@JUDGMENTTAG-ORDER
N. Paul Vasanthakumar
1. These writ petitions are filed by the petitioners, who are claiming to be in possession and enjoyment of certain areas of land either as a Lessee or continuing in possession after the period of lease was over doing their business in the subject property, which was granted by the Government to Raja Sir Ramaswamy Mudaliar Choultry through two Government Orders issued in G.O.Ms. No. 534 Revenue Department, dated 6.8.1888 and G.O.Ms. No. 812 Revenue Department dated 22.11.1988, by the impugned order issued in G.O.Ms. No. 168 Revenue Department, dated 21.5.2012 and the consequential proceedings issued by the Tahsildar, Fort Tondiarpet Taluk, Chennai-3, dated 20.6.2012. The said subject lands were ordered to be resumed and the person in possession are ordered to be vacated as the said lands are required for the use of Chennai Metro Rail Project. In W.P. No. 19619 of 2012, the Co-Trustee of Raja Sir Ramaswamy Mudaliar Choultry Trust, challenged the said Government order dated 21.5.2012. W.P. No. 20801 of 2012 is filed by the person claiming himself as Co-Trustee.
2. The brief facts necessary for disposal of these writ petitions are as follows:
(a) The lands comprised in T.S. No. 41 and 43/2 in Block No. 7 of Vepery Village, which are Government lands, were granted to Raja Sir Ramaswamy Mudaliar Choultry by the Government through G.O.Ms. No. 534 Revenue Department dated 6.8.1888 and G.O.Ms. No. 812 Revenue Department dated 22.11.1888, subject to condition that the Choultry therein should be available for the use of railway travelers with other conditions.
(b) In the year 1947, the Board of Revenue had recommended the request of the Trustee of the Choutry to withdraw a sum of Rs. 25,000/- from the fixed deposit standing in the credit of the Choultry for the construction of showroom in the said land subject to the condition that the Trustee credits the rental income from the proposed building to the reserve fund of the Trust. The Government accepted the said recommendations of the Board of Revenue and issued G.O.Ms. No. 488 Revenue Department, dated 4.3.1948 subject to the modification that not less than 50% of the rental income from the proposed showroom should be credited to the reserve fund of the Trust. The Trust put up the building in the form of showroom in parts of the above said lands for leasing out the same to third parties. Thus, it is the contention of the petitioners that the original condition that the land should be used for Choultry got modified by the order of the Government issued in G.O.Ms. No. 488 Revenue Department dated 4.3.1948.
(c) The above lands were managed by Sir Ramaswamy Mudaliar and thereafter by his legal heirs as Hereditary Trustees. In the year 1957 a portion of the said land with building was leased out to M/s. Buhari and Sons Pvt. Ltd., for a period of 20 years.
(d) The Advocate General of Tamil Nadu had filed a suit in C.S. No. 90 of 1963 before this Court for framing a scheme for the proper and better management of Raja Sir Ramaswamy Mudaliar Choultry Trust and this Court by order dated 18.8.1970 framed a scheme for proper and better management of the Trust, by which the existing trustees were removed and the Official Trustee, High Court, Madras, was directed to take immediate possession of the Estate and administer the same. The Official Trustee was ordered to be the Trustee in management of the charities.
(e) In clause 12 of the scheme decree, liberty was given to the Official Trustee to grant lease of vacant lands or portion thereof not required for the purpose of Choultry from time to time for a period of not exceeding five years and if the period is to be a longer period, the Official Trustee was directed to obtain appropriate permission/sanction of this Court.
(f) In the year 1972 Application No. 340 of 1972 in C.S. No. 90 of 1963 was filed by the petitioner in W.P. No. 19469 of 2012 for the grant of lease of a portion of the land. The said application was allowed on 22.12.1972. Consequently the said petitioner was granted lease on the terms and conditions mentioned therein. The petitioner in W.P. No. 19469 of 2012 again filed another application No. 787 of 1973 which was allowed on 28.11.1973 granting lease of a portion of the land with building in R.S. No. 43/2 measuring an extent of 5644 sq. ft for a period of 25 years commencing from 1.1.1974. The lease deed also permitted the petitioner to construct building as desired and use the same in the manner he chooses. A renewal clause was also made in the said lease deed.
(g) According to the said petitioner, he has put up the construction in the above said lands in the year 1981 after obtaining necessary building plan from the Corporation of Chennai and constructed the building by spending huge amounts. The said lease expired in the year 2002. The said petitioner filed application for renewal and the same having not been considered, he again moved an application before this Court, which was ordered on 10.12.2004 and a direction was issued to renew the lease for a further period of 25 years on condition that petitioner pay a sum of Rs. 1 lakh as monthly rent.
