# Lachman Deo v. District Judge, Nainital and others

- **Citation:** (2000) 3 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lachman-deo-v-district-judge-nainital-and-others-39480
- **Pages:** 5

## Text

3All] Lachman Deo V. District Judge, Nainital and others
13
his
testimony
either
by
direct,
circumstantial or medical evidence. The
circumstances of the case and medical
evidence do not corroborate the testimony
of the witness and in these circumstances
we are of the view that the sole testimony
of Nathu Ram (P.W.2) was not sufficient
to base the conviction of the appellants.

21. The learned Sessions Judge, thus,
erred in placing reliance on the sole
testimony of the Nathu Ram (P.W.2).
There being no reliable evidence on
record,
the
appellants
were
wrongly
convicted. The appeal, therefore, succeeds.

22. The appeal is, accordingly,
allowed. Conviction and sentence of the
appellants under section 302 read with
Section 34 I.P.C. is set aside and they are
acquitted
of
the
said
offence.
The
appellants are on bail granted by this court.
Their bail bonds are cancelled and sureties
are discharged. They need not surrender.
 Appeal Allowed

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By the Court

1. This Writ petition is directed
against the judgment of respondent no.1
whereby the revision was allowed and the
suit filed by the plaintiff respondent no.3
been decreed.

2. Briefly stated the facts are that the
plaintiff. Sri Gandhi Ashram, a registered
society, filed Suit No.11 of 1996 in the
court of Judge Small Causes for recovery
of arrears of rent, ejectment and damages
against the petitioner with the allegations
that the plaintiff is a public charitable
institution and the provisions of U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction ) Act,1972 (in short 'the
Act') were not applicable. The petitioner
was a tenant of the premises in dispute at
Rs.24.50 per month. A notice dated
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
14
16.4.1996 was sent terminating his tenancy
but inspite of service of notice he has not
vacated
the
disputed
premises.
The
petitioner contested the suit and denied
that the plaintiff is a public charitable
institution but the petitioner cannot be
evicted as he had deposited the entire
arrears of rent during the pendency of the
case and was entitled to the protection of
Section 114 of the Transfer of Property
Act.

The
plaintiff-respondent
filed
revision against this order. Respondent
no.1 has allowed the revision by the
impugned order dated 18.2.2000 taking the
views that the suit was not filed on the
basis of forfeiture of the lease and as such
the provision of Section 144 of the
Transfer of Property Act was inapplicable.

3. The main thrust of the submission
of the learned counsel for the petitioner is
that the plaintiff is not a public charitable
institution and therefore it is not exempt
from the operation of U.P. Act No.13 of
1972,Section 2 (1) (bb)provides that the
Act shall not apply to any building
belonging to or vested in a public
charitable or public religious institution.
Section 3 (r) defines charitable institution
as under:-
"charitable
institution"
means
any
establishment, undertaking organisation
or association formed for a charitable
purpose
and
includes
a
specific
endowment;

Explanation.- For the purposes of the
clause, the words "includes relief of
poverty, education, medical relief and
advancement of any other object of
utility or welfare to the general pubic or
any section thereof, not being an object
of an exclusively religious nature."

4. The explanation added to the
definition clause of "charitable purpose"
is of wider amplitude. The word "charity"
can
be used in a restricted sense
synonymous
with
relief
of
poverty,
education and medical relief but in a wider
sense it includes and activity by which the
general public or any section thereof is
benefited. The explanation covers both the
aspects.

Lord
Macnaghten
in
his
celebrated judgment in Commissioner of
Income Tax v. John Fredrick Pemsel
(1891) AC 531 (574),laid down that
charitable purpose which comes in the
language or trade of statute of Elizabeth
could be grouped under four heads',
namely,
(1)
relief
of
poverty',
(2)
education; (3) advancement of religion;
and (4) other purposes beneficial to the
community not coming under any of the
precedent headings .

