Dismissed

Rajendra Gupta, v. the Corporation of Chennai

Madras HC15 Sept 2011OSA/100/2011

Case brief

AI extract

What is this about?

The High Court dismissed appeals by sub-lessees challenging the surrender of Victoria Public Hall to the Corporation and for a sub-lease deed found void for being in perpetuity. Court held appellants are not persons interested in the Trust and injunctions were denied.

What did the court decide?

All appeals and M.P.s dismissed; status quo vacated; no costs; Metro Rail impleading applications disposed as unnecessary.

Rajendra Gupta, Vs the Corporation of Chennai — Pension and Retirement Benefits | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 15.09.2011

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CORAM

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THE HON'BLE MRS. JUSTICE R.BANUMATHI and

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THE HON'BLE MR. JUSTICE B.RAJENDRAN

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O.S.A.Nos.100, 101, 105 and 106 of 2011

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O.S.A.No.100 of 2011:
1.Rajendra Gupta
2.Asoka Gupta
3.M/s.Picnic Hotels Private Limited
rep. By its Director Rajendra Gupta. ... Appellants
vs.
1.The Corporation of Chennai,
rep. by its Commissioner,
Ripon Buildings, Chennai-3.
2.Victoria Public Hall Trust,
rep. by its Trustee,
1133, Poonamallee Hgh Road,
Chennai-3. ... Respondents
O.S.A.No.101 of 2011
1.Sanjay Gupta
2.M/s.Picnic Park Hotels Private Limited,
rep. by its Director Sanjay Gupta. ... Appellants.
vs.
1.The Corporation of Chennai,
rep. by its Commissioner,
Rippon Buildings, Chennai-3.
2.Victoria Public Hall Trust,
rep. by its Trustee,
1133, Poonamallee Hgh Road,
Chennai-3. ... Respondents

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https://hcservices.ecourts.gov.in/hcservices/

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O.S.A.Nos.105 & 106 of 2011

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1.Rajendra Gupta 2.Asoka Gupta ... Appellants. vs.

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1.Victoria Public Hall Trust, rep. by its Trustees, having its registered office at 1133, Poonamallee High Road, Chennai-600 003.

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2.The Sheriff of Chennai and Chairman, Victoria Public Hall Trust.

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3.The Mayor of Chennai, Trustee, Victoria Public Hall Trust.

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4.Southern India Chamber of Commerce, Trustee, Victoria Public Hall Trust.

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5.Andhra Chamber of Commerce, Trustee, Victoria Public Hall Trust.

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6.Rajah of Vizianagaram, Trustee, Victoria Public Hall Trust.

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7.The President, The Madras Advocates Association, Trustee, Victoria Public Hall Trust. Nos.2 to 8 having office at 1133, Poonamallee High Road, Chennai-600 003.

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8.The Corporation of Chennai, rep. by its Commissioner, Ripon Buildings, Madras. ... Respondents

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M.P.No.3 of 2011 in OSA.No.101 of 2011:

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The Chennai Metro Rail Limited, rep. by its Managing Director, No.11/6, Seethammal Road, Alwarpet, Chennai-18.

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... Petitioner/Proposed Respondent

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vs.

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1.Sanjay Gupta

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2.M/s.Picnic Park Hotels Pvt. Ltd., rep. by its Director Sanjay Gupta, No.1132/2, Poonamallee High Road, Chennai-3.

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3.The Corporation of Chennai, rep. by its Commissioner, Ripon Buildings, Chennai-3.

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4.Victoria Public Hall Trust, No.1133, Poonamallee High Road, Chennai-3. ... Respondents/Appellants 1 & 2 Respondents 1 & 2

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M.P.No.5 of 2011 in OSA.No.100 of 2011:

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The Chennai Metro Rail Limited,
rep. by its Managing Director,
No.11/6, Seethammal Road,
Alwarpet, Chennai-18. ... Petitioner/Proposed Respondent
vs.
1.Rajendra Gupta
2.Asoka Gupta
3.M/s.Picnic Hotels Pvt. Ltd.,
rep. by its Director Rajendra Gupta,
No.1132/1, Poonamallee High Road, Chennai-3.

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4.The Corporation of Chennai, rep. by its Commissioner, Ripon Buildings, Chennai-3. 5.Victoria Public Trust, rep. by its Trustee, No.1133, Poonamallee High Road, Chennai-3. ... Respondents/Appellants 1 to 3 Respondents 1 & 2

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Original Side Appeals are filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 01.04.2011 made in O.A.No.1202 of 2009 in C.S.No.1037 of 2009, OA.1201 in CS.1306/09, A.No.1930 of 2009 in C.S.No.98 of 1957 and O.A.1931/09 in O.S.No.98/1957 on the file of this Court.

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M.P.Nos.3 and 5 of 2011 are filed under Order VIII, Rule 14 of Original Side Rules read with Section 151 C.P.C. praying to implead Chennai Metro Rail Limited as party Respondent in the appeals.

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For Appellants : Mr.T.R.Rajagopalan in OSA.100,105 Senior Counsel & 106/2011 for Mr.Satish Parasaran

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For Appellant in OSA.No.101/2011

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: Mr. A.L. Somayaji SC for Mr.S.R.Rajagopal

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For Respondent : Mr.N.R.Chandran No.1 Senior Counsel for Mr.G.T.Subramaniam

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For Petitioner in M.P.No.3/2011 in : Mr.R.Thiagarajan, OSA.No.101/2011 & Senior Counsel M.P.No.5/2011 in : for OSA.No.100/2011 Mr.V.Ramajagadeesan COMMON JUDGMENT

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R.BANUMATHI,J

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Whether the person who is personally benefited by commercially exploiting public property can maintain applications in the Scheme suit and whether the sub-lessee who continues in possession even after the expiry of the period of original lease can seek to protect his possession are the points falling for consideration in these appeals.

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Prime property in Poonamallee High Road to an extent of 57 grounds was leased to the Trustees of Victoria Public Hall [V.P. Hall] Trust for construction of Town Hall which is to be used for public purposes or private purposes of cultural and educational activities. Prime property worth several crores so leased for a noble cause was diverted to personal benefit of making the profit. It is the typical case that exploitation of the public property by putting up multistoried buildings with palatial facade for running hotel business for personal aggrandisement. Appellants whose claim of sublease expired even on 30.04.1985 seeks to protect their possession even after the surrender of leasehold rights by the original lessee – V.P. Hall Trust. It is the typical case where public property has been siphoned off under the cover of documents and protective umbrella of the Court orders. After the land and buildings were handed over by V.P. Hall Trust [original lessee] to the Corporation [original owner] and after recording of compromise, can Appellants seek to retain the leasehold rights beyond the period of original lease of the original lessee themselves is the core point in issue.

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Factual background of the matter:- In 1880's certain senior noted citizens decided to establish Town Hall in Madras for the use and benefit of the public. For the said purpose, several citizens of Madras contributed various amounts and influential Committee of the citizens of Madras was constituted to carry out the project of construction of a Town Hall. As a result of negotiations Committee

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with the Municipal Commissioner for the Town of Madras, Corporation passed resolutions dated 21.2.1883, 03.09.1884 and 24.09.1885 allotting the land of an extent of about 57 grounds on a 99 year lease, on a rent of 8 annas per ground per annum. Allotment was infavour of the Committee for construction of a Town Hall.

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Deed of Trust was drawn up by an indenture entered into on 18.02.1888 to which (i) Subscribers to the building fund of Town Hall were parties of the first part; (ii) Committee of persons constituted to carry out project of construction of a Town Hall were parties of the second part; (iii) Original body of 12 Trustees constituted to handle the subscriptions were included as parties of the third part. On the said date i.e. 18.02.1888, there was lease agreement between the Municipal Commissioner of City of Madras and the Trustees of the Town Hall under which 57 grounds was leased to the Trustees on a lease of 99 years at a rent of 8 annas per ground per annum renewable at the end of each term of 99 years. Lease agreement stipulates for payment of rent, strict compliance of terms with condition to re-enter possession on non-compliance of certain terms. It was resolved under the said Deed of Trust that (i) Town Hall to be constructed which shall be named "Victoria Public Hall" and that the Hall to be used only for the purposes specified in the Deed of Trust; (ii) Declaration that the Trustees will hold the properties and constitution and administration of the Committee of Trustees. In 1889, the Rajah of Vizianagaram advanced a huge sum of money on a mortgage over the Victoria Public Hall on condition that if he was vested with nominating powers, he would forego the entire mortgage debt due to him. Therefore, the then Advocate-General of Madras filed suit in C.S.No.223 of 1905 seeking leave to amend the Deed of Trust so as to provide for appointment of 13^th Trustee by Rajah Sahib of Vizianagaram and his successors. By the judgment and decree dated 09.01.1906, the Court modified the Deed of Trust by framing a scheme decree making a provision regarding nomination of 13^th Trustee by Rajah of Vizianagaram.

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Scheme decree framed in C.S.No.223 of 1905 was modified by another judgment and decree in C.S.No.263 of 1921 dated 13.12.1921 at the instance of the then Advocate-General. The said decree prescribed number of Trustees as "12" and that they were to be the residents of the locality. Decree also stipulates that two of the Trustees shall always be drawn from the European Community, two from Eurasian (Anglo Indian) Community, two from Hindu Community and two from the Mohammedan Community. An application was moved by the Trustees in A.No.918 of 1953 in C.S.No.263 of 1921 seeking permission of the Court to hand over the Hall to the Corporation of Madras. On objection raised by the then Advocate-General and other citizens as to the maintainability of such application, by the order dated 24.04.1953, the said application [A.No.918 of 1953] was dismissed as not maintainable and Court referred the Trustees to seek redressal in an appropriate proceedings under Section 92 of C.P.C.

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Four persons viz., (i) K.Ranga Prasad; (ii) V.Srinivasan; (iii) T.S.Kumaraswami Mudaliar; and (iv) Syed Hussain instituted a suit in C.S.No.98 of 1957 under Section 92 C.P.C. alleging that some of the Trustees have collusively handed over the Victoria Public Hall to the Corporation and challenging the same, they sought for framing of proper and appropriate scheme for the purposes of effectuating the terms of original Trust deed. It appears from the judgment and decree dated 15.09.1961 in C.S.No.98 of 1957, 1^st Defendant viz., Trustees of V.P. Hall Trust as well as the 2^nd Defendant viz., Advocate-General remained absent. Plaintiffs and 3^rd Defendant viz., Corporation entered into a Memorandum of Compromise and on the basis of the said Memorandum of Compromise, a scheme was framed by the Court. It was also recorded in the Memorandum of Compromise that Lessor – Corporation of Madras has invested a sum of Rs.88,616.99 for renovating the Hall and making it fit and proper for putting it to the use of the Trust objects. Since Corporation has invested large sums of money for renovation of the demised premises, it was stipulated that Corporation should also be represented in the Board of Trustees for proper management of the Trust. Under the scheme, a new Board of Trustees were constituted comprising of (i) the Sheriff of Madras as its Chairman; (ii) the Mayor of Madras; (iii) a nominee of Southern Indian Chamber of Commerce; (iv) a nominee of Andhra Chamber of Commerce; (v) a nominee of Madras State Sangeeth Nataka Sangam; (vi) a nominee of Rajah of Vizianagaram; (vii) the President of Madras Advocates' Association; (viii) one non-official representative selected by High Court of Madras and (ix) the Commissioner of the Corporation of Madras as the Secretary. In the Memorandum of Compromise, it was agreed that the newly appointed Trustees would pay a sum of Rs.19,861.89 being the accumulation of rent in part payment of the expenses incurred by the Corporation for renovation of the Trust property and Board of Trustees would also keep on paying the entire proceeds of the Trust from the property month by month towards the payment of the expenses incurred by the Corporation till it was fully paid.

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By an agreement of lease dated 11.07.1963, the Board of Trustees sub-leased a portion of the property measuring about 10 grounds for the purpose of running Cafeteria to one N.D.Gupta, father of the Appellants. The building plan submitted by the sub-lessee N.D.Gupta was rejected by the Corporation on 30.04.1964 and the same was set aside by the Government later. Thereafter, the Corporation granted building permission on 29.12.1965 and the sub-lessee put up a building which was assigned Door No.1132.

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Subsequently, in pursuance of a resolution dated 27.05.1968, the Joint Secretary and Treasurer of V.P. Hall Trust executed a Deed of lease on 17.07.1968 infavour of N.D.Gupta granting a sub-lease of the land of an extent of 13 grounds and 1720 sq. ft. with permission to the sub-lessee to put up one storied building including a mezzanine

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floor, as approved by the Trust Board. It was made clear in Clause 2 of the Deed of lease that the sub-lessee shall put up one storied building at his own costs as per the plan approved by the Trust Board in conformity with architectural design of the main building and equip the same for the purposes of running a Cafeteria. Under Clause 4, the sub-lease was for a period of 18 years commencing from 01.04.1968 i.e. 31.03.1986. Under Clause 5, the sub-lease was renewable at the option of the sub-lessee for a further period of 22 years subject to certain conditions. Under Clause 6, the sub-lessee was obliged, after the expiry of the period of sub-lease to surrender possession of the property with all the superstructures standing thereon without claiming any compensation. This lease itself was beyond the period of original lease i.e. 31.03.1985.