(h) As against the said order, the Official Trustee filed appeal in O.S.A. No. 76 of 2005 for enhancement of lease amount and the Division Bench of this Court by order dated 20.8.2009 directed the petitioner/tenant to pay a sum of Rs. 1.50 lakhs as rent per month till 31.8.2009 and a sum of Rs. 2.50 lakhs per month with effect from 1.9.2009. Accordingly the petitioner is claiming that his lease period has been extended till 2027. The petitioner has put up a hotel comprising rooms and restaurant with few shops in the ground floor by incurring heavy expenses. It is also contended in the affidavit that the petitioner has demolished the old structure and put up a new super structure and new Door No. 17 at Poonamallee High Road was also assigned and rent is being paid periodically to the Official Trustee. Other petitioners were also granted lease similarly.
(i) On the basis of the request made by the Chennai Metro Rail Limited (hereinafter called as ''CMRL''), the Tahsildar, Fort Tondiarpet Taluk approached the Government for alienation of the land for CMRL''s requirement. The District Collector, Chennai, filed an application in A. No. 5516 of 2010 in C.S. No. 90 of 1963 before this Court and prayed for a direction to the Official Trustee to convey part of the land in the aforesaid survey numbers in favour of CMRL. It is further stated in the application that once the lands are alienated, subsequent proceedings for fixing the value of the land and building will be dealt with as per the policy of CMRL.
(j) After the application was filed, the Commissioner of Land Administration, Chennai, recommended to the Government to pass suitable orders for resumption of the lands leased out to the Trust on the ground of alleged violation of the conditions and for alienation of the lands to CMRL after resumption. Based on the said directions the Government initiated action by giving direction to the District Collector to give notice to the AG & amp; OT for resumption of the lands. Thereafter the impugned order was passed by the first respondent on 21.5.2012 ordering resumption of lands assigned to Raja Sir Ramaswamy Mudaliar Choultry on the alleged violation of the conditions and ordered to entrust the lands for CMRL. Thereafter the Tahsildar issued notice to AG & amp; OT on 20.6.2012 stating that within one month vacant possession shall be handed over to the Tahsildar.
(k) It is the contention of the petitioners that no notice was given to the lessees/occupants of the lands assigned to the Trust and AG & amp; OT was directed to evict all the tenants and hand over possession and no compensation shall be payable for the improvements/structural works and all superstructures should be removed before handing over possession, failing which the revenue administration would remove them and realise the cost of removal by sale of the materials.
(l) The said orders are challenged in these writ petitions contending that the impugned orders proceed on the assumption that conditions imposed by the Government in Government Orders dated 6.8.1888 and 22.11.1888 are violated; that the land in question was assigned to the Choultry, which is subject matter of the scheme decree passed by this Court in C.S. No. 90 of 1963 dated 18.8.1970, partly modified in O.S.A. No. 55 of 1970, pursuant to which the Administration of the Trust is vested with the Official Trustee with a Co-Trustee from the Founder''s family, who in turn are directed to give lease upto five years and if the lease is to be granted beyond five years, permission of the Court has to be obtained; that the petitioners having been granted lease after getting permission from this Court by the AG & amp; OT, they have got a right to continue in possession as long as the lease period is not over and therefore the alleged violation of the conditions mentioned in the impugned order is on imaginary grounds as alteration of the use of the lands viz., for constructing superstructure and using the buildings for commercial purpose, etc., were permitted by the subsequent orders as well as the order of this Court and without noticing the above Government orders and orders of this Court, the impugned order was passed by the Government and the said order is liable to be set aside.
(m) It is also contended in these writ petitions that as the petitioners are in possession of the respective lands legally, they can be evicted only in a manner known to law, and without issuing any notice or opportunity of hearing to each of the petitioners, the impugned orders are passed and even the objection raised by the AG & amp; OT has not been considered properly while passing the impugned order. Hence the impugned order passed by the Government is contrary to records, without considering the relevant facts, and also in violation of the principles of natural justice.
3. W.P. No. 19619 of 2012 is filed by the petitioner claiming to be the Co-Trustee of Raja Sir Ramaswamy Mudaliar Choultry challenging the said Government Order contending that the Government having allowed to put up commercial buildings pursuant to orders of this Court buildings were let out to about 29 persons and the same having been ratified by the Government through subsequent Government Orders and the Trust is fully complying with the direction issued by this Court by order dated 8.4.1983 viz., conducting feedings to deserving destitute homes, orphanages and schools and in Application No. 4351 of 1987 this Court permitted the Trust to grant lease of a building to State owned Tamil Nadu Tourism Development Corporation. The Government has not considered the said aspects while passing the impugned order and a building constructed in the subject property had already been identified and categorised as heritage building by the Committee consisting of Honourable Justice E. Padmanaban in Sl. No. 156 and without verifying the said facts the impugned order is passed on the ground of alleged violation of the conditions contained in the assignment. It is also stated in the affidavit that in a Public Interest Litigation viz., W.P. No. 27093 of 2011 order dated 24.11.2011, the Division Bench of this Court has passed an order that authorities shall not demolish, destruct, damage or alter the heritage buildings, dooms, structures, pillars of RSRM heritage building and buildings appurtenant thereto. It is further contended that even assuming that any condition originally imposed was not complied with, similar charitable activities are being carried on as on today and therefore the "Doctrine of Cypres" will apply. The scheme decree framed in C.S. No. 90 of 1963 was modified in O.S.A. No. 55 of 1970 by inserting a provision for inclusion of a family member of the founder as Co-Trustee to see that the avowed object of the charitable trust, the wishes of the founder as per his last will dated 28.1.1908 and the scheme is carried on in letter and spirit under the direct supervision of the AG & amp; OT. It is also averred in the affidavit that CMRL took a different stand earlier than the one now taken not to disturb the petitioners'' charitable trust property and the Government order issued is a colourable exercise of power.
