Delhi District Court
Rukmani Devi Jaipuria Charitable Trust vs . M/S. Babu Ram Prem Chand & Ors. on 11 July, 2012
Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
IN THE COURT OF SH. DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, NORTH DISTT. DELHI.
E No. 101/2009
Unique Case ID No: 02401C0006811994
1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
By its Chairman Shri Mahabir Pershad Jaipura,
52, Janpath, New Delhi.
2. SH. MAHABIR PERSHAD JAIPURIA
S/o. Late Seth Beni Pershad Jaipuria,
52, Janpath, New Delhi.
3. SMT. PUSHPA DEVI JAIPURIA
W/o. Sh. Mahabir Pershad Jaipuria,
52, Janpath, New Delhi.
(Trustee of Petitioner no. 1.) ...Petitioners.
Versus
1. M/S. BABU RAM PREM CHAND
V/616, Katra Ashrafi,
Chandni Chowk, Delhi.
2. M/S. A. B. TEXTILES
V/616, Katra Ashrafi,
Chandni Chowk, Delhi.
3. PREM CHAND PRAKASH CHAND
V/616, Katra Ashrafi,
Chandni Chowk, Delhi.
4. CHABRA TRIPLE FIVE FASHION PVT. LTD.
V/616, Katra Ashrafi,
Chandni Chowk, Delhi.
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Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
5. SANGAM SAREES
V/559-60, Katra Ashrafi,
Chandni Chowk, Delhi.
6. LAGAN LEHANGA
Through its Proprietor
Sh. Anil Kumar Arora
V/616, Katra Ashrafi,
Chandni Chowk, Delhi.
7. M/S. HARKISHAN SACHDEVA & SONS
Through its Proprietor
Sh. Hari Kishan Sachdeva
V/559-60, Katra Ashrafi,
Chandni Chowk, Delhi. ...Respondents.
Date of institution of the petition : 28/11/1984
Date on which order was reserved : 02/06/2012
Date of Decision : 11/07/2012
JUDGMENT
11/07/2012
1. Vide this judgment, I shall decide the petition filed on behalf of petitioner U/sec. 14 (1) (a) & (b) and Sec. 22 of the Delhi Rent Control Act, 1958 (hereinafter referred as to D.R.C. Act).
1.2. Originally the present petition was filed U/sec. 14 (1) (a) and 22 of Delhi Rent Control Act, 1958 and vide order dated 24/07/2006, the petition was allowed to be amended to plead the ground U/Sec. 14 (1)(b) of the D.R.C. Act. Petition was again allowed to be amended vide order dated 27/05/2008 to implead respondents no. 6 & 7 on the E no. 101/2009 Page 2/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
ground of subletting.
1.3. In sum and substance, the case of the petitioner is that Late Smt. Rukmani Devi Jaipuria was the owner of the property no. V/559, 560, 616, 617 Katra Ashrafi, Chandni Chowk, Delhi and the said properties were settled with the petitioner no. 1 vide registered Trust Deed dated 26/07/1975 by creating a Charitable Trust and thus, petitioner no. 1 is the owner/landlord of the said properties which is a recognized Public Charitable Institution duly recognized by the Income Tax Authorities under Indian Income Tax Act, 1961. It is further stated that respondent no. 1 is the tenant in respect of one Thala bearing M.C. No. V/616 and two rooms with attached accommodation on the first floor of the property no. V/559-60 Katra Ashrafi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred to as 'suit property'). The suit property was let out to the respondent no. 1 at a monthly rent of Rs. 52.75 paise excluding all other charges vide Rent Note dated 01/08/1957.
1.4. It is further stated that now the suit property is required bonafidely by the petitioner no. 1 Trust for furtherance of its activities for opening of free charitable dispensary and/or library/reading room. Petitioners no. 2 and 3 are now sole Trustees of petitioner no. 1 Trust.
1.5. It is further stated that respondent is defaulter and have neglected to pay rent w.e.f. 01/04/1969 upto date and a sum of Rs.
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9864-24 paise became due and recoverable as arrears of rent for the period ending 31/10/1984. Respondent sent Rs. 1899/- by Draft no. 008476/3/84 dated 28/08/1984 issued by Lakshmi Commercial Bank, Chandni Chowk, Delhi to the petitioner no. 2. The respondent/tenant neither paid nor tendered the whole of the arrears of rent within two months of the written demands made by the petitioners. The respondent had repeatedly been called upon to pay the rent due to the petitioners in the Slum Proceedings before the Competent Authority as well as before the Financial Commissioner, Delhi. Permission under Slum Area (Improvement and Clearance) Act, 1956 was accorded to the petitioners as the respondent failed to pay and neglected to pay the rent before the Authorities under the Slum Act. Written demands have been made by the petitioners by means of notice/applications/appeal demanding payment of rents from the respondent before the authorities under the Slum Act.
