Madras High Court
Dr.M.A.M.Ramaswamy Chettiar Of vs State Of Tamil Nadu on 17 November, 2021
W.P.No.18058 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 23.12.2021
Pronounced on : 23.06.2022
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.18058 of 2021
and W.M.P.Nos.19285, 19286, 19288, 19289 and 23161 of 2021
1. Dr.M.A.M.Ramaswamy Chettiar of
Chettinad Charitable Trust
Rep. by its Managing Trustee Dr.A.C.Muthiah
Having its Registered office at
Chettinad House, Rajah Annamalaipuram,
Chennai - 600 028.
2. Dr.A.C.Muthiah
Trustee
3. Mr.AR.L.Sundaresan
Trustee
4. Mr.Jawahar Vadivelu
Trustee
5. Dr.Alagusundaram
Trustee ........ Petitioners
All are having registered office at
Chettinad House,
Rajah Annamalaipuram,
Chennai – 600 028
-vs-
1/130
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W.P.No.18058 of 2021
1. State of Tamil Nadu
Rep. by the Principle Secretary to the Government
Housing & Urban Development Department,
Chennai - 600 009.
2. The Chennai Metropolitan Development Authority
Rep. by its Member Secretary,
Thalamuthu-Natarajan Maaligai,
No.1, Gandhi Irwin Road,
Egmore, Chennai - 600 008.
3. The Corporation of Chennai
Rep. by its Commissioner
Rippon Buildings,
Chennai - 600 002.
4. Rajah Muthiah Chettiar Charitable and Educational Trust
Rep. by its Trusteee, Mr.M.A.M.R.Muthiah
Rani Seethai Hall Building,
No.603, Anna Salai, Thousand Lights,
Chennai - 6000 006.
5. Mr.M.A.M.R.Muthiah
S/o. R.Sekkappa Chettiar
No.603, Anna Salai, Thousand Lights,
Chennai – 600 006.
6. Kumararani Tmt.Meena Muthiah
Trustee,
W/o. Late Kumarararajah
Sri M.A.M.Muthiah Chettiar,
Chettinad House, Rajah Annamalaipuram,
Chennai - 600 028.
7. Mr.Ashwin C.Muthiah
Trustee
2/130
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W.P.No.18058 of 2021
Chettinad House, Rajah Annamalaipuram,
Chennai - 600 028.
8. Mr.M.A.M.M.Annamalai
S/o. Late Kumararajahh,
Sri M.A.M.Muthiah Chettiar,
Chettinad House, Rajah Annamalaipuram,
Chennai - 600 028.
9. M/s. Chettinad Logistics Pvt., Ltd.,
Rep. by its Director Mr.S.P.Palaniappan,
Rani Seethai Hall Building, No.603, Anna Salai,
Chennai - 600 006. ........ Respondents
(R9 impleaded vide order, dated 17.11.2021
made in W.M.P.No.26005 of 2021 in
W.P.No.18058 of 2021)
Writ petition filed under Article 226 of Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
the second respondent in connection with the order, dated 25.02.2021 in
C3(S)730/2019 granting building plan permission to the fourth respondent
in respect of land in R.S.No.4277/6 in Thandavarayan Street, Duraisamy
Dinakaran Road, Rajah Annamalaipuram, Chennai - 600 028 and quash the
same and direct the third respondent to cancel the building permission and
all approvals granted to the fourth respondent in pursuance of the planning
permission, dated 25.02.2021 of the second respondent in favour of the
fourth respondent.
3/130
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W.P.No.18058 of 2021
For Petitioners : Mr.R.Srinivas
for M/s.S.Sithirai Anandam
For Respondents : Mr.R.Shanmugasundaram,
Advocate General
assisted by
Mrs.V.Yamuna Devi, Spl G.P for R1
Mrs.P.Veena Suresh
Standing counsel for R2
Ms.P.T.Rama Devi
Standing counsel for R3
Mr.M.S.Krishnan, Senior counsel
for Mr.M.Praveen Kumar for R4
Mr.V.Raghavachari
for Mr.T.Balaji for R5
Mr.G.Masilamani, Senior counsel
for Mr.T.Sathiyamoorthy for R6
Mr.T.Mohan
for Mr.Abinav Parthasarathy for R9
ORDER
The prayer sought for in this writ petition is for a writ of certiorarified
mandamus calling for the records of the second respondent in connection
with the order, dated 25.02.2021 granting building plan permission to the
fourth respondent in respect of the land in R.S.No.4277/6 in Thandavarayan
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Street, Duraisamy Dinakaran Road, Rajah Annamalaipuram, Chennai - 600
028 and to quash the same and direct the third respondent to cancel the
building permission and all approvals granted to the fourth respondent in
pursuance of the planning permission, dated 25.02.2021 of the second
respondent.