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The Corporation filed suit in O.S.No.2083 of 1968 on the file of City Civil Court, Chennai challenging the sub-lease granted by the Board of Trustees infavour of N.D.Gupta. The Corporation also rejected the application for grant of a licence to run a hotel in the premises. But the refusal of the Corporation to grant a licence to run a hotel was set aside in a Writ Petition in W.P.No.752 of 1969 by the order dated 21.04.1969.

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The suit O.S.No.2083 of 1968 filed by the Corporation challenging the sub-lease granted by the Board of Trustees infavour of N.D.Gupta was dismissed by the City Civil Court, Chennai upholding the power of the Trustees both under the scheme decrees and under Section 108 (j) of Transfer of Property Act. Though the first appeal filed by the Corporation was allowed in their favour, the second appeals in S.A.Nos.1350 of 1970 and 1262 of 1971 filed respectively by N.D.Gupta and the Board of Trustees were allowed by this Court by a judgment and decree dated 23.11.1972.

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Even during the currency of earlier lease, the said lease dated 17.7.1968 executed infavour of N.D.Gupta was modified by another lease deed dated 12.10.1973. The period of lease stipulated was up to 30.09.2028 [period of 55 years]. All modifications are said to have been made under the lease deed dated 12.10.1973 were heavily loaded infavour of the sub-lessee. Lease deed dated 12.10.1973 enabled the sub-lessee N.D.Gupta to put up new multi-storied construction. In pursuance of the modified lease deed dated 12.10.1973, N.D.Gupta applied permission for putting up multi-storied hotel complex cum lodging house in the leased premises and Corporation rejected the application for planning permit. The said decision of the Corporation was challenged in W.P.No.4367 of 1975 and the matter was fought up to the Supreme Court. Thereafter, Government issued G.O.Ms.No.985 dated 16.11.1981 permitting N.D.Gupta to put up multi-storied building comprising of ground plus three floors. In pursuance of the same, N.D.Gupta constructed a building and the same was assigned Door No.1132/1.

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Litigation regarding extension of lease – On 06.10.1984, Board of Trustees issued notice to the Corporation seeking extension of the lease of the entire extent of 57 grounds. Since Corporation did not respond to the request for extension of lease for another 99 years, Board of Trustees have filed suit O.S.No.1349 of 1985 seeking renewal of lease for another 99 years. The said suit was decreed on 07.04.1993 granting declaration that the Trust was entitled to have the lease extended by another 99 years on the same terms and conditions contained in the original lease dated 18.02.1888. First appeal filed by the Corporation in A.S.No.334 of 1993 was dismissed on 31.8.1995 and the Second Appeal filed by the Corporation in S.A.No.144 of 1997 was dismissed for non-prosecution on 07.11.2001.

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Resolution dated 11.03.2009 and Compromise in S.A.No.144 of 1997 - Thereafter, Board of Trustees have passed resolution dated 11.03.2009 renouncing and dissolving the Trust and resolving to surrender all the properties to the Corporation. Resolution dated 11.03.2009 also requested the Government to form a new Trust so as to restore the original glory and prominence of Victoria Public Hall. As per the terms of the Compromise, Trust had handed over all the properties to the Corporation and gave up their claim for extension of lease. Subsequently, on applications, S.A.No.144 of 1997 was restored to file. After restoration of the appeal, Memorandum of Compromise dated 15.07.2009 was entered into and S.A.No.144 of 1997 was disposed in terms of the Memorandum of Compromise by the judgment and decree dated 21.08.2009.

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Thereafter, Corporation issued eviction notice dated 28.08.2009 directing the legal heirs of N.D.Gupta as well as the Companies floated by N.D.Gupta to vacate and hand over vacant possession. These notices were challenged in W.P.Nos.18532 & 22890 of 2009 and interim orders were obtained. By the order dated 04.11.2009 Justice K.Chandru,J dismissed all the Writ Petitions. Even though, Appellants have also challenged the notice of eviction in the Writ Petition, curiously Appellants have withdrawn their Writ Petitions on 03.12.2009 and on 15.12.2009 respectively. Without seeking any liberty from the Court withdrawn unconditionally. Corporation also issued notice of demolition dated 29.09.2009 and the same became the subject matter of challenge in the Writ Petitions in W.P.Nos.21519 to 21525 of 2009.

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Before ever withdrawing the Writ Petitions, Appellants [Rajendra Gupta and Asoka Gupta] who are the sons of late N.D.Gupta took out two applications in A.Nos.1930 and 1931 of 2009 in the scheme suit in C.S.No.98 of 1957 praying for (i) reconstitution of the Board of Trustees of V.P. Hall Trust; (ii) for re-vesting the properties back to the Trust from the Corporation. In the scheme suit C.S.No.98 of 1957, Appellants Rajendra Gupta and Asoka Gupta have also filed O.A.No.421 of 2009 seeking for interim injunction restraining the Respondents therein from in any manner interfering with the leasehold

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right or interest in the property.

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C.S.No.1036 of 2009 was filed by (i) Sanjay Gupta; (ii) M/s.Picnic Park Hotels Private Limited against the Corporation of Chennai and V.P. Hall Trust seeking for the reliefs (i) Declaration that the lease deed executed by V.P. Hall Trust on 12.10.1973 is valid till 30.09.2028 and is binding on the Corporation; (ii) Declaration that the resolution dated 11.03.2009 passed by the Trust surrendering its properties to the Corporation is null and void; (iii) Declaration that the Memorandum of Compromise dated 15.07.2009 entered between the Defendants 1 and 2 and filed in S.A.No.144 of 1997 is null and void and not binding on the Plaintiffs; (iv) Permanent injunction restraining the Defendants from in any manner interfering with Plaintiffs' right of possession and enjoyment as sub-lessees.

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C.S.No.1037 of 2009 has been filed by (i) Rajendra Gupta; (ii) Asoka Gupta and (iii) M/s.Picnic Hotels Private Limited against the Corporation and V.P. Hall Trust seeking for the same reliefs as sought for in C.S.No.1036 of 2009.

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Along with the suits [C.S.Nos.1036 & 1037 of 2009], Plaintiffs have filed O.A.Nos.1201 and 1202 of 2009 respectively seeking temporary injunction.

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Averments in the counter-affidavit - Resisting the applications, Corporation filed counter-affidavit stating that the lease was executed on 18.02.1888 for the purpose of constructing Public Hall in the name of V.P. Hall Trust for the use of general public. After so many changes in the Trust Board, lease deed expired on 30.04.1985. Even after the expiry of lease deed, Trust did not hand over possession of the leasehold land to the Corporation and several litigations were pending between the Corporation and the Trust. It is averred that the lease given by the Trust to N.D.Gupta for 13 grounds and 1720 sq. ft. of land for running restaurant is not binding on the Corporation and the permission granted by the Trust to N.D.Gupta to put up multi-storied hotel in 13 grounds and 1720 sq. ft. is totally invalid. Due to the necessity for doing renovation to the building and for putting the building for public utility, Trust changed their attitude and resolved to end the litigation and entered into a compromise on 11.03.2009. The compromise memo filed by V.P. Hall Trust and the Corporation was recorded by the High Court in S.A.No.144 of 1997. The lease deed executed infavour of N.D.Gupta by V.P. Hall Trust is in gross violation of the terms and conditions of the original lease deed dated 18.02.1888 and not binding upon the Corporation. Plaintiffs are in occupation of nearly 13 grounds and 1720 sq. ft. of Corporation property worth about Rs.70 to 80 Crores for a meagre amount of Rs.1000/- as lease rent is not entitled to any injunction as sought for.

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Before the learned single Judge V.P. Hall Trust did not enter appearance.

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Findings of learned single Judge - Upon consideration of various submissions, learned single Judge dismissed all the applications by the impugned common order dated 01.04.2011 interalia holding -

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Plaintiffs are not the "persons interested" in the Trust and they cannot seek reconstitution of Board of Trustees and re-vesting of the properties in the Trust;

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Lease deed dated 12.10.1973 is lopsided and heavily loaded infavour of the sub-lessee. The said document dated 12.10.1973 would only subserve the interest of the Plaintiffs and would not serve the interest of the Trust nor any public interest;

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Decree in O.S.No.1349 of 1985 never got executed and having regard to the huge expenditure involved for renovation of Victoria Public Hall, Trustees have taken wise decision to hand over Victoria Public Hall to the Corporation and cannot be said to be a fraudulent one;

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The action of Board of Trustees, resolution dated 11.03.2009 surrendering possession of Victoria Public Hall to the Corporation is based upon justice, equity and good conscience;

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Surrendering of lease hold land to the Corporation is actually for the benefit of the public and not detrimental to the Trust;

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Findings that Appellants-Plaintiffs have not established prima facie case for grant of injunction and it is open to the Corporation to issue notice to the Appellants-Plaintiffs and proceed further for recovery of possession of the land in question from them.

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Contentions of Appellants - Assailing the impugned order passed, learned Senior Counsel Mr.T.R.Rajagopalan appearing along with learned counsel Mr.S.Parthasarathy has mainly raised the following contentions:-

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As per the documents viz., Trust Deed dated 18.02.1888, lease deed dated 12.10.1973 and the scheme decree in C.S.No.98 of 1957, power was given to the Trustees to execute sub-lease, which is confirmed in the scheme decree and therefore, sub-lease in favour of N.D.Gupta has been validly created which has been upheld by the Courts and authorities and while so, the sub-lease cannot be made to come to an end by collusive act of the Trust and the Corporation behind the back of the Appellants;

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The Trustees are governed by the scheme decree in C.S.No.98 of 1957 and the Court is the guardian of the public Trust and while so, the Trustees were not justified in going before the Civil Court in S.A.No.144

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of 1997 to record the compromise and the compromise decree in S.A.No.144 of 1997 cannot be sustained and the same will not affect the sub-lease infavour of Appellants;

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Plaintiffs have made out a prima facie case and while so, the learned single Judge has gone beyond the scope of applications and erred in proceeding to record the findings on the merits of the matter as if the main suit was heard and not interlocutory applications; most of the recorded findings are not supported by materials;

¶82

The learned single Judge did not keep in view that the prima facie case and the balance of convenience is infavour of the appellants/plaintiffs;

¶83

Reliance was placed upon number of decisions which we would refer to at appropriate places.

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Mr.S.R.Rajagopal, learned counsel appearing for the Appellants in O.S.A.No.101 of 2011 interalia contended that the findings in respect of the lease deed dated 12.10.1973 have been made in the absence of hearing the Trust or without notice in the applications to the Trust and the said findings in respect of the lease deed dated 12.10.1973 are contrary, perverse to the judgment in the Second Appeal in S.A.Nos.1350 of 1970 and 1262 of 1971. It was further submitted that the finding of the learned single Judge that V.P. Hall has not served any different purpose after the grant of lease in favour of N.D.Gupta in the year 1963 is not supported by any material on record and the impugned order suffers from inconsistent findings. Learned counsel also contended that Memo of Compromise recorded in S.A.No.144 of 1997 is not valid and the same cannot bind the Appellants in O.S.A.No.101 of 2011. In support of his contention, learned counsel relied upon (1987) 1 SCC 712 [Tirath Ram Gupta v. Gurubachan Singh and another].

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Contention of Corporation - Onbehalf of Corporation, Mr.N.R.Chandran, learned Senior Counsel appearing along with Mr.G.T.Subramaniam has contended that Corporation continues to be the owner of the demised property and the Trust was only a lessee bound by the terms of the lease agreement and Plaintiffs/Appellants have no locus standi to seek for the relief of reconstitution of the Board. It was further argued that revesting of the property cannot be at the instance of the third party/sub-lessee. The learned Senior Counsel would further contend that when the Corporation and the Trust were at loggerheads, the Trust could not have accepted to get the lease extended beyond 30.04.1985 and while so, the Trust was not having any semblance of right to extend the sub-lease till 2028. It was further submitted that for renewal of the lease, by document dated 12.10.1973, the sub-lessee cannot fall back upon the judgment in S.A.No.1251 of 1994 and the learned single Judge rightly held that the said sublease

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dated 12.10.1973 is not valid and not binding upon the Corporation. It was further submitted that by giving a maximum leverage to the Plaintiffs, the learned single Judge rightly held that after 31.03.2008, the Plaintiffs cannot be termed as lawful lessees.

¶88

V.P. Hall Trust, the 2^nd Defendant in C.S.Nos.1036 & 1037 of 2009 did not enter appearance both in the suit as well as in these appeals.

¶89

Impleading Applications by Chennai Metro Rail - We have also heard Mr.R.Thiagarajan, learned Senior Counsel appearing along with Mr.V.Ramajagadeesn, appearing for Chennai Metro Rail Limited. Now Chennai Metro Rail proposes to locate Central Metro Station [Corridor I & II] and other allied facilities in the land belonging to Corporation leased out to V.P. Hall Trust. Stating the need for the land for public purpose, Chennai Metro Rail Limited has filed Petitions to implead itself in the Original Side Appeals.

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Before we proceed to analyse the rival contentions, it is necessary to highlight certain important aspects in the light of which the rival contentions are to be examined.

