IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.4.2008
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Writ Appeals No.1030, 1031 and 1465 of 1998
W.A.Nos.1030 of 1998 and 1031 of 1998:
1.The State of Tamil Nadu,
rep.by the Secretary to Government,
Revenue Department,
Fort St.George,
Chennai-9
2.The Deputy Secretary to Government,
Revenue Department,
Fort St.George,
Chennai-9.
3.The Collector of Madras,
Ezhilagam, Chepauk,
Chennai-5.
4.The Tahsildar,
Mylapore,
Chamiers Road,
Chennai-28. ... Appellants in both W.As.
Vs.
V.Krishnamurthy ... Respondent in W.A.1030/1998
The Agri Horticultural Society,
a Society Registered under the
Societies Registration Act,
31, Cathedral Road,
Madras-600086,
rep.by Hon.Secretary
V.Krishnamurthy ... Respondent in W.A.1031/1998
W.A.No.1465 of 1998:
1.State of Tamil Nadu,
rep.by its Commissioner and
Secretary to Government,
Commercial Taxes and Religious
Endowments Department,
Fort St.George,
Madras-600009.
2.The Inspector General of Registration,
Rajaji Salai,
Madras-600001.
3.The Inspector of Societies,
Seethamma Colony,
Madras-600018.
4.The District Registrar of Societies,
Central Madras,
Seethamma Colony,
Madras-600018. ... Appellants
Vs.
1.Agri Horticultural Society,
a Society registered under the
Societies Registration Act,
rep.by its Hon.Secretary,
V.Krishnamurthy,
31, Cathedral Road, Madras-600086.
2.Sri Narayanan,
Inspector of Societies (Administration),
Seethamma Colony,
Office of the District Registrar,
Central Madras,
Madras-18. ... Respondents
* * *
Writ Appeals preferred under Clause 15 of the Letters Patent.
W.A.Nos.1030 and 1031 of 1998 have been filed as against the common order dated 19.6.1998 respectively made in W.P.Nos.11058 and 11059 of 1989 by the learned single Judge of this Court.
W.A.No.1465 of 1998 has been filed as against the order dated 5.10.1998 made in W.P.No.11178 of 1989.
* * *
For appellants in : Mr.P.S.Raman, AAG-I for and
all the W.As. : assisted by Mr.D.Srinivasan, AGP
For respondents in
W.A.Nos.1030 &
1031/1998 & for : Mr.G.Rajagopalan, Senior Counsel
R.1 in WA.1465 : for M/s.Thiruvenkatasamy
of 1998
For R.2 in
W.A.1465/1998 : No appearance
* * *
COMMON JUDGMENT
ELIPE DHARMA RAO, J.
The Agri Horticultural Society was formed over 170 years back and according to the said respondent/Society, the objects of the Society are:
“(1) promotion of Agriculture, Arboriculture, Horticulture and Floriculture, including the introduction and propagation of new and useful plants to extend and improve the commercial resources of India,
(2) to maintain a Herbarium
(3) to assist members in developing their gardens/plants, manures etc.
(4) to hold competitions,
(5) to conduct annual flower show
(6) to conduct film shows etc.
(7) to conduct Seminars to promote the objects of the Society,
(8) and to undertake all other things not repugnant to the objects and rules.”
2. The said Society consists of resident, non-resident, life members, honorary and extraordinary members and the subscribing members shall consist of four classes, namely ‘life’, ‘A’, ‘B’ and ‘C’ and according to the respondent/Society, as on date, they are having 1500 members, including life members. The Governor of Tamil Nadu is the patron of the Society and the Management of the Society is vested in a Committee consisting of 20 members, Chairman, Honorary Secretary and Honorary Treasurer and Mr.V.Krishnamurthy, one of the respondents herein is the Honorary Secretary of the Society.
3. It is seen from the materials placed on record that the Government, in 1836, purchased lands in Mylapore village, Triplicane-Mylapore Taluk, Madras District, measuring an extent of C.6-18-1673 sq.ft. in O.S.No.3410 (now part of R.S.No.13) and an extent of C.4-22-226 sq.ft. in O.S.Nos.3406 (part), 3407, 3408, 3409 and 3413 (now part of R.S.No.13 and R.S.No.64), Mylapore village, Madras District was acquired by the Government and placed at the disposal of the respondent Agri Horticultural Society, for the specific purpose of maintaining an Agri-Horticulture garden. In the year 1912, another extent of C1-11-1823 sq.ft. in O.S.No.3415 part was acquired by the Government and leased in favour of the above Society on annual rent, with provision for resumption. A specific lease deed was also executed. However, owing to non-fulfilment of the condition of grant by the Society, the Government by their order in G.O.Ms.No.1362, Revenue, dated 26.3.1962 has ordered resumption of the land placed at the disposal of the Agri Horticultural Society. Challenging the said order of resumption, the Society filed W.P.No.469 of 1962. While so, in the year 1964, a compromise was entered into between the Society represented by the Secretary and the then Government of Madras, represented by the Secretary, Revenue Department and the same was communicated in G.O.Ms.No.2572, dated 26.10.1964. Thereupon, the Society has withdrawn the Writ Petition No.469 of 1962.