1.6 It is further stated that in or about October, 2002 respondent has sublet, assigned or otherwise parted with possession of the tenancy premises to A.B. Textiles, Prem Chand Prakash Chand (selling agent Lagan Lehenga), Chabra Triple Five Fashion Pvt. Ltd and Sangam Sarees without obtaining the consent in writing of the petitioners/landlords. The respondent further sublet during pending proceedings before the Hon'ble High Court the shop no. 616 (Supra) by dividing it into two portions in favour of M/s. Lagan Lehenga, whose proprietors are Sh. Anil Kumar Arora and Sh. Raghav Arora. Out of the E no. 101/2009 Page 4/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
two rooms on the first floor, back room has been sublet to M/s. Harikishan Sachdeva & Sons whose owner is Sh. Harikishan Sachdeva and the front room to M/s. Sangam Sarees whose owner is Sh. Rajesh Paul. The jal over the courtyard has been covered and two small rooms measuring approximately 4'.1/2'' X6'.1/2'' each have been built in the courtyard incorporating therein one door in each of the above two rooms. Both the rooms have doors opening in the courtyard and one is with M/s. Harikishan Sachdeva & Sons and other is with M/s. Sangam Sarees.
2. Upon service of summons, respondent no. 1 filed its W.S. which was subsequently amended in consequence of the amended petition and preliminary objections have been taken on behalf of the respondent that petitioner no. 1 is neither the body corporate nor a local authority nor a public institution and thus, has no locus standi to file the present petition and same is totally mis- conceived and beyond the ambit and scope of Sec. 22 of D.R.C. Act. Present petition has been filed with malafide intention to evict the old tenants. Petitioner no. 1 allegedly a charitable trust, is infact a family concern of the erstwhile owner Smt. Rukmani Devi Jaipuria, who had inducted the answering respondent as tenant in the premises and is now intended to evict with the ulterior motives of securing good amount of pugree/premium and thereafter let out the same. The instrument of Trust is nothing but a family settlement of the property of Smt. Rukmani Devi Jaipuria in favour of her son and daughter-in-law including all powers to deal with the E no. 101/2009 Page 5/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
property under the camouflage of the charitable objects. The creation of the Trust is a sort of family arrangement and for the benefit of the family under the garb of various different objects.
2.1. It is further stated that no notice of demand was served upon the answering respondent U/sec. 15 (1) of D.R.C. Act and thus, petition on the ground of non payment is pre-mature and is liable to be dismissed. Even the answering respondent has made payment of legally recoverable rent by virtue of Payee Account draft dated 31st August, 1984 and thereafter regular rent has been paid /tendered by the answering respondent. It is further stated that amended eviction petition dated 26/05/2007 contains unauthorized amendments and interpolations carried out by the petitioners without seeking prior leave of this Court and therefore, is misconceived and not maintainable.
2.2. On merits he has again denied the petitioners as lawful owners/landlords stating that Smt. Rukmani Devi was the landlady and Trust has been created with fraudulent object and no legal and valid Trust has been existing. However, he has admitted that respondent is tenant. He has further admitted that Rent Note was executed at the time of inception of tenancy. It is further stated that the suit property is situated in thickly populated commercial area and same can hardly be used for any and/or charitable purposes. There is no requirement of the petitioner no. 1 of the suit property for any kind of furtherance of its activities. Otherwise also, suit property is not fit to carry out medical E no. 101/2009 Page 6/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
dispensary or library/or for other charitable activities. It is further stated that petitioners did not obtain any permission from Medical Council of India for opening or running a charitable dispensary for giving any relief to the poor. No poor people are living in the vicinity or nereby area which is totally commercial in nature. The suit premises is situated in such a small lane that even a man or a cycle can not reach or arrive. Thus, there is hardly any question of opening any charitable dispensary in such premises where it is not possible for the patient to travel or go on any vehicle. He has admitted the payment of rent through bank draft which was legally recoverable to the petitioner no. 1 after disclosing its identity before the Slum Court without prejudice to rights.
2.3. It is further stated that there has been no subletting in favour of other respondents. Suit property is in absolute legal control as well as exclusive possession of the respondent no. 1. The suit property is in absolute control of respondent no. 1 through Sh. Prakash Chand, S/o. Late Prem Chand.
3. Replication to the W.S. of respondent no. 1 was filed denying all the preliminary objections as well as allegations on merits and reiterating moreover the same facts as alleged in the petition.
4. Respondent no. 6 was proceeded Ex-parte vide order dated 01/09/2008.
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5. During pending proceedings an application U/o. VI Rule 5 C.P.C. was filed on behalf of respondent no. 1 and in compliance the petitioner has admitted that no separate legal demand notice demanding arrears of rent was sent to the respondent.
6. An application U/o. VII Rule 11 C.P.C. was filed on 23/08/1989 stating therein that since petitioner no. 1 is not a Public Trust, therefore, petition is liable to be dismissed and said application was disposed of vide order dated 20/02/1993 holding that without evidence at this stage, it can not be decided as to whether the petitioner's Trust is a Private Trust or Public Trust being mixed question of law and fact.
7. Another application on behalf of petitioner U/sec. 15 (1) D.R.C. Act was filed which was disposed of vide order dated 19/03/1994 directing the respondent no. 1 to deposit the rent U/sec. 15 (4) of D.R.C. Act.