2. PLEADINGS :
The case projected by the writ petitioners as per the affidavit
averments in support of the writ petition is as follows :
2.1. That one Raja Sir Muthiah Chettiar (for the sake of easy
understanding and brevity, herein after called as “father Muthiah”) and his
wife, one Meyyammai Achi had two sons, namely Kumararajah
M.A.M.Muthiah Chettiar (for the sake of convenience and brevity, hence
forth would be called as “son Muthiah”) and Dr.M.A.M.Ramaswamy.
2.2. The father Muthiah created a Trust, namely, the fourth
respondent, i.e., called Raja Muthiah Chettiar Charitable and Educational
Trust by a Trust Deed, dated 14.03.1957 registered as Document No.213/57
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on the file of the Registrar of Chennai. The father Muthiah executed a
registered Gift Deed, dated 24.03.1960 in respect of half undivided share of
the property by Document No.517/60 at SRO, Mylapore in favour of son
Muthiah and the said settlement was accepted and acted upon. Thus the son
Muthiah became the owner of the undivided 50% share in the entire
property and he was in possession thereon.
2.3. The said son Muthiah was the brother of Dr.M.A.M.Ramaswamy
and son Muthiah died intestate on 24.01.1970. On the death of son
Muthiah, his undivided half share in the entire property, i.e., about 63.50
grounds devolved equally on the sixth respondent who is the wife of the son
Muthiah and late Meyyammai Achi, mother of the son Muthiah. Therefore,
each inherited 31.75 grounds undivided share.
2.4. The said mother Meyyammai Achi died intestate on 01.03.1970,
pursuant to which her share, i.e., 31.75 grounds undivided share devolved
equally on her class-I heirs, i.e., her husband father Muthiah and her second
son Dr.M.A.M.Ramaswamy, each inherited 15.89 grounds undivided share
in the entire property.
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2.5. The father Muthiah executed an registered deed, dated
28.03.1970 as Document No.635/1970 at SRO, Mylapore transferring his
undivided half share of the entire property to the fourth respondent Trust.
The remaining 50% undivided share belonging to son Muthiah was never
transferred, conveyed or vested in the fourth respondent Trust in any
manner.
2.6. The father Muthiah died intestate on 12.05.1984. Therefore on
his death, his share in the entire undivided property devolved equally among
Dr.M.A.M.Ramaswamy on one side and sixth and eighth respondents on the
other. Each obtained an additional 7.9 grounds undivided share in the above
property.
2.7. It is the further case of the petitioners that, the said property has
not been partitioned at all and it remains an undivided extent of 127
grounds. Only in that circumstances, Dr.M.A.M.Ramaswamy founded a
public Trust, namely, “Dr.M.A.M.Ramaswamy Chettiar of Chettinad
Charitable Trust” the first petitioner on 09.02.2015 and he executed a Will
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on his own accord and volition as a last Will and testament on 18.02.2015,
thereby bequeathed all his assets to the first petitioner Trust. The fifth
respondent claims to be the adopted son of Dr.M.A.M.Ramaswamy,
however, the said adoption, dated 09.02.1996 is neither valid nor legal and it
is contrary to the customs of the Nagarathar community.
2.8. During the life time of Dr.M.A.M.Ramaswamy, he disowned the
fifth respondent and clearly declared that the aforesaid alleged adoption was
void and not valid. Even the funeral ceremonies of the said
Dr.M.A.M.Ramaswamy were not done by the fifth respondent as wished by
Dr.M.A.M.Ramaswamy.
