- (1.) The learned Single Judge while hearing this writ petition, by order dated 13.11.2007 formulated following three questions to be answered by larger Bench. A. Whether the trust deed dated 13.12.1954 registered on 20.12.1954 executed by Shri Nand Kishore for himself and as Manager and Karta of the Joint Hindu family including his brothers and Jagan Prasad and Madan Lal, sons and heirs of Gursaran Das @ Baijnath, chela of Baba Garib Das, resident of Mathura proves the nature and origin of endowment and shows that the control and management of the dharmshala is retained with the founder or his descendants and that the property were dedicated for the purposes of maintenance of dharmshala belonging to the founder himself, to show that the endowment was of private nature? B. Whether after vesting the management in the Gaudia Vedanta Society' and its member the founders retained any control over the management? C. Whether the judgments in writ petition No. 54930 of 2003, Ram Ratan Sharma son of Tulsi Das v. District Judge, Mathura, dated 17.2.2004; writ petition No. 46342 of 2007, Baldeo Raj Arora v. Shree Keshav Ji Gauriya Math Dharmshala, dated 24.9.2007 and writ petition No. 45694 of 2007, Ashok Kumar and others v. Sri Keshavji Gauriya Math Dharmshala Trust and others, Dated 3.10.2007 holding that the building was a public charitable trust exempt under Section 2(1)(bb) of the Act? Hon'ble the Chief Justice by order dated 4.1.2008 directed the matter to be placed before a Division Bench. By order dated 8.7.2008, the matter has been placed before this Bench for answering the reference. Brief facts of the case which are necessary to be noted for answering the reference are; a small cause suit No. 22 of 2003 was filed by Keshavji Gaudia Math (hereinafter referred as 'respondent') in the Court of Judge Small Cause, Mathura praying for eviction from the two shops in question and for payment damages. The case of the plaintiff in the suit was that respondent in the proceedings is tenant at the rate of Rs. 45/- per month in the two shops as described in the plaint of which the plaintiff is the owner and the landlord. 30 days' notice dated 24.5.2003 was served on the tenant terminating the tenancy. The plaintiff claimed to be religious charitable trust on which provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are not applicable. It was pleaded that the Trust has passed resolution on 27.3.2003 to open a clinic, library and Pyau in the shops in question and looking to the aforesaid need, the decision was taken to terminate the tenancy. The tenant filed written statement in which it was pleaded that the provisions of U.P. Act No. 13 of 1972 are applicable on the premises in question. The allegations of the plaintiff that the property in question is a public religious charitable trust was denied. It was pleaded that the U.P. Act No. 13 of 1972 are applicable. No resolution has been passed as alleged by the plaintiff. Notice given by the plaintiff was duly replied. The suit was resisted by the tenant. The Judge Small Cause Court vide its judgment and order dated 20.2.2004 decreed the suit for eviction directing the tenant to hand over the possession within four months. The tenant filed a revision in the Court of District Judge being revision No. 17 of 2004 which revision has been dismissed by the judgment and order of the Additional District Judge dated 23.2.2007. Trial Court as well as the revisional Court held that property in question is a public religious trust and the provisions of U.P. Act No. 13 of 1972 are not applicable. It was held that the tenancy has been rightly terminated by notice under Section 106 of the Transfer of Property Act. The trial Court, while decreeing the suit has relied on oral and documentary evidence which was on record including the trust deed dated 13.12.1954 executed in favour of Keshavji Gaudia Math Dharmshala. The writ petitioner i.e. the tenant has filed the present writ petition challenging the judgment and order of the Judge Small Causes Court dated 20.2.2004 as well as the revisional Court judgment dated 23.2.2007.
(2.) Sri Rahul Sahai, learned Counsel for the petitioner challenging the orders passed by the Courts below contended that the respondent i.e. plaintiff is not a public charitable/religious trust hence, the provisions of U.P. Act No. 13 of 1972 were applicable and both the Courts below committed error in holding that the plaintiff is a public religious charitable trust. Referring to the trust deed filed as Annexure-6 to the writ petition, it is contended that various terms and conditions of the deed indicate that the trust was created with the sole object for improvement and better management of the Dharmshala and the trust was not a public charitable trust rather it was handed over to the trustee as named in the deed only for the purpose of improvement and better management of the Dharmshala, which does not change the character of a private Dharmshala into a public charitable/religious trust. Learned Counsel for the petitioner has referred to various portions of the trust deed winch shall be hereinafter referred to in support of his submissions.
(3.) We have heard learned counsel for the petitioner and has perused the record.;