4. It is also seen that the Government, by a Memorandum bearing No.77668/L1/71-41, dated 25.5.1977, issued a notice to the Society, stating that there is violation of conditions of grant inasmuch as the Society has not obtained prior approval of the Government for subletting the lands in favour of the Woodlands Drive-in Restaurant. It was also stated that the sub-lease of the lands by the Society in favour of the Woodlands Hotel came to an end on 31.7.1971, but the Society permitted the Woodlands Hotel to continue to remain in the property, without the Government recognising the sub-lease. After detailed discussion with the office bearers of the Society, the Government has arrived at certain conclusions and issued G.O.Ms.N.513, dated 4.3.1980. Pursuant to the said G.O., the Society had entered into an agreement on 28.4.1980. It is relevant to extract the said agreement entered into by the Society with the Government, which reads as follows:
“(1) THE SOCIETY hereby accepts unconditionally the title of Government to the said lands.
(2) The Government hereby resume the said lands.
(3) The Government hereby make a regrant and place the said lands at the disposal of the Society on and from the date of Government order making such regrant for the purpose of carrying out the objects of the Society as per the Memorandum of Association, the Rules and Bye-laws made from time to time.
(4) The Government reserve themselves the right to resume at any time the said lands in the event of infringement of or failure to observe any of the conditions of the grant or if the lands are required for any public purposes. The decision of the Government on the question of infringement or failure to observe any of the conditions of the grant or the requirement for any public purpose shall be final and binding on the Society.
“In regard to action against the infringement of conditions of agreement, the procedure laid down in the Board’s Standing Order 24 will be followed, and a decision will be taken after obtaining the explanation of the Society for any lapse/violation of condition.”
The Society may however lease out the produce of the trees or plants standing thereon and put up hoardings without approval or sanction of the Government.
(5) The Government hereby ratify the action of the society in granting the lease of the lands and buildings more particularly and fully described in Schedule-II for running a Drive-in-Restaurant in favour of Messrs.Woodlands Hotel:
(6) The Government also permit the Society to make any further lease of the lands and buildings more particularly and fully described in Schedule I in favour of M/s.Woodlands Hotel or any other hotelier in the place of M/s.Woodlands Hotel for running drive-in-restaurant, for a period not exceeding five years at one time, and subject to the prior approval of the Government.
(7) In the event of infringement of or failure to observe any of the conditions of the lease by M/s.Woodlands Hotel or any other hotelier, the Society shall by itself or at the instance of Government take action to terminate the lease and resume possession of the lands from M/s.Woodlands Hotel or any other hotelier. The decision of Government on the question of infringement or failure to observe any of the conditions of the lease shall be final and binding on all concerned.
(8) In case where the Society fails to take action under clause (7) and resume the lands from M/s.Woodlands Hotel or any other hotelier for violation of any of the conditions of the lease, the Government shall be at liberty to resume the lands directly from Messrs.Woodlands Hotel or any other hotelier and the whole land shall on such resumption vest absolutely in the Government. In the event of such resumption either by the Society or by the Government, Messrs.Woodlands Hotel or any other hotelier shall not be entitled to any compensation whatsoever.
(9) It shall be open to the Society to claim compensation from M/s.Woodlands Hotel or any other hotelier in the place of M/s.Woodlands Hotel for use and occupation of the portion of the lands for parking cars, vehicles etc. and for use of the lands as lawns and gardens;
(10) It is hereby agreed that the regrant of the lands made by the Government in favour of the Society shall also be subject to the conditions imposed in the order of grant and the other usual conditions imposed under Board’s Standing Order 24.”
5. Thereupon, the Government, by Letter No.45135/L1/89, dated 26.7.1989, placing reliance on clause No.(4) of the above said agreement, had issued a notice to the respondent Society, seeking to resume the lands immediately, for a public purpose, which includes (a) the development of sports facilities without affecting the environment and (b) development of horticulture and horticulture research and required the Society to state as to why the Government should not resume the lands for public purposes. The said notice was challenged by the Society as well as by its Honorary Secretary Mr.V.Krishnamurthy, by filing two separate writ petitions in W.P.Nos.10167 and 10168 of 1989 before this Court, on the ground that the impugned action was initiated by the Government as a result of political vendetta, since he is closely associated with AIADMK General Secretary and also a former Minister of the AIADMK Government. A learned single Judge of this Court, considering the fact that it is only a notice to which the petitioner could very well submit his reply, has dismissed both the writ petitions, by the order dated 1.8.1989. The learned single Judge has observed as follows:
“…. The first respondent has asked the petitioner to submit a reply. As such, it is not proper for me to enter into the merits of the case at this stage. It is open to the petitioner to file his reply to the impugned notice and await final orders and I am sure that the first respondent will give an opportunity such as personal hearing to the petitioner, if the petitioner so desires, before considering the objections of the petitioner and pass orders….”