4. W.P. No. 20801 of 2012 is filed by the petitioner, who is claiming to be the family member of the Grantee. The petitioner is claiming that his great-grandfather was given the Grant and after his demise, his grandfather was the Trustee, who executed a will to his wife Velammal to adopt petitioner''s father, and after adoption, from 1941 his father was the Hereditary Trustee and he managed the Trust till August, 1970. For the claim of petitioner''s right of Co-Trustee, various litigations are pending. The said issue i.e., petitioner''s claim to be a Co-Trustee of the Trust is disputed by the sixth respondent and the said issue is not determined finally and in this writ petition the said issue cannot be decided as the validity of the Government Order and the consequential notice alone are subject matter of challenge in these writ petitions.
5. The Collector of Chennai filed a counter affidavit justifying the impugned order stating that in G.O.Ms. No. 534 Revenue Department dated 6.8.1888 the Government granted an extent of 1.33 acres to Raja Sir Ramaswamy Mudaliar for building a Choultry intended for the use of persons who come by train from different parts of the Presidency and have no home or friends in Madras. In G.O.Ms. No. 812 Revenue Department dated 22.11.1888 the Government assigned land to an extent of one cawni 10 grounds 1871 sq. ft in T.S. No. 41 and an extent of five grounds 275 sq. ft in T.S. No. 43/2 of Vepary village in Block No. 7 of Fort Tondiarpet Taluk, Chennai District to Savalai Ramasamy Mudaliar for construction of a Choultry subject to three conditions viz., (1) the Choultry shall be available for the free use of railway travelers and that it shall be kept in repair; (2) the plans of the building shall be approved by the Government; and (3) the lands shall be liable for resumption without compensation, if it ceases to be employed for the purpose for which it is granted or is used for any other purpose without the permission of the Government. The Advocate General of Tamil Nadu filed C.S. No. 90 of 1963 for removal of the Hereditary Trustee and to empower the Government to constitute a Non-Hereditary Trustee as there was misappropriation of funds, etc. By order dated 18.8.1970 this Court removed the Hereditary Trustees of the Choultry and ordered the Official Trustee to take immediate possession of the Trust properties and framed a scheme for administering the properties. Now, the Chennai Metro Rail Limited, to implement the public project, has requested to alienate the above lands to locate the metro rail station. In the letter of the AG & amp; OT dated 19.5.2010 it was informed that this Court alone can pass an order in respect of the subject mentioned property u/s 25 of the Official Trustees Act, 1913, based on which M.P. No. 5616 of 2010 was filed before this Court on 22.10.2010 for direction to the AG & amp; OT to convey the land in favour of Chennai Metro Rail Limited. However, it was subsequently found that the Trust has violated the conditions and therefore the Tahsildar sent a letter on 12.10.2011 and a notice on 28.10.2011 to AG & amp; OT calling upon him to explain as to why the land should not be resumed back for the violation of the terms of the Grant. In the reply submitted by the AG & amp; OT on 12.11.2011 it was stated that the Trust is organising poor feeding on 13th October every year in the premises and a sum of Rs. 1,14,050/- is being paid to ten orphanages in and around Chennai and therefore requested to drop the proposal and prayed for compensation, if the lands are to be resumed. The District Collector sent a proposal to the Government stating that Commercial transactions like travel agencies, etc., are being carried on in the let out buildings and the conditions of the Grant are violated and therefore the request of the AG & amp; OT can be rejected. The Principal Secretary and Commissioner of Land Administration forwarded the proposal to the District Collector for resumption of lands for violation of the conditions. The High Power Committee thereafter ordered resumption of the lands for alienation in favour of CMRL. Consequently the impugned Government order was issued. A notice to vacate the petitioners was issued based on the said Government Order. The primary contention in the counter affidavit filed by the District Collector is that the Government has got authority to resume the land, which was granted to the Trust for a specific purpose, which contains a condition of resumption and after resumption, the land has to be used for public purpose viz., Metro Rail Project, which is a time bound project.
