Tharumal
Vs. Masjid Hajam Pharosan VA Madrassa Talimul Islam [1994] INSC 212 (31 March 1994)
Hansaria
B.L. (J) Hansaria B.L. (J) Mohan, S. (J)
CITATION:
1994 SCC (3) 375 JT 1994 (4) 137 1994 SCALE (2)414
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by HANSARIA, J.- A suit for eviction was
filed by the respondent against the appellants in the Court of Munsif and
Judicial Magistrate, Jaipur, on the averment that the tenancy of the appellants
having been determined they have no right to occupy the suit premises. Prayer
for vacant possession of the premises was therefore made, along with realisation
of some arrears of rent, so also damages for the use and occupation of the
premises by the appellants on and from 1-8-1980. The plaintiff specifically
aver-red that provisions of Rajasthan Premises (Control of Rent and Eviction)
Act, 1950, hereinafter the Act, had no application in view of the exemption
granted by the State Government vide its notification No. F. 20(14) Rev. 1/76
dated 20-8- 1976 by which all the premises owned by Wakfs registered under the Wakfs
Act were exempted from the operation of the Act.
2.The
appellants took a stand that the exemption notification was void; and that the
present being a case of forfeiture of tenancy, distinguished from determination
of the same, they were entitled to the benefit of Section 114-A of the Transfer
of Property Act, 1982.
3.The
learned Munsif did not accept the case of the appellants insofar as the
challenge to the exemption notification is concerned, but gave the relief visualised
by Section 114-A of the Transfer of Property Act. The Munsif, therefore,
ordered that in case the appellants would pay all the arrears within 15 days of
the judgment they would not be evicted from the premises.
4.Feeling
aggrieved, the respondent preferred an appeal in the Court of District Judge, Jaipur,
who took the view that the present was really a case of determination of
tenancy and so the appellants were not entitled to the aforesaid benefit. This
judgment of the District Judge found the appellants before the High Court of
Rajasthan (Jaipur Bench), where, for the first time a plea was taken that the wakf
in question being wakf-alal-aulad, the benefit of the aforesaid exemption was
not available. Another point urged was that the present was in fact a case of
forfeiture of tenancy and not of determination of the same. The High Court did
not accept any of the contentions and so dismissed the second appeal. Feeling
aggrieved, this Court has been approached under Article 136.
5.Shri
Rajinder Sachar, learned Senior Counsel appearing for the appellants, has taken
pains to submit that the appellants were wrongly debarred from the salutory
provisions of Act by the courts below inasmuch as to a wakf- alal-aulad
exemption from the Act permitted by its Section 2(3) is not available. The
focal point of this submission is that the section empowers the State
Government to exempt from all or any of the sections of the Act only those
premises which are owned by any "educational, religious or charitable
institution, the whole of the income derived from which is 377 utilised for the
purposes of that institution". Learned counsel urges that wakf-aial-aulad
cannot be said to be either an educational, religious or charitable institute
and, as such, benefit of the exemption given by the aforesaid notification to
registered wakfs could not have been taken advantage of by the respondent.
6.Shri
Sachar has put forward his submission as aforesaid on being pointed out that it
was not open to the appellants to challenge the validity of the exemption
notification in the absence of the State being respondent in this appeal.
Learned
counsel categorically stated that he was not challenging the validity of the
notification (though that was the stand taken earlier throughout the
proceeding), but he is confining his contention to the nonapplicability of the
exemption to the premises in question. As to the non- applicability, the
contention is that the wakf at hand is apparently not an educational or religious
institution. At best it could be said to be charitable, which it is not in view
of what has been pointed out by this Court in Fazlul Rabbi Pradhan v. State of
W.B.1 in which the meaning of the expression " charitable" has been
explained. Learned counsel further submits that the view taken by the High
Court that even wakf-alal-aulad would be a charitable institution is not
sustainable in law.
7.We
do not propose to express any opinion on the aforesaid contention of Shri Sachar,
because it has been brought to our notice by Shri S.M. Jain, learned Senior
Counsel appearing for the respondent, that there was not even a pleading by the
appellants that the wakf at hand is wakf-alal-aulad. That this was the position
cannot be doubted inasmuch as in the written statement, a copy of which was
made available to us by Shri Jain, the only point taken in this connection was
that the wakf at hand was not a registered wakf, as was the averment of the
respondent. It is because of this that the issue framed on this part of the
list was : "Whether the plaintiff-Masjid is a registered society by the
Rajasthan Board of Muslim Wakf, Jaipur and the plaintiff has right to file the
suit?" The question whether the wakf with which we are concerned is a wakf-alal-
aulad being essentially a question of fact and there having been even no
averment about this in the written statement filed by the appellants and no
issue on this point having, therefore, been framed, we hold that it was not
open to the appellants to take such a stand for the first time before the High
Court. The mere fact that the High Court has examined this aspect and recorded
its finding is not enough to require us to express our views. According to us,
the High Court might not have as well addressed itself on this question.
