Dismissed

Legal Heir of Indersingh Gurasing Satbirsingh Surjitsingh Tuteja v. Kabirsaheb Mandir Khadiya Ahmedabad Trust Thru Its Trustee Mahanth

Gujarat HC2 Mar 2020CRA/252/2019

Case brief

AI extract

What is this about?

The High Court rejected the revision application challenging a Small Cause Court decree that evicted a tenant for non-user of premises. The court held the tenant's default prevented usage, validating the eviction, and clarified that tenant recovery suits do not require Charity Commissioner consent if unrelated to the trust's core purpose.

What did the court decide?

The civil revision application was rejected with no substance found.

Legal Heir of Indersingh Gurasing Satbirsingh… — Landlord and Tenant | Gujarat HC (2020)

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C/CRA/252/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CIVIL REVISION APPLICATION NO. 252 of 2019

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=========================================================== LEGAL HEIR OF INDERSINGH GURASING SATBIRSINGH SURJITSINGH TUTEJA

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Versus

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KABIRSAHEB MANDIR KHADIYA AHMEDABAD TRUST THRU ITS TRUSTEE MAHANTH

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================================================================ Appearance: MR VISHAL T. PATEL(6518) for the Applicant(s) No. 1,2 for the Opponent(s) No. 1.4,1.6,2 DHRUVIK K PATEL(7769) for the Opponent(s) No. 1,1.1,1.2,1.3,1.5

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================================================================

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

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Date : 02/03/2020

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ORAL ORDER

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1. Order dated 20.03.2019 rendered by the Small Cause Court

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No.4, Ahmedabad concurring with the finding of the trial court inter alia

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on the ground of non user of the demised premise rented out by the public trust to the tenant is sought to be assailed in the revisional jurisdiction of this court under section 29(2) of the Bombay Rents, Hotel

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& Lodging House Rates Control Act, 1947 ( for short 'The Bombay Rent

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Act')

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The suit was decreed in favour of the landlord on three counts:

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(1) arrears of rent (2) subletting (3) non-user.

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Page 1 of 5

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C/CRA/252/2019 ORDER

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Having considered the rival submissions, it appears to this Court

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that decree passed by the court below on the ground of non user of the demised premise cannot be said to be illegal inasmuch as the justification offered by the tenant that sealing of the property by the Municipal Authority for arrears of taxes prevented him from the use of the property was rightly rejected by the courts below on consideration of the fact that the tenant who was himself liable for the taxes had defaulted and thus in such a case, non user would be attributable to the tenant as he was prevented from using the property by his own default and not by any circumstance beyond his control.

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Learned counsel for the petitioner- tenant contended that the suit must fail for non- compliance of Section 51 of the Bombay Public Trust Act ( for short 'the Act') in absence of consent from the Charity Commissioner for institution of the suit. The submission cannot be countenanced for the reason that the permission contemplated by section 51 of the Act would be necessary when the question in relation to “Public Trust” as defined in section 2(13) of the Act is involved and not in the case of dispute between the “trust” and third party in relation to the interest other than those defined under the Act.

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Page 2 of 5

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C/CRA/252/2019 ORDER

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In case of “Public trust”, as defined in Section 2(13) of the Act

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essentially its purpose would be in focus and therefore section 51 of the Act must be read to mean that where preservation or management or benefit or upholding of the purpose of the public trust is intended, the permission contemplated under section 51 of the Act would be necessary and if the intended action has nothing to do with the purpose of public trust, no permission would be necessary. Similarly section 50 of the Act also cannot be read in isolation of the purpose of public trust. If the recovery of the property is necessary for preserving or bettering the purpose of the trust or for carrying out the purpose of the trust, the permission would be necessary. If the grievance is in relation to “Public trust” or “trust” as discussed herein-above, then only the question of consent would arise, but when the grievance is made regarding breach of contract per se, it cannot be said that the suit is intended or filed in relation to “Public trust”. Section 50 of the Act would be applicable where the possession of the property is held adverse to the “Public trust” as defined in Section 2(13) of the Act and the suit or other proceedings are necessitated for its recovery. Thus again the emphasis would be on the purpose of the “trust” and therefore if the property is

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Page 3 of 5

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C/CRA/252/2019 ORDER

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held or is being used against the purpose for which the “trust” is created, the consent of the Charity Commissioner would be necessary and not in cases where the “trust” intends to pursue the remedy for recovery of property of the “trust” lawfully held under the contract like lease. In such a case, the obligation would be purely contractual in nature as may be regulated under the Rent Act if applicable and no question of “Public trust” would not arise. The case of Patel Nanji Devji vs. Patel Jivraj Manji – 1988 (2) GLR 830 in the above circumstances will not save the situation for the petitioner inasmuch in that case, the issue was regarding removal of some of the trustees. The issue squarely attracted section 50(iii) (b) of the Act. The observations therein therefore must be understood in the context of the dispute involved.

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5.1 A reference has been made to Nadiad Nagarpalika, Nadiad vs.

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Vithalbhai Zaverbhai Patel – 1980 GLR 792 wherein also section 50 of the Act has been so interpreted as to relax the embargo on the general powers of the trustees to file suit for the recovery of the possession of the trust property from tenants or licensee or trespasser.

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