8. Vide order dated 08/04/1997 the present eviction petition was allowed to be consolidated for the purposes of evidence alongwith other eviction petition bearing petition no. 492/84, 493/84, 495/84 and 496/84 (old numbers) titled as Rukmani Devi Charitable Trust Vs. Dawar & Co., Rukmani Devi Charitable Trust Vs. Jiwan Dass, Rukmani Devi Charitable Trust Vs. Babu Ram Prem Chand, Rukmani Devi Charitable Trust Vs. Anand Kumar and Rukmani Devi Charitable Trust Vs. Hansraj E no. 101/2009 Page 8/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
and the case bearing E no. 492/1984, titled as Ms. Rukmani Devi Vs. M/s Dawar & Company was made a leading case for the purposes of recording of evidence.
9. An application U/Sec. 40 r/w Sec. 151 & 152 CPC was moved on behalf of the petitioner and said application was kept pending by order dated 13/09/2002 by the Ld. Predecessor Court with the observation that the same shall be considered after the petitioner will conclude its evidence.
10. An application U/Sec. 15 (7) of the D.R.C. Act was filed on behalf of the petitioner on 02/02/2012 which is still pending disposal.
11. Petitioner examined himself as PW-1 by filing affidavit as well as additional affidavit in examination in chief deposing moreover the same facts as alleged in the petition and was cross examined at length. No witness has been examined on behalf of respondent no. 1 and his opportunity was closed vide order dated 24/03/2012.
12. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
13. Petitioner has placed reliance upon the judgments reported in 2005 RLR 44 (SC), 1971 RCR 207, 19 (1981) DLT 97, 169 (2010) E no. 101/2009 Page 9/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
DLT 90 & (2009) 7 SCC 658 for the purpose of disposal of the application U/Sec. 15(7) of the D.R.C. Act.
13.1 It has further placed reliance upon the judgments reported in AIR 2008 SC 673, 182 (2011) DLT 402 to substantiate its arguments that no notice is required demanding arrears of rent prior to filing of the petition U/Sec. 14 (1)(a) of the D.R.C. Act and filing of the proceedings before the Competent Authority (Slum) and present eviction petition itself is a notice of demand.
13.2 The petitioners have further placed reliance upon the judgments reported in AIR 1982 DELHI 453, 1970 RLR 742 to counter the defence taken by the respondents, that petitioner no. 1 is not a public Trust and, therefore, petition is not maintainable. Petitioners have further placed reliance upon the judgments reported in 1998 RLR 139, 1996 RLR 522 and 1985 RLR 438; to substantiate its arguments that the suit property was sublet by the respondents to the third person or otherwise possession of the same is parted with to third persons or the tenancy rights have been wills' away with possession without written consent of the landlord. Petitioner has further placed reliance upon judgment reported in 157 (2009) DLT 690.
13.3 On the other hand, respondents have placed reliance upon the judgments reported in 1982 RLR 148 and 1987 (1) RCR 192; with the argument that since petitioner trust has not been conducting any E no. 101/2009 Page 10/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
charitable activities at the time of filing of the present eviction petition or thereafter, therefore, present petition is not maintainable. The respondents have further placed reliance upon the judgments reported in 1981 RLR 518; with the arguments that in case there is any delay in deposit of rent due to error, their defence is not liable to be struck off.
13.4 Respondents have further placed reliance upon the judgments reported in (1998) 3 SCC 1, 1999 (1) RCR 115, (1996) 1 SCC 25, (1999) 7 SCC 263, 1987 (2) RCJ 644, AIR 1988 SC 1362, 1983 (4) DRJ 324, 26 (1984) DLT 431, 1966 (2) DLT 28, 1975 RCJ 514, 1986 (1) RCR 601, (1986) 6 SCC 573, (1984) 2 SCC 590, 1976 RCJ 41, (1989) 3 SCC 56; with the arguments that the petitioner has failed to prove initial burden lying upon them that there is any third person in actual physical possession of the suit premises in exclusion of the tenants or that the tenants are not in physical as well as legal possession of the suit premises. Respondents have further placed reliance upon the judgments reported in 2012 (128) DRJ 334 to substantiate the defence that there is unreasonable delay in filing eviction petition on the ground of subletting, therefore, petition is barred by limitation.
X. The first legal objection has been raised and maintainability of the present petition has been challenged on the ground that the present petition has not been filed and same is not signed and verified by all the trustees therefore, eviction petition is liable to be dismissed.
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Respondents have pointed out Clause-8 of the Trust Deed executed in favour of petitioner no. 1 and it is submitted that in the sub-clause-(a) there is provision that the board of trustees shall comprise not less than three members but at the time of filing of the present petition there were only two trustees and, therefore, the present petition is not maintainable. On this aspect, law is settled.
Section 48 of Indian Trusts Act, 1982 provides as under:-
48. Co-trustees can not act singly- When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.
However, exception is provided U/Sec. 44 which runs as under:-
44. Power to several trustees of whom one disclaims or dies- When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees, unless from the terms of the instrument of trust, it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.E no. 101/2009 Page 12/32
Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
The sub-clause - (g) of Clause-8 of the Trust Deed in favour of petitioner no. 1 provides as under:-
(g). There shall be a quorum when two Trustees are present at any meeting. Pending any vacancy the Trustees for the time being not less in number than a quorum may act for all purposes in the administration of the Trust and may exercise all or any of the authorities, powers and discretions vested in the Board of Trustees by these presents.