6. Immediately thereafter, on 2.8.1989, the learned counsel for the Society, addressed a letter to the Secretary to Government, Revenue Department, forwarding the reply of the Society for the notice dated 26.7.1989 and further seeking a personal hearing in the matter by giving three days advance notice. Pursuant to the said reply by the Society and letter of the learned counsel for the Society, the Commissioner and Secretary to Government, Revenue Department, by his separate letters in letter Nos.45135/L1/89-G, both dated 3.8.1989, addressed to the Secretary of the Society and the learned counsel for the Society, has intimated that the oral hearing will be held at 11.00 a.m. on Saturday, the 5th August, 1989 at the Chambers of the Secretary to Government, Revenue Department, Fort St.George, Madras-600009.
7. It seen from the materials placed on record that the learned counsel appearing for the Society has addressed a letter on the same day i.e. on 5.8.1989 to the Secretary to Government, Revenue Department, taking strong exception to the service of notice at his office by affixure on 3.8.1989, the day on which he had been to Delhi and returned back to Madras only on 4.8.1989 and also requested the Secretary to permit him to peruse the following Government Records, since they are denying the existence of any public purpose to resume the lands of the Society:
“1.The Master Plan of Madras City
2.The files (of) the Government in connection with taking decision to resume lands for certain public purpose.
3.Schemes if any drafted by the Government for developing sport activities.
4.The details of Budget allocation for the promotion of sports”
8. This Court endorses the views expressed by the learned counsel for the Society in his letter dated 5.8.1989 addressed to the Secretary to Government, Revenue Department, taking strong exception to the affixure of notice on his office door. Though it may be a mode of service insofar as parties to a lis are concerned, such procedure should not be followed in respect of the Advocates, who are the officers of the Court and the legal voices of a client before a Court of Law. We hope that the Government will avoid such unpleasant incidents, at least in future and respect the high tradition of the noble profession of advocacy, by issuing necessary strong instructions to its subordinates. Regarding the other aspects of the letter, we will deal with the same while discussing the case.
9. Thereupon, on 5.8.1989 itself, the Government has passed G.O.Ms.No.1259, Revenue (LI) Department, dated 5.8.1989, ordering resumption of the lands for the above said public purposes together with the trees, plants and superstructures, if any, found on the lands. This order is challenged by the Society as well as by its Honorary Secretary Mr.V.Krishnamurthy, by filing two separate writ petitions in W.P.Nos.11058 and 11059 of 1989. Thereupon, on 2.8.1989, the District Registrar/Registration of Societies, Central Madras, had issued a show-cause notice in his proceedings No.12604/Ma.P/88, dated 2.8.1989 under Section 37 of the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975), regarding nine charges mentioned therein. Challenging the said show-cause notice, W.P.No.11178 of 1989 was filed by the Society.
10. In all these writ petitions, the main thrust of the writ petitioners, who are the respondents herein, is that the Honorary Secretary of the Society Mr.V.Krishnamurthy, is a family friend of AIADMK General Secretary Ms.Jayalalithaa and also the relative of Mr.K.K.S.S.R.Ramachandran, the former Minister in the earlier AIADMK Government and hence all these proceedings are initiated by the Ruling DMK Government, only as a political vendetta. He has also narrated many incidents, including registration of a criminal case against him, wherein he obtained anticipatory bail from this Court. It is also stated that he is running a Car Rental Service at the Madras Airport under the licence granted by the International Airport Authority of India and the politicians belonging to the Ruling Party instigated the Yellow Taxi drivers to attack the car rental service run by him and also gave instructions to the Police not to take any action, if any complaint is lodged by him. It is also stated that he is running an Advertising Agency called Meena Advertisers and was getting advertisements from the Government regularly and in order to deprive him of the business, the Government decided to form a Corporation and accordingly formed a Corporation. He further stated that he was granted permission to ply Air-conditioned buses from Madras Airport to City by the Airport Authority and the Government did not grant contract carriage permits and hence he filed W.P.No.9396 of 1989, wherein a direction was issued to the Government to pass orders within four weeks. It is further stated that the impugned order of resumption was prepared well in advance by the Secretary, lest, it would not have been possible for him to pass the orders within three hours thereafter. Many other incidents have also been pleaded by the Society and its Secretary, stating that all such incidents would prove the pre-decided mind of the Government and the unnecessary haste exhibited on the part of the Government.
11. The learned single Judge, while accepting the plea raised by the Society and its Secretary that the entire actions of the Government are vitiated, since being mala fide and having been initiated as a result of political vendetta, has allowed all the writ petitions filed by the Society and its Secretary. Aggrieved, the Government has preferred all these appeals.
