Delhi District Court
Rukmani Devi Jaipuria Charitable Trust vs . Shri Hans Raj & Ors. on 10 July, 2012
Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
IN THE COURT OF SH. DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, NORTH DISTT. DELHI.
E No. 103/2009
Unique Case ID No: 02401C0000391984
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.
(Trustee of Petitioner no. 1.)
3. SMT. PUSHPA DEVI JAIPURIA
W/o. Sh. Mahabir Pershad Jaipuria,
52, Janpath, New Delhi.
(Trustee of Petitioner no. 1.) ...Petitioners.
Versus
1. SH. HANS RAJ
S/o. Sh. Mangal Dass,
V/560-B, Katra Ashrafi,
Chandni Chowk, Delhi-06.
2. SH. GIRDHARI LAL,
S/o. Sh. Mangal Dass,
V/560, Katra Ashrafi,
Chandni Chowk, Delhi-06.
(Since Deceased) Now represented by:
A). Smt. Sumitra Devi ... Widow
B). Shri Inderjit ... Son
C). Shri Ashok Kumar ... Son
D). Shri Kuldip Kumar ... Son
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Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
E). Shri Jagdish Kumar ... Son
F). Smt. Neelam Rani ... Daughter
G). Smt. Veena ... Daughter
H). Smt. Tripta ... Daughter
All Residents of
14/65, West Punjabi Bagh,
New Delhi-110026.
3. SH. HANS RAJ & COMPANY
Through its owner Sh. Rajender Kumar
V/560, Katra Ashrafi,
Chandni Chowk, Delhi-06.
4. SH. JAGDISH KUMAR & SONS
Through its owner Sh. Rajender Kumar
V/560, Katra Ashrafi,
Chandni Chowk, Delhi-06. ...Respondents.
Date of institution of the petition : 28/11/1984
Date on which order was reserved : 02/06/2012
Date of Decision : 10/07/2012
JUDGMENT
10/07/2012
1. Vide this judgment, I shall decide the petition filed on behalf of petitioner U/sec. 14 (1) (a) & (b) 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 27/05/2008, petition was allowed to be amended to plead the ground U/Sec. 14 (1) E no. 103/2009 Page 2/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
(b) of D.R.C. Act.
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 and 617 Katra Ashrafi, Chandni Chowk, Delhi and the suit property was settled with the petitioner no. 1 vide registered Trust Deed dated 26/07/1975 by creating a Charitable Trust and thus, petitioner no. 1 became the owner/landlord of the said properties which is a recognized Public Charitable Institution and is duly recognized by the Income Tax Authorities under Indian Income Tax Act, 1961.
1.4. It is further stated that respondent no. 1 and respondent no. 2 (since deceased) are the tenants in respect of one shop and one office room on the first floor bearing Municipal no. V/560-B 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 at a monthly rent of Rs. 131.87 paise excluding all other charges vide Rent Note dated 02/11/1957.
1.5. It is further stated that now the suit property is required bonafidely by the petitioner no. 1 Trust for furtherance of its activities i.e. for opening free charitable dispensary and/or library/reading room. Petitioners no. 2 and 3 are now sole Trustees of petitioner no. 1 Trust.
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1.6. It is further stated that respondents are defaulter and have neglected to pay rent w.e.f. 01/04/1969 upto date and a sum of Rs. 24, 659.69 paise became due and recoverable as arrears of rent for the period ending 31/10/1984. Respondent sent Rs. 4,747.50 paise by Draft no. 033574 dated 28/08/1984 issued by Union Bank of India, Chandni Chowk, Delhi to the petitioner no. 2. The respondents/tenants neither paid nor tendered the whole of the arrears of rent within two months of the written demands made by the petitioners. The respondents 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. It is further stated that permission under Slum Area (Improvement and Clearance) Act, 1956 was accorded to the petitioners as the respondents failed to pay and neglected to pay the rent before the Authorities under the Slum Act. It is further stated that written demands have been made by the petitioners by means of notice/applications/appeal demanding payment of rents from the respondents before the authorities under the Slum Act.
1.7. It is further stated that in or about August, 2006, respondents have sublet, assigned or otherwise parted with possession of the tenancy premises to M/s. Hans Raj & Co. and M/s. Jagdish Kumar & Sons which are owned by one Sh. Jagdish Kumar without obtaining the consent in writing of the petitioners/landlords.
2. Upon service of summons, respondents filed their W.S. E no. 103/2009 Page 4/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
which was subsequently amended in consequence of the amendment of petition and amended W.S. was filed on behalf of respondent no. 2 (since deceased) through Sh. Jagdish Kumar. Preliminary objections have been taken 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 the D.R.C. Act.