¶91

No dedication of any property to the Trust:

¶92

Contention of Appellants is that the lease in favour of the Trust was in perpetuity and the same is governed by the Trust Deed dated 18.02.1888. There is no basis for the claim of the Appellants-Plaintiffs that the property in question is the Trust property and governed by the Trust Deed. The lease deed executed between the Trustees and Corporation will clearly establish that the Corporation continues to be the owner of the property and that the Trust is only a lessee bound by the terms of the lease agreement. The ancient documents relied on by both sides indicate that Corporation continues to be the owner of the property.

¶93

The lease deed executed by the Corporation in favour of the Trust (dated 18.02.1888) contains the terms and conditions of the lease including payment of rent for the leased property and enabling the Corporation to re-enter possession in the event of violation of the terms and conditions. The documents relied on by both sides indicate that the only purpose for which the Trust was constituted was to construct a Town Hall. By a reading of the Trust Deed, it is seen that there are three parties to the document:- (i) those who have donated funds (ii) committee for carrying on the project of erecting the Town Hall and (iii) committee of Trustees. The expression used in the documents is "committee to construct and carry on the project". Absolutely, there is no dedication of any property to the Trust. Victoria Town Hall building is the Trust building; however, the ownership of the land still vest with the Corporation of Madras. Likewise, lease deed was also executed not in the name of the Trust but only in the individual names of the Trustees. The covenants in the

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lease deed calling upon the Trustees to pay rent at the rate of 8 annas per ground per annum and the covenant containing default clause with power of the Corporation to re-enter the property in the event of default would clearly show that the lease was infavour of the Trustees. Absolutely, there was no dedication of any property to the Trust.

¶96

Lease not in perpetuity:

¶97

By the lease deed dated 18.02.1888, 57 grounds was granted to V.P. Hall Trust on a lease of 99 years at the rent of 8 annas per ground per annum. At the end of the term of 99 years the lease is renewable. Grant of lease for a period of 99 years is also reflected in the Trust Deed dated 18.02.1888. The words “end of each term of 99 years” clearly shows that the the lease has to be renewed.

¶98

Onbehalf of Appellants, it was contended that the lease is in perpetuity and extendable once in every 99 years at the option of lessees and once the period of 99 years expires on 01.04.1985, Trust exercised its option for renewal of the same by its letter dated 06.10.1984 seeking extension of lease for a further period of 99 years from 01.04.1985. It was further submitted that since the lease deed dated 18.2.1888 is in perpetuity, the same was extendable for another period of 99 years from 01.04.1985 and once Trust had exercised its option for such extension, there is an automatic renewal of the lease. Reliance was placed upon (2004) 1 SCC 1 [State of U.P. and others v. Lalji Tandon (dead) through Lrs]. It was further argued that since the lease is a “lease in perpetuity”, refusal of the Corporation to renew the lease infavour of the Trust for a further period of 99 years was unjustified.

¶99

Burden of proving perpetuity of lease is on the lessee. Whether lease is “lease in perpetuity” is a mixed question of fact and law. Law does not prohibit perpetual lease. Clear and unambiguous language and intention of parties is required for inferring a lease in perpetuity.

¶100

We have carefully read the Trust Deed [18.02.1888] as well as the lease deed. The words “each term of 99 years” clearly show that the lease has to be renewed. Renewal of lease is really a grant of fresh lease. It is called “renewal” simply because it postulates the existence of a prior lease which generally provides for renewals. In all other aspects, it is only a fresh lease.

¶101

Lease deed stipulates that the rent is payable at 8 annas per ground per annum. In case of default of payment of rent and where arrears of rent is for six calendar months, the lease deed enables the Corporation to re-enter the premises after issuing notice. Lease deed also stipulates that for breach of any covenant committed or suffered the same, the Corporation is at liberty to re-enter the premises. Undertaking to pay the rent and performing of covenants coupled with

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rights of lessor/Corporation for re-entry clearly show that the lease was not in perpetuity.

¶104

Holding that if the language is ambiguous, the Court would opt for an interpretation negativing the plea of a perpetual lease, in AIR 1981 AP 328 [Syed Jaleel Zane v. P.Venkata Murlidhar and others], the Andhra Pradesh High Court held as under:-

¶105

"19. The principle that emerges from the above decision is that while in India, the law does not prohibit a perpetual lease, clear and unambiguous language would be required to infer such a lease. If the language is ambiguous, the Court would opt for an interpretation negativing the plea of a perpetual lease. The Court always leans against a perpetual renewal and hence where there is a clause for renewal subject to the same terms and conditions, it would be construed as giving a right to renewal for the same period as the period of the original lease, but not a right to second or third renewal and so on unless, of course, the language is clear and unambiguous. Now, if we examine the cases cited by the learned Counsel for the appellant from this stand-point, it would be clear that they do not lay down any contrary proposition. In F.W.Higgins v. Nobin Chander Sen (1906) 11 CWN 809, the lease deed provided.

¶106

"the lessee shall be entitled to continue to hold and possess the said premises on the conditions as reserved herein before, even after the expiry of the said period of five years and so long as he desires to do so without any interruption or hindrance on the part of the lessor. ......." (emphasis added)

¶107

In view of the clear and unambiguous language of the leasedeed, it was held, that, the lessee could not be ejected on the expiration of the original term by giving a suit notice and that he was entitled to hold and possess the premises all his life or until due surrender by him during his lifetime by means of a month's notice, as provided by the deed." (underlining added)

¶108

Observing that there is no concept of automatic renewal in (2007) 5 SCC 614 [Hardesh Ores (P) Ltd. v. Hede and Company], the Supreme Court held as under:-

¶109

"... in order to give effect to the renewal of a lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by mere exercise of option by the lessee. It is therefore, not possible to accept the submission urged on behalf of the appellantplaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease."

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¶111

Long tenancy by itself is not sufficient to hold that lease is in perpetuity. Like wise, mere fact that construction of Town Hall in the demised property is also not sufficient to raise plea of “lease in perpetuity”. Grant of fresh lease could take place only on execution of fresh lease deed. There is no force in the submission that lease is in perpetuity. In this case, admittedly, there is no document at all executed by the Corporation after the original lease deed. Therefore, there is no extension from the Corporation after 1985.

¶112

O.S.A.Nos.105 & 106 of 2011 - In the scheme suit C.S.No.98 of 1957, Appellants have filed A.Nos.1930 & 1931 of 2009 praying for:(i) reconstitution of the Board of Trustees; (ii) revesting of the properties back to the Trust.

¶113

Three requisite conditions to invoke jurisdiction under Section 92 of C.P.C. viz., (i)there is a trust created for public purposes of a charitable or religious nature;

¶114

(ii)there is a breach alleged of such trust, or the direction of the court is deemed necessary for the administration of such trust; and

¶115

(iii)the relief claimed is one or other of the reliefs mentioned in the section.

¶116

If all the three conditions mentioned above are fulfilled, the suit must be instituted in conformity with the provisions of Section 92 C.P.C., that is to say, it must be instituted either by the AdvocateGeneral or by two or more persons interested in the Trust with the consent of the Advocate-General now with the leave of the Court.

¶117

The legal position which emerges is that a suit under Section 92 C.P.C. is a suit of a special nature for the protection of public rights in the public Trusts and Charities. The scheme suit is fundamentally on behalf of the entire body of persons who are interested in the Trust. It is for the vindication of public rights. The beneficiaries of the Trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing the suit under Section 92 C.P.C. and the suit-title in that event would show only their names as Plaintiffs. A suit under Section 92 C.P.C. is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the Trust. It is for that reason that Explanation VI to Section 11 of C.P.C. constructively bars by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 C.P.C. [See: 1989(2) Suppl. SCC 356 (R.Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others].

¶118

For filing an application in a Scheme suit, applicant must have interest in the Trust. Further application must be based on the

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allegations that there is breach of Trust and that the direction of the Court is deemed necessary. In Paragraph (33) of the impugned order, learned single Judge has referred to the averments in the affidavits filed in support of the applications [A.Nos.1930 & 1931 of 2009] as to how the Appellants have only projected their personal interest and that they have not even made a formal statement as to how they are interested in the management and administration of the Trust.

¶121

Suits/Applications contemplated by Section 92 C.P.C. is representative in nature. Suits/Applications brought, not to vindicate the right of public in respect of public Trust, but to remedy an infringement of an individual right or to vindicate private right, do not fall within the ambit of Section 92 C.P.C. The Trustees have surrendered the possession of the leased property to the Corporation for future maintenance and restoration of Victoria Public Hall to its original glory and prominence. The act of Trustees in surrendering prime property to Corporation is assailed by the Appellants as invalid and an act of breach of Trust. The interest of Appellants is only to retain the property in which they have constructed hotel and not for vindication of any public rights. More so, when the Appellants are paying only meagre rent of Rs.4000/- per month for a large extent of 13 grounds and 1720 sq. ft. in prime locality in Chennai.

¶122

Learned Senior Counsel for Appellants contended that as sublessees, Appellants are to be taken as the "persons interested" in proper management of the Trust, even if it were only for the purpose of safeguarding their own lease. In support of his contention, learned Senior Counsel placed reliance upon AIR 1923 Mad. 376 [(Sri Gadicherla) Venkatanarasimha Rao Garu v. Nyapathy Subba Rao Pantulu Garu and others]; AIR 1957 Madras 597 [Ramaswami Chettiar v. Karumuthu Sivalingam Chettiar] and AIR 1972 Rajasthan 172 [Suraj Narain and another v. Mangilal and others]. It was further argued that the learned Judge erred in holding that Appellants are not persons having an interest in the Trust but are only the "persons interested" in the property of the Trust and this observation loses sight of the fact that the "persons interested" in the properties of the Trust is also vitally interested in the affairs of the Trust.

¶123

In Paragraphs [40] to [42] of the impugned order, the learned Judge has elaborately considered the decisions AIR 1957 Madras 597 [Ramaswami Chettiar v. Karumuthu Sivalingam Chettiar]; 2004 (3) SCC 137 [Sopan Sukhdeo Sable v. Assistant Charity Commissioner] and AIR 1972 Rajasthan 172 [Suraj Narain and another v. Mangilal and others] holding that those decisions are distinguishable on facts from the case on hand. We fully concur with the views of the learned Judge.

¶124

Before allowing the party to enter in the scheme suit, Court must satisfy that the Trust is a "Public Trust" and the persons who filed the applications are "interested in the Trust". Appellants

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cannot be said to be the "persons interested" in the Trust. The contention that Appellants are interested in renovating the Victoria Public Hall and that they are not disentitled to maintain the applications is a farfetched one.

¶127

As per the terms of lease agreement any construction in the leased property "should be in accordance with the Architectural and General designs and character elevation, workmanship with the Victoria Public Hall ...." Legal heirs of N.D.Gupta and Companies floated by him are running restaurants, lodging house and even a Bar. The multi-storied building palatial facade put up by N.D.Gupta as well as the Appellants cannot be said to be in accordance with the Architectural and General designs and character elevation of Victoria Public Hall. Formation of V.P. Hall Trust and construction of Victoria Public Hall was for the public purposes and for cultural and educational activities. Under no stretch of imagination, can it be said that running a hotel, Bar and commercial exploitation of the property be stated to be in furtherance of the objects of the Trust. Even admittedly, the building now constructed are not in conformity with the architectural design of Victoria Public Hall. The learned Senior Counsel for Appellants also admitted the fact that it is purely a commercial building. In view of the fact that the building does not comply with architectural design, there is violation of the original agreement itself.

¶128

Placing reliance upon the observations in S.A.Nos.1350 of 1970 and 1262 of 1971, learned Senior Counsel for Appellants contended that in the said judgment, the learned Judge has recorded the finding that lease is beneficial to the Trust. Reliance was placed upon in the following findings in S.A.Nos.1350 of 1970 and 1262 of 1971:-

¶129

“.... This lease is beneficial to the trust cannot be disputed. The lessee has to construct the building in conformity with the architectural design of the main Victoria Public Hall building. It is not alleged by the Plaintiff that the building erected by the 9^th defendant is a source of nuisance to any one. ....”

¶130

Learned Senior Counsel for Appellants mainly contended that learned single Judge did not keep in view the above findings that sub-lease and running of a hotel are only in pursuance of the the objects of the Trust.

¶131

When S.A.Nos.1350 of 1970 and 1262 of 1971 were disposed off, Appellants were running only Cafeteria catering to the needs of the people coming to Victoria Public Hall. At that time there was no multi-storied buildings nor commercial exploitation of the property. While so, Appellants cannot take advantage of the said findings recorded in S.A.Nos.1350 of 1970 and 1262 of 1971.

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¶133

As pointed out by the learned Judge when the Corporation has served eviction notice and refused to renew the licence for running Boarding-cum-Lodging House and when the Commissioner for Prohibition and Excise refused to renew FL-3 licence for running a Bar, Appellants have filed Writ Petitions in W.P.Nos.18531, 18532 and 18533 of 2009 wherein V.P. Hall Trust is also one of the Respondent. When the Appellants are so pitted against the Trust, we do not find any reason to take a different view from the finding of the learned Judge that Appellants are not "persons interested". When the Appellants are not "persons interested" in the Trust, Appellants cannot maintain the applications in the scheme suit seeking for reconstitution of the Board of Trustees.