6. The AG & amp; OT has filed a counter affidavit stating that the impugned order is passed on the assumption that the AG & amp; OT has violated the terms of the Grant, that too without payment of any compensation by CMRL. The Trust property was leased out to various tenants in terms of the orders of this Court passed in various applications and the power to grant lease was conferred to the Official Trustee in the Scheme Decree, which was framed at the instance of the learned Advocate General. The Trust is also doing charitable works and the fund available as on date is Rs. 3,28,54,357/-, out of which 7% of the rental income and 6% of the income towards interest on FDs are remitted to the Government then and there. It is also stated in the counter affidavit that an undertaking letter was given by CMRL before the First Bench of this Court in W.P. No. 27093 of 2011 to the effect that CMRL structures have been planned in consultation with the Heritage Services Committee and final version is cleared by the said Committee, and that, if any modification or alteration is suggested by the Committee, the same would be carried out. During execution of the project work, the heritage structures will be monitored closely by the instrumentation with respect to the behaviour of the structure. The Choultry building is identified as Heritage Building in Building NO. C1/1/10 in Sl. No. 156 and therefore it has to be preserved. The AG & amp; OT also prayed for compensation if the lands are to be resumed.
7. The Chennai Metro Rail Limited has filed a counter affidavit stating that this Court in C.S. No. 90 of 1963 passed an order in Application No. 2523 of 1973 on 28.11.1973 that at the end of 25 years, the lessee will surrender possession of the property including superstructure without seeking compensation and after the end of 25 years, if the applicant wants to renew lease, he can approach and get suitable orders. In O.S.A. Nos. 298 of 2004, 76 and 77 of 2005 it is further ordered that all the constructions made by the lessee must become property of the Trust and the lessee cannot make any claim over it. The CMRL has framed a policy for relief and rehabilitation of the affected persons consistent with the policy of the Government of Tamil Nadu to provide relief and rehabilitation to those persons, whose lands/property has to be acquired for implementing the project. CMRL also stated that it is agreeable to pay compensation as per scheme relief and rehabilitation under relevant category and for removal of structure, if entitled under law, as determined by the appropriate forum. It is also stated in the counter affidavit that the land having been assigned as a grant to Sir Ramaswamy Mudaliar with a condition for resumption, the Government is entitled to resume the lands, if the conditions are violated. The CMRL obtained clearance for the project from the Heritage Committee. As per the minutes of the 8th meeting of the Heritage Conservation Committee held on 17.2.2002, the grantee, cannot convert the land into a Trust on his own. Those who managed the affairs of the Choultry also cannot convert the land as a Trust. The AG & amp; OT was given notice before ordering resumption of the land for violation of the conditions and therefore there is no violation of principles of natural justice and prayed for dismissing the writ petitions.
8. The learned Senior Counsels appearing for the petitioners submitted that the petitioners who are in lawful possession, cannot be dispossessed by the impugned order that was passed without issuing notice or opportunity of hearing to the petitioners. The impugned order was passed as if there is no Choultry, affecting the rights of 29 persons, who are doing commercial business, and ignoring the subsequent Government Orders as well as the orders of this Court. The reason stated in the impugned order for ordering resumption is that there is violation of conditions of the Grant. The original conditions were subsequently modified by G.Os. No. 253 Revenue Department, dated 17.1.1899; G.O.Ms. No. 2226 Revenue Department dated 13.8.1909; G.O.Ms. No. 488 Revenue Department, dated 4.3.1948; and G.O.Ms. No. 3157 Revenue Department dated 15.6.1940 and the land got vested with the Trust as the Scheme decree was framed by this Court at the instance of the learned Advocate General of the State, who applied for framing the scheme. The learned Senior Counsels submitted that once the land is vested with the Official Trustee by way of subsequent Scheme Decree, relying upon the original Grant made in the year 1888 and alleging that the conditions contained in the said Government Order was violated and therefore the resumption is ordered, cannot be sustained. It is their further contention that the District Collector of Chennai, having filed application in Application No. 5514 of 2001 in the scheme suit C.S. No. 90 of 1963, praying for direction by AG & amp; OT to convey the land in favour of the CMRL, cannot take an inconsistent stand by withdrawing the application. If the CMRL wants the land, the respondents have to follow the procedures for acquiring the lands and if any such proceeding is initiated, the persons interested will be in a position to raise all their objections. According to the learned Senior Counsels, the CMRL is taking contrary stand before this Court in different proceedings in respect of metro rail project/station/junction. It is further contended of the learned Senior Counsels that the Choultry is still functioning and performing charitable works and the scheme framed u/s 92 of the CPC is binding on all and it binds every person, whether party to the proceeding or not, as it is a judgment in rem. The AG & amp; OT cannot be blamed for the grant of lease as he has acted based on the orders passed by this Court. Finally the learned Senior Counsels submitted that if at all the State is having any right to resume the land, it can file an application u/s 25 of the Official Trustees Act, 1913 and therefore the Government order and the consequential notice issued cannot be sustained.