2.9. As per the Will, dated 18.02.2015 executed by late
Dr.M.A.M.Ramasmy, totally 23.77 grounds of undivided share in the said
property has devolved on and got vested with the first petitioner on the death
of Dr.M.A.M.Ramaswamy by operation of law. Therefore in order to get
probate, the first petitioner applied for probate of the said Will, dated
18.02.2015 and the said case is pending as T.O.S.No.27 of 2021 in the
original side of this Court.
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2.10. While that being so, the respondents 4 and 5 are attempting to
put up construction of a commercial building in about 41.630 grounds out of
the wholesome property on its northern side having frontage on
Thandavarayan Street. Since the 127 grounds undivided property where all
the co-sharers have undivided shares of land and therefore, the respondents
4 and 5 cannot claim any exclusive or absolute right over the aforestated
property, where they are putting up construction, which is a portion of the
suit A schedule property.
2.11. The petitioners are entitled to the undivided share in the entire
property and the fourth respondent at the best can claim title only to
undivided half share in the wholesome property.
2.12. While that being so, when the application was submitted by the
fourth and fifth respondents, for construction of multi storied
commercial building at the 41.630 grounds of land approximately out of the
total 127 grounds, before giving any approval by the second and third
respondents, the petitioners had given objection. Despite the said objection,
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the second respondent had given the planning permission by order, dated
25.02.2021.
2.13. In fact the fourth respondent has filed a Civil Suit in
C.S.No.198/2016 in this Court against the sixth respondent and sixth
respondent herein has filed a partition suit against the fourth and fifth
respondents and others including the first petitioner in C.S.No.223/2021,
which is also pending before this Court.
2.14. In these circumstances, having no other option or alternative
efficacious remedy against the impugned order of planning permission,
dated 25.02.2021 given by the second respondent, the petitioners have
moved this writ petition with the prayer sought for therein.
3. The case which was projected by the fourth respondent, who is the
main contesting respondent, as per the averments made in the counter
affidavit filed by the said respondent, are as follows :
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3.1. At the outset, an extent of 127 grounds (entire extent) comprised
in 4277/6 and 7, in short “the entire property”, absolutely belongs to the
fourth respondent Trust. An extent of 86 grounds is under the possession of
a Trust called Kumararajah Muthiah School of Traditional Arts and Crafts
(in short herein after called as “the Society”) of which the sixth respondent
is the Secretary. The said society is running a school in the land measuring
86 grounds. Therefore, the remaining 41.630 grounds comprised in
S.No.4277/6, in short be called as “the subject property”, was leased out to
one Chettinad Logistics Pvt., Ltd., the 9th respondent herein, who was
subsequently impleaded, in the year 2011 by virtue of a lease deed, dated
28.03.2011 by the fourth respondent Trust through its Managing Trustee
Dr.M.A.M.Ramaswamy.
3.2. The fourth respondent Trust applied for planning permission to
construct a multi storied building in the subject property which was
considered by the second respondent and they granted the planning
permission, as against which the writ petition was filed.
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3.3. The writ petitioners have no locus standi to file the present
petition on the ground that it owns an undivided share in the larger extent of
127 grounds as it does not have even an inch in the 127 grounds lands
referred to above. The writ petitioners, 6th respondent and 7th respondent and
the society have been acting in tandem to illegally prevent the fourth
respondent Trust from developing its property. They have filed multiple
litigation prompting the other party to file cases, thereby wasting the
valuable time of the Court and the fourth respondent. In this context, they
referred the following cases which were filed and are pending :
(1) W.P.No.11045 of 2017, (2) T.O.S.No.27 of 2021, (3) C.S.No.198
of 2016, (4) C.S.No.223 of 2021, (5) O.S.No.201 of 2016, (6) C.S.No.11 of
2019, (7) C.S.No.20 of 2019 and (8) W.P.No.15003 of 2016.
3.4. Therefore they submitted in the counter affidavit that, the present
writ petition is a shear abuse of process of law and they are guilty of forum
shopping. They also stated that, the writ petitioners have suppressed the
fact that the sixth respondent on her own and on behalf of the society had
filed applications in C.S.No.198 of 2016 and C.S.No.223 of 2021, seeking
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for an interim injunction restraining the fourth respondent Trust from
putting up any construction in the very same property which is the subject
matter of the writ petition.