¶134

As discussed earlier, Corporation is the owner of the property with a power of re-entry in the leased land, in case of any breach of covenants in the lease agreement. When the owner/Corporation has power of re-entry and by the resolution dated 11.03.2009, Trustees have resolved not to press for extension of lease and further resolved to hand over possession of the property to the Corporation, Appellants who are noway interested in the Trust cannot seek for revesting of the property and the learned Judge has rightly dismissed the application in A.Nos.1930 & 1931 of 2009 in C.S.No.98 of 1957. The appeals O.S.A.Nos.105 and 106 of 2011 are liable to be dismissed.

¶135

Re:contention advanced as to the findings in S.A.Nos.1350 of 1970 and 1262 of 1972:

¶136

Deed of declaration of Trust [18.02.1888] stipulates power of the Trustees to sublet, mortgage or otherwise deal with the premises as majority of the Trustees so direct. Scheme decree passed in C.S.No.263 of 1921 and the second scheme decree in C.S.No.98 of 1957 also refer to specific powers given to the Trustees to sublet, mortgage, build upon, pull down or otherwise deal with the land originally given on lease along with buildings.

¶137

The sub-lease originally granted infavour of N.D.Gupta was dated 11.07.1963 for a period of 20 years. The next Deed of lease executed by the Trustees infavour of N.D.Gupta was dated 17.7.1968 for a period of 18 years with effect from 01.04.1968 which would expire on 31.03.1986. Deed of lease also contain provision for renewal for a further period of 22 years which would expire on 31.03.2008. Challenging the grant of lease infavour of N.D.Gupta for such a long period, Corporation has filed O.S.No.2083 of 1968 seeking for declaration that the Trustees of V.P. Hall Trust are not entitled to lease out any portion of the Trust property for the purpose other than those envisaged in the Trust Deed and for consequential relief and the said suit was dismissed by the City Civil Court by the Judgment dated 17.4.1969. Challenging the same, the first appeal was preferred and the Judgment of the trial Court, first appeal was allowed. Being

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aggrieved by allowing the first appeal, N.D.Gupta and V.P. Hall Trust filed S.A.Nos.1350 of 1970 and 1262 of 1971 respectively before the High Court which came to be allowed on the findings that (i) Trustees have powers to sublet any portion of the Trust property; (ii) Usage of excess vacant land will be a source of income for the Trust and the lease is beneficial to the Trust.

¶140

Laying emphasis upon the findings in the Second Appeals [S.A.Nos.1350/1970 & 1262/1972], it was contended that Appellants became subtenants only by being the highest bidder in the public tender floated by the Trustees and so far no one has challenged the lease. It was further submitted that when the Trustees are empowered under the Trust Deed and lease deed to sublet the property, the sublease can never be said to be invalid and the findings in the Second Appeals would strengthen the case of Appellants that sublease has been validly created and the same cannot be terminated by an act of Trust.

¶141

The above contention does not merit acceptance for the reasons:-

¶142

● Lease deed dated 17.7.1968 was granted for 18 years with effect from 01.04.1968 which would expire on 31.03.1986 which is only one year later of the valid lease infavour of the Trust i.e. 30.04.1985. The said lease dated 17.07.1968 was renewable for a further period of 22 years which ofcourse would arise only in case if the Trustees would get renewal of original lease.

¶143

● At the time when the lease was under challenge in S.A.Nos.1350/1970 and 1262/1971, tenant N.D.Gupta had only one storied building and he was only running Cafeteria catering to the needs of the people who come to Victoria Public Hall.

¶144

Per contra, as on date, Appellants who are sons of N.D.Gupta are running Lodge, Hotel including Bar with multi-storied buildings. Under no stretch of imagination the findings in S.A.Nos.1350/1970 and 1262/1971 relating to Cafeteria can be extended to the present commercial exploitation of the premises by the Appellants and the Companies floated by N.D.Gupta.

¶145

Validity of sublease dated 12.10.1973:

¶146

As pointed out earlier, in the Deed of declaration of Trust dated 18.02.1888 and Deed of lease [18.02.1888], it has been specifically mentioned that Trustess will have power to sublet, mortgage or otherwise deal with the premises as majority of the Trustees shall so direct to any person on a shorter or longer periods. Contention of Appellants is that as per the Deed of sublease dated 12.10.1973, sublease has been validly created till 30.09.2028 and the same cannot be terminated by the act of Trust. Further contention of

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Appellants is that Trustees of V.P. Hall in the meeting held on 22.8.1973 passed a resolution to renew the sublease of N.D.Gupta and accordingly, a fresh lease deed was entered into between V.P. Hall Trust and N.D.Gupta on 12.10.1973 and N.D.Gupta was given permission to put up multi-storied hotel building in the land of 13 grounds and 1720 sq. ft. sublet to him. It was further argued that Deed of sublease stipulates that sublease infavour of N.D.Gupta was to be valid till 30.09.2028 and thereafter N.D.Gupta will surrender possession of the land along with all superstructures. Main contention of Appellants is that learned Judge failed to appreciate that this modified sublease dated 12.10.1973 was executed by V.P. Hall Trust only pursuant to the valid resolution passed by all Trustees on 22.8.1973 and while so, the learned Judge erred in finding that Deed of sublease dated 12.10.1973 is invalid.

¶149

Analysing the salient feature of the sublease dated 12.10.1973 on the parameters of valid sublease, the rent payable, undue favour shown to the subleasee, we find that demonstrably, sublease dated 12.10.1973 is heavily loaded infavour of the sublessee. The terms of the sub-lease are shocking. As pointed out earlier, lease deed dated 18.2.1888 granting lease of an extent of 57 grounds to the Trustees of Victoria Public Hall is for 99 years with effect from 01.04.1886 i.e. valid up to 30.04.1985. Ofcourse, the Deed of Trust enables the Trustees "to sublet". Earliest sublease granted by V.P. Hall Trust infavour of N.D.Gupta was by deed of sublease dated 11.07.1963 for a period of 20 years. Next Deed of sublease executed by the Trustees infavour of N.D.Gupta was dated 17.07.1968 which was valid for a period of 18 years and the said sublease was to expire on 31.03.1986. The initial period of sublease itself was beyond the original lease i.e. 30.04.1985. There cannot be any sublease beyond the original period of expiry of the lease viz., 30.04.1985 without a further lease deed extending the original lease by the land lord. Therefore the second sublease is not at all valid. The Deed of sublease dated 17.7.1968 also contained provision for renewal of sublease for a further period of 22 years i.e. up to 31.03.2008.

¶150

Even during the subsistence of earlier sublease [17.07.1968], the Deed of sublease dated 12.10.1973 renewing the sublease for an abnormally longer period of 55 years came into existence. Even though the leased premises is in a prime locality in Chennai between Central Railway Station and Ripon Building – Corporation Office, N.D.Gupta was given sublease at a meagre rent of Rs.250/- per month from 01.10.1973 to 30.09.1986; Rs.500/- per month from 01.10.1986 to 30.09.2008 and Rs.2500/- per month from from October 2008 to 30.09.2028. As held by the learned Judge, the sublease infavour of N.D.Gupta the terms of sublease are shocking. Pointing out the following facts and circumstances, learned Judge has held that the sublease was not a valid lease and that Deed of sublease dated 12.10.1973 is null and void.

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¶152

Admittedly, sublease for a period of 55 years from 01.04.1985 to 30.09.2028 is 43 years which is well beyond the period of original lease.

¶153

Rent payable by the sublessee was fixed for 55 years with minimal escalation.

¶154

No fresh tender was called for before so subletting the premises for such a long period of 55 years. Sub-lessee was permitted to construct multi-storied building to put up a hotel and lodging.

¶155

No permission was taken by the Trustees from the scheme Court to execute Deed of sublease for such a long period of 55 years.

¶156

The terms of sub-lease are shocking. Even during the subsistence of the earlier sub-lease, deed of sub-lease dated 12.10.1973 was executed for a long period of 55 years by virtually giving away the leased property for a pittance. For such a long sublease, increase in rent was very minimal. Absence of any fresh tender, long period of sub-lease and meagre rent with minimal increase are inbuilt instances of lack of bonafide. Sub-lease dated 12.10.1973 lacks bonafide and indefensible on facts and law. We fully endorse the findings of the learned Judge that the deed of sub-lease dated 12.10.1973 is null and void.

¶157

The renewal of sublease in document dated 12.10.1973 is for 55 years. The sub-lessee cannot fall back upon the Judgment in S.A.Nos.1350 of 1970 and 1262 of 1971 dated 23.12.1972 which findings were in the light of the facts that (i) the building was one storied building (ii) Appellants were to run only Cafeteria. Even this Cafeteria at that point of time was only conducted in the main building where a theatre was in existence and which is also for a purpose to assist the public at large who are coming to view the meetings or cinemas. Therefore that finding relates to the suit as if then prevailing which cannot be taken advantage to the present state of affairs as on date. Document dated 12.10.1973 cannot go beyond the original lease which expires on 30.04.1985. As pointed out earlier, Corporation had been pitted against the Trust by filing cases right from 1968. When the Corporation was so in loggerheads with Trust, Trust could not have expected the Corporation to renew the lease beyond 30.04.1985. In such circumstances, the Judgment in S.A.Nos.1350 of 1970 and 1262 of 1971 does not help the Appellants to claim renewal till 2028.

¶158

Whether there was conflict interest of the Commissioner:

¶159

Learned Senior Counsel for Appellants contended that Commissioner as Secretary of V.P. Hall Trust himself had executed the sublease dated 12.10.1973 and having executed the sublease dated 12.10.1973 by the Commissioner himself it is not open to the Respondents now to assail the validity of the sublease dated 12.10.1973. Contention of Appellants is that the Commissioner himself

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having executed the sublease dated 12.10.1973 now the Corporation is estopped from denying the correctness of the sublease, which is valid up to 2028.

¶162

Learned Senior Counsel for Appellants Mr.T.R.Rajagopalan has contended that the resolution dated 11.03.2009 to which such a Trustee having a conflict of interest with the Trust was a party should be rejected by the Court. In support of his contention, learned Senior Counsel placed reliance upon AIR 1923 PC 114 [Kanhaya Lal v. The National Bank of India]; AIR 1930 Mad 372 [K.Swaminatha aiyar v. Jambukeswaraswami Temple]; (1954) II MLJ 486 [Janakirqama Ayyar and others v. P.M.Nilakanta Ayyar and others]; AIR 1962 SC 633 [L.Janakirama Ayyar and others v. P.M.Vilakanta Ayyar and others]; AIR 1979 SC 671 [M.V.Ramasubbier v. Manicka Narasimhachari]; (1979) 4 SCC 602 [Shanti Vijay and others v. Princess Fatima Fouzia and others] and (2004) 9 SCC 468 [Krishna Mohan Kul v. Pratima Maity and others]. In the above said decisions, it has been held that "a person standing in a fiduciary position like a Trustee is not entitled to make a profit for himself or a member of his family and that he is not allowed to put himself in any such position in which a conflict may arise between his duties as a Trustee and his personal interest". The ratio of the above decisions cannot be applied to the case on hand for the reasons (i) the Commissioner was only a Secretary of V.P. Hall Trust and not Trustee of V.P. Hall Trust; (ii) resolution dated 11.03.2009 to which Commissioner was a party and the same was not in any way to his personal benefit.

¶163

That apart Commissioner when he executed the lease deed was not executing in his capacity as Commissioner of the Corporation. He was only executing the Deed of sublease as a Secretary of the Trust and that too, as per the resolution of the Trustees as he was the executing arm of the Trustees. When the Commissioner signs the order or lease deed he signed only as the Secretary of the Trust and as per the direction of the Trustees. But when he sits as the Commissioner in the Corporation office, he will have to independently think as to whether Plaintiffs/Applicants have got the legal right to get the licence and whether such lease is for the benefit of the Corporation and whether the lease or the sub-lease is valid and whether it is subsisting and whether the right is conferred on the parties can all be gone into in his capacity as the Commissioner. Therefore, when a person operates in a dual role his hands are not tight when he acts in a different capacity, even to go into the validity of a document in which he was a party in a different capacity.

¶164

Even if the resolution is given an interpretation as sought to be given by the Appellants, it is only beneficial both for the Trust and the Corporation. To restore its original glory and prominence, Victoria Public Hall requires renovation work estimating at the cost of Rs.10 crores. Trust cannot spend such huge amount and Chennai Corporation also cannot spend money out of its own fund, since

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the building is not owned by them. Only in furtherance of the objects of the Trust and to restore the Victoria Public Hall to its original glory and prominence, Trust resolved to hand over the possession of the building to the Chennai Corporation. Such resolution is beneficial both for the Trust as well as to the Corporation. Commissioner had no personal interest in the said surrender of the property to the Corporation. Therefore, we are of the view that there was no conflict of interest between Commissioner as Secretary of the Trust and as Commissioner of the Corporation.