Thus, it is clear from the Trust Deed itself where it has been provided that the pending vacancy, the remaining trustees can act upon on behalf of petitioner no. 1 subject to their number should not be minimum to the quorum which was fixed under Trust Deed. The quorum has been fixed as minimum of two trustees. There is no denial of the fact that the other trustees i.e. Smt. Rukmani Devi Jaipuria was died at the time of filing of the present eviction petition. The present petition has been filed under the signature of petitioners no. 2 & 3 that is the remaining two trustees. Thus, it can be safely held that the legal objection so raised has no merit.
Y. Maintainability of the present petition has been challenged on the ground that the petitioner no. 1 is not a public institution and, thus, petition is not maintainable U/Sec. 22 of the D.R.C. Act.
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A1. So far as question of petitioner no. 1 being public trust or private trust is concerned, an application U/o VII Rule 11 CPC was earlier filed which was disposed of holding that it is a mixed question of law and fact therefore, the said issue will be decided at the time of final disposal. Moreover, the petitioner has proved the Trust Deed Ex. PW-1/26 which is a registered Trust Deed. The object of the petitioner trust has been mentioned in Clause 6 & 7 of the Trust Deed and it has been made clear that the entire assets and income of the petitioner trust will be utilised only for the purpose of public charitable purpose i.e. for the relief of poor, spread of eduction, medical relief and running of school, colleges and dispensaries etc. A2. In his cross examination PW-1 has admitted that another property bearing no. 1877, Gali Ghante Wali, Chandni Chowk, Delhi belonging to the trust was sold about 7-8 years back and he is not aware as to how the funds received from the sale/ purchase were utilised by the petitioner trust. However, he has voluntarily examined that the said funds formed part of the corpus of the petitioner Trust. Similarly, in his cross examination, PW-1 has admitted that the jewellery articles donated by the petitioner trust by his mother were sold and U.T.I. Bonds were purchased from the sale proceeds. However, not a single suggestion has been given that the said proceeds were utilized by the petitioners no. 2 & 3 for their own purpose. Thus, from the evidence on record, it is proved that the petitioner no. 1 is not a private trust but is a public trust.
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Now question arises, as to whether, petitioner trust is a public institution or not. The settled law is that is is not public trust but it is public institution who is entitled to maintain petition U/Sec. 22 of D.R.C. Act.
A3. Further, principle of law is that when a person, if endows, certain properties for certain purposes and names it as a Trust, the very name it as a trust will not make it an institution. Pursuant to the creation of Trust, an institution will have to come into existence and it is that institution which will be comprehended by the Sec. 22 of D.R.C. Act and not the Trust as such.
A4. Furthermore the term ''for the furtherance of its activities'' means activities which is wider than the meaning of objects. Since the word "furtherance" is qualified with the word ''for'' before it, it has wider expression. There is distinction between trust and an institution which appears to be that a Public Trust may come into existence when property is transferred for charitable purposes. However, a public institution can not be said to be in existence unless organised activities are undertaken to be carried out for such public purposes.
A5. In this background, now evidence on record regarding the requirement of the petitioner U/Sec. 22 of D.R.C. Act will be appreciated.
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A6. So far as pleading is concerned, nothing has been mentioned as to whether any activities were being carried out by the petitioner no. 1 Trust prior to filing of the present petition or at the time of filing of petition.
A7. PW-1 in his cross examination testified that they are running two dispensaries. One at Delhi and other at Jaipur but as on date those dispensaries are not in operation. It is further testified that dispensary at Delhi was in operation at Bhagirath Palace for about 7-8 years back in a rented property belonging to his brother Sh. Chunni Lal and Trust was a tenant of the portion where the dispensary was being run. He further testified that he can not say when it was inaugurated. It is further testified that so far as he remember, Trust was paying rent of Rs. 50/- approximately. Said dispensary was being run for abut 15 years after the filing of the present petition. He has further testified that said dispensary was closed because property belongs to his brother who wanted the petitioner to vacate the said property before its sale. He has further testified that no resolution was required for any such closure. He has further testified that he surrendered the possession at the instance of his brother Lala Chunni Lal. He has further testified that he and his wife were trustees of the petitioner's Trust at that time. He has further testified that there was no question to relocate the said dispensary because Trustees had started a big hospital in the medical field at Jaipur. He has further testified that a Homeopathic dispensary at Janpath was also running in a small portion of his personal property but E no. 101/2009 Page 16/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
said dispensary was closed as the portion was required for the business of one of his Companies. He further testified that the said dispensary was operational during the year 1999-2000. He has further testified that one Dr. Mrs. Sharma was the Doctor Incharge of the said dispensary and he placed on record two bills of payment of Dr. Renu Sharma exhibited as Ex. PW-1/R-1 (Colly). He has further testified that no charge from the patients were being taken and the patients were being attended only in the morning hours and their record must have been maintained. He further testified that said premises are now lying vacant and is in possession of him. He has further testified that he has never thought of opening the dispensary from the said premises again.