12. Much has been argued by the learned senior counsel appearing for the respondent/Society and its Secretary Mr.V.Krishnamurthy before us also that the entire actions of the Government are vitiated since being the result of political vendetta. In support of his arguments that if the acts of the Government are as a result of malafide and as a result of political vendetta, the same are liable to be set aside, the learned senior counsel has cited the following judgments, including the ones already cited before the learned single Judge:
1. SECRETARY, JAIPUR DEVELOPMENT AUTHORITY, JAIPUR vs. DAULAT MAL JAIN AND OTHERS [(1997) 1 SCC 35],
2. EXPRESS NEWSPAPERS PVT.LTD. AND OTHERS vs. UNION OF INDIA AND OTHERS [AIR 1986 SC 872],
3. THE COLLECTOR (DISTT.MAGISTRATE), ALLAHABAD AND ANOTHER vs. RAJA RAM JAISWAL [AIR 1985 SC 1622],
4. STATE OF ASSAM AND OTHERS vs. M/s.BANSHIDHAR SHEWBHAGAAN & CO. [AIR 1981 SC 1957],
5. THE STATE OF PUNJAB AND ANOTHER vs. GURDIAL SINGH AND OTHERS [AIR 1980 SC 319],
6. RAM MANOHAR LOHIA vs. THE STATE OF BIHAR AND ANOTHER [AIR 1966 SC 740],
7. S.PARTAP SINGH vs. STATE OF PUNJAB [AIR 1964 SC 72] and
8. THE STATE OF PUNJAB vs. RAMJI LAL AND OTHERS [AIR 1971 SC 1228].
13. The learned senior counsel would also argue that there is no material on record to show that there is a proposal for setting up a sport complex or horticultural centre and thus there is no legal satisfaction by the Government regarding existence of public purpose and hence the impugned resumption sought is a non-existing public purpose. In support of his contentions, the learned senior counsel would rely on the following judgments:
1. BARIUM CHEMICALS LTD. AND ANOTHER vs. COMPANY LAW BOARD AND OTHERS [AIR 1967 SC 295] and
2. SWADESHI COTTON MILLS ETC. ETC. vs. UNION OF INDIA ETC. ETC. [AIR 1981 SC 818].
14. Regarding his argument that the clause in the agreement cannot prevent the writ petitioner from challenging, if the action of the Government is arbitrary and clause relating to finality of the Government opinion in regard to public purpose is unenforceable on the ground of public policy and if the action is arbitrary, it can be challenged, the learned senior counsel for the respondents herein would cite the following judgments:
1. MADDALA THATHAIAH vs. UNION OF INDIA OWNING THE M&S.M. RAILWAY [1956 (2) MLJ 584],
2. CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. AND ANOTHER vs. BROJO NATH GANGULY AND ANOTHER [AIR SC 1571],
3. EDWARD KEVENTERS (SUCCESSORS) P.LTD. vs. UNION OF INDIA ETC. [AIR 1983 DELHI 376],
4. L.I.C. OF INDIA AND ANOTHER vs. CONSUMER EDUCATION AND RESEARCH CENTRE AND OTHERS [AIR 1995 SC 1811]
5. ALUMINIUM INDUSTRIES LTD., MADRAS, REP.BY ITS COMMERCIAL MANAGER LABOI, MADRAS-18 vs. MINERALS & METALS TRADING CORPORATION OF INDIA LTD., 7, CHENNAI HOUSE, ESPLANADE, MADRAS-1, REP.BY ITS ZONAL MANAGER AND 2 OTHERS [1997 (II) CTC 636]
6. HARBANSLAL SAHNIA AND ANOTHER vs. INDIAN OIL CORPORATION LTD. AND OTHERS [AIR 2003 SC 2120].
15. On the other hand, the learned Additional Advocate General, appearing for the State would justify the actions of the Government and would submit that since there are violations to the lease conditions by the allottee, and since the lands are required for a public purpose, the Government, after complying with all the formalities and in due compliance of the principles of natural justice, had issued the impugned proceedings, for which the Society and its Secretary are trying to give a political colour, so as to gain sympathy from the Court, which should not be allowed by this Court. The learned Additional Advocate General would also submit that the party who is making allegations of mala fide should prove them and that the Court cannot interfere with the choice of land to be required for a public purpose, unless some mala fide is shown and proved and that judicial review is not against the decision but against the decision-making process. In support of his contentions, the learned Additional Advocate General would rely on the following judgments:
1. E.P.ROYAPPA vs. STATE OF TAMIL NADU AND ANOTHER [AIR 1974 SC 555],
2. STATE OF PUNJAB AND ANOTHER vs. GURDIAL SINGH AND OTHERS [(1980) 2 SCC 471],
3. SHEO NANDAN PASWAN vs. STATE OF BIHAR AND OTHERS [AIR 1987 SC 877],
4. SRINIVASA COOPERATIVE HOUSE BUILDING SOCIETY LTD. vs. MADAM GURUMURTHY SASTRY AND OTHERS [(1994) 4 SCC 675],
5. INDER PARSHAD vs. UNION OF INDIA AND OTHERS [(1994) 5 SCC 239],
6. MISBAH ALAM SHAIKH vs. STATE OF MAHARASHTRA AND ANOTHER [(1997) 4 SCC 528],
7. W.B.HOUSING BOARD AND OTHERS vs. BRIJENDRA PRASAD GUPTA AND OTHERS [(1997) 6 SCC 207],
8. M.C.MEHTA vs. UNION OF INDIA AND OTHERS [(1999) 6 SCC 237],
9. STATE OF PUNJAB vs. V.K.KHANNA AND OTHERS [(2001) 2 SCC 330],
10. UNION OF INDIA AND OTHERS vs. KANNADAPARA SANGHATANEGALA OKKUTA & KANNADIGARA AND OTHERS [(2002) 10 SCC 226],
11. CHAIRMAN & MD, BPL LTD. vs. S.P.GURURAJA AND OTHERS [(2003) 8 SCC 567],
12. AJIT KUMAR NAG vs. GENERAL MANAGER (PJ), INDIAN OIL CORPORATION LTD., HALDIA AND OTHERS [(2005) 7 SCC 764],
13. ASHOK KUMAR SONKAR vs. UNION OF INDIA AND OTHERS [(2007) 4 SCC 54] and
14. BANK OF INDIA AND OTHERS vs. T.JOGRAM [(2007) 7 SCC 236].
16. We have considered all the facts and circumstances of the case and the arguments advanced on either side, in the light of the judgments cited above.