¶167

Re:contention on the observation in the Writ Proceedings: On the basis of fresh sublease dated 12.10.1973, N.D.Gupta applied to the Corporation for sanction of building plan for putting up multi-storied hotel complex and the same was rejected by the Corporation leading to filing of Writ Petition in W.P.No.390 of 1978. W.P.No.390 of 1978 was allowed [21.3.1980] where the Court has directed the Corporation to grant approval to the building plan observing that the Commissioner of Corporation himself had executed Deed of sublease and that refusal of the Corporation to grant building licence to N.D.Gupta is based on the personal animosity towards N.D.Gupta. Writ Appeal No.129 of 1980 preferred by the Corporation was also dismissed by the Division Bench and SLP (Civil) No.4375 of 1980 filed before the Supreme Court also came to be dismissed by the order dated 17.04.1980. Thereafter, Government of Tamilnadu passed G.O.No.985 dated 16.11.1981 permitting N.D.Gupta to put up the building comprising of ground plus three floors in the rear portion of the property and thereafter N.D.Gupta constructed hotel in the name and style 'Picnic Hotels Private Limited".

¶168

Learned Senior Counsel for Appellants heavily relied upon the Writ proceedings and the observations thereon to contend that the sublease infavour of N.D.Gupta was upheld in more than one proceedings and that the additional constructions were put up by N.D.Gupta only with the sanction and permission of the Corporation and Government of Tamilnadu. It was further argued that V.P. Hall Trust had specifically appreciated the need of N.D.Gupta to develop and utilise the land measuring 13 grounds and 1720 sq.ft. sublet to him and the same was recognised by the recitals contained in the sublease deed dated 12.10.1973 itself and nothing was done by N.D.Gupta behind the back of the Corporation or Trust and the findings in the Writ proceedings would clearly vouchsafe the same.

¶169

W.P.No.4367 of 1975 filed by N.D.Gupta for grant of permission was on the ground that there was long delay of two years in granting the permission. In fact, there was no order of denial at all. Then, they filed application to consider their representation. The Court then directed the Corporation to consider the representation and pass orders and pursuant to that order only, an order came to be passed. Therefore, Appellants cannot fall back upon the findings in W.P.No.4367 of 1975. It is pertinent to note that the Writ

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proceedings and the orders passed thereon were when the original lease infavour of V.P. Hall Trust was very much alive and subsisting. Those findings which are now sought to be relied on cannot be relied after 30.04.1985 by which time the original lease infavour of V.P. Hall Trust itself expired.

¶172

The findings in W.P.No.390 of 1978 dated 21.3.1980 was during the subsistence of the original lease infavour of the Trustees. All the observations and the permissions granted by this Court and Government of Tamil Nadu in respect of construction in that context were when the lease was subsisting. The original lease was valid up to 1985. When these matters were referred in Court and the order was passed in 1978, admittedly, the original lessee/V.P. Hall Trust had a valid lease up to 1985. Since subletting was permitted under the lease deed, the sub-lessee will have every right to seek to improve the land. When that was denied, the Court came to the rescue of the sub-lessee. But those observations cannot be relied upon, when especially, the owner/Corporation refused to extend the lease beyond 1985 and till date when admittedly, there is no fresh lease deed after 1985.

¶173

Sublease dated 12.10.1973 – invalid:

¶174

Let us examine the Deed of sublease dated 12.10.1973 in the light of (i) the provisions of Section 36 of Indian Trust Act; (ii) Principles of justice, equity and good conscience.

¶175

As per the scheme decree in C.S.No.98 of 1957, the Trustees shall be governed by the provisions of Indian Trust Act. The object of V.P. Hall Trust is for the purposes of public meetings, educational and cultural activities as is seen from the following in the Deed of Trust -

¶176

"12. To permit the V.P. Hall with the out buildings and appurtenances thereto or any part or parts thereof to be used for any of the following purposes that is to say for any public or private meetings, exhibitions, lectures, concerts, dinners, balls, theatrical or musical performances, nautches or other entertainments and as reading writing and newspaper rooms or libraries and for any other purposes conducing to the moral, social, intellectual and physical welfare or rational recreation of the inhabitants of or visitors to Madras or any portion of such inhabitants or visitors and without reference to caste, creed or nationality in such manner and subject to such terms and conditions and rules as the Trustees for the time being of these presents shall from time to time direct or sanction." (underlining added)

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Thus the object of the Trust is for public purposes for educational and cultural activities. The enabling provision for sublease to be exercised in accordance with the object of the Trust. As discussed earlier, there was no dedication of leased property to

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the Trust. The property was leased out to the Trust for construction of "Town Hall" with power of sublease. The second part of Section 36 of Indian Trust Act, 1882 indicates "general authority of a Trustee", contains an express prohibition to the effect that no Trustee shall lease out a Trust property for a term exceeding 21 years, without the permission of the Principal Civil Court of Original Jurisdiction. Trust can grant lease for a period not exceeding 21 years only after obtaining permission of the Court. Even though, the leased property is not the Trust property, as per the terms of Scheme decree, Trustees being governed to the provisions of Trust Act are to administer the property only as per the terms of the scheme decree subject to the provisions of Indian Trust Act, 1882. Any sublease by Trustees must be in furtherance of the object of the Trust and for the preservation of the property and not to make it unproductive.

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Trustees who hold the property for the use of general public are assigned the duty to see that their acts subserve the object of the Trust. All powers vested in them are meant to be used for public purposes. Even during the subsistence of earlier lease, sublease for a longer period of 55 years is suggestive of bias favouritism and nepotism. In our considered view, Deed of sublease dated 12.10.1973 for a long period of 55 years is not in good faith and antithesis to the object of the Trust. Being Trustees, Trustees should have acted in a fair and equitable manner. Sublease dated 12.10.1973 is in clear breach of the object of the Trust. No fresh advertisement was issued calling for offers for lease for such a long period. In our considered view, the sublease dated 12.10.1973 is clearly in breach of terms of the original lease and the scheme decree.

¶181

Referring to AIR 1966 SC 878 [Madappa v. M.N.Mahantha Devaru]; 1989 Supp. (2) SCC 356 [R.Venugopala Naidu v. Venkatarayulu Naidu Charities] and 1996 (3) SCC 310 [Gowri Shankar v. Joshi Amba Shankar Family Trust], the learned single Judge held that "the Court has a duty and obligation to test whether the right claimed by third parties against a Trust, on the basis of documents executed by the trustees, is a right properly and validly acquired or not." We fully concur with the views of the learned single Judge and we endorse the same.

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Learned single Judge also referred to 1994 (1) SCC 475 [The Committee of Management of Pachayappa's Trust v. Official Trustee of Madras] wherein the Hon'ble Supreme Court held that the disposal of the public property by way of sale or lease deeds partakes the character of the Trust. The said decision pertains to a long term lease of the Trust property dedicated to the Trust. In the case on hand, the property was not dedicated to the Trust; but only leased out to the Trust for construction of Victoria Public Hall. In this case, even though, there was no dedication of the property to the Trust; but only a lease, the learned single Judge held that the ratio of the said decision is applicable to the limited extent that the Trustees are

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duty bound to act in furtherance of the objects of the Trust.

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Re:contention - Automatic renewal of the lease:–

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The lease granted to the Trust expired on 30.04.1985. After issuing notice [6.10.1984] seeking for extension of lease for 57 grounds for a further period of 99 years, V.P. Hall Trust had filed O.S.No.1349 of 1985 seeking for renewal of the registered lease deed for a further period of 99 years from 01.4.1985 and the said suit was decreed by a Judgment dated 07.4.1993. Corporation of Madras has preferred an appeal in A.S.No.334 of 1993 and the said appeal came to be dismissed and S.A.No.144 of 1997 preferred by the Corporation was also dismissed initially by non-prosecution.

¶187

Contention of the Appellants is that the lease being in perpetuity extendable by another period of 99 years from 01.04.1985 and since Trust had exercised its option for such an extension under its letter dated 06.10.1984 which was much prior to the expiry of the lease on 01.04.1985, there is an automatic renewal of lease for like a period of 99 years.

¶188

Placing reliance upon (2004) 1 SCC 1 [State of U.P. and others v. Lalji Tandon (dead) through Lrs], it was submitted that when there is renewal clause in the lease and once option for renewal is exercised, by the unilateral act of the lessee, lease gets automatic renewal and the consent of the lessor is unnecessary. In the facts and circumstances of the case, in paras 13 and 21 of its judgment, the Supreme Court held as under:-

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“13. There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease inspite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be.

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.... the exercise of option for renewal cannot be stalled on the ground that the lessor proposes to exercise the right of re-entry on account of alleged breach when no steps were taken for exercising the right of re-entry till the option for renewal was exercised by the lessee. If the lessee is in breach and the lease entitles the lessor to

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re-enter, that right is available to be exercised without regard to the renewal of the lease.”

¶193

The said decision extending the lease will not be of any assistance to the Appellants, the reason being in the instant case there is a clear term that the lease is renewable on the request of the lessee.

¶194

Considering the difference between “extension” and “renewal” of a lease and referring to Lalji Tandon case and holding that there is no question of automatic renewal of the lease, in (2007) 5 SCC 614 [Hardesh Ores (P) Ltd. v. Hede and Company], the Supreme Court held as follows:-

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“31. Having regard to these decisions we must hold that in order to give effect to the renewal of a lease, a document has to be executed evidencing the concept of automatic renewal of lease by mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellant-plaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease.”

¶196

Lease deed dated 18.02.1888 clearly stipulates for renewal as seen from the following recitals:-

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“ .... at the expiration or other sooner determination of the said term hereby granted to the lessees or Trustees for the time being of the said Victoria Public Hall at their request and cost a new lease of the premises hereby granted for a further term of 99 years commencing from the date of determination of these presents upon the same terms ......".

¶198

Emphasis is upon "make a request" and "to get the lease deed executed at their cost". In view of the clear recitals in the Deed of lease dated 18.02.1888, there is no question of automatic renewal of the lease by mere issuance of notice.

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Since emphasis upon “make a request” and “at their cost” , new lease of the premises be granted. The expression “new lease” has to be understood to replace by some “new” or “fresh thing” of the same kind i.e. to take “new lease again” or “afresh” or “to begin again”. There is no force in the contention that mere issuance of notice dated 6.10.1984, there was an automatic renewal of the lease. Unless new lease deed is executed at the cost of lessee, there is no question of automatic renewal of lease by mere exercise of option by the lessee.

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Resolution of the Board of Trustees of Victoria Public Hall Trust dated 11.03.2009:–

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In view of maintenance and renovation of Victoria Public Hall to its original glory and prominence and in order to put an end to the Court cases which are long pending before the High

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Court, on 11.03.2009, Trustees have passed a resolution resolving interalia not to press for extension of lease of the existing land of Victoria Public Hall from Government and further resolving to hand over the land and property to Chennai Corporation. After passing the resolution, Trust had entered into a Memorandum of compromise between the Corporation and V.P. Hall Trust under which Trust has handed over all the Trust properties to the Corporation and has given up their claim for extension of lease between the parties. The gist of the resolution dated 11.03.2009 are as follows:-

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a) That the Trust had resolved to surrender all its land and properties to the Chennai Corporation (as per Resolution No.1)

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b) That since the purpose of Victoria Public Hall was to hold public and private meetings, exhibitions, lectures, concerts, entertainment programmes, development of libraries and for cultural welfare etc., the Corporation cannot spend money out of its own fund since the building is not owned by it and since the land originally belongs to the Corporation, the land and all the buildings be handed over to the Corporation for future maintenance and restoration of Victoria Public Hall (as per Resolution No.2).

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c) That the Trust may be dissolved and the Government of Tamil Nadu may form a separate Trust to restore the original glory of the Victoria Hall and having similar object as that of V.P. Hall Trust (as per Resolution No.3).

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d) That the existing Trustees chosen to resign and may tender resignation of all members of the Trust so as to reconstitute the new Trustees by the Government of Tamil Nadu (as per Resolution No.3).

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e) That the Trust will hand over possession of the building to the Chennai Corporation from 01.04.2009 along with all its assets, investments, savings and amounts in banks (as per Resolution No.4).

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f) That the various sub lessees around Victoria Public Hall building like the Appellants and other should be evicted by appropriate action to be taken by the Commissioner of Corporation (as per Resolution No.4).

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g) That the total cost of renovation of Victoria Public Hall building would be arrived at Rs.10 crores and the work is to be handed over to competent Architect (as per Resolution No.6).

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h) That V.P. Hall Trust Board has authorised the Commissioner of Corporation, Chennai to work out the cost of renovation of the Hall and accordingly the cost was worked out by the Corporation of Chennai as Rs.10 crores and that the same is approved (as per Resolution No.4).

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i) That since Victoria Public Hall building is going to be handed over to the Corporation of Chennai, the

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employees appointed by the V.P. Hall Trust has to be compensated (as per Resolution No.8).

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j) That as per Section 92 of CPC of 1908, the direction of the Court is necessary for enforcing the administration of the V.P. Hall Trust and therefore the Advocate General or two or more persons and having obtained the leave of the Court and to file an application be filed before the High Court, Madras and it was resolved to engage Mr. P.S.Raman, Additional Advocate General-I, Government of Tamil Nadu to file appropriate petition before the High Court.

¶216

Steps were taken to restore S.A.No.144 of 1997 which was earlier dismissed for non-prosecution [07.11.2001]. Later, S.A.No.144 of 1997 was restored and memorandum of compromise was recorded and the compromise decree was passed.