A8. He has further testified that there is no document of surrender of tenancy right in respect of property at Maha Lakshmi Market where the dispensary was earlier running nor the documents have been preserved of the said dispensary. He has further testified that the hospital at Jaipur was constructed out of the proceeds of the sale of immovable property. He has further testified that the said hospital was constructed through the Government of Rajasthan and the record is maintained by the Government. However, he has admitted that there is no withdrawal of any amount for construction of the said hospital or for additional construction from the amount of petitioner trust. He denied the suggestion that the entire expenses of running, maintaining and preserving the hospital at Jaipur is being done by the Govt. of Rajasthan and voluntarily examined that mostly expenses born by the Govt. of E no. 101/2009 Page 17/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
Rajasthan and sometimes he supplements it. On query as to how much amount petitioner's trust spent during the last five years in "supplementing" the expenditure at the hospital at Jaipur, he answered that he can not say verbally.
A9. He has further testified that the petitioner trust also maintains books of accounts and there must be entry of those amount spent for supplementing of the expenditure of the hospital in the Jaipur in the books of account. He further testified that in the last five years, on a reasonable estimate the petitioner trust must have spent approximately 2.5 crore in supplementing the expenses. On specific query whether the record was available with him when the last affidavit in examination in chief was filed, he replied that he can not say. He has further testified that he can not say without going through the records in what manner the money of Rs. 2.5 crore has been spent by the petitioner trust and voluntarily examined that it has been spent on capital expenditure i.e. construction of the building. He has further testified that it was constructed by him personally. On specific query whether this money was not spent by the trust, he replied that it means, the same thing whether the Trust spent from its own account or got it spent from the Trustees because the Trustees have even otherwise donated to the petitioner Trust crores of rupees during the last five years.
A10. He has further testified that he placed on record the relevant E no. 101/2009 Page 18/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
record that the petitioner trust is actually participated in running and maintenance of the hospital at Jaipur and those documents are Ex. PW-1/30 i.e. Invitation Card for inauguration of hospital at Jaipur. Ex. PW-1/37 i.e. photocopy of letter dated 18/06/1991 and another photocopy of a letter dt. 10/01/1995 and document Mark-B i.e. an agreement entered into amongst petitioner trust, Government of Rajasthan and PW-1 as Director of Capstan Meters (India) Ltd. Jaipur and Jai Drinks Private Limited, Jaipur.
A11. He has further testified that he can show the other documents for participation of petitioner trust after 1990 and has placed on record the letter written by Mr. D.S. Malik, CMO, Rajasthan as Ex. PW-1/R-2 and a photocopy of letter written by Dr. S.P. Yadav addressed to Dr. D.S. Malik dt. 06/07/2006 as Mark X-1.
A12. He has further testified that he was not able to locate the sale deed or copy of sale deed pertaining to House no. 1877, Haveli Jugal Kishore known as Gali Ghante Wali, Chandni Chowk, Delhi. He has further testified that he can not tell the date of the sale deed or mode of payment of the said amount. He has further testified that he has never testified that petitioner trust is running a school at Rajpur Roads but it is the trustees i.e. PW-1 and Smt. Pushpa Devi who are running the school at Rajpur Road. He has further testified that petitioner Trust has not constructed any Reading room/Library in the entire India for last 26 years out of its own fund since 1984. He has further testified that he E no. 101/2009 Page 19/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
has set up four reading rooms/libraries from his own personal funds at Jawahar Lal Nehru Marg, Jaipur. He has further testified that the Homeopathic Dispensary existed for two years and the records of that period have not been preserved. He has further testified that he can not state the amount spent by the Trust to the various institutions as no book of accounts is being maintained beyond the period of five years. He has further testified that the institutions have acknowledged the donations given to them by issuing appropriate receipts but same are not available as they have been weeded out with the passage of time. He has further testified that petitioner trust has made charity and donation amounting to Rs. 1,23,138/- besides Rs. 37,893/- being expenses for the hospital at Jaipur as mentioned in Ex. PW-1/62 i.e. form 10-B which is audit report of the petitioner trust. He has further testified that there was no necessity to file receipts and bank statement supporting Ex. PW-1/62. He has further testified that no receipt, details and cheque and bank statement pertaining to amount mentioned in PW-1/62 has been filed on record. He has further testified that the petitioner trust received donation of Rs. 5-6 crores from the third party for last five three years approximately.
A13. He has further testified that petitioner maintains the account books and he can produce the account book for last five years. He further testified that so far as he remember, in 1977 before taking legal action against all the six tenants a resolution was passed by the petitioner trust and when he was asked as to whether he can produce E no. 101/2009 Page 20/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
the said resolution, he produced a copy of resolution dated 30/11/1977 which was marked as X/R-1. He further testified that he can not tell the exact date of preparation of copy of resolution or whether it is prepared about two years, five years, ten years or thirty years back. He has further testified that at the time of preparation of the copy marked X/R-1 the original was available. He has further testified that he can not admit or deny that 08 digit landline number was there in the year 2003-2004. He further testified that he does not remember whether in the year 1976-1977 there were 06 digit landline number in Delhi. He further testified that he can not admit or deny that there was 07-08 digit number in the year 1999 as shown upon Ex. PW-1/R-1 and R-2 receipts placed by him on record. He denied the suggestion that document Mark- X/R-1 was prepared in the year 2010.
