises in accordance with the provision of section 106 of the Transfer of the Property Act and file the suit of eviction directly and the Court is obliged to decide such case in accordance with the scheme of section 106 of the Transfer of the Property Act. 1999(2) JLJ 379 (SC) and 1999(2) JLJ 380 (SC) followed. 1964 JLJ 628, 1997(I) MPWN 3, 2012(III) MPWN 5, 2011(I) MPWN 107, 2010(1) MPLJ 158, 2011(1) MPACJ 156 and 1999(1) MPLJ 133 confirmed. 1998(I) MPWN 113 and 2010(3) JLJ 394 overruled.
Hkkjr dk lafo/kku && vuq-141 && e-iz- LFkku fu;a=.k vf/kfu;e] 1961 && /kkjk 3¼2½ && laifRr varj.k vf/kfu;e] 1882 && /kkjk 106 && /kkfeZd rFkk iwrZ U;kl dks e-iz- LFkku fu;a=.k vf/kfu;e ds mica/kksa ls NwV nsus ds fy, jkT; ljdkj dh vf/klwpuk mPpre U;k;ky; }kjk izkf/kdkj ds v/khu rFkk fof/kekU; vfHkfu/kkZfjr && izR;sd ekeys esa U;kl dh laiw.kZ vk; dk mi;ksx blds /kkfeZd rFkk iwrZ iz;kstu esa lkfcr djus dh dksbZ vko’;drk ughaA
vfHkfu/kkZfjr % vf/kfu;e dh /kkjk 3 dh mi/kkjk ¼2½ dh Hkk”kk ds ifj’khyu ls ;g Li”V gS fd ;g jkT; ljdkj dks fdlh ‘kS{kf.kd /kkfeZd rFkk iwrZ lLFkk ;k mip;kZ&x`g ;k izlo ‘kkyk dks] ftlls izkIr laiw.kZ vk; ml lLFkk ;k mip;kZ&x`g ;k izlo ‘kkyk ds fy, iz;ksx dh tkrh gks] vf/kfu;e ds lHkh ;k fdlh mica/k ls NwV nsus ds fy, vf/klwpuk tkjh djus dk vf/kdkj nsrh gSA blfy,] bl ckjs esa visf{kr lek/kku fd D;k yksd U;kl dh vk; blds }kjk U;kl ds mn~ns’; ds fy, iz;ksx dh tk jgh gS] tk¡p jkT; }kjk vf/klwpuk tkjh djus ds iwoZ dh tkuk visf{kr gksrh gS rFkk tc ,d ckj jkT; }kjk vf/klwpuk tkjh dh xbZ rFkk lHkh yksd U;kl rFkk vU; dfFkr laLFkkvksa dks jkT; }kjk vf/kfu;e ds mica/kksa ls NwV nh xbZ] rc ,slk dksbZ Hkh yksd U;kl bl ck/;rk ds v/khu ugha gS ;k ;g vfHkopu djus ;k lkfcr djus ds fy, vkc) ugha gS fd U;kl }kjk izkIr dh xbZ vk; ml U;kl ds mn~ns’; rFkk iz;kstu dks iw.kZ; djus ds fy, iz;ksx dh tkrh gSA bl fLFkfr esa] ;g flfoy okn xzg.k djus okyk U;k;ky; ;k bldk vihy izkf/kdj.k ml oknh@yksd U;kl dks u rks ;g vfHkopu rFkk@;k lkfcr djus dk funs’k ns ldrk Fkk u gh mlls ,slk djus dh vk’kk dj ldrk Fkk fd ml U;kl }kjk izkIr dh xbZ vk; ml U;kl ds mn~ns’; rFkk iz;kstu ds fy, iz;ksx dh tk jgh gSA
blfy,] NwV dh iwoksZDr vf/klwpuk dks n`f”Vxr j[krs gq,] bl yksd U;kl dks laifRr varj.k vf/kfu;e dh /kkjk 106 ds mica/k ds vuqlkj ifjlj dh vfHk/k`fr dk i;Zolku djus dk rFkk lh/ks csn[kyh dk okn izLrqr djus dk vf/kdkj gS rFkk U;k;ky; bl ekeys dk laifRr varj.k vf/kfu;e dh /kkjk 106 dh Ldhe ds vuqlkj fofu’p; djus ds fy, ck/; gSA 1999¼2½ ts ,y ts 379 ¼mPpre U;k-½ rFkk 1999¼2½ ts ,y ts 380 ¼mPpre U;k-½ vuqlfjrA 1964 ts ,y ts 628] 1997¼1½ e-iz- ohDyh uksV~l 3] 2012¼3½ e-iz- ohDyh uksV~l 5] 2011¼1½ e-iz- ohDyh uksV~l 107] 2010¼1½ ,e ih ,y ts 158] 2011¼1½ ,e ih , lh ts 156 rFkk 1999¼1½ ,e ih ,y ts 133 iq”VA 1998¼1½ e-iz- ohDyh uksV~l 113 rFkk 2010¼3½ ts ,y ts 394 myVs x,A
Maheshwari, J. -- 1. This order shall decide the following question of law referred by the Single Judge in above mentioned both the appeals by common order dated 22.3.2013.