17. The fact that the lands belonging to the Government were given on lease to the Society for the specific purpose of maintaining an Agri-Horticultural garden cannot be disputed and even by the Agreement dated 28.4.1980, the Society has unconditionally accepted the title of the Government to the said lands. Though it is contended in the affidavit of the writ petitioner that the Society had no other option, except to accept the said conditions imposed on them by the Government, the title of the Government to the said lands was not challenged or questioned by the Society at any point of time before any forum of law. Further more, it was never explained by the respondents as to how they became the owners of the lands in question. Therefore, the said contention raised by them remains merely as a contention raised for the purpose of the cases, without being substantiated by any material to show that the Government was never the owner of the lands in question. Even the said agreement or any of its conditions, was not challenged by the respondent/Society. Further more, an interesting factor to be pointed out is that when the Government has only allotted the lands on lease for the respondents/Society and when admittedly, the respondents have not purchased the said lands from the Government or that the lands were assigned or delegated to the respondents by the Government, the stand taken by the respondents/Society disputing the very title of the Government, as could be seen from the averments of the affidavit, cannot be appreciated. Therefore, there is no hesitation for us to hold that the respondents themselves have accepted the title of the Government to the said lands by the agreement dated 28.4.1980 and rest of the allegations regarding the very title of the Government to the lands in question are invented for the purpose of these cases.
18. As could be seen from clause (4) of the agreement dated 28.4.1980, the Government has reserved the right to resume at any time the lands in the event of infringement of or failure to observe any of the conditions of the grant or if the lands are required for any public purposes and that the decision of the Government on the question of infringement or failure to observe any of the conditions of the grant or the requirement for any public purpose shall be final and binding on the Society. Thus, there cannot be any dispute or quarrel with regard to the power or authority of the Government in issuing the impugned proceedings for resumption of the lands, being the owner of the lands.
19. As has already been pointed out supra, the entire averments and the arguments advanced on the part of the respondents/Society revolves around the point that the impugned actions have been initiated by the Government, since the respondent Mr.V.Krishnamurthy is the family friend of Ms.Jayalalithaa and that he is also related to one of the former Ministers of the AIADMK Government. On a perusal of the entire materials placed on record, relied on by either side, we are able to see that the AIADMK Government, with which, it is said by the respondent that he is closely associated with, itself has initiated proceedings against the respondent Society to maintain the land as a modern park like the Botanical Garden at Ooty, in order to develop the chief objectives of horticulture. As a matter of fact, it is also brought to the notice of this Court that Mr.K.K.S.S.R.Ramachandran,the former Minister of AIADMK, with whom, it is said that the respondent Mr.V.Krishnamurthy is related and which is the cause for initiation of the entire impugned action of the Government, has thereafter joined DMK and at present is a Minister in the present Government. Therefore, the politcal vendetta pleaded by the respondents is no more a good ground for them.
20. It is the common knowledge of anybody that if any action is initiated by the Government against a person, normally, people will resort to indulge in throwing of such allegations of political vendetta against the Government, so as to gain sympathy from the Court of law. There is no doubt that there will be cases, where the power vested with a authority, will be misused so as to deprive a due to a political opponent or to favour an unqualified loyalist. Therefore, when such allegations are made, as has been held by the Honourable Apex Court, in the above cited judgments on the part of the learned Additional Advocate General, the burden of proving the same squarely lies on the person, who is making such allegations.
21. On a scrutiny of the entire materials placed on record, in the light of the vehement arguments advanced on either side, we are unable to accept the plea raised on the part of the writ petitioners/respondents herein attributing mala fides to the actions of the Government. There is no doubt that the Government is the owner of the lands, which are now sought to be resumed by them for a public purpose. When the respondents have challenged the action of the Government, in issuing the show-cause notice, and complained that the principles of natural justice have not been followed by the Government, this Court, by the order dated 1.8.1989 in W.P.Nos.10167 and 10168 of 1989, while dismissing the writ petitions, has observed that an opportunity of personal hearing be given to them. Accordingly, on receipt of the reply from the respondents, the Commissioner and Secretary to Government, Revenue Department, by his communications dated 3.8.1989, addressed both to the Secretary of the Society and to the learned counsel appearing for them, has fixed the oral hearing on 5.8.1989. On that day, the learned counsel appearing for the respondents/Society has given the letter dated 5.8.1989, seeking permission to peruse the following Government records:
“1.The Master Plan of Madras City
2.The files (of) the Government in connection with taking decision to resume lands for certain public purpose.