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Onbehalf of Appellants, it was contended that Trustees abdicated their duties and surrendered possession of all the properties of the Trust including the land of 57 grounds which includes the land measuring 13 grounds and 1720 sq. ft. sublet to N.D.Gupta. It was further submitted that recording of compromise should have been done only in the Scheme suit under Section 92 C.P.C. and not independently by the Respondents [Corporation and Victoria Public Hall Trust] and hence, the compromise decree in S.A.No.144 of 1997 is nullity and Respondents cannot seek to establish any rights under the same much less the right to take possession of the Trust properties.

¶218

Much arguments were advanced assailing the very recording of compromise in S.A.No.144 of 1997. Resolution No.9 stipulates that as per Section 92 C.P.C. direction of the Court is necessary for enforcing the administration of V.P. Hall Trust and that the then Advocate General/Senior Counsel P.S.Raman to file appropriate Petition before the Court. Laying emphasis upon resolution No.9, it was contended that for recording any compromise permission of the scheme Court ought to have been obtained and while so, completely ignoring resolution No.9, the Corporation and V.P. Hall Trust colluded together in recording the compromise in S.A.No.144 of 1997. It was further submitted that Civil Court had no jurisdiction to deal with the matter/scheme suit and to record the compromise.

¶219

Contention that compromise ought not to have been recorded in S.A.No.144 of 1997 cannot be countenanced. As we discussed in the beginning of the judgment, there was no dedication of the property to the Trust. Trust was created only for construction of Victoria Public Hall. Only for the administration of the Trust, scheme was framed in C.S.No.98 of 1957. The fact remains that Corporation is lessor and V.P. Hall Trust was the lessee falling within the jurisdiction of Civil Court jurisdiction. In fact, the Trust had also filed O.S.No.1349 of 1985 seeking for renewal of the lease for another

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period of 99 years. The said suit was decreed against which first appeal preferred by the Corporation in A.S.No.334 of 1993 which also came to be dismissed. S.A.No.144 of 1997 was preferred against the said judgment and decree in A.S.No.334 of 1993. When the Trust had obtained decree for renewal of the lease in the Civil Court and when the Trust has resolved not to press for renewal of the lease, the parties have rightly approached the Civil Court for recording the compromise in S.A.No.144 of 1997. Even if the scheme Court was approached, the scheme Court would have only directed the parties to approach the Civil Court. There is no force in the contention that the Civil Court had no jurisdiction to record the compromise. As per resolution No.3, Trust was provisionally dissolved while so, it was no longer incumbent upon the Trust to approach the scheme Court to record the compromise.

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Dissolution of Trust:–

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By resolution No.3, the existing Trustees chosen to resign and it was resolved to dissolve the Trust and request the Government to form a Trust so as to restore the original glory of Victoria Public Hall. Under resolution No.4, it was resolved to hand over the possession of the building to Chennai Corporation from 01.04.2009 and it was also resolved to hand over assets, investments, deposits, savings and amount in the Current Account of V.P. Hall Trust.

¶224

Learned Senior Counsel for Appellants contended that Commissioner of Corporation was the Secretary of the Trust and both Commissioner of Chennai and Mayor of Chennai exerted great amount of influence to dissolve the Trust. It was further submitted that the Corporation colluded with the Trust and made it to pass the resolution dated 11.03.2009 to make it appear as though Trust is resigning and dissolving. It was urged that it is incomprensible as to how the Trust which is governed by the scheme decree framed by the Court can surrender all its properties and assets to the Corporation with whom they had various legal disputes which resulted in decrees infavour of the Trust and the act of relinquishment of the Trust and handing over of the properties to the Corporation is fraud upon the Court and has been done some how to help the Corporation to take possession indirectly what it could not have achieved directly. Main grievance of Appellants is that there is complete lack of bonafide in the resolution dated 11.03.2009 and the learned Judge failed to appreciate the fraud and collusion between the Respondents [Corporation and Victoria Public Hall Trust] which seriously prejudiced the rights of the Appellants.

¶225

Dissolution of Trust and Memorandum of compromise is challenged contending that it is vitiated by fraud and collusion and the resolution was not in the interest of the Trust and there is abdication of the responsibility of the Trust. Reliance was placed upon AIR 1994 Kerala 179 [C.K.Rajan v. State of Kerala and others] and

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2002 (2) CTC 527 [Rajagopal v. Balachandran and 2 other] that the Court is guardian of the Trust and whenever there is an intention to create a Trust, Court will give effect to it as the interest of the Trust will be paramount.

¶228

Referring to various decisions, in AIR 1994 Kerala 179, Kerala High Court has held as under:"In Manohar Ganesh v. Lakshmiram, (1888) ILR 12 Bom 247, West and Birwood, JJ observed:

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Civil Courts have jurisdiction to enforce trusts for charitable and religious purposes having connection with Hindu and Mohammadan foundations and to prevent fraud and waste in dealing with religious endowments, though incidentally it has to take cognisance of religious or caste questions. .....

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The state of the law in the leading legal treatises and the decisions are illuminating and they have our full concurrence. We are of the view that apart from the remedy available under Section 92 of the Code of Civil Procedure and the initiation of proceedings under Article 226 of the Constitution of Indian, the Civil Courts have got 'inherent power' to initiate action, probe into the matter and set right the abuses by a remedial action in the case of charitable and religious trusts or deities as guardian of such juridical entities. This is a 'reserve power' vested in Courts to protect the interests of persons, who, by themselves, cannot initiate proceedings and safeguard their interests. We are inclined to take such a view. But so far as this case is concerned, it is unnecessary to call in aid such power since this Court has already initiated this action under Article 226 of the Constitution of India."

¶231

The said case before Kerala High Court was a Public Interest Litigation pertaining to Kerala Guruvayur Devaswom Act where there were allegations of abuse, mismanagement, maladministration of religious/charitable trusts/deities. It was in that context, Kerala High Court has observed as under:-

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"17. ..... While the jurisdiction of the court of Chancery over charitable foundations and gifts was in general coterminous with that over trusts of every kind in one respect it had a jurisdiction peculiar to charitable trusts, in that wherever there was an intention to create a trust infavour of charity, the Court would give effect to the intention, in the first place by validating a defective gift and subsequently by reforming the trusts, if necessary so that the dehors paramount intention might be perpetually observed. This was an inherent jurisdiction not conferred by statute, and now vested in the High Court of Justice and assigned

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to the Chancery Division".

¶235

In the case on hand, there is no question of mismanagement, maladministration. Victoria Public Hall required renovation and the cost of which is estimated at Rs.10 crores. V.P. Hall Trust did not have resources to spend money for renovation. Like wise, Chennai Corporation also cannot spend money out of its own fund, since the building is not owned by them. Therefore, Trust resolved to hand over the building and land to the Chennai Corporation for future maintenance and restoration of Victoria Public Hall to its original glory and prominence. We do not find any reason to attribute malafide to the resolution. The ratio of the decision in 2002 (2) CTC 527 is also on different footing and not applicable to the case on hand. In the case on hand, we are concerned with the Trust which was formed for "construction and maintenance of Victoria Public Hall" for which scheme decree was framed.

¶236

In the light of the well settled principles, let us consider the matter. After 1963, there was no public activities like holding public meetings, cultural and educational activities in Victoria Public Hall. Without performing the obligations of the Trust, the Trust was only going on creating leasehold rights infavour of the private individuals for a long period. Between 1963 to 1968, substantial portion of the property i.e. 13 grounds and 1720 sq. ft. was given to N.D.Gupta [father of the Appellants] for a long period on meagre rent.

¶237

As pointed out by the learned single Judge even though by resolution dated 11.03.2009, Trust was actually dissolved, the objects of the Trust obliterated much earlier. Observing that the Trust failed to fulfil the purposes for which it was created, learned Judge recorded the findings as under:-

¶238

It may be that till 1963, the Town Hall and the land were put to use for the purpose for which the Trust was created and the land was leased to the Trust. But there is nothing on record to show that after 1963, the Victoria Public Hall was ever put to the public use for which it was constructed.

¶239

The objects of the Trust actually got obliterated in 1963 itself and the final obsequies for the Trust were performed in 1973 when a modified deed of sub-lease was entered into with N.D.Gupta for the period up to 30.09.2028.

¶240

On the factual findings and analysing the resolution Nos.2, 3, 4 and 5, learned Judge took the view that the resolution dated 11.3.2009 was passed on justice, equity and good conscience and held as under:-

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"It was the resolution passed on 12.10.1973, granting a sub lease up to 30.9.2028 to Mr.N.D.Gupta of a very valuable land in the heart of the City at a throw away rent, that actually drove the final nail on the coffin of the Trust.

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If the resolution passed on 11.03.2009 resolving to dissolve the Trust is viewed in this context, it would be clear that the same was based on justice, equity and good conscience."

¶244

The above findings were vehemently attacked contending that without any materials, learned Judge held that the objects of the Trust was not accomplished and the above findings are baseless and unfounded. The above contention does not merit acceptance. As elaborated earlier, between 1963 – 1968, Trust was only creating charge on the property by creating leasehold rights for a long period. Even in the averments in W.P.No.22890 of 2009, Appellants themselves have categorically averred that ".... to the living memory of Petitioners [Appellants], Victoria Public Hall building has not been used at all for any important event, for the past 50 years for any thing important". Thus even the Appellants themselves have categorically averred that Victoria Public Hall building has not been used for any important event much less for public purposes for more than 50 years.

¶245

After the resolution, eviction notice was served upon the shopkeepers which came to be challenged in a batch of Writ Petitions in W.P.No.16270 of 2009 and batch. By the order dated 04.11.2009, Justice K.Chandru,J dismissed all the Writ Petitions which came to be challenged in a batch of Writ Appeals in W.A.No.1584 of 2009 and batch. In the Writ Appeals, validity of resolution Nos.4 and 5 were attacked and the Division Bench of this Court rejected the said contention by the judgment dated 20.11.2009. When Victoria Public Hall was constructed with a noble purpose of holding public meetings particularly educational and cultural activities and when the objects of the Trust was not accomplished, to restore its original glory, the Trustees have resolved to dissolve the Trust surrendering the possession of the property to the Corporation. There is no force in the contention of Appellants alleging the collusion between the Trust and the Corporation.

¶246

When the object of the Trust was not carried into effect and when the valuable leased property was diverted for vested interest of some persons, on being satisfied with the terms and compromise and that it is beneficial for the Trust, Justice K.Raviraja Pandian,J recorded the compromise in S.A.No.144 of 1997. The contention that fraud was played upon the Court in recording the compromise does not merit acceptance.

¶247

Re-contention: Surrender of leased property to the Corporation:–

¶248

Learned Senior Counsel for Appellants contended that V.P. Hall Trust has succeeded in getting a decree from the competent Civil Court and lease stood automatically extended for a further period of 99 years with effect from 01.04.1985 and while so,

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there was absolutely no rhyme or reason given by the Trust to pass a resolution surrendering the property to the Corporation.

¶251

Placing reliance upon (1984) 1 SCC 411 [Shyam Babu v. District Judge, Moradabad and others], it was contended that subtenant inducted with the consent of the landlord is entitled to the statutory protections available to the tenants and sub-tenant has independent right. In Para 10 of the said decision, the Supreme Court held that “once it is accepted that the sub-tenancy created by the tenant-in-chief infavour of the appellant was with the consent of the landlords his possession cannot be said to be illegal”. The said case arose under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the ratio of the said decision cannot be applied to the case on hand.

¶252

Reliance was also placed upon (1987) 1 SCC 712 [Tirath Ram Gupta v. Gurubachan Singh and another] to contend that pursuant to the compromise, lessee cannot surrender part of the demised property occupied by the sub-lessee to the landlord and that sub-tenant has independent right to protect his interest vis-a-vis the landlord. The lessee has a right to transfer by sub-lease even a part of his interest in the property as provided in Section 108 (j) of Transfer of Property Act. A transferee from the lessee has a right to claim the benefit of contract to the lessee's interest, vis-a-vis the landlord [Vide Section 108 second paragraph of clause (c) of Transfer

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of Property Act].

¶254

Sec.115 of Transfer of Property Act provides that surrender of lease does not prejudice an underlease of the property or any part thereof previously granted by the lessee. What came up for consideration in Tirath Ram Gupta case was that in an eviction petition, lessee surrendered the portion occupied by the sub-lessee to the landlord while retaining the other portion in his occupation by compromise with the landlord. In that facts and circumstances of the case, Supreme Court held that while retaining the portion in his occupation, the lessee cannot surrender back the property which is in possession of the sub-lessee. The facts of the said case stands entirely on different footing. In the instant case the entire property leased to the Trust was surrendered by the resolution dated 11.3.2009 and not a portion of the property. It is pertinent to note that all other tenants vacated and the ratio of Tirath Ram Gupta case is not applicable to the case on hand.

¶255

The resolution clearly sets forth the reason for dissolution of the Trust and surrender of the demised property to the Corporation. As extracted earlier, resolution No.2 clearly states that the building needs future maintenance and that for restoration of Victoria Public Hall to its original glory and prominence, Trust is surrendering the property. The object of the Trust was to construct a "Town Hall" for public purposes and for cultural and educational activities and to

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maintain the same. When the Trust could not perform its obligations , for restoration of Victoria Public Hall to its original glory and prominence, Trust had chosen to surrender the possession. After 30.04.1985, the Appellants are in illegal occupation, and the Appellants cannot challenge the surrender of the property.