A14. He further testified that he does not remember when the old resolution books were weeded out and on specific query as to when the resolution was lastly passed by the petitioner trust authorizing the trustees to weed out the original resolution books, he replied that there is no such requirement for passing a resolution. He has further testified that subscriber of the telephone numbers mentioned in Mark X/R-1 is his company. He has denied the suggestion that he has produced only selected record which suits him. He has further denied the suggestion that no record more than five years old pertaining to petitioner trust has ever been weeded out. He has further denied that he is not producing the record particularly old account and the account books of the E no. 101/2009 Page 21/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
petitioner trust as they do not reflect any charitable activities undertaken by the petitioner trust during the last 26 years. He has further testified that he was not aware that the accounts books of the petitioner trust will be required for this case. He has further testified that record pertaining to any kind of resolution for investment in UTI Certificate in terms of any resolution is not available as on date.
A15. He has further testified that without going through the record he can not tell that what contribution was made by the petitioner trust in the year 1989-90 to the hospital at Jaipur and there is no record available except filed on record. He has admitted that from the year 1986 to 1991, the petitioner trust never spent any money in the construction of hospital at Jaipur. On specific query that what amount did the petitioner trust contributed or paid to the Govt. of Rajasthan in compliance of the document Ex. PW-1/38, he replied that whatever requirement of funds was there for the construction of the hospital building was provided from the funds generated from the sale of the assets handed over to the Govt. of Rajasthan for this purpose. He has further testified that no money was given in cash or through cheque or pay order after receipt of Ex. PW-1/38 by the petitioner trust.
A16. This is the evidence available on record to prove the charitable activities being carried out by the petitioner.
A17. Thus, from evidence available on record, firstly, so far as E no. 101/2009 Page 22/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
running of Homeopathic dispensary at Janpath is concerned, it is clear that no such dispensary was being run by the petitioner trust. Petitioner no. 2 in his cross examination has testified that said dispensary was being run in the morning hours. However, documents relied upon by him i.e. Ex. PW-1/R-1 shows that professional charges were paid to the concerned Doctor for running the dispensary in the evening hour. Thus, there is material contradiction regarding running the dispensary by even petitioner no. 2. Otherwise also no document regarding maintainance of register etc. has been produced on record to show that any such dispensary was being run.
A18. So far as running of dispensary at Maha Laxmi Market is concerned, in his cross examination, PW-1 himself has admitted that the said Ayurvedic dispensary was closed to facilitate his brother and at his request without making any alternative arrangement. Though, it is pertinent to note that the said accommodation was under the tenancy of petitioner trust. Moreover, no document has been placed on record of running any dispensary at the said place nor it has been the case of the petitioner in the pleadings or in examination in chief and there is nothing material on record to prove that any such dispensary was being run except bald statement in the cross examination so as to improve the case of the petitioner. Furthermore, even if it is assumed that there was any such dispensary being run by the petitioner trust, there is no plausible explanation to close the said dispensary. Thus, it can be safely held that no such activities were being carried out so as to prove the E no. 101/2009 Page 23/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
petitioner trust to be a public institution within the meaning of Sec. 22 of the D.R.C. Act.
A19. So far as running of hospital at Jaipur is concerned, in the affidavit PW-1 has claimed that an agreement was executed with the Govt. of Rajasthan with the petitioner no. 2 on 05/09/1985 and said agreement was signed by the petitioner no. 2 on behalf of the trust. However, perusal of the said agreement makes it clear that the claim of the petitioner trust that the said hospital was constructed by the petitioner trust is clearly false as property was donated by the Capston Meter India Ltd. (Jaipur) through its Director and Chairman Mr. M.P. Jaipuriya who otherwise happens to be the trustee of the petitioner trust and in the entire agreement there is no mention that the said hospital is being constructed in view of the objects mentioned in the trust deed executed in favour of the petitioner trust. There is only mention that petitioner trust will be having 1/4th share only on the Board of Committee to manage the affairs of the said hospital and will be running a drug store in the hospital for the convenience of the public on 'No profit- No loss' basis. It would be pertinent to note here that even such drug store was to be run on the basis of no profit- no loss and nor for the charitable purposes. Moreover, the said hospital was to be constructed upon the property of Capston Meter India Ltd. or through the sale proceeds of the land not belonging to petitioner trust but of said company and not by the contribution made by the petitioner trust.
There is no disclosure of details of address or contribution E no. 101/2009 Page 24/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
made to run any public library at Jaipur.
A20. Furthermore, nothing has been placed on record that a single penny was spent by any of the petitioners out of their own funds or from the funds of the trust. It would be further pertinent to note here that the petitioners have produced on record the documents in original/photocopies of the year 1991 onwards but failed to produce the relevant record regarding the running of any charitable activities by the petitioner trust as claimed or maintenance of account books to show that any charitable donations have been made by the petitioner trust before or at the time or even after filing of the present petition and, thus, it can be safely held that the petitioner trust was having no activities which can be said to be charitable at the time of filing of the present petition or thereafter.