3.Schemes if any drafted by the Government for developing sport activities.
4.The details of Budget allocation for the promotion of sports”
22. The contention of the respondents is that neither any order has been passed on such a representation of the respondents nor they were permitted to peruse the said documents. Coming to the point of relevance of these documents, it is to be pointed out that it is only a point of resumption of the land by the owner, i.e. the Government, and not an acquisition of the lands belonging to the respondents, so as to say that the purpose of the acquisition must be made known to the owner of the land. It is to be pointed out that it is not for the respondents/Society to decide whether the public purposes proposed by the Government could co-exist or not. In the agreement in clause (4) itself, it has been agreed by both the parties, that the resumption of the land by the Government for public purpose shall be final and binding on the Society. Even though it is contended on the part of the Society that such unilateral induction of the clauses will not prevent them from challenging the action of the Government, since, as has already been observed supra, the Society never questioned or challenged any of the clauses of the agreement, now it is not open for them to go beyond the agreement itself and a legal presumption would arise that such contentions/arguments are invented for the purpose of the case. The documents sought to be perused by the learned counsel for the Society are all the matters of policy of the Government and when the action of the Government to resume the lands for a public purpose is binding on the Society according to the agreement entered into by them and when the Government has produced abundant material before this Court that they are resuming the lands for the stated public purpose and for violation of terms and conditions of the lease by the Society, we are unable to agree with the contention of the learned senior counsel for the respondents/Society that they are deprived of making a proper representation to the authorities concerned. Having regard to the nature of the documents sought to be perused also, we are unable to say that any prejudice has been caused to the respondents/Society by not allowing them to peruse them. Further, when the public purpose has already been explained to the respondents/society in the impugned notices itself, in the considered opinion of this Court, no prejudice has been caused to the respondents/Society in not permitting them to peruse those documents. Regarding the contention of the respondents that no orders have been passed by the Authority concerned on such of the representation of their counsel, in view of the above stated reasons, it cannot be called as an illegality, but, at the most, be called only as an irregularity, which will not vitiate the actions of the Government.
23. Even with regard to the compliance of principles of natural justice, in view of our above detailed discussion, we hold that adequate and sufficient opportunity has been afforded to the respondents/Society by the Government. The learned counsel for the respondents/Society by his letter dated 2.8.1989 has sought for personal hearing in the matter, by giving three days advance notice. Accordingly, by the communication dated 3.8.1989, the Government has fixed the date of personal hearing as 5.8.1989, which was also found fault with by the respondents, as if no sufficient time was given to them, which we are not able to appreciate. RSO 24 lays down that the Government lands, placed at the disposal of a person, an Institution or a Local Body can be resumed, if in the opinion of the Government, the land is required for a public purpose and and it does not envisage issue of any notice to the grantee to show-cause against such resumption of land already granted and under possession of the grantee for public purpose. In spite of such being the position, in due compliance of the principles of natural justice, a show-cause notice was issued by the Government, which cannot be permitted to be commented upon, other way round, by the respondents.
24. The Chief Secretary of the State has filed an affidavit, dated 31.3.2008 before us. The relevant portions are extracted hereunder:
“5. When the original impugned orders were passed, the stated public purpose and intention of the State was for the development of Horticulture and Horticultural Research as well as the development of some sport facilities in the resumed land without affecting the environment in any manner.
6. The requirement of parks and lung spaces in the city are only more extremely required today than ever before. The State is no longer considering any sports facility inside the subject land other than possibly some outdoor activity like walking, jogging or other recreational activities, which will not involve any construction activity. Main emphasis shall remain only agri-horticultural purpose, as was the original intention.
7. …. In this regard, the Government is desirous of converting the entire area of approximately 320 grounds (approximately 18 acres) into a Botanical Garden and a Horticultural Research Centre, particularly to set up Green Houses for developing rare species of medicinal and non-medicinal plants and flowers….
8. …. It may be relevantly stated here that as a part of its on-going commitment to provide Chennai with environment friendly schemes, the State Government has already sanctioned a sum of Rs.100 Crores for the restoration of the Adyar Estuary by establishment of the Adyar Poonga Trust, a Scheme which has been approved of by this Hon’ble Court.
9. In respect of the present case, the State confirms its readiness and willingness to fund the scheme mentioned above in respect of the subject lands and on completion, the said park will be entrusted either to the management of a separate entity as in the case of Adyar Poonga or with the Corporation of Chennai.
10. The State also proposes to join the two blocks of land on either side of the Cathedral Road through both an over-head vestibule as well as an underground tunnel so that visitors can use both properties without needing to cross the busy road section.”
25. For this, the learned senior counsel for the respondents would submit that public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself and therefore, would argue that the subsequent affidavit filed by the Chief Secretary of the Government is of no help to the case of the appellants/Government. For this purpose, he would rely on a judgment of the Honourable Apex Court in BHIKHUBHAI VITHLABHAI PATEL AND OTHERS vs. STATE OF GUJARAT AND ANOTHER [2008 (2) SUPREME 548], wherein it has been held as follows:
“…. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself.”
