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PETITIONER: BETIBAI & ORS.

       Vs.

RESPONDENT: NATHOORAM & ORS.

DATE OF JUDGMENT:       11/03/1999

BENCH: V.N.Khare, S.Saghir Ahmad

JUDGMENT:

S. SAGHIR AHMAD, J.

                   Leave granted.

     Babulal was the tenant of a shop belonging to a temple managed  by  Phool Maliyan Samaj Mandir Trust,  Bhopal  (the ’Trust‘,  for short), whose tenancy was determined by notice dated  14.9.1991  under  Section  106  of  the  Transfer  of Property  Act.   In  spite  of   the  tenancy  having   been determined,   Babulal   did  not    vacate   the   premises. Consequently,  the respondents, who were the Trustees of the Trust,  instituted a civil suit in the court of Civil Judge, Bhopal,  against  Babulal for his eviction.  It was  pleaded that  since  the  property  in   question  belonged  to  the religious  and  charitable Trust, it was exempted  from  the operation of the M.P.  Accommodation Control Act, 1961, (the ’Act’,  for short) as provided by Section 3(2) thereof.  The suit was contested by Babulal, who filed a written statement denying the plaint allegations and pleaded that the suit was liable  to  be dismissed as it was not based on any  of  the grounds  specified  in Section 12 of the Act.  The suit  was decreed on 8.12.1997, against which an appeal was filed, but before it could be disposed of by the Addl.  District Judge, Bhopal,  the original tenant died and was substituted by the present  appellants as his heirs and legal  representatives. The appeal was ultimately dismissed on 28th September, 1998. The  second appeal filed in the High Court was dismissed  on 17.12.1998.   The  trial court as also the  lower  appellate court   and  the  High  Court   held  that  on  account   of Notification issued on 7.9.1989, the properties belonging to religious  and  charitable  trusts were  exempted  from  the operation  of the Act and consequently it was not  incumbent upon  the  respondent-landlords to have filed the  suit  for eviction  of tenant on the grounds set out under Section  12 of  the  Act and that they could file the suit for  eviction straightaway after terminating the tenancy under Section 106 of  the  Transfer of Property Act.  Learned counsel for  the appellants  has  contended that the Notification  dated  7th September,  1989  has  already been held to be  bad  by  the Madhya Pradesh High Court in Chintamani Mahender Agarwal vs. State  of  Madhya Pradesh 1994 MPLJ 597.  He also  contended that  this  Court in Mangilal vs.  Shri  Chuturbhuja  Mandir (1998)  5 SCC 597 has also held the Notification to be  bad. It  is,  in these circumstances, contended that the suit  of the  respondents  was  liable  to   be  dismissed  and   the appellants  cannot be evicted from the premises in question,

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except  by invoking any of the grounds set out in Section 12 of  the  Act.   The  pleas raised by  the  counsel  for  the appellants, in our opinion, have no substance.  The decision rendered  by  the Madhya Pradesh High Court in  Chintamani’s case (supra) was challenged in an appeal filed in this Court by  the  State of Madhya Prdesh which was disposed of  by  a Bench of which one of us (Saghir Ahmad, J.) was a member and the  Notification  dated 9th September, 1989, by  which  the properties  belonging  to public charitable trusts and  Wakf were  exempted, was upheld.  It was, in that Judgment  held, inter  alia,  as  under:- "The State of  Madhya  Pradesh  in exercise  of the powers under sub-section 2 of Section 3  of the  M.P.   Accommodation  Control   Act,  1961  (the  Act), exempted  all  buildings  owned by the Madhya  Pradesh  Wakf Board   (Board)  from  the  operation   of  the  Act.    The Notification  dated September 7, 1989 granting exemption  to the Board under the above-mentioned provision of the Act was challenged  before  the High Court.  The High Court  quashed the  Notification  on  the short ground that  there  was  no material   before   the  State   Government  to  reach   the satisfaction  that  it was necessary to issue  the  impugned Notification.   Learned  counsel for the State of M.P.   has invited our attention to the letter dated March 26, 1976, by the  then  Prime  Minister of India addressed to  the  Chief Minister  of the State of M.P., suggesting, for the  reasons given  in  the  said  letter,  to  grant  exemption  of  the provisions  of the Act to the properties owned by the  Wakf. Thereafter,  the State of M.P.  made enquiries from  various other  States  in this respect.  On receipt of the  replies, the  matter  was  considered and thereafter,  the  exemption Notification  was  issued.  We are satisfied that there  was sufficient  material before the State Government for issuing the  impugned  Notification.  We, therefore, set  aside  the impugned  judgment of the High Court.  We seek support  from the  judgment  of  this Court in S.Kandaswamy  Chettiar  vs. State  of  Tamil Nadu and Anr.  ( 1985 (1) SCC 290  )."  The decision  of  this  Court in Mangilal’s case  (supra),  upon which  reliance  has been placed is distinguishable  as  the only  question  pleaded  in  that case was  that  since  the Notification  dated 7th September, 1989 has been held to  be bad  by  the High Court in respect of Wakf properties  only, the  trust properties would continue to be exempted from the operation of the Act.  This plea was not accepted and it was held  that the Notification dated 9th September, 1989 was  a composite  Notification  which applied not only to the  Wakf properties  but  also to other charitable trust  properties, and  since  this  Notification has been held to  be  bad  in respect  of  the  Wakf properties, it would be bad  for  all other  properties,  including trust properties,  which  were sought  to  be exempted from the operation of the Act.   The validity  of  the  Notification was not questioned  in  that decision.   Moreover,  it was not brought to the  notice  of Their  Lordships,  who decided that case, that  against  the decision  of  the Madhya Pradesh High Court in  Chintamani’s case  (supra), Civil Appeal No.  9909 of 1995 (arising  from S.L.P.   (Civil)  NO.4360 of 1994) was filed in this  Court, which  was  decided on October 19, 1995 and the decision  of the   Madhya  Pradesh  High  Court   was  reversed  with   a categorical  finding  that  the Notification issued  by  the Madhya   Pradesh  Govt.   exempting   the  Wakf  and  Trusts properties  from the operation of the Act was valid.  It may be  mentioned  that  similar Notifications issued  in  other States,  by  which Wakf and Trust properties were  exempted, have already been upheld by this Court.  As for example, the Notification  issued  by  the  State Govt.   of  Tamil  Nadu

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exempting  Wakf  and  Trust properties, was upheld  by  this Court  in S.  Kandaswamy Chettiar vs.  State of Tamil Nadu & Anr.   1985 (1) SCC 290.  Even this decision was not brought to  the  notice  of  the  learned  Judges  who  disposed  of Mangilal’s  case.   In view of the above, the appeal has  no merit  and  is dismissed but without any order as to  costs. REPORTABLE  JUDGMENT  IN CIVIL APPEAL NO.  OF 1999  (Arising out of S.L.P.  (Civil) No.  2853 of 1999) Betibai & Ors.  .. Appellants vs.  Nathooram & Ors.  ..  Respondents ********** PASSED ON 11.3.1999 BY HON.MR.JUSTICE S.SAGHIR AHMAD