9. Mr. L. Chandrakumar, learned Counsel appearing for the petitioner in W.P. No. 19619 of 2012 argued that every act and function of the Trust is carried out on the basis of the directions and orders passed by this Court and the petitioner is the Co-Trustee, who was not issued with any notice before passing the impugned order. The subject property is having a heritage building and the Choultry is run by TTDC for lodging of tourists. According to the learned Counsel, there is no violation of the condition of the Grant after the subsequent Government Orders and scheme decree framed by this Court and hence the reason stated in the impugned order for resuming the land are erroneous and unsustainable.
10. The learned Advocate General and learned Additional Advocate General appearing for the State Government, District Collector and Tahsildar submitted that the land in question was assigned free of cost in the year 1888 for the purpose of construction of Choultry for the free use of railway passengers with a condition that if the land is not utilised for the purpose for which it was assigned without permission of the Government, the same is liable to be resumed. The impugned Government Order was passed taking note of the non-utilisation of the land for the Choultry and for utilisation of the land for other purpose, that is for commercial activities. Taking note of the violations of the conditions by the erstwhile Hereditary Trustees, without resuming the land, the Advocate General of the State filed the scheme suit in C.S. No. 90 of 1963 for framing a Scheme for the administration of the Choultry. The learned Advocate General and Additional Advocate General submitted that the subject lands are required for public purpose and the High Level Committee of the State passed a resolution in the year 2009, which was followed up by letter addressed by the Revenue Department to the AG & amp; OT seeking his advise, who in turn stated that the lands are administered by him under a Scheme Decree and therefore the Government should apply u/s 25 of the Official Trustee Act, to the High Court. Based on the said reply of the AG & amp; OT, an application was filed and during hearing of the said application the AG & amp; OT argued that he has no power to alienate the land as the lands were given in Grant by the Government free of cost and therefore the lands do not vest with the AG & amp; OT. Thereafter the opinion of the Advocate General was obtained, who opined for resumption of the land for the public purpose viz., Chennai Metro Rail Project. The present Advocate General also gave his opinion.
11. It is also submitted by the learned Advocate General and learned Additional Advocate General that the Revenue Department Officials visited the premises and found that number of persons are occupying the land doing commercial activities and the lands are not utilised for the purpose for which the same were granted. The Revenue Department issued a show cause notice to the AG & amp; OT and called upon him to state as to why the land should not be resumed for violation of the conditions and in the reply the AG & amp; OT catalogued the charities performed by him and requested to drop the proposal. Thereafter the impugned Government Order was passed stating that the Coultry constructed was never used for railway travelers and the lands are utilised for commercial purposes without the permission of the Government and that the lands are required for public purpose viz., Chennai Metro Rail Project. The Official Trustee, having stepped into the shoes of the Choultry, a show cause notice was issued and after considering the reply, the impugned order was passed. The non-reference of the subsequent Government Orders in the impugned Government Order will not improve the case of the petitioners as the lands were not utilised for Choultry purpose and even if the impugned order is sustainable for one reason, the Government Order need not be quashed as other grounds are also stated. According to the learned Advocate General, the application filed earlier before this Court was withdrawn, as the AG & amp; OT has taken a stand that he has no power of alienation as the property does not vest with him. It is further argued that in the Picnic Hotel case, this Court has already held that the Corporation need not apply to the Court for modification of the Scheme, which was confirmed by the Division Bench of this Court and the SLP filed was also dismissed. As regards non-issuance of notice before resumption of the land to the petitioners, the learned Additional Advocate General submitted that the same will not vitiate the impugned order as the Official Trustee, who is in management of the Choultry was issued notice and after considering the explanation only the impugned Government Order was passed, which is in compliance with the principles of natural justice.
12. Mr. R. Thiagarajan, learned Senior Counsel appearing for CMRL, relying on the counter affidavit supported the Government Order and submitted that the lands are in need for Chennai Metro Rail Project, which is a public purpose and the petitioners, who are claiming to be in possession as tenant or continuing in possession even after expiry of the tenancy, will get compensation as per the policy evolved, after ascertaining the compensation payable by the appropriate authority. The learned Senior Counsel also submitted that appropriate permission is obtained from the Heritage Committee for utilisation of the land and therefore the petitioners cannot contend that the heritage building should be preserved.
13. I have considered the rival submissions made by the respective parties.
14. It is an admitted position that the lands in S. Nos. 41 and 43/2 of Vepery Village, Fort Tondiarpet Taluk in Chennai District, an extent of 1.33 acres was granted to Raja Sir Ramaswamy Mudaliar for holding a Coultry through G.O.Ms. No. 534 Revenue Department, dated 6.8.1888 and an extent of one Cowni, 10 grounds and 1871 sq. ft. Was granted in T.S. No. 41 and an extent of 05 grounds 0275 sq. ft in T.S. No. 43/2 of the same area was assigned through G.O.Ms. No. 812 Revenue Department, dated 22.11.1888. All the said lands were granted/assigned subject to three conditions viz.,
(1) that the Choultry shall be available for the free use of railway travelers and that it shall be kept in repair;
(2) that the plans of the building shall be approved by the Government;
(3) that the land shall be liable to resumption without compensation, if it ceases to be employed for the purpose for which it is granted, or is used for any other purposes without the permission of the Government.