5.
Lord
Russel,
J.
in
Re
Hummeltenberg
(1923)
1
Ch
237
commenting on the definition formulated
by Lord Macnaghten observed "no matter
under which the four cases of gift may
prima facie fall, it is still in my opinion
necessary (in order to establish that it is
charitable in the legal sense)to show (1)
that the gift will or may be operative for
the public benefit, and (2) that the trust is
one, the administration of which the Court
itself could. If necessary, undertake and
control."

6. The Court has to examine the
object of any activity for activity for which
a charity is established. The object of any
activity is a predominant factor to be
predominant to find out as to whether the
institution is a charitable or commercial.
An educational institution e.g. may be
treated as a charitable as well as
commercial. In P.C. Rajratnam Institution
3All] Lachman Deo V. District Judge, Nainital and others
15
v. Municipal Corporation of Delhi and
others, AIR 1090 SC 816 SC 816, it was
held that impating education by a society
can be held 'charitable purpose' and such
society can be granted exemption under
Section 115 (4) (a) of Delhi Municipal
Corporation Act as it imparts education
and the fact that some of fee is charged
from the students is also lnot decisive as to
society has to incur expenditure for
running institution and may further be
supported either wholly or in part by
voluntary
contributions.In
Municipal
Corporation of Delhi v. Children Book
Trust, AIR 1992 SC 1456, it was held that
merely because education is imparted in
the school, that by itself, cannot be regard
as charitable object. An element of public
benefit or philanthropy has to be present.
If education is imparted with a profit
motive, it will not be a charitable purpose.
The decisive factor is object of the
institution. The same activity may be
charitable if it is done for the welfare of
public or a part thereof and if it is done
with the motive to earn profit, it cannot be
termed as charitable. In Additional
Commissioner of Income Tax v. Surat Art
Silk Cloth Association, AIR 1980 SC 387,
it was observed:
"Where an activity is carried on as a
matter
of
advancement
of
the
charitable purpose or for the purpose
of
carrying;
out
the
charitable
purpose, it would not be incorrect to
say as a matter of plan English
grammar that the charitable purpose
involves the carrying on of such
activity, but the predominant object
of such activity must be to sub serve
the charitable purpose and not to earn
profit. The charitable purpose should
not be submerged by the profitmaking motive; the latter should not
masquerade under the guize of the
former."

7. The plaintiff-respondent was
registered as society in the year 1988. It
has branches all over India. The plaintiff
has filed a booklet containing Gandhi
Ashram Service Rules. The objects of the
Ashram, according to its Memorandum of
Association, are to serve people of the
Ashram, according to its Memorandum of
Association, are to served people of India
by popularising hand woven cloth to
ameliorate the4 condition of the people,
especially in the rural lareas by giving
them medical help, training them to
sanitary habits, imparting education to
them in day and night schools, establishing
libraries, museums. Model farms, to raise
necessary funds by means of donations and
loans
and
by
acquiring
moveable
properties and to accept and administer
trusts.

8. The Manager of the Gandhi
Ashram, Sheo Murti Misra, stated on oath
that the entire income is spent on
charitable purposes. The Ashram is also
maintaining a Gaushala and it is also
providing financial help. In various
decisions rendered either by the Court or
Tribunal it was held that the plaintiffrespondent is a charitable institution. In
Civil Appeal No.432 of 1975, Gandhi
Ashram V. State of U.P. the Ist Additional
Civil Judge, Nainital the plaintiff was held
to be a charitable institution. The Labour
Tribunal, Meerut held the plaintiff, Gandhi
Ashram as a charitable institution because
it did not reserve any profit for itself and it
was supported either by donation or profit
by sale which goes in charity. The
Commissioner of Income Tax in its order
dated 13.1.1945 held that the Gandhi
Ashram is charitable institution. The
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
16
plaintiff also filed several Government
Orders wherein Gandhi Ashram has been
exempted from octroi, terminal, house tax,
bonus, income and sales tax. It is
contended in these case, the petitioner was
not a party and therefore any finding
recorded in these judgments/orders will
not operate as resjudicata against the
petitioner but they are relevant documents
and admissible under Section 13 of the
Evidence Act to prove that the plaintiff
was held in various decisions as public
charitable institution. The petitioner, on
the other hand, did not lead evidence to
show that the object of the Gandhi Ashram
is profit-making. The object for which it
has been established is for welfare of the
public at large. Its object is to served the
people of India by prpularising hand spun
and hand woven cloth and other hand
made products. It has to help the people in
various ways. There is no element of
profit-making in any of its activities. The
Courts below rightly held that it is pubic
charitable institution.