In view of the aforesaid discussion, it can be safely held that the petitioner trust can not be said to be public institution but at the best it can be said that it is the trust which never became a public institution and, thus, petition filed U/Sec. 22 of the D.R.C. Act is not maintainable.
A21. So far as Resolution for filing of the present petition is concerned, admittedly the present petition has been signed by all the surviving trustees and even amended petition has been signed by all the surviving trustees, thus on the said ground it can not be said that the petition is not maintainable and thus, said legal objection is having no E no. 101/2009 Page 25/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
merits.
In a petition U/s. 14 (1) (a) of the DRC Act, petitioner is required to prove that he is the landlord and respondent is the tenant, that respondent is in arrears of rent, that a legal notice of demand was sent and served and despite service of legal notice, respondent has failed to pay the arrears of rent within the stipulated period of two months.
(i). So far as petition U/Sec. 14 (1)(a) is concerned, admittedly no legal demand notice was sent and served upon the respondent and, therefore, case laws relied upon by the petitioner have no application to the facts and circumstances of the present case as in a petition U/Sec. 14 (1)(a) of D.R.C. Act, service of legal notice is sine qua non and mere filing of the petition before the Competent Authority or filing of eviction petition can not be said to be a valid legal demand. Moreover, the authorities relied upon by the petitioner, with due respect, are having application to the civil suits and not to the proceedings U/Sec. 14 (1)(a) of the D.R.C. Act. In view of the same, grounds of eviction U/Sec. 14 (1)(a) of D.R.C. Act is held not to be maintainable.
* In a petition U/s. 14 (1) (b) of the DRC Act petitioner is required to prove that there is relationship of landlord and tenant, that the tenant has sublet, otherwise parted with or assigned the possession of suit property to any third person without knowledge and written consent of the petitioner for consideration.
A. RELATIONSHIP OF LANDLORD AND TENANT:-
(i). The respondent has admitted the payment of rent to E no. 101/2009 Page 26/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
petitioner no. 1 after disclosure of identity in Slum proceedings. He has further admitted Smt. Rukmani Devi Jaipuria as landlady and admitted that she has already died. On the other hand, petitioner has proved on record the registered Trust Deed in favour of petitioner no. 1 Ex. PW-1/21. Otherwise also being one of the legal heir of Smt. Rukmani Devi, petitioner no. 2 has every right to maintain the present petition and thus, on both the count the petitioners are the landlords of the suit property.
B. SUBLETTING/PARTING WITH POSSESSION:-
(i). In this regard, PW-1 in his cross examination has testified that he came to know that portion of the premises in the tenancy of M/s.
Babu Ram Prem Chand had been sublet to Mr. Anil Kumar Arora and Sh. Raghav Arora. He further testified that he got this information from Sh. Ram Kishan who is Manager/Rent Collector. He has further testified that he verified the correctness of the information himself in April, 2007 by personal visit to the suit property. He has further testified that Mr. Ram Kishan took a photograph of the board exhibited at the entry of Ashrafi Katra, cash memo issued by Lagan Lehnga whose proprietor are Sh. Anil Arora and Sh. Raghav Arora and also letter issued by them and visiting card of Lagan Lehnga. Those documents have been exhibited as Ex. PW-1/49 to PW-1/54. He further testified that he was not present when Sh. Ram Kishan had visited the office of Ashrafi Katra Committee (Regd.). He further testified that he can not say the directory referred to above was purchased by Sh. Ram Kishan or it was E no. 101/2009 Page 27/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
distributed free. He has further testified that he had seen Mr. Anil Arora sitting in the shop during his visit in April, 2007 as his man Mr. Ram Kishan Arora pointed out to him. However, he was not formally introduced to him nor he made any purchase from the shop. On specific query that on the shear advise of Mr. Ram Kishan that man sitting in the suit shop was Mr. Anil Arora whether he presumed that third person was in use and occupation of the premises, he replied that this fact was verified by Sh. Ram Kishan but after receipt of directory of Ashrafi Katra Committee, he verified the photograph of Anil Arora appearing therein at mark 'S'. He further admitted that on the day of his visit to the suit shop the directory was not with him and verification of photographs was done after 2-3 days.
(ii). He has further testified that he has never met with Mr. Raghav Arora. He further testified that he can not give the name of the person who has compiled the information published in the directory aforesaid and admitted that same was not published by him. On specific query that he has no personal knowledge about the genuineness or the authenticity of the information given in the directory, he replied that since the directory has been obtained from the office of Katra Ashrafi Committee, therefore, the information given therein is correct. He has further testified that he is not in a position to identify the handwriting or signatures of Sh. Anil Arora or Sh. Raghav Arora. He further testified that visiting card Ex. PW-1/52 was not handed over by Sh. Anil Arora in his presence.
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(iii). He further testified that except Sh. Ram Kishan, none of the trustees had visited the site in question from the year 2000 to April, 2007. He further testified that he is not sure about information received by him regarding the subletting in favour of M/s. A. B. Textiles and Prem Chand Prakash Chand nor this information was discussed with the trustees in the meeting of the Trust.