The Collector of Chennai had handed over the site to the said Ramaswamy Mudaliar. By G.O.Ms. No. 763 Revenue Department, dated 9.12.1898 the Government was granted permission to erect permanent sheds for the daily feeding of poor and destitude persons of all classes. In the said Government Order also it is stated that the property be at any time resumed by the Government, the compensation payable therefore shall in any case excess the cost or the then present value, whichever is lower. By G.O.Ms. No. 488 Revenue Department dated 4.3.1948 based on the recommendation of the Revenue Board, the request of the Trustee of the said Choultry seeking withdrawal of a sum of Rs. 25,000/- from the fixed deposit standing to the credit of the Choultry and spend the amount for the construction of a show room was ordered subject to condition that not less than 50% of the net rental income from the proposed show room should be credited to the reserve fund of the Trust.
15. The lease granted in favour of Sri. A.M.B. Buhari for construction of the building and for running business in the said building was approved with modified conditions through G.O.Ms. No. 3681 Revenue Department, dated 3.10.1958, pursuant to which a lease deed was executed on 31.1.1959 for a period of 20 years from the said date with an option to renew the lease for further period. Thereafter the Government issued G.O.Ms. No. 2076 Revenue Department dated 7.10.1976 stating that the land in R.S. No. 41 is now vested in the Official Trustee under a scheme framed by the High Court and the said M/s. Buhari and Sons Pvt. Ltd., should apply to the High Court through the Official Trustee for renewal of lease. The said scheme was framed by this Court at the instance of the State in the suit filed by the Advocate General. Hence the first respondent/Government cannot ignore the Scheme decree framed by this Court and the consequences thereof. The scheme was framed as the Hereditary Trustee had not performed the obligations and violated the conditions. In the suit C.S. No. 90 of 1963 filed by the Advocate General u/s 92 of CPC, this Court gave a finding to the effect that the state of affairs of the Trust with regard to the finances are unsatisfactory and there was misappropriation of the Trust funds and ultimately the scheme decree was framed by rejecting the objections raised by the hereditary Trustee by holding that in the interest of the Trust, a Court Scheme is necessary, pursuant to which the scheme decree was passed for management and administration of the public and charitable Trust, viz., Raja Sir Ramaswami Mudaliar''s Choultry. The relevant clauses read as follows:
The following Scheme be and is hereby settled for the management and administration of the public and charitable Trust known as "The Rajah Sir Ramaswami Mudaliar''s Choultry.
1. The administration of "The Rajah Sir Ramaswami Mudaliar''s Choultry" and its allied endowments shall be carried on subject to the provisions of this Scheme by the Trustees constituted as hereinafter mentioned.
2. The Official Trustee of Madras shall be the Trustee and the management of the Choultry and its allied Charities shall vest with the said Official Trustee and his Successors in office.
3. The defendant herein is hereby removed from the office of the Trustee of the said Charity.
4. The Trust shall maintain proper accounts of all sources of income and expenditure of the Choultry and its Endowments.
5. The Trustee shall maintain proper vouchers for expenditure incurred by him.
6. Any balance of money exceeding Rupees One Hundred and not required for any immediate use of the Trust shall be deposited into the State Bank of India or the Madras State Co-Operative Bank Ltd., where an account shall be opened in the name of the Trust.
7. All sums standing to the credit of the Trust over Rupees One Thousand and not immediately required for expenses of the Trust shall be invested in Government or other approved securities as defined in the Trust Act.
8. The accounts of the Trust shall be audited and Securities documentary or otherwise checked annually by a competent person appointed by the Court for the purpose on such remuneration as may be fixed by the Court, which shall be paid from and out of the Trust funds.
9. Statements showing "receipts" and "disbursements" and "profits" and "loss" for the audit period and balance sheet shall be prepared annually.
10. The Trustee shall maintain an inventory of the properties belonging to the Trust and revise the same as and when necessary.
11. The Trustee shall keep the Choultry in a State of good repairs and shall be at liberty to incur necessary expenditure therefore.
12. The Trust shall be at liberty to grant leases of vacant lands or portion thereof not required for the purpose of the Choultry or other properties from time to time for a period not exceeding five years and in case of leases for a term longer than five years, the Trustee shall obtain the prior sanction of this Court.
Explanation: A clause in a lease deed for five years or less containing an option to renew the lease shall be deemed to be a lease for more than five years.