2.1 It is further stated that present petition has been filed with malafide intention to get the old tenant evicted. It is further stated that petitioner no. 1 allegedly a charitable trust, is infact a family concern of the erstwhile owner Smt. Rukmani Devi Jaipuria who had inducted the respondents as tenants in the suit property and now petitioner no. 1 is intended to evict with the ulterior objects 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 giving all its powers to deal with the 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.
2.2 It is further stated that no notice of demand was served upon the respondents 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 respondents have made payment of legally E no. 103/2009 Page 5/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
recoverable rent by virtue of Payee Account draft dated 20th September, 1984 and thereafter regular rent has been paid /tendered by the answering respondents. 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.
2.3 On merits, the respondent 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, they have admitted that they are the tenants. They have further admitted that rent note was executed at the time of inception of tenancy. They have denied the correctness of the site plan.
2.4 It is further stated that suit property is situated in the thickly populated commercial area and therefore, same can hardly be used for any/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 dispensary or library, medical or any other charitable activities. It is further stated that petitioners do not claim to have obtained any permission from Medical Council of India for opening or registering a charitable dispensary for giving any relief to the poor. No poor people are residing in the vicinity or nereby area which is totally commercial in nature. The suit premises E no. 103/2009 Page 6/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 patients to travel or go on any vehicle. Respondents have further 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 their rights.
2.5. It is further stated that there has been no subletting in favour of any third person. It is further stated that Sh. Rajinder Kumar named in the eviction petition as the alleged proprietor of respondents no. 3 and 4 is a fictitious person created by the petitioners for achieving their selfish ends. It is further stated that these firms/business enterprises are the firms of Sh. Jagdish Kumar, S/o. Late Sh. Girdhari Lal who is, admittedly, a tenant in the premises in reference. It is further stated that Sh. Jagdish Kumar is the son of deceased respondent Sh. Girdhari Lal and is the sole proprietor of respondent no. 3 and the Karta of respondent no. 4 (HUF). It is further stated that premises in suit are in absolute legal control and exclusive actual physical possession of Sh. Jagdish Kumar who is, admittedly, a tenant in his individual capacity.
3. Replication to the W.S. was filed denying all the preliminary objections as well as allegations on merits and reiterating moreover the same facts as alleged in the petition.
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4. Respondents no. 3 and 4 adopted the W.S. filed by Sh. Jagdish Kumar through statement made on their behalf by their counsel on 23/09/2008.
5. During pending proceedings, an application U/o. 6 Rule 5 C.P.C. was filed on behalf of respondent and in compliance thereof, petitioner has admitted that no separate legal demand notice demanding arrears of rent was sent to the respondents.
6. An application U/o. VII Rule 11 C.P.C. was filed on 23/08/1989 stating therein that petitioner no. 1 is not a Public Trust, therefore, petition is liable to be dismissed. 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) of the D.R.C. Act was filed which was disposed of vide common order dated 19/03/1994 directing the respondents 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 E no. 103/2009 Page 8/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
& 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 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. However, 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. During pending proceedings, respondent no. 2 died and his legal heirs were brought on record vide order dated 27/05/2008.
11. Mr. M.P. Jaipuria appeared as PW-1 on behalf of petitioner and filed his two affidavits in examination in chief and was cross examined at length. On the other hand, respondent examined Sh. Jagdish Kumar as RW-1 who filed his affidavit in examination in chief deposing moreover the same facts as alleged in the W.S. and was cross examined at length.
12. An application U/sec. 15 (7) D.R.C. Act was filed on behalf of petitioner on 02/02/2012. Which is still pending for disposal.
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13. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
14. Petitioner has placed reliance upon the judgments reported in 2005 RLR 44 (SC), 1971 RCR 207, 19 (1981) DLT 97, 169 (2010) DLT 90 & (2009) 7 SCC 658 for the purpose of disposal of the application U/Sec. 15(7) of the D.R.C. Act.
14.1. 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.
14.2 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 E no. 103/2009 Page 10/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
consent of the landlord. Petitioner has further placed reliance upon judgment reported in 157 (2009) DLT 690.
14.3 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 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.
14.4 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 E no. 103/2009 Page 11/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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. 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 E no. 103/2009 Page 12/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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.
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 E no. 103/2009 Page 13/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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.
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.
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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.
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 E no. 103/2009 Page 15/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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.
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 E no. 103/2009 Page 16/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 17/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 18/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 19/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 20/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 21/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 22/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 23/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 24/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 25/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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 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 E no. 103/2009 Page 26/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
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, assigned or otherwise parted with the possession of suit property to any third person without knowledge and written consent of the petitioner for consideration.