26. There is no quarrel with regard to the proposition laid down by the Honourable Apex Court and transparency is required in all the public actions of the Government. In the case on hand, in the impugned notices itself, the Government has mentioned the purposes for which the land is required and therefore, it cannot be said that the Government has not applied its mind, as has been wrongly argued on the part of the respondents/Society. When the Government, in the capacity of the owner of the lands, required the lands for the stated public purpose and had also found misuse of the lease by the allottee, we cannot find fault with the actions of the Government.
27. It is also to be mentioned that without prior permission of the Government, the Society has sublet the property to the Woodlands Drive-in Restaurant and as a matter of compromise, the Government has ratified the action of the Society and even thereafter, they have extended the term of the Restaurant for another five years time, for which the permission of the Government was not obtained. It is also brought to the notice of this Court that the respondent/Mr.V.Krishnamurthy is running the Society, as if it is his personal property and since many allegations of misappropriation of funds have been made against the Society, the District Registrar has initiated proceedings under the Tamil Nadu Societies Registration Act. When such serious allegations have been made against the Society, the learned Judge has simply proceeded based on the unfounded allegations of mala fide and political vendetta and had allowed the writ petitions filed by them, ignoring the public purpose sought to be achieved by the Government by resuming such lands. Many violations like erecting the huge hoardings in the land and cementing the floor, without the permission of the Government have also been noted by the Chief Secretary in his affidavit. It is also seen that the only horticultural activity is the nursery being run by the respondent Society in the 22 grounds of land belonging to them and therefore, even if the lands in question are resumed by the Government, the said activity of the Society will not be affected. No progress of any sort has been shown for the last 20 years regarding the Society by the respondents, except saying that they are conducting flower shows by spending a minimal amount of Rs.5,000/= per annum. It is but incidental here to mention that a serious allegation has been made against the respondents that having collected huge sums of money towards conducting flower shows, by misappropriating the same, only a meagre sum was spent by the Society and its Honorary Secretary, which needs a probe by the competent authority.
28. It is pertinent to note here that as per the B.S.Orders, the Governments lands are to be given on lease to poor persons in consonance with the Directive Principles of State Policy, who are suffering without shelter on their head for generations together and since the respondents/society is already having some lands and since there are materials on record to show that they are using only that part of the land for Horticultural activities and the land leased out by the Government is being used for the personal business of the Honorary Secretary of the respondent Society viz. Mr.V.Krishnamurthy for running his rent-a-car business and an advertisement agency under the name and style of Meena Advertisers, we cannot find fault with the proceedings initiated by the Government to resume the land. Even in the affidavit, Mr.V.Krishnamurthy has stated that he is owning the car business and advertisement business. Considering the fact that the land was already taken possession by the Government, we hope that the Government will respect the affidavit filed by the Chief Secretary in using the land for public purpose. Though the sublettee Woodlands Drive-in Restaurant is not a party to these proceedings, but he is also bound by this judgment, since the respondent/Society, who has sublet the property to the said Restaurant, himself has no power to sublet the property, without the permission of the Government and no such permission was granted by the Government and therefore when once we hold that the resumption is valid, automatically the sublettee is also liable for vacating the premises and therefore, the Government is directed to resume the total extent including the land given on subletting, except, of course, the lands owned by the Society, having been purchased by them under valid sale deeds.
29. It is also to be placed on record that all these writ appeals were dismissed as withdrawn on 21.12.2004, since the then Government Advocate has endorsed to permit him to withdraw the above appeals. A letter in Roc.No.393 of 2004, dated 21.12.2004, addressed by the then Advocate General to the Special Government Pleader, stating that since he received instructions from the Government to withdraw the above cases, necessary steps may be taken to withdraw the appeals. After dismissal of these appeals as withdrawn, the Government has issued G.O.(Ms)No.196, dated 3.3.2006, deciding to hand over the lands measuring 13 Cawnies, 4 grounds and 1262 sq.ft. in Mylapore village, Mylapore-Triplicane Taluk, which were resumed pursuant to the impugned G.O.Ms.No.1259, Revenue Department, dated 5.8.1989, back to the respondent/Society. Thereafter, W.A.M.P.Nos.1685, 1686 and 1689 of 2006 were filed by the Government, seeking to condone delay of 567 days in filing the restoration petition to restore the appeals No.1030 and 1031 of 1998 and condone the delay of 594 days in filing the restoration petition to restore W.A.No.1465 of 1998. It has been categorically averred by the Government in those petitions that never they have given any instructions to the Advocate General to withdraw the appeals. It is also stated that even though G.O.Ms.No.196, Revenue Department, dated 3.3.2006 was issued ordering to hand over the land back to the respondent Society, the same was kept in abeyance in response to the general circular letter No.1920/2006-29, dated 6.3.2006 of the Public (Elections III) Department, in and by which all the orders passed on and from 1.3.2006 were to be reviewed in view of the Election Model code of Conduct. Considering the said aspect, all these appeals were restored to file by the order of this Court dated 14.4.2007. By this also it is clear that the Government is keen in developing this property for a public purpose.