13. There shall be appointed a Manager who shall be in charge of the day to day administration of the Trust. He shall maintain true and proper accounts supported by regular vouchers of all receipts and disbursements. No person other than the Manager or the Trustee shall be entitled to receive the income of the Trust or make any disbursements thereof. The Manager shall be under the control and supervision of the Trustee. The Manager''s salary shall be on par with the scale of pay fixed for an assistant in the Madras Judicial Ministerial Services.
14. The Manager shall have the custody of Bank Pass Books, cheque books, book challans, accounts and other records of the Trust, but he shall not operate on the bank accounts.
15. The Trustee shall be responsible for the proper up keep and maintenance of the Choultry and also for the performance of the Charities.
16. The Trustee shall prepare every year, a Budget of income and expenditure for the next year and send a copy of the same to the Collector of Madras and may consider such amendments if any, as may be suggested by the Collector.
17. The parties hereto shall have liberty to apply to this Court for modification or alteration or addition to the scheme, by way of an application. If any difficulty or doubt arises in giving effect to any of the provisions of the scheme, the parties shall have liberty to apply to this Court for suitable direction.
(Emphasis Supplied)
16. The Hereditary Trustee filed an appeal in O.S.A. No. 55 of 1970 before this Court and the Division Bench of this Court by judgment dated 14.6.1971 modified the scheme to a limited extent of nominating a member of the family of the founder as Co-Trustee. The said orders have become final and as such the said Trust is now in the management and administration of the Official Trustee of Madras along with Co-Trustee from the Founder Member''s family. It is also stated therein that the member to be associated in the management will be selected by the family members consisting of the agnate and female descendants of the founder, and if there is any difficulty in selection of such member, it will be open to the Official Trustee to nominate one out of the descendants, male or female of the founder''s family. Based on the order passed in O.S.A. No. 55 of 1970, petitioner in W.P. No. 19619 of 2012 is claiming that he is functioning as Co-Trustee, who is also entitled to participate in the management of the Trust, subject to the condition that in any matter of policy, the view of the Official Trustee will prevail.
17. There is no dispute regarding filing of the scheme suit by the Advocate General based on which the scheme was framed and Official Trustee was appointed along with Co-Trustee from founder''s family. In the Scheme Decree it is ordered that the Trust is at liberty to grant lease of vacant lands or portions thereof not required for the purpose of Choultry from time to time for a period not exceeding five years and in cases of lease for a term longer than five years, the Trustees shall obtain prior sanction of the Court. Based on the said order, applications were filed for the grant of lease beyond five years. Several petitioners were granted lease even after the scheme decree was framed and in the following writ petitions, the lease granted with permission of this Court is continuing as on date.
In all other writ petitions, the lease period expired and the petitioners are claiming to be in possession.
18. The above referred facts clearly reveal that the writ petitioners are not trespassers/encroachers of the lands administered by the Trust. They were granted valid lease either by the Official Trustee for a period of five years, which was extended with five years of extension each or granted lease beyond five years and extended further with the permission of this Court.
19. The contention of the CMRL is that the Chennai Central Underground Metro Railway Station is a two level station providing connectivity between Metro-suburban railway stations of Moore market; park suburban railway station-MRTS park railway station and central long distance railway station. The lands which are in possession of the Trust are required for traffic diversion during traffic integration (after construction) i.e., bus bay, feeder bus parking, MTC pick-up and drop, park and ride facilities and provision for the requirement of metro railway underground station like ancillary building, ventilation, diesel generator set room, etc. Therefore the said lands are to be alienated to the Chennai Metro Rail Limited.
20. The District Collector of Chennai, addressed a letter to the Official Trustee for which the Official Trustee sent a reply on 19.5.2010 stating that only the High Court can make orders in respect of the subject mentioned property u/s 25 of the Official Trustees Act, 1913. The District Collector thereafter filed Application No. 5616 of 2010 in the said scheme suit on 22.10.2010 and prayed for directing the AG & amp; OT to convey the land in S.NO. 43/2 and 41 of Vepery Village in favour of CMRL, which was subsequently withdrawn. It is relevant to note at this juncture that in clause 17 of the Scheme framed by this Court it is stated that if any difficulty or any doubt arises, the parties can approach this Court for suitable direction. The said condition is not followed before passing the impugned order, which is definitely a violation of the scheme decree framed by this Court at the instance of the learned Advocate General. The AG & amp; OT sent a reply on 12.11.2011 and stated that the Trust is organising poor feeding on 13th October every year in the premises and a sum of Rs. 1,14,050/- is being paid annually to ten orphanages in and around Chennai and requested to drop the proposal of resumption of the lands.
21. The proceedings for resumption of the lands was initiated on the alleged violation of the conditions of the Grant on the basis of the legal opinion given by the learned Advocate General on 3.5.2011. The said opinion was again reiterated in the opinion given on 22.8.2011. It is also to be noted that show cause notice issued to AG & amp; OT dated 28.10.2011 is on the ground of violation of conditions imposed by the Government at the time of granting the lands to the Choultry. It is useful to extract the relevant portion of the notice hereunder:
It is reported that at present there is no choultry being run and the trust has let out the building to various persons to do commercial purpose like hotels, Travel Agency, etc., which is grave violation of condition imposed by the Government at the time of granting the lands to the Choultry.