3.5. C.S.No.198 of 2016 has been instituted by the fourth respondent
Trust to cancel the lease deed, dated 29.10.2015 unilaterally executed by the
then managing trustee Dr.M.A.M.Ramaswamy of the fourth respondent
Trust to and in favour of the society represented by the sixth respondent.
3.6. In the written statement filed by the sixth respondent in
C.S.No.198 of 2016, the ownership of the fourth respondent Trust to the
extent of land portion measuring all about 127 grounds was accepted or
admitted by the sixth respondent.
3.7. Not having succeeded in her attempts to get order of injunction in
C.S.No.198 of 2016, the sixth respondent instituted a suit in C.S.No.223 of
2021 in June 2021, wherein she sought for a partition and separate
possession from the fourth respondent Trust and others, where also an
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application had been filed seeking for interim orders. Further the fourth
respondent in the counter has raised a preliminary objection on the
maintainability and locus standi of the petitioner Trust to file the present
writ petition.
3.8. It is further stated that, the writ petition has been filed by the
petitioners on the strength of a Trust Deed, dated 09.02.2015 and Will,
dated 18.02.2015 alleged to have been executed by late
Dr.M.A.M.Ramaswamy. Both the Trust Deed as well as the Will are
disputed by the fifth respondent and the Will is also the subject matter of
the dispute in T.O.S.No.27 of 2021. Dr.M.A.M.Ramaswamy was not in a
sound disposing state of mind, therefore the writ petitioners 2 to 5 and 6 th
and 7th respondents herein had exploited the situation.
3.9. That apart, Dr.M.A.M.Ramaswamy was the managing trustee of
the fourth respondent Trust, in that capacity, he had himself treated the
entire property belonging to the fourth respondent by executing various
documents in respect of the subject property like general power of attorney
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deed, dated 10.08.2012 in favour of R5, lease deed, dated 28.03.2011 and
lease deed, dated 29.10.2015, which is impugned in C.S.No.198 of 2016,
executed by the fourth respondent Trust represented by late
Dr.M.A.M.Ramaswamy in favour of the society represented by the sixth
respondent herein.
3.10. It has further been stated in the counter affidavit of the fourth
respondent that, the claim that son Muthiah was the owner of the 50% of the
undivided share in total 127 grounds at the time of his death on 24.01.1970
has surfaced for the first time after a period of 61 years. The family
members including the sixth respondent were well aware that, the husband
of the sixth respondent, i.e., son Muthiah had dedicated his 50% share in the
entire property to the fourth respondent Trust under a Gift Deed, dated
09.03.1969.
3.11. It is further stated in the counter that, the fourth respondent
Trust was established by the father Muthiah with his wife Rani Meyyammai
Achi, their first son, son Muthiah, daughter in law and the sixth respondent
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and also their second son, Dr.M.A.M.Ramaswamy and their second
daughter in law Smt.Sigapi Achi as donors by the registered Document
No.213, dated 14.03.1957.
3.12. The entire property of 127 grounds was originally owned and
possessed by father Muthiah. In the year 1960 vide Document No.513 of
1960, dated 24.03.1960, he bequeathed half undivided share in the entire
property to and in favour of the son Muthiah. However in the year 1969, the
father Muthiah as well as the son Muthiah had jointly gifted their respective
undivided shares, by a deed, dated 09.03.1969, in the entire property to and
in favour of the fourth respondent Trust and in fact, the fourth respondent
Trust was put in possession on the very same day in the entire property. By
virtue of the said dedication, the fourth respondent Trust had become the
absolute owner of the subject property of 41.630 grounds also which forms
part of the entire property of 127 grounds.