(iv). He has further testified that the amendment application U/o. VI Rule 17 CPC dated 24/10/2002 was moved under his signatures. He further testified that he being the Chairman of the Trust is authorised to take all such day to day steps which are necessary regarding the properties with the Trust. He has further admitted that application dated 24/10/2002 was not preferred after approval of the Trustees. He further testified that in the said application he has specifically mentioned that M/s. Prem Chand Prakash Chand were the selling agents of Lagan Lehnga. He futher testified that this situation changed in the year 2006 when he came to know that 'Thala' bearing Municipal no. 616 has been sold to M/s. Lagan Lehnga. Again said sublet to M/s. Lagan Lehnga. He voluntarily examined that according to verbal information received, the original tenant has received about Rs. 25 lakh from Mr. Anil Arora and Mr. Raghav Arora and has given two portions of Thala bearing no. 616. On specific query whether he made any attempt to obtain the directory published by the Katra Ashrafi Committee from 2002 to 2006, he replied that the directory was obtained in the year 2007 only. He further testified that matter was subjudice before the Hon'ble High Court, E no. 101/2009 Page 29/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
therefore, no effort was made to take photographs from the year 2002 to 2007 of the sign board of the suit shops.
(v). He further testified that he did not take any step to have any site plan of the additional construction carried out on the first floor and voluntarily examined that the said construction was done after the filing of the present petition. He further testified that he saw the said construction in the year 2007. He admitted that no application in any Court for appointment of Local Commissioner to prepare the site plan of additional construction was filed. He has further admitted that no other legal action has been taken for demolition of said unauthorized construction. He has further testified that he can not tell the exact date, month and year of the said unauthorized construction. He has testified that petitioner Trust used to file Property Tax since, 2004. He further testified that he can not say whether there is any mention in the said property tax return of the unauthorized construction nor he can produce the receipt of those property tax return.
(vi). No evidence has been led on behalf of the respondent.
(vii). Thus, from the evidence available on record it is clear that the petitioner has been able to show that third person Mr. Anil Arora, Mr. Raghav Arora and Mr. Har Kishan Sachdeva are in possession of the suit property as it is clearly mentioned in the directory of Katra Ashrafi that they are the Proprietor/owner of the shop M/s. Lagan E no. 101/2009 Page 30/32 Rukmani Devi Jaipuria Charitable Trust Vs. M/s. Babu Ram Prem Chand & Ors.
Lehnga and Har Kishan Sachdeva & Sons with their telephone numbers and with business addresses. Though the credential of the said directory has been challenged but except putting suggestion nothing has been placed on record to prove that the said directory is forged and fabricated one or no such directory was published by the Katra Ashrafi Committee (Regd.), or by proving that telephone numbers given in the said directory are not in the name of third persons or said phone numbers are related to the original tenant. In case of subletting, initial burden is upon the petitioner to prove the possession of third person and thereafter onus is upon the respondent to prove that third person is having no legal right qua the suit property or he is in permissive permission or he is employee or the original tenant is having joint possession with him with the right to repossess from such third person. However, no such evidence has been led on record.
14. In view of the aforesaid discussion, this Court is of the opinion that petitioners have been able to prove the ground of eviction U/Sec. 14 (1)(b) of the D.R.C against the respondents.
15. So far as application U/Sec. 40 of the D.R.C. Act r/w Sec. 151 & 152 CPC is concerned, since petitioner has not pressed the said application even after conclusion of petitioner's evidence and otherwise also in view of the aforesaid discussion, the said application has become infructuous and, therefore, same is disposed of accordingly.
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16. In view of the aforesaid discussion, the application filed on behalf of the petitioner U/Sec. 15(7) of D.R.C. Act has become infructuous.
17. In view of the aforesaid discussion, this Court is of the opinion that the petitioner has not been able to prove the grounds of eviction U/Sec. 14 (1)(a) & Sec. 22 of the D.R.C. Act. However, he has been able to prove the grounds of eviction U/Sec. 14 (1)(b) of the D.R.C. Act. Hence, eviction order U/Sec. 14 (1)(b) of the D.R.C. Act is passed in favour of the petitioners and against the respondents in respect of one Thala bearing M.C. No. V/616 and two rooms with attached accommodation on the first floor of the property no. V/559-60 Katra Ashrafi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition. Petition is disposed of accordingly. No order as to costs in the circumstances mentioned hereinabove. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 11th July, 2012. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
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E no. 101/2009RUKMANI DEVI JAIPURIA CHARITABLE TRUST VS. M/S BABU RAM PREM CHAND & ORS.
11/07/2012.
Present: None.
Vide separate judgment of even date, petition filed on behalf of the petitioner is partly dismissed for the ground of eviction U/Sec. 14 (1)(a) as well as 22 of D.R.C. Act and the petition is partly allowed for the ground of eviction U/Sec. 14 (1)(b) of the D.R.C. Act against the respondents. An eviction order is passed U/Sec. 14 (1)(b) of the D.R.C. Act in favour of the petitioners and against the respondents in respect of one Thala bearing M.C. No. V/616 and two rooms with attached accommodation on the first floor of the property no. V/559-60 Katra Ashrafi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition. No order as to costs. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Devendra Kr. Sharma A.R.C. (North)/Delhi. 11/07/2012.
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