30. When the Competent Authority, the District Registrar, having noticed serious violations, has initiated enquiry proceedings, the respondent/Society, without answering the queries pointed out by the Authority and without exhausting the remedies available to them under law, has approached this Court by way of a Writ Petition No.11178 of 1989 and unfortunately, the same was also allowed by the learned single Judge, on the ground of unfounded allegation of political vendetta, thus nipping the enquiry at the budding stage itself. In view of the above factual matrix of the case, the judgments cited on the part of the learned counsel for the respondents cannot augment their case and thus are not applicable to the facts of the case on hand.
31. The Government has power to resume the land and the allegations of political vendetta are invented for the purpose of the case, and in the absence of any substantive proof or material on record to prove the same, the learned single Judge should not have gone into that aspect and given much weightage to it. But, unfortunately, the learned single Judge has fell into the ferry of the Society and instead of rejecting the said allegations of political vendetta, has entertained the same and given undue advantage to the same.
32. For all these reasons, we find force in the contentions raised on the part of the Government and we find no political vendetta, that too capable of vitiating the genuine proceedings initiated by the Government, after complying with all formalities and complying with the principles of natural justice and the contention of the Government that the lands are required for a stated public purpose is also well established.
33. In view of our above discussions, the following conclusions would emerge:
(1)The political vendetta, pleaded by the respondents/Society is unfounded and invented only for the purpose of the case, as a result, a simple case of resumption of Government land for a public purpose and for violation of the terms and conditions of the lease has been given a political colour and tried to gain sympathy from the Court. When from the materials placed on record, this Court is able to appreciate that the AIADMK Government, with which, it is said by the respondent that he is closely associated with, itself has initiated proceedings against the respondent Society to maintain the land as a modern park like the Botanical Garden at Ooty, in order to develop the chief objectives of horticulture and further, in view of the changed political scenario that Mr.K.K.S.S.R.Ramachandran, whose relationship/association by the Honorary Secretary of the respondent Society Mr.V.Krishnamurthy was alleged to have prompted the ruling DMK Government to initiate the impugned proceedings against the Society, himself has joined the DMK and is a Minister in the present ruling Government, the said political vendetta pleaded on the part of the respondents/Society is no longer a good ground for them.
(2) The Government is the absolute owner of the lands in question, which has been admitted by the respondents themselves by the unchallenged agreement dated 28.4.1980 and therefore, the Government has got power to resume the lands including the lands in the occupation of the Woodlands Drive-in Restaurant and also recover the rents paid to Society from the date of such unauthorised sub-lease since the sublease in their favour itself is illegal. The Government is entitled to resume the land not only for the stated public purpose but also because of violation of the conditions by the Society, such as usage of land for running the personal business of the respondent Mr.V.Krishnamurthy and for subletting the property, without permission from the Government to the Woodlands Drive-in Restaurant, etc.
(3) As has already been observed supra, the Honorary Secretary of the respondent Society viz. Mr.V.Krishnamurthy has proudly stated in his affidavit that he is running a car rental company and also an advertising agency and also made unfounded allegations against the Government that even though the Aviation Authorities have granted him the permission to run the vehicles, the Government did not permit him to do so. Thus, it is clear that he is making use of the Government lands for his personal use and enjoying the vast extent of the land situated in the heart of the city, for his personal gains, without paying any single pie to the Government. Therefore, the Government is also entitled to recover the amounts derived by the said Mr.V.Krishnamjurthy, Honorary Secretary, by illegally making use of the Government lands for his personal gains that too for his commercial purposes, by way of rent etc.
(4) It is also brought to our notice that after passing the impugned order, the possession of the suit schedule land was taken by the Government in 1989 itself, from that the lands were in the possession and enjoyment of the Government and because of the pendency of these proceedings, they are not able to proceed with the proposed developmental activities in the said lands. In view of our above categorical findings, now the Government is at liberty to make best use of the lands for the public purpose.
(5) Adequate and sufficient opportunity was afforded to the respondents/Society by the Government, in due compliance of the principles of natural justice, even though RSO 24 did not envisage issue of any notice to the grantee to show-cause against such resumption of land already granted and under possession of the grantee for public purpose and the alleged non-perusal of the documents of the Government by the respondents, which are the matters of policy of the Government, did not cause any prejudice to their case.
(6) As has already been observed supra, this Court endorses the views expressed by the learned counsel for the Society in his letter dated 5.8.1989 addressed to the Secretary to Government, Revenue Department, taking strong exception to the affixure of notice on his office door. Though it is a recognised mode of service insofar as parties to a lis are concerned, such procedure should not be followed in respect of the Advocates, who are the officers of the Court and the legal voices of a client before a Court of Law and therefore, we hope that the Government will avoid such unpleasant incidents, at least in future and respect the high tradition of the noble profession of advocacy, by issuing strong instructions to its subordinates, not to repeat such things at least in future.
With such observations, the W.As.No.1030/98 and 1031/98 are allowed and W.A.1465/98 is dismissed as not pressed. The orders passed by the learned single Judge are set aside. No costs. Connected Miscellaneous Petitions are closed.
Rao