The Special Government Pleader (Civil Suits) High Court, Chennai has opined that the lands given to Ramaswamy Mudaliar Choultry was not used for the purpose for which it was given as per the orders in G.O.Ms. No. 812 Revenue Department, dated 22.11.1888 and it is liable for resumption without any compensation. The Government have also given instructions to issue notice for the resumption of the said land for the implementation of Chennai Metro Rail Project urgently.
Therefore it is informed as to why the lands should not be resumed back for the violation of the terms of the grant and for being utilised for a public purpose namely CMRL Project.
It is also informed to handover the possession of the said lands to the Chennai Metro Limited Authorities immediately for the implementation of Metro Rail Project without any further delay.
22. Thus it is evident that the principal reason for initiation of proceedings for resumption of lands was alleged violation of conditions. The said reason is erroneous as the Grant itself permit the Choultry to construct building after getting permission of the Government and Government also granted permission.
23. The second reason stated in the impugned order is that the lands are required for Metro Rail Project. In the earlier proceedings different stand taken by CMRL before this Court in Application No. 5 of 2011 in O.S.A. No. 100 of 2011 can also be raised by the petitioners while they submit their replies to the show cause notice. This Court is not expressing any opinion on that aspect in this order. The said fact viz., requirement of lands for public purpose may be justified as on today. If the lands should be resumed, the petitioners who are continuing as lawful tenants and others, who are continuing in possession are entitled to get compensation as per the scheme provided by CMRL. Further, the said reason, i.e., requirement of the subject lands for CMRL is in dispute.
24. It is also an admitted fact that neither the co-Trustee nor the persons who are in possession of the premises by constructing building as lessees are not issued with any notice. After the said Government Order dated 21.5.2012, the petitioners who are tenants, are issued with notice through the Official Trustee, directing the Official Trustee to vacate the tenants and hand over vacant possession, based on which a notice of eviction was given. Thus, it is evident that before passing the impugned Government Order, the persons who are likely to be affected by resumption of lands, who are in possession of lands/buildings under valid orders of this Court and the consequential lease granted by the Official Trustee, are not given any notice or opportunity of hearing. Similarly, the Co-Trustee is also not given any notice to put forth his case.
25. It is the contention of the Co-Trustee that the lands got vested with the Trust and it cannot be resumed. That issue can be raised by the Co-Trustee if notice is issued to him. Even assuming that the said argument is unsustainable, the tenants who are in possession of respective areas of the lands are entitled to get compensation as their business is affected in terms of the scheme provided by CMRL. The said fact is admitted by the CMRL in the affidavit filed on 3.10.2012, which reads as follows:
I state that the respondent has framed policy for the relief and rehabilitation for the project affected persons, consistent with the policy of the Government of Tamil Nadu, to provide Relief and Rehabilitation to those persons whose land/property has to be acquired for implementing the project. The Chennai Metro Rail Limited in the circumstances agrees to pay compensation as per its scheme for relief and rehabilitation under relevant category and for immovable structures if entitled under law as determined by the appropriate forum having due regard to the interests which are eligible for such compensation.
In such circumstances, even if the lands are entitled to be resumed by the Government from the Trust, the petitioners are entitled to get compensation as per the Scheme announced by the CMRL. At least for the said purpose of determination of proper compensation, the petitioners are bound to be heard before they are evicted. If the petitioners are evicted without verifying how much compensation each of the petitioner is entitled under the Scheme of CMRL, their civil rights will definitely be affected.
26. The learned Advocate General cited the decisions of the Supreme Court reported in
(a) The first case reported in
(b) In the second case, reported in
(c) The decision of this Court reported in (2011) 3 MLJ 781 was rendered on the basis of a finding that no deed of renewal of lease came to be executed by the Corporation of Chennai and the Trustees took a decision to dissolve the Trust and to surrender possession and the sub-lease contemplated under the registered deed came to an end.
27. In all these writ petitions, it is the specific case of the AG & amp; OT and some of the petitioners that lease were extended and the same are in currency and the Trust is doing charity works. The original conditions were modified by the Government pursuant to the orders of this Court. Thus, the facts in the above cited decisions are completely different and the said decisions are not applicable to the facts of these cases. In the light of the above findings and on the facts and circumstances of this case, the impugned orders are set aside and the matter is remitted to the first respondent/Government to issue notice to the AG & amp; OT, Co-Trustee, CMRL and writ petitioners, who are in possession of the Trust lands/buildings as on date, and after considering their objections to be filed and after giving them an opportunity of hearing, the first respondent/Government is directed to pass fresh orders as expeditiously as possible.
The writ petitions are disposed of with the above directions. No costs. Connected miscellaneous petitions are closed.