¶258

After the compromise was recorded in S.A.No.144 of 1997 and after issuing show cause notice, Corporation issued eviction notice to various shopkeepers including the Appellants. The said eviction notice came to be challenged by filing a batch of Writ Petitions in W.P.No.16270 of 2009 and batch. By the order dated 04.11.2009, Justice K.Chandru,J dismissed all the Writ Petitions which came to be challenged in a batch of Writ Appeals in W.A.No.1584 of 2009 and batch. By the judgment dated 20.11.2009, the Division Bench has dismissed all the Writ Appeals. In Paragraph 14 of the judgment, the Division Bench observed that original lease came to an end in 1985 and that the shopkeepers will not be entitled to have any right after 1985 dehors the alleged lease deed in 1973. We may usefully refer to the findings of the Division Bench which is very much relevant. In Paragraphs 14 and 16, the Division Bench held as under:-

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"14. We also heard the appellants on merits. In addition to Resolutions Nos.4 and 5 dated 11.3.2009, which we have extracted earlier, the trust had also resolved that Mr.P.S.Raman, who was then Additional Advocate General-I of Government of Tamil Nadu would be engaged to file an appropriate petition before this Court in accordance with Sec.92 of Civil Procedure Code. This is one of the main grounds of attack so far as the appellants are concerned and that is no application under Sec.92 has been filed. This scope of Sec.92 of Civil Procedure Code is not different and nothing connected with question such as the continuance of these appellants. Such an application would incorporate the subject matter of the resolution. In any event, even if licenses were granted by the 2^nd Respondent/Trust, after their lease come to an end in the year 1985, the sublease would also come to an end. .......

¶260

The learned single Judge has also observed that the appellants did not possess any lease or sublease either from the Corporation or from the 2^nd respondent Trust Board. Even if they were permitted to be in possession by the Trust Board, the original lease having expired in 1985 and there being no further continuance of lease, they were not entitled to contend that they were still under permissive occupation of place at the instance of the 2^nd respondent Trust and the Trust had agreed that appropriate action should be taken to evict the appellants who called themselves as sub-lessees of the Trust."

¶261

We fully concur with the above views that the original lease having been expired in 1985 and there being no continuance of lease, the

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Appellants are not entitled to contend that their right is to be protected.

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Validity of the compromise decree [S.A.No.144 of 1997]:– As pointed out earlier, the compromise was recorded in S.A.No.144 of 1997 and ultimately, the suit O.S.No.1349 of 1985 was decreed in terms of the Memo of compromise. Validity of the compromise decree is sought to be attacked contending that the surrender of lease hold land by the Trust to the Corporation in pursuance to the Memo of Compromise dated 15.07.2009 was fraudulent and not binding upon the sub-lessees. Onbehalf of the Appellant, it was contended that surrender of lease hold land by the Trustees and relinquishment of Trust and surrender of the property and compromise memo and decree passed thereon in S.A.No.144 of 1997 is collusive and vitiated by fraud. Contention of Appellants is that resolution dated 11.03.2009 is completely malafide and vitiated by collusion and fraud and Appellants seek to set aside the compromise decree recorded in S.A.No.144 of 1997. In support of his contention, learned Senior Counsel placed reliance upon (1986) 1 SCC 133 [Express Newspapers Limited Pvt. Ltd. And others v. Union of India and others].

¶265

It was further argued that even though, the Trust had obtained decree for extension of further period of lease of 99 years, absolutely, there was no justification of the 2^nd Respondent-Trust to surrender the property. According to Appellants, Corporation has hatched conspiracy and colluded with the 2^nd Respondent-Trust and made it appear as though 2^nd Respondent is relinquishing the Trust and handing over all its properties to the 1^st Respondent-Corporation by the so called unanimous resolution. In support of his contention, learned Senior Counsel for Appellants placed reliance upon (2005) 7 SCC 605 [Bhaurao Dagdu Paralkar v. State of Maharashtra and others]. Referring to various decisions, in (2005) 7 SCC 605, the Supreme Court held as follows:-

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“9. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rate cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. [See Vimla (Dr.) v. Delhi Admn. [AIR 1963 SC 1572] and Indian Bank v. Satyam Fibres (India) (P) Ltd. [(196) 5 SCC 550].

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A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. [See S.P.Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1].

¶269

“Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. .... An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. ....."

¶270

The same principle was reiterated in (2005) 6 SCC 149 [State of A.P. and another v. T.Suryachandra Rao] and (2007) 4 SCC 221 [A.V.Papayya Sastry and others v. Govt. of A.P. and others].

¶271

Learned Senior Counsel Mr.N.R.Chandran, appearing for the Corporation has submitted that the present condition of Victoria Public Hall is very critical which requires immediate attention for repairs and renovation. Learned Senior Counsel would further submit that if the renovation is not done within a short span, the purpose and scope of the construction of Victoria Public Hall would become futile and keeping in view the condition of the building and the huge expenditure involved, the Trustees have thought fit to surrender the lease hold right and no malafide could be attributed. As elaborated earlier, after 1963, Victoria Public Hall not put to use in furtherance of the Trust. The building was not properly maintained and the Trust was unable to maintain the same.

¶272

As per Section 77 of Indian Trusts Act, 1882, a Trust is extinguished (a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfilment of its purpose becomes impossible by destruction of the Trust-property or otherwise; or (d) when the Trust, being revocable, is expressly revoked. Thus upon fulfilment of the object of the Trust or impossibility of continuation of the Trust, the Trustees may make a declaration to that effect whereupon the Trust will stand extinguished.

¶273

The very purpose of the Trust was to construct and maintain Victoria Public Hall. The maintenance of Victoria Public Hall required huge amount about Rs.10 crores. V.P. Hall Trust had no amount much less the huge amount required for renovation of Victoria Public Hall. Chennai Corporation also cannot spend money out of its own fund, since the building is not owned by them. Objects of the Trust was to maintain Victoria Public Hall for public purposes and for educational and cultural activities. Since there was impossibility of continuation of the objects of the Trust, the Trustees chose to dissolve the Trust. As such we do not find any malafide in the resolution dated 11.03.2009 dissolving the Trust and requesting the

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Government to form a Trust to restore the original glory of Victoria Public Hall. Even though, the Trust is said to have been dissolved, the Trustees have resolved to request the Government to form a Trust. Trustees have also resolved to tender resignation of all Trustees so that the Government may reconstitute a new Trust and fully owned by the Government. Considering the resolution, in our considered view, it is not an actual dissolution of the Trust; but resignation of the Trustees and dissolution of the Trust to pave a way for forming a new Trust and reconstituting Board of Trustees. Appellants have no locus standi to challenge the resolution nor are they persons interested in the affairs of the Trust. Appellants cannot attack the resolution passed for their personal interest.

¶276

As pointed out earlier, even though the decree passed in O.S.No.1349 of 1985 confirmed by the Appellate Court to renew the lease period, lease deed was not executed. In the absence of execution of fresh lease deed, it cannot be contended that there was automatic renewal of the lease. When the lease never came to be executed, it cannot also be contended that the surrender of lease hold land is vitiated by collusion. As pointed out earlier, maintenance of Victoria Public Hall involves huge expenditure which the Trust was not in a position to meet. In the counter-affidavit filed by the Corporation, the Corporation has clearly stated that the present condition of the Victoria Public Hall is very critical and in a dilapidated condition which require immediate attention for repairs and renovation. In its counter-affidavit, the Corporation has also stated that it has estimated the cost of Rs.10 crores for renovation. For future maintenance and restoration of Victoria Public Hall to its original glory and prominence, it was resolved to dissolve the Trust; request the Government to form a new Trust and surrender the lease hold right. When the Trustees passed a resolution keeping in view the maintenance of the building and restoration of Victoria Public Hall to its original glory and prominence, Appellants who are exploiting the property for commercial purpose by putting up multi-storied buildings and running the hotel business are not justified in assailing the resolution and the compromise recorded in S.A.No.144 of 1997.

¶277

The Constitutional Bench of Supreme Court in Ratilal Panachand Gandhi v. State of Bombay and others [AIR 1954 SC 388] has dealt at length the doctrine of Cy press. Even in that case, in Paragraph (19), the Supreme Court has held that "doctrine of Cy press is to be applied in regard to the administration of public trust of a religious or charitable character". The provisions of Sections 55 and 56 of Bombay Public Trust Act, however, have extended the doctrine much beyond its recognised limits and have further introduced certain principles which run counter to well established rules of law regarding the administration of charitable Trusts. Even though the Court held when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it Cy press, that is to say, in some way as nearly as possible to that which the

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author of the trust intended is to be continued is the main reason for applying the doctrine of Cy press. But even then the State could step in only when the trust fails or is incapable of being carried out either in whole or in part. "We hold, therefore, that clause (3) of Section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of Section 56 (1) must be held to be void". Learned Judge has rightly pointed out that those provisions allowing a diversion of property belonging to a Public Trust offends the doctrine of Cy press. In this case, the State Government now decided to revive the original glory and prominence of Victoria Public Hall at a huge cost of Rs.10 crores which the Trust cannot do and further the building and the land still owned by the Corporation and what was given is only the lease. Therefore, even applying the same theory, doctrine of Cy press, the Government has now extended its arm to revive the original glory by spending the huge amount and by forming another Trust.

¶280

Learned Judge also referred to the decision reported in AIR 2002 Madras 42 [Thirumuruga Kirupananda Variyar Thavathiry Sundaran Swamigal Medical, Education and Charitable Trust v. State of Tamil Nadu and another]. In the above said decision, the Division Bench of this Court held that doctrine of Cy press would apply only where a charitable bequest fails or is incapable of being performed. As rightly pointed out, in this case the object of the Trust is not sought to be altered or where the income of the Trust is sought to be applied by Cy pres. The Trustees have only decided to request the Government to form another Trust for the purpose of restoring the original glory of Victoria Public Hall and even have stated that the Additional Advocate General to file necessary application under Section 92 C.P.C. From the reading of the resolution, it is very clear that none of the resolution would ever say to alter the very purpose of the Trust or to apply the income or property of the Trust Cy press. Therefore, the whole argument that the Government has no authority or Trustees in a way have adopted wrongly the Cy press and handed over the property to the Corporation cannot be accepted and the learned Judge has also clearly and correctly come to the conclusion that those matters [AIR 1954 SC 388 and AIR 2002 Madras 42] will not be of any relevance in so far as the parties have clear understanding and agreement that the original glory of Victoria Public Hall alone has to be restored and for which it could only be done by the Corporation/Government by forming another Trust.

¶281

Section 93 (3) of C.P.C. only empowers the use of the property of the trust for religious object in "Cy press". It will apply when the property is otherwise not capable of being used for the purposes for which the Trust has been created. Doctrine of Cy press would only apply where a charitable bequest fails or incapable of being fulfilled in accordance with the spirit or when directions of the Founder cannot be carried out for the purpose and the spirit for

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which the Trust was created. That is not the case here in the facts situation arose in the case of Thirumuruga Kirupananda Variyar Thavathiry Sundaran Swamigal Medical, Education and Charitable Trust. Applying the whole, for conducting the meeting for the use of the public and the building should be inconsonance with the Architectural designs. Now it is admitted that for the past 60 years the building has not been utilised even as per the admission of the Appellants herein. When the Trustees as well as Corporation with the avowed object to restore the glory and here come forward to spend Rs.10 crores to rebuild and maintain the same as found in the original lease deed, there is nothing wrong in Trustees handing the property to the Corporation for the fulfillment of that object. Therefore, the arguments of the learned Senior Counsel was rightly not accepted by the learned Judge and we concur with the findings of the learned Judge.

¶284

Conduct of the Appellants:– As per the resolution dated 11.03.2009, it was resolved to evict the sub-lessees around the Victoria Public Hall like Picnic Hotel Private Limited, Chinnapuri Andhra Maha Sabha. After the compromise was recorded in S.A.No.144 of 1997, eviction notices were served upon Picnic Hotel Private Limited, Chinnapuri Andhra Maha Sabha and other shop owners who were running the shops in and around Victoria Public Hall. Challenging the eviction notices, sub-lessees who were in occupation filed W.P.Nos.16270 of 2009 and Batch. By the order dated 04.11.2009, Justice K.Chandru,J dismissed all the Writ Petitions and the same were challenged by filing Writ Appeals in W.A.Nos.1584 of 2009 and Batch. By the Judgment dated 20.11.2009, the order of Justice K.Chandru,J was confirmed by the Division Bench. Challenging the eviction notice dated 28.08.2009, Appellants Rajendra Gupta and Asoka Gupta [Appellants in O.S.A.No.100 of 2011] have filed W.P.Nos.18531 to 18533 of 2009. On endorsement made, those Writ Petitions were dismissed as withdrawn on 03.12.2009. Like wise, Appellants-Sanjay Gupta and Picnic Park Hotels Private Limited [O.S.A.Nos.101 of 2011] also filed W.P.No.22890 of 2009. On 15.12.2009, the said Writ Petition was also withdrawn. Even when those Writ Petitions were pending, the suit came to be filed on 13.11.2009 and the suits were taken on file on 17.11.2009. On 18.11.2009, in the suits, Appellants have obtained an order of status quo in A.Nos.1201 & 1202 of 2009 respectively. After obtaining the order of status quo in the suit, Appellants have withdrawn the Writ Petitions. It is pertinent to note that the averments and prayer in the Writ Petitions and the averments in the suit and the prayer are identical to the same. It is to be pointed out but for the withdrawal of the Writ Petitions, Appellants would have also faced the same order in the batch matter.

