Ram Duiarey vs IV Additional District Judge,Varanasi & Ors.

Sudhir Narain, J.—This writ petition is directed against the order passed by the Rent Control and Eviction Officer dated 451995 releasing the disputed shop in favour of respondent No. 3 and the order passed by respondent No. 1 dated 2511996 affirming the said order in revision.

The dispute relates to the shop situate in Premises No. CK 66/46, Mohalla Beniyabagh, Vatanasi City. The property belonged to Sri Shiv Sanwaliya Ji Maharaj Trust. Ramji was Shebait of this property. One Mohan was its tenant. He vacated the same and thereafter it was let out to the petitioner on 23rd September, 1991 by Ramji, Shebait of this property, for a period of 11 months with a condition that with the consent of parties the period of tenancy may be extended. Sobh Nath Tewari, respondent No. 3 filed an application for allotment of this premises before the Rent Control and Eviction Officer on the allegation that it should be allotted to him as the possession of the petitioner is in contravention of the provision of Section 13 of the U.P, Urban Bumming (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). On his application, the Rent Control and Eviction Officer called for a report from the Rent Control Inspector. He submitted a report that Mohan was its tenant and after vacation of the shop in question by him, it was let out by Ramji to the petitioner. A notice was issued to the petitioner and he filed objection. During the pendency of aforesaid proceeding Shebait sold the property in question to Sobh Nath Tewari, respondent No. 3, by registered saledeed dated 5th July, 1993. The Rent Control and Eviction Officer found that the letting to the petitioner by Ramji was illegal and his occupation was unauthorised. He passed an order declaring vacancy by order dated 1st March, 1994 and after recording the findings that need of respondent No. 3 was bona fide and genuine, released the disputed shop in his favour vide order dated 451995. Respondent No. 1 has vide order dated 2511996 has dismissed revision against this order.

I have heard Sri Sankatha Rai, learned counsel for the petitioner and Sri Janardan Sahai, learned counsel for the respondent No. 3.

Admittedly the rent deed was executed in respect to the property in question in favour of the petitioner on 23rd September, 1991. Letting was in violation of Section 11 read with Section 16 of the Act. The possession of the petitioner was thus unautorised under Section 13 of the Act. In Nootan Kumar and others v. IInd Additional District Judge, Banda andothers, 1993 (2) ARC 204 the Full Bench of this Court has held that where the contract has been entered into in violation of Section 11 of the Act, the possession of the occupant will be u nauthorised under Section 13 of the Act. The possession of the petitioner is thus to be treated as unauthorised and illegal.

The learned counsel for the petitioner urged that as the disputed property is religious trust property, the provision of the Act is not applicable to such properties. The She bait was entitled to let out the de butter property without any allotment order being passed by the Rent Control and Eviction Officer under the provisions of the Act. He has placed reliance on Section 2 of U.P. Act No. 5 of 1995 by which clause (bb) was inserted in the Act which provides for exemption of any building belonging to or vested in public charitable or public religious institution from the operation of the Act. The Amending Act replaced U.P. Ordinance No. 19 of 1994 which was already in force with effect from 2691994. This Act, however is not retrospective. In Punjab National Bank, Ghaziabad v. Dr. Rajendra Nath Azad, 1996 (1) ARC 348, it has been held that the Amending Act No. 5 of 1995 is not retrospective. On the date of letting by the She bait, the provisions of the 1972 Act, were applicable and before the U.P. Act No. 5 of 1995 came into force, the property was already sold to respondent No. 3 on 571993. The possession of the petitioner on the basis of letting on 2391991 was unauthorised. The order passed by the Rent Control and Eviction Officer dated 1st March, 1994 declaring the vacancy does not suffer from any illegality.

The petitioner has also challenged the validity of the sale deed dated 571993. The contention of the learned counsel for the petitioner is that the property was a public religious trust property and it could not be sold without the prior written sanction of the Commissioner of U.P. Hindu Public Religious Institutions as provided under Section 7 of the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Property) Act, 1962, (hereinafter referred to as the 1962 Act). Section 7 of the 1962 Act provides that no transfer of property belonging to a Hindu Public Religious Institution shall be valid unless prior written sanction of the Commissioner or where the value of the property sought to be transferred does not exceed to Rs. 250 of the Assistant Commissioner, having jurisdiction over the institution on the ground of a transfer being necessary or beneficial to the institution has been obtained. Section 3(i) defines Hindu Public Religious Institution as under:

"Hindu public religious institution'' means a math or temple established or to be established in future with a religious object for a public purpose and includes all property movable or immovable belonging to, or worship in, a math or temple, or for the performance of any service or charity connected therewith and also includes the idols installed in the math or temple, clothes, ornaments and things for decoration etc. but does not include such private religious maths or temples in which the public are not interested."