8.In
view of the above and because of there being nothing to doubt that the wakf at
hand is a registered wakf, as would appear from notification dated 23-9-1965
issued by the office of Rajasthan Board of Muslim Wakf, Jaipur, as contemplated
by Section 5(2) of the Wakfs Act, 1954, copy of which was made available to us
by Shri Jain for our perusal, we hold that the (1965) 3 SCR 307: AIR 1965 SC
1722 378 premises at hand were exempted from the provisions of the Act. May it
be stated that in view of what has been provided in Section 6(4) of the Wakf
Act, the list of Wakfs published under Section 5(2) is final and conclusive
unless modified as mentioned in the section, to which effect there is nothing
before us. We may refer in this connection to Board of Muslim Wakfs v. Radha Kishan'
taking the aforesaid view. We, therefore, reject the first submission of Shri Sachar.
9.In so
far as the plea of the present being a case of forfeiture and not of
determination of tenancy, we would state that the requirement of forfeiture as
mentioned in Section 111 (g) of the Transfer of Property Act being not
satisfied and the notice as given by the respondent to the appellants (Annexure
P-1) having stated about determination of tenancy, the present cannot be taken
to be a case of forfeiture. We have said so because of the three situations visualised
by clause (g), it is apparent that it is the first alone which could get
attracted the same being breaking of any express condition which provides that
on breach thereof the lessor may re-enter. Shri Sachar submits that from the
notice (Annexure P-1) it would appear that it was the non-payment of rent as
agreed upon by the appellants which was the cause of action for issuance of
notice and as such this condition is satisfied. To support his submission it is
urged that in the suit as filed arrears of rent has also been claimed which
would show that the respondent's case was breaking of condition regulating to
payment of rent in time.
10.Though
a perusal of the notice, which is dated 29-5- 1980 does show that it mentioned
about non-payment of rent, but it also stated about termination of tenancy and
demanded vacant possession by 31-7-1980 or
"the last date of the month of...... In the suit as filed rent had not
been claimed on and from 1-8-1980, it was rather damages on account
of illegal use and occupation. For the first of the three situations mentioned
in Section 111(g) to operate the condition has to be one the breach of which
had provided the lessor a right to re-enter. In the present case, there is
nothing to show that such was the condition of the tenancy.
That
apart, the notice itself would show that it was clause (h) of Section 111 which
was pressed into service, because the requirements of notice of termination as
mentioned in Section 106 of the Transfer of Property Act were duly borne in
mind, as per which section in case of monthly tenancy, the notice must expire
with the "end of a month of the tenancy". The perusal of the notice
shows that the tenancy at hand was a monthly tenancy as per English calendar
and it is because of this that vacant possession was demanded from 31-7-1980,
the end of an English calendar month, stating simultaneously about "the
last date of the month of......
These
salient features do not leave any doubt in our mind that the present was not a
case of forfeiture but of determination of tenancy. We, therefore, reject the
second contention as well of Shri Sachar.
11.It
would be of interest to state that under English law a distinction is made
between a condition and covenant insofar as the requirement of a 1 (1979) 2 SCC
468 379 specific proviso in the lease to re-enter in case of breach of the same
is concerned. It is only in case of covenant that the lease must contain
proviso for re-entry. No such stipulation is deemed necessary in case of breach
of a condition. [See pages 836 and 837 of Woodfall's Landlord and Tenant, (1978
Edn.) Volume 1; page 406 of Martin Partington's Landlord and Tenant (2nd Edn.)
and page 200 of Evans and Smith's The Law of Landlord and Tenant (4th Edn.).]
In the Indian law, however, no distinction exists between a condition and
covenant in this regard, as has been stated by a Bench of Calcutta High Court
speaking through M.M. Dutt, J., as he then was, in Peter Alan Basil v. East India
Pharmaceutical WorkS2. Reference may be made to a decision in this Court in Merwanji
Nanabhoy Merchant v. Union of India3 in which the landlord had sought for
eviction on the ground of damage to the property because of neglect in
maintaining the same which was said to be violation of clause 2(iii) which
stated that the tenant will keep the premises in good condition, as well as for
failure to pay required rent. As however, there was no stipulation in the
agreement empowering the landlord to re-enter in case of breach of the
aforesaid clause, it was held that the vacant possession could be demanded on
the ground of determination of tenancy simpliciter, and not, because of the
forfeiture of tenancy.
12.Having
seen that in the case at hand there was no stipulation in the contract
containing a clause of re-entry in case of breach of payment of rent, it has to
be held that the present is not a case of forfeiture, but was of determination
of tenancy by exercising power under clause (h) of Section 111 of the Act.
13.No
other point has been urged. The appeal, therefore, stands dismissed. We,
however, make no order as to costs.
The
appellants would get three months' time from today to vacate the premises on
their furnishing usual undertaking within a period of four weeks.
Back
