Allahabad High Court
Chhotey Lal Dixit (D) Through L.Rs. vs Ist A.D.J. And Ors. on 20 December, 2005
Equivalent citations: 2006(74)AWC2730
JUDGMENT S.U. Khan, J.
1. This writ petition arises out of eviction/release proceedings initiated by landlord-respondent No. 3 which is described as "Intzamiya Committee Wakf Masjid Peer Bux, Kanpur through its President" against original petitioner-tenant Chhotelal Dixit, since deceased and survived by legal representatives. The release application was filed under Section 21 of U.P. Act No. 13 of 1972 and was registered as Rent Case No. 626 of 1977 on the file of Prescribed Authority/First Additional Civil Judge, Kanpur. Petitioner was tenant in one room in the shape of Hall on the ground floor on monthly rent of rupees 6 and paisa 25. On the first floor Masjid Peer Bux is situate. According to para 3 of the release application the mosque is wakf al al khair (charitable wakf). In para 3 it is mentioned that it is public charitable trust.(Mere description is not conclusive). In the release application it was further stated that in order to fulfil the objects of the wakf premises in dispute was required, i.e., for making arrangement for imparting Muslim religious education. Prescribed authority through Judgment and order dated 3.5.1982 allowed the release application. Against the said judgment and order original petitioner tenant filed Rent Appeal No. 178 of 1982. Second Additional District Judge, Kanpur through judgment and order dated 22.5.1984 dismissed the appeal. Hence this writ petition.
2. Both the courts below held that the need of the landlord Wakf for establishing school for religious education was bona fide. Both the Courts below also found that there was sufficient alternative accommodation with the tenant where he was already running a Montessori school just in front of the accommodation in dispute and apart from that one house was owned by him and one house was owned by his wife. The contention of the tenant was that he was running a school in the building in dispute. On the basis of the Commissioner's report courts below found that the building in dispute was not being used for running school but it was kept locked and some desk and office material was stored therein.
3. I do not find least error in the finding of bona fide need and comparative hardship recorded by the Courts below. Even learned Counsel for the tenant petitioner has not seriously challenged the said findings.
4. The main argument of the learned Counsel for the petitioner is that release application was not maintainable in view of clause (i) of third proviso of Section 21 of U.P. Act No. 13 of 1972. The said proviso is quoted below :
Provided also that no application under clause (a) shall be entertained :
(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste, or place of birth ;
5. Wakf under Muslim law is not a trust, even if it is for charitable purposes. Section 1 of Trusts Act 1882 expressly provides that nothing contained in the said Act shall affect the rules of Mahomedan Law as to wakfs. Under para 173 of Mulla's Principles of Mahomedan Law (Nineteenth Edition), it is provided that except for the purposes of Section 92, C.P.C. wakf is not trust and that unlike the case of a trustee in English Law, mutwalli of wakf is only manager of the wakf but the property does not vest in him. It has further been provided under aforesaid para 173 that there is no prohibition in Muslim law to create a charitable trust as in English law.
6. Under U.P. Act No. 13 of 1972 itself, distinction has been drawn between public charitable or public religious institution (Section 2(i)(bb)) and building belonging to wakf including a wakf alal aulad (Section 2(1)(bbb). Under Section 3(r) "charitable institution" is defined as an establishment, undertaking organization or association formed for a charitable purpose and includes a specific endowment. Under Section 3(s) 'religious institution' is defined as temple, Math, mosque, Church, Gurudwara or any other place for public worship.
7. It is, therefore, quite clear that charitable institution and religious institution are two distinct institutions dealt with separately by U.P. Act No. 13 of 1972. Under third proviso to Section 21 the bar is only for the charitable trusts and not for religious institutions. A religious institution is bound to be meant for the benefit of the followers of the said religion. There is no sense in providing benefit to a non-Hindu in case of a religious institution established to look after a temple or to provide any facility for a non-Muslim by religious institution established for the purposes of a mosque/wakf alal khair. Accordingly, the argument that as the purpose of the wakf in question discriminates between people of different religions, hence by virtue of third proviso to Section 21 the release application was not maintainable is not acceptable.
8. Accordingly, I hold that the release application was quite maintainable.
9. In the result, the writ petition is dismissed.
10. Tenant-petitioner is granted six months time to vacate provided that:
(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he will willingly vacate and handover possession of the accommodation in dispute to the landlord-respondents.
(2) For this period of six months, which has been granted to the tenant to vacate, he is required to pay Rs. 3,000 (at the rate of Rs. 500 per month) as damages for use and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord-respondent. In case of default in compliance with either of these conditions, tenant-petitioner shall be evicted after one month through process of Court.
11. It is further directed that in case undertaking is not filed or Rs. 3,000 are not deposited within one month then tenant petitioner shall be liable to pay damages at the rate of Rs. 1,000 per month since after one month till the date of actual vacation.
12. Similarly, if after filing the aforesaid undertaking and depositing Rs. 3,000 the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 1,000 per month since after six months till actual vacation.