- (1.) D.P.Singh-Heard learned counsel for the petitioner. None appears for the respondent even though the case was taken up in the revised list and was heard for about an hour. Perused the record.
(2.) GANESH Prasad Dalal Dharmashala is owner of premises No. 26/33, Birhana Road, Kanpur where the contesting respondent was a tenant in a shop situated in the premises @ Rs. 25 per month apart from taxes. It terminated the tenancy of the respondent tenant vide notice dated 21.10.1997 and when the tenant did not handover vacant possession, Suit No. 299 of 1998 was instituted in the Court of Judge, Small Causes Court at Kanpur claiming his eviction on the basis of the arrears of rent. The case set up was that the petitioner is a public charitable institution and therefore, the provisions of U. P. Act No. 13 of 1972 (hereinafter referred as the 'Act') were not applicable and the tenant was liable for eviction. Initially the suit was decreed vide order dated 20.8.2002, but on revision it was remanded to the trial court to consider whether it was a public charitable institution or a private trust. After remand vide order dated 8.8.2005, the Court held that it was a private charitable institution and therefore the Act would be applicable and the suit was dismissed on the ground that default of four months was not proved. It was also found that the provisions of Sections 111 and 114 of the Transfer of Property Act (hereinafter referred to as 'T. P. Act') would apply. Both the orders are challenged in the present petition. Learned counsel for the petitioner has urged that despite having returned the finding that according to the bye-laws and the rules applicable, it was meant for the usage of public at large, yet it held that it was a private trust since its management was with a family. He has relied upon a decision of a learned single Judge of this Court in the case of Kapoori Devi (Smt.) v. District Judge, Kanpur, 2007 (3) ARC 851. Lastly, it is urged that since it was a simple notice to quit under Section 106 of T. P. Act, there was no question of relief under Section 114 being extended to the tenant.
(3.) IT is apparent from the record that the petitioner had acquired a piece of land from the Kanpur Improvement Trust in 1939 and built a dharamshala over it for public use. IT was thereafter registered as a Society under the Societies Registration Act in 1983. The trial court after examining the voluminous evidence on record including the bye-laws and rules of the Society, the income tax exemption order, the Audit report etc. recorded a finding that the petitioner is a trust for the people at large where travellers are allowed to stay and it is used for weddings etc. and is known as 'Ganesh Prasad Dalal Dharamshala.' However, considering the ratio rendered in the case of Radha Krishana Dev and another v. Commissioner of Hindu Religious Endowment, Orissa, AIR 1981 SC 798, it found that the control of the trust was within the family, therefore, it was only a private charitable institution. The ratio rendered in Radha Krishan Dev's case was on entirely different set of facts. In the present case, it is not denied that the trust is being managed by a Society and under the Scheme of Administration and bye-laws of the society, there is no bar for people at large to become members thereof. However, all these issues now have been set at rest as the petitioner has already been held to be a public charitable institution by this Court in the case of Kapoori Devi's case (supra). Thus, the finding of both the courts below on this issue are bound to be set aside. So far as the applicability of Sections 111 and 114 of T. P. Act are concerned, the courts below have held that since the notice to quit had given only 30 days time, it was not referable to a notice simplicitor under Section 106 and as it was referable to Section 111 thereof, the tenant was entitled to benefit of Section 114 of T. P. Act. The findings are perverse.;