“Whether in each and every case a registered religious charitable public trust is obliged to prove that it’s income is being utilized in religious and charitable purpose of the Trust?”
2. The facts giving rise to this reference in short are that, the aforesaid both the appeals have been filed by the appellants under Order 43 rule 1 of CPC being aggrieved by the orders dated 10.7.2012 and 23.7.2012 passed by the Xth Additional District Judge, Gwalior and VIIth Additional District Judge, Gwalior in Civil Regular Appeal No.16-A/12 and Civil Regular Appeal No.7-A/12 respectively whereby, by setting aside the judgment and decree of eviction passed by the trial Court in favour of the appellants, the cases by framing the additional issues on the question of section 3(2) of the M.P. Accommodation Control Act, 1961 (hereinafter in short ‘the Act’) have been remitted back with some direction to decide afresh.
3. The appellants being Public Trust after serving the quite notice for termination of tenancy filed the impugned suits for eviction against the respondents No.1 to 3 contending that the respondents were defaulter in paying the monthly rent and illegally encroached on some property of the appellants’ trust. It is also stated that, it being religious and charitable trust by virtue of notification of the State of Madhya Pradesh dated 7.9.1989 promulgated under the provision of section 3(2) of the Act, is exempted from the provisions of the Act.
4. In written statement of respondents-defendant had admitted the alleged tenancy the other averments relating to prayer of eviction were denied.
5. After framing the issues and holding the trial, both the suits of the appellant’s trust were decreed by the trial Court. But in appeal filed by the respondents-defendants, the appellate Court, after setting aside the judgment and decree of the trial Court, by framing the additional issue on the question whether the income of the appellant’s/trust is utilized for the purpose and object of the trust, remitted back the matter to the trial Court with a direction to decide afresh after extending the opportunity of hearing to the parties on the aforesaid additional issue also. Accordingly, the appellants have come to this Court challenging the orders of the appellate Court.
6. Initially these appeal were heard on merits by the Single Bench of this Court, but while deciding the same earlier judgments of the Single Bench regarding crucial controversy of exemption from the provision of the notification dated 7.9.1989, issued by the State under the provision of sub-section (2) of section 3 of the Act to the appellant came before such Bench, on which the above mentioned point was referred for consideration to resolve the anomaly of conflicting decision on such point. Pursuant to that, the Hon’ble Chief Justice has referred the matter to this Bench to decide the point referred.
7. Having heard the counsel of the parties present keeping in view their arguments at length, we have carefully gone through the records of the Courts below along with their respective judgments and order.
8. Before considering the matter to answer the point referred we would like to reproduce the provision of sub-section (2) of section 3 of the Act. The same is read as under :
“Section 3.
(1) .... ....
(a) .... ....
(b) .... ....
(2) The Government may, by notification, exempted 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 utilized for that institution or, nursing home or maternity home.”
9. By virtue of aforesaid provision, the State of M.P., has promulgated the notification dated 7.9.1989 and exempted some of the institution and the trusts from the pro