RELATIONSHIP OF LANDLORD AND TENANT:-
(a). So far as relationship of landlord and tenant between the parties is concerned, respondents have admitted the payment of rent to petitioner no. 1 in Slum proceedings. Otherwise also, petitioners have proved the certified copy of the registered trust deed as Ex. PW-1/26 Moreover, they themselves tendered the rent to the petitioner no. 2 and admittedly, petitioner no. 2 is one of the legal heir of erstwhile owner.
Thus, the present petition can be maintained by him independently as well. Thus, as discussed above, it stands proved that petitioners are the owners/landlord of the suit property.
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SUBLETTING/PARTING WITH THE POSSESSION:-
(a). The case of the petitioner is that the suit property was sublet in or about August 2006 in favour of respondents no. 3 & 4. PW-1 in his cross examination has admitted that the suit property no. 5603 is in actual possession of M/s Hansraj & Co. and Jagdish Kumar & Sons and to his knowledge, the said firm is owned by Mr. Jagdish Kumar and Rajender Kumar. He has further testified that at the time of his visit in April, 2007, the employees of these two firms informed their names and regarding owners. He has further testified that at the time of his visit in April, 2007, he had not seen Mr. Rajender Kumar operating from the suit premises. He further testified that the possession of the suit property is of Jagdish Kumar and Rajender Kumar but he does not know whether Mr. Jagdish is the son/LR of Late Sh. Girdhari Lal. However, it is pertinent to note that Mr. Jagdish Kumar was substituted as legal heir after death of original respondent no. 2 and no objection was ever raised by petitioners of his being son of respondent no. 2.
(b). PW-1 further testified that he can not say whether those two persons were operating from the suit premises in the year 2006 as well and this testimony is against his own pleadings wherein it is stated that they were in occupation in or about August 2006. Thus, it appears that he is having no knowledge of the sub-letting personally in the year 2006 and only on the basis of hear-say, he has amended the petition without personally verifying the actual physical possession at the time of E no. 103/2009 Page 28/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
amendment of pleading or even thereafter.
(c). Even in the directory of Katra Asharfi (Regd.) relied upon by the petitioner as Ex. PW-1/59 at page no. 54, it is clearly mentioned that Mr. Jagdish Kumar and Mr. Girdhari Lal are the owners of Hansraj & Co. and Mr. Jagdish Kumar is the Director of the said company and there is sister concern namely Hansraj Girdhari Lal and Jagdish Kumar and Sons (HUF) is the owner of said firm. Thus, from own evidence of the petitioners, it can be safely held that Mr. Jagdish Kumar is in actual physical possession of the suit property.
(d). This fact further finds corroboration as PW-1 himself has admitted that he found Mr. Jagdish Kumar in possession of suit property at the time of his visit in April, 2007.
(e). Furthermore, though possession of one Rajendra Kumar as sublettee is alleged, but petitioner did not produce Mr. Ram Kishan who told him regarding said fact. Thus, evidence of PW-1 to that effect is hearsay.
(f). A legal objection has been raised on behalf of the petitioners that according to own admission, the suit property was bequeathed in favour of third person by the original tenant Mr. Girdhari Lal during his life time and therefore, same itself is a subletting because no written was taken from the petitioners. However, with due respect, the law relied upon by E no. 103/2009 Page 29/31 Rukmani Devi Jaipuria Charitable Trust Vs. Shri Hans Raj & Ors.
the petitioners in this respect has no application to the facts and circumstances of the present case as if in the present case there is no allegation that the original tenant divested himself from the legal possession as well as actual physical possession of the suit property during his life time and in the case law relied upon the Will was executed by the original tenant in favour of third person who was not the legal heir and possession was surrendered to said third person. However, in the present case, Mr. Jagdish Kumar is the legal heir of the original tenant and otherwise also, since original tenant has admittedly expired and, therefore, it can not be said that there was subletting in favour of Mr. Jagdish Kumar by execution of the Will in his favour by the original tenant.
15. Thus, from the above discussion, it can be safely held that the petitioners have failed to prove the ground of eviction U/Sec. 14 (1)(b) of the D.R.C. Act.
16. 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.
17. 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.
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18. In the light of aforesaid discussion, this Court is of the opinion that the petition filed on behalf of the petitioner is having no merits and is accordingly dismissed. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 10th July, 2012. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
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E no. 103/2009RUKMANI DEVI JAIPURIA CHARITABLE TRUST VS. HANSRAJ & ORS.
10/07/2012.
Present: None.
Vide separate judgment of even date, petition filed on behalf of the petitioner is dismissed. 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. 10/07/2012.
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