Whether a math or temple is a public religious institution depends upon the finding as to whether the public has right in such religious institution. Various cases have been cited wherein the distinction has been drawn between private and public religious trust or private endowment and public endowment vide Deoki Nandan v. Murlidhar and others, AIR 1957 SC 133; Mahant Ram Swamp Das Ji v. SP Sahi, Special Officerincharge of Hindu Religious "Dusts and others, AIR 1959 SC 951 ; State of Bihar and others v. Smt. Charusila Dasi, AIR 1959 SC 1002. The Bihar State Board of Religious Trust v. Patat Lal arid another, AIR 1972 SC 57; Radhakanta Deb and another v. The Commissioner Hindu Religious Endowments, Orissa, AIR 1981 SC 798.

7, In these cases various tests have been laid down to find out as to when an endowment can be treated as a private endowment or public endowment. The basic test is who are the beneficiaries of the endowed property. If the beneficiaries are the general public or a section of the same and not a determinate body of individuals it can be treated as a public endowment or a public trust. In case where there is a temple and the public is permitted by the Shebait to worship or make their offerings to the deity that by itself may not createany right in the public. It has to be established that the public has a right and the endowment was made for the benefit of the public. IP. Radha Kant Deb''s case (supra) Hon''ble Fazal AM, J. laid down the following tests as guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature:

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right.

(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstances where the evidence shows that there is provision for scheme to be framed by associating the members of the public at large.

(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.

(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."

The petitioner has annexed a copy of the endowmentdeed dated 2101942 as Annexure16 to this petition which was executed by Shri Sanwaliya and Ganshyam Das Sahu sons of Jagannath. They purchased House No. CK 66/61, Mohalla Hari Piari Beniya Bagh, Varanasi in favour of Shri Shiv Sanwaliyaji temple. In this deed it was stated that the house is being endowed to the temple for protection of the family and on account of interest in the religion. The property was to be managed by the Head of the family and this management was always to be done by male member who may be Head of the family. In this document there is nothing to show that the public was given any right in any capacity. The finding as to whether the temple is a public or private or endowed property depended upon various facts and unless those facts were established by evidence in competent Court of Law or in appropriate proceedings, it cannot be held that the property is a Hindu Public Religious Institution as defined under Section 3 (i) of the 1962 Act.

It, however, a property belonging to public religious institution is sold by the Shebait of the debutter property, an application could have been filed before the Commissioner of Hindu Public Religious Institution who could have investigated the matter and took appropriate steps for recovery of the property under Section 8 (f) of the 1962 Act. The saledeed cannot be treated as invalid unless the Commissioner has declared it invalid under the provisions of the 1962 Act.

Learned counsel for the petitioner then urged that a debutter property cannot be sold by the Shebait as it prima facie amounts to breach of the trust. In Chanter 6 Para 6.38, B K. Mukherjee on the Hindu Law of Religious and Charitable Trusts, the power of Shebait to alienate the Debutter property has been considered. The rights of Shebait was taken analogous to those of a manager of infant heir as laid down in Human Prasad Pandey''s case (6 Moore''s India Appeals 393), i.e. either for legal necessity or for the benefit of the estate. It was further held that the transaction will not be void but voidable. In Raghubanchmani Prasad A''urawi Singh v. Ambica Prasad Singh, AIR 1971 SC 776, where the manager of joint family property sold the property even without legal necessity, it was held as voidable and not void.

There is another aspect of the matter. The petitioner is not challenging the saledeed as a person interested for the protection of the debutter property or for the welfare of public or worshippers who may be making offerings or worship in the temple. He is trying to protect his own interest in the property by remaining the possession. It maybe noticed that respondent No. 3 was already in possession of a portion of the property in question and residing therein. The other portions were in tenancy of other persons. Mohan was one of the tenants who had vacated the same and thereafter the Shebait had let it out to the petitioner by a rentdeed on 23.9.1991. The saledeed indicates that it has been sold for Rs. 1, 00, 000/ and the property was in a dilapidated condition. If any person feels that it is a religious public endowment, he can challenge the saledeed in appropriate proceeding in accordance with law or seek such other remedy for the benefit of the trust.

In the last, learned counsel for the petitioned submitted that Suit No. 459 of 1984 was filed wherein an injunction order dated 22nd January, 1986 was issued restraining Ramji Shebait from transferring the property in dispute and in breach of the injunction order the saledeed was executed by him on 5793 and it was void. A person committing breach of injunction order is liable for punishment under Order XXXIX, Rule 2A of the Code of Civil Procedure and his property is also liable for attachment. The saledeed itself cannot be treated as void. In Pranakrushna and others v. Umakanta Panda and others, AIR 1989 Orissa 148, it was held that the order of restraint does not deprive or suspend any right of the person but only aims at prohibition to act in a particular manner. The sale deed cannot be treated as a void ab initio in these circumstances.

In view of the above there is no merit in the writ petition and it is accordingly dismissed. Petition dismissed.