¶285

Endorsement was made in the Writ Petition filed by the Appellants to the effect that the suit has been filed without prejudice to the same, Petitioners/Appellants craves leave to withdraw

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the Writ Petitions. In the endorsement, the Petitioners/Appellants prayed for withdrawal of the Writ Petition. Onbehalf of 1^st Respondent, it was submitted that dismissal of the Writ Petitions does not amount to grant of leave, but were only dismissal of the Writ Petitions simpliciter.

¶288

Drawing our attention to the dates of filing of Writ Petitions and filing of suits even during the pendency of Writ Petitions and thereafter withdrawing the Writ Petitions, Mr.N.R.Chandran, learned Senior Counsel for 1^st Respondent has contended that filing of Writ Petitions and withdrawal of Writ Petitions would amount to withdrawal or abandonment of the claim and in the absence of any liberty granted by the Court, Appellants cannot institute a fresh suit. Contending that having filed the Writ Petitions, Appellants are precluded from filing the suit, the Senior Counsel placed reliance upon (1999) 1 SCC 81 [Upadhyay and Company v. State of U.P. and others]. Considering the scope of Order 23, Rule 1, Sub-rule (3) and (4), the Supreme Court held that the bar under Order 23, Rule 1 Sub-rule (4) C.P.C. is based on public policy. The Hon'ble Supreme Court made some rule of public policy applicable to jurisdiction under Article 226 of Constitution of India in (1999) 1 SCC 81 [Upadhyay and Company v. State of U.P. and others], where the Supreme Court held as under:-

¶289

“When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again.”

¶290

Learned Senior Counsel for Appellants has submitted that withdrawal of the Writ Petitions would not in any bar to preclude the Appellants from filing the suit. It was submitted that in the Writ Petitions, the challenge is only the eviction notice; but the suit is comprehensive one challenging the resolution and the compromise decree passed in S.A.No.144 of 1997 and Order 23, Rule 1 C.P.C. is not a bar for the Appellants to institute a suit.

¶291

In (1987) 1 SCC 5 [Sarguja Transport Service v. STAT], in the interest of administration of justice, the Supreme Court extended the principle underlying Rule 1 of Order 23 C.P.C. to the cases of withdrawal of Writ Petition also, not on the ground of res judicata but on the ground of public policy. In the said decision, the Supreme Court observed as under:-

¶292

“..... It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once

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again. ...”

¶295

However, the Hon'ble Supreme Court held that while withdrawal of Writ Petition filed in the High Court without permission to file fresh suit may not bar or other remedies like a suit or a Petition under Article 32 of Constitution of India since such withdrawal does not amount to res judicata. The fact of withdrawal of Writ Petition is remedy under Article 226 of Constitution of India should be deemed to have been abandoned by the Petitioners/Appellants in respect of the cause of action relied on in the Writ Petition.

¶296

Ofcourse, withdrawal of Writ Petition may not be a bar for the Appellants to file a suit. While considering the question of grant of equitable relief and exercise of discretion, conduct of Appellants in filing the Writ Petitions and even during the pendency of Writ Petitions filing of suit, obtaining order of status quo and thereafter withdrawing the Writ Petitions have to be kept in view.

¶297

Onbehalf of Appellants it was contended that N.D.Gupta had become a sub-lessees by virtue of bidding in the public auction and sublease came to be executed and N.D.Gupta and Appellants were permitted to construct a hotel building and while so, Appellants cannot be equated to the shop owners who have been doing the business without any valid licence or sublease. It was further argued that even though, Appellants have challenged the eviction notice dated 28.8.2009, Appellants cannot be equated to the other shop vendors and therefore, the order passed in W.P.No.16270 of 2009 and batch and the W.A.No.1584 of 2009 and batch cannot be put against the Appellants. It was further argued that N.D.Gupta floated company with his family members and by obtaining permission from various authorities Appellants have constructed three multi-storied buildings which are valued at several crores and therefore, Appellants cannot be said to be placed in the similar footing as those shop keepers who did not produce any valid licence or sublease to run the shops in and around the Victoria Public Hall.

¶298

Even though, Appellants came into possession by virtue of deed of sublease infavour of their father N.D.Gupta, as discussed earlier, the main lease expired on 30.4.1985, the sublease also came to an end and the possession of Appellants is not lawful beyond 30.4.1985. As pointed out by the learned Judge under clause 6 of registered sub-lease dated 17.7.1968, Plaintiffs were obliged to surrender the superstructures to the Trust without claiming any compensation after the expiry of the initial period of 18 years from 01.4.1968 to 31.3.1986 or atleast the period of extended term of 22 years viz., 31.3.2008. Viewed from any angle, possession of Appellants are not lawful one beyond 30.4.1985.

¶299

Considering all the aspects and observing that document dated 12.10.1973 is vitiated, learned Judge held that Appellants are

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not entitled to any compensation for the superstructures. When sublease dated 12.10.1973 is vitiated, and when the term of lease itself come to an end on 30.4.1985, Appellants cannot claim any right beyond that and therefore, in our considered view, Appellants are not entitled to claim any compensation.

¶302

Whether Plaintiffs are entitled to equitable relief of interim injunction:-

¶303

Learned Senior Counsel for Appellants contended that in an application for grant of temporary injunction, Court is concerned only with prima facie case and balance of convenience and while so, learned Judge has gone beyond the scope of the application and dealt with the matter as if Court is dealing with the main suit itself. Learned Senior Counsel would further contend that learned single Judge erred in dealing with all issues arising in the suit which need to be adjudicated only after trial. Learned Senior Counsel for Appellants would also contend that Appellants have put up multistoried buildings and the Civil Engineers appointed by the Plaintiffs have arrived at the value of the buildings at Rs.5.73 crores and Rs.3.96 crores and Rs.6.08 crores respectively and if interim injunction is not granted, Appellants would be subjected to irreparable loss.

¶304

The well settled principles for granting a temporary injunction, either under Order 39, Rules 1 and 2 C.P.C. or under Section 151 of C.P.C. in favour of a party, are:- (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. Apart from prima facie case, the party seeking injunction has to establish balance of convenience and irreparable injury also. A person who seeks aid of the Court must establish prima facie case in his favour though it is not necessary for him to show at that stage a clear legal title; but must satisfy the Court that there is a fair question to be tried.

¶305

Prima facie case means that there is a serious question to be tried and that the claim of the Plaintiffs is not frivolous or vexatious. It may not be necessary for the Plaintiff to make out a clear, legal title, but he has to satisfy the Court that he has fair question to be tried. A temporary injunction would justify only if it was based on good prima facie case made out by the Plaintiff showing that in all probability he is entitled to get permanent injunction sought before going through the evidence depending on the pleadings and documents placed before the Court.

¶306

As discussed earlier, term of lease of the Trust expired on 30.04.1985. Even though, Trust had obtained decree in O.S.No.1349 of 1985, lease deed never came to be executed. In the mean while, Trust arrived at a compromise under which Trust had surrendered possession of Victoria Public Hall building and the demised land to the owner – Corporation. Therefore, possession of Appellants beyond 30.4.1985 is

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not lawful possession. Assuming the best possible for the Appellants as per the lease deed dated 17.07.1968 for 18 years i.e. till 31.03.1986 and thereafter renewable for 22 years i.e. 31.03.2008. Even assuming the best possible for the Appellants, possession of the Appellants cannot be said to be lawful possession beyond 30.04.1985 entitling them to obtain interim injunction from the Court as against the true owner – Chennai Corporation. The object of interlocutory Application is to protect the Plaintiff against the injury by violation of his right for which he could not adequately be compensated for damages. Beyond 30.4.1985 when the possession of the Appellants is not lawful possession, Appellants cannot be said to have established prima facie case to obtain an injunction against the lawful owner. A person in wrongful possession will not be entitled to protection by an injunction against the lawful owner. By the grant of interim injunction, 1^st Defendant-Corporation would not be in a position to take possession and maintain the VP Hall and the surrounding land.

¶309

Subsequent development is also relevant to be noted. Enormous amount of traffic congestion in and around the Chennai City has led both Central as well as State Government to contemplate viable solution to reduce the congestion in the traffic and to help the general public which paved the way for Chennai Metro Rail. Chennai Metro Rail Limited (CMRL) aims to provide major railway inter-linking to the suburban railway station as MRTS. First phase of Chennai Metro Rail Project is being implemented by CMRL at an estimated cost of Rs.14,600 crores. In G.O.Ms.No.148, Planning, Development and Special Initiatives (SI) Department, dated 20.11.2009, Government constituted a High Power Committee (HPC) and discussed the proposal of Chennai Metro Rail for transfer of lands of State Government departments/Boards/Corporation of Chennai both on permanent and temporary basis. CMRL proposed to locate Central Metro Station [Corridor I & II] and other allied facilities in the land belonging to the Chennai Corporation which was leased out to V.P. Hall Trust and or Government lands.

¶310

Most of the land proposed for Chennai Metro Rail Project is Government land. Government lands cater to 75% of the project land requirement and only 25% of the project land requirement is proposed on private patta lands. Land in Block No.28 in T.S.No.1269/4 in Vepery village, Fort Tondiarpet Taluk belonging to the Chennai Corporation to an extent of 2187 sq. mts was directed to be transferred and alienated to CMRL in a meeting held by the HPC on 22.07.2010 and a Government Order to that effect was passed by the Government in G.O.Ms.No.132, Planning Development & Special Initiatives (SI) Department dated 27.08.2010 and under the said order, the Secretary to Government, Municipal Administration & Water Supply Department is directed to issue necessary order of alienation of the aforesaid land to CMRL. At the time of finalising the alignment of Corridors and design of the Metro Station, an additional requirement

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of 955 sq. mts in the Corporation land occupied by Picnic Hotel has been arrived at for locating station related structures above ground. The above said land shall be utilised for Central Metro Station, ventilation shaft, ancillary building, traffic integration etc. The said requirement was approved in the III High Power Committee held on 04.01.2011. Chennai Central underground Metro Station will be vital and key interchange between Metro Rail Corridor I & II where the transfer of passengers will take place between Corridor I & II at Chennai Central Metro Station which is stated to be the complex underground station with two levels (one for each corridor). This is to ensure inter modal integration for the public which will substantially reduce the traffic congestion in the City. The subsequent events and the predominant public purpose is an important factor to be taken into consideration. If any injunction is granted infavour of Appellants that would also stall the Chennai Metro Rail Project which is aimed at developing the infrastructure of the City of Chennai.

¶313

Upon consideration of all materials in issue, the learned Judge rightly dismissed the applications declining temporary injunction. Exercise of discretion by the trial Court should not be lightly interfered with by the Appellate Court. Only if the trial Court erroneously exercised its discretion and has acted perversely without taking into consideration the entire material on record, it is the duty of the Appellate Court to interfere with the order of the trial Court. In the instant case, Appellants are in occupation of the large extent of prime property on a meagre rent of Rs.4000/- per month. Upon consideration of the facts and materials, the learned Judge has rightly held that Appellants are not entitled to get injunction and there is no improper exercise of discretion warranting interference.

¶314

M.P.No.3 of 2011 in O.S.A.No.101 of 2011 & M.P.No.5 of 2011 in O.S.A.No.100 of 2011:-

¶315

These applications have been filed by Chennai Metro Rail Limited for impleading themselves as party Respondent in the appeals O.S.A.Nos.100 & 101 of 2011.

¶316

Since we have held that 1^st Defendant-Corporation is the true owner of the property and that no injunction could be granted infavour of the Appellants as against the true owner, no further issue needs to be adjudicated by impleading the Chennai Metro Rail Limited as party Respondent in these appeals and therefore, these applications are disposed of as not necessary.

¶317

O.S.A.Nos.100, 101, 105 and 106 of 2011 - In the result, all the appeals are dismissed. The order status quo granted and periodically extended is vacated. Consequently, connected M.Ps. are closed. No costs.

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M.P.No.3 of 2011 in O.S.A.No.101 of 2011 and M.P.No.5 of 2011 in O.S.A.No.100 of 2011 – In the result, both the M.Ps. disposed of as not necessary. No costs.

¶320

bbr

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Sd/-
Asst. Registrar
//True Copy//
Sub Asst. Registrar
To
The Sub Assistant Registrar,
Original Side,
High Court, Madras
+ 1 cc to Mr. V. Ramajegadeesan, Advocate SR No.57397
+ 2 ccs to Mr. G.T. Subramaniyam, Advocate SR No.57290
+ 2 ccs to M/s. Satish Parasaran, Advocate SR No.57286
+ 2 ccs to M/s. S.R. Rajgopal, Advocate SR No.57353
RJ(CO)
SR/16.9.2011
Common Judgment in
O.S.A.Nos.100,101,105
and 106 of 2011
&
M.P.Nos.3/2011 in OSA.No.101/2011
M.P.Nos.5/2011 in OSA.No.100/2011

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Rajendra Gupta, v. the Corporation of Chennai

Case brief

What is this about?

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Rajendra Gupta, v. the Corporation of Chennai

Case brief

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What did the court decide?

What the court decided

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