9. Learned counsel for the petitioner
then contended that it may a charitable
institution but it may be a private
charitable institution. The distinction
between public purpose and a purpose
which is not a public purpose, depends
upon as to who are to receive the benefit.
If the object is that certain person or
association of persons alone to get the
profit from the activities of the institution
then it is not a public purpose but if the
benefit is to be given to the public or part
of public or part of public, it is a public
purpose. Tudor in the 5th edition of his
book on 'Charities' (page 12) summed up
the principle in the following words :-

"If the intention of the donor is merely to
benefit specific individuals, the gift is
not charitable, even though the motive of
the gift may be to relieve their poverty or
accomplish some other purpose with
reference to those particular individuals
which would be charitable if not so
confined; on the other hand, if the
donor's object is to accomplish the
abstract purpose of relieving poverty,
advancing education or religion or other
purpose charitable within the meaning of
the Statute of Elizabeth without giving to
any particular individuals the right to
claim the funds, the gift is charitable."

10. In Radhakanta Deb and another
v. The Commissioner of Hindu Religious
Endowments, Orissa, AIR 1981 SC 798,
the Court considered the line of distinction
between private trust and public trust in
the following words:-

"In other words, the beneficiaries in a
public trust are the general public or a
section of the same and not a
determinate body of individuals as a
result of which the remedies for
enforcement of charitable trust are
somewhat different from those which
can be availed of by beneficiaries in a
private trust. The members of the public
may not be debarred from entering the
temple and worshipping the deity but
their entry into the temple is not as of
right. This is one of the cardinal tests
of a private endowment."

11. The plaintiff is a registered
society. Its Memorandum of Association
does not provide that it has been
established for the benefit of its Members
or its activities are confined to give any
profit to the members of is the Gandhi
Ashram. Its object, character and activities
clearly point out that it is a public
charitable institution. In view of the
3All] Ramji Lal Varshney & another V. A.D. J., Aligarh and others
17
exemption granted by Section 2 (1)
(bb) if Act No.13 of 1972,the petitioner
cannot claim that the provisions of the said
Act is applicable to the building in
question.

12. It has been found that the
petitioner is not entitled to the benefit of
Section 114 of the Act as the lease was not
determined on the ground that it has a right
to re-enter the premlise4s under the
forfeiture
clause
under
the
tenancy.
Respondent no.1 rightly decreed the suit.

There is no merit in the writ petition.
It is accordingly dismissed.

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By the Court

1. This writ petition is directed
against the order passed by the Rent
Control and Eviction Officer declaring the
disputed accommodation as vacant on
30.4.1981 and thereafter rejecting the
application of the landlord-petitioners for
the release of the disputed accommodation
on 10.10.1983 and allotting the same to
respondent No.3 on 19.10.1983 and the
order of the revisional authority dated
20.07.1984 affirming the said order in
revision.

2. The dispute relates to House
No.1886, Mendu Gate, Hathras, district
Aligarh. One Ram Bablu and Smt. Bhu
Devi were owners of this property. Har
Prasad was a tenant of two rooms of first
floor of the disputed house. Ram Babu
and Smt. Bhu Devi filed Suit No.98 of
1975 for recovery of arrears of rent,
ejectment and damages against their tenant
Har Prasad. The suit was decreed on
3.4.1979 and thereafter the landlords
obtained possession of the portion in
occupation of their tenant Har Prasad.
Kishan Singh, respondent No.3 filed an