3.13. Since the son Muthiah pre deceased on 24.01.1970, of his father
and on 01.03.1970, the father Muthiah's wife Rani Meyyammai Achi also
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died, the father Muthiah had given effect to the joint dedication made on
09.03.1969 with respect to his half share of the whole property to the extent
of 150 grounds vide registered Document No.635 of 1970, dated 28.03.1970
before the SRO, Mylapore,
3.14. In the said document, dated 28.03.1970, the earlier document,
dated 09.03.1969 has been specifically mentioned and what was intended
and conveyed by both father Muthiah and son Muthiah of the entire
property of 127 grounds to and in favour of the fourth respondent had been
mentioned in the document, dated 28.03.1970.
3.15. In 1995, Dr.M.A.M.Ramaswamy acting in the capacity as the
managing trustee of the fourth respondent, had executed a Gift Deed to and
in favour of the third respondent, i.e., Chennai Corporation on 10.05.1995
gifting of about 6088.12 sq.mts land out of the entire property for the
formation of road for public purpose.
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3.16. These actions on the part of Dr.M.A.M.Ramaswamy were made
as a managing trustee of the fourth respondent trust and execution of a Gift
Deed makes it clear that, the sixth respondent and other family members had
knowledge about the ownership of the entire 127 grounds, i.e., fourth
respondent and only as a managing trustee of the fourth respondent,
Dr.M.A.M.Ramaswamy acted upon.
3.17. Thereafter the society was started by the sixth respondent,
namely Kumarasamy society and 10 grounds of land was allocated or leased
out to the said society for starting a school for a monthly lease amount of
Rs.12,000/-. However the school subsequently expanded slowly and become
thoroughly commercial. It had started occupying a major extent of entire
property to an extent of 76 grounds, therefore, totally it had occupied 76+10
totally 86 grounds out of the entire 127 grounds which is also a subject
matter in C.S.No.198 of 2016. Therefore in order to protect the 41.630
grounds, i.e., the remaining land out of 127 grounds, the fourth respondent
have put up a compound wall and had leased out the said 41.63p grounds to
the ninth respondent, namely Chettinad logistics.
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3.18. While so, on 29.10.2015, Dr.M.A.M.Ramaswamy had executed
a lease deed to the Kumararajah society represented by the sixth respondent
vide lease deed in Document No.3203, which is impugned in C.S.No.198 of
2016 filed by the fourth respondent. In fact in the said lease, the entire
property of 127 grounds was given to the society represented by the sixth
respondent for a paltry sum of Rs.12,000/- per month.
3.19. The fourth respondent trust and its then managing trustee,
Dr.M.A.M.Ramaswamy had given due approval with the consent of all the
trustees of the fourth respondent trust to develop the land in R.S.No.4277/6,
having an extent of 41.630 grounds, i.e., “the subject property” into a
commercial complex. Towards the said process, as per the resolution of the
fourth respondent trust, the managing trustee, Dr.M.A.M.Ramaswamy
appointed the fifth respondent namely M.A.M.Ramaswamy Muthiah as the
power agent of the trust vide registered general power of attorney, dated
10.08.2012.
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3.20. Pursuant to which, the fifth respondent power of attorney on
07.09.2012 applied for planning permission to the second respondent. In the
year 2013, the application submitted by the fourth respondent through the
fifth respondent was returned / rejected, as against which the fourth
respondent preferred appeal under Section 79 of the Tamil Nadu Town and
Country Planning Act on 18.12.2013. Further documents were called for
from the fourth respondent which were filed to the second respondent and
on receipt of those documents, by considering the appeal filed by the fourth
respondent, the first respondent Government allowed the appeal filed by the
fourth respondent, following which, the second respondent imposed
conditions and directions to remit a substantial sum of Rs.40 crores towards
the statutory fees which were also paid by the fourth respondent. Thereafter
the planning permission was granted by the second respondent for a five
years from 25.02.2021 to 24.02.2026 by planning permission, dated
25.02.2021 and also the fourth respondent was directed to remit a sum of
Rs.1,04,84,400/- towards building permission to the third respondent.
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3.21. Only at this juncture, since this writ petition had been filed
challenging the order of planning permission granted by the second
respondent, dated 25.02.2021, the stand taken by the fourth respondent
through the counter affidavit is that, the writ petition first of all is not
maintainable, as the petitioners do not have the locus standi to file the writ
petition as they have to file appeal against the order passed by the second
respondent, CMDA and moreover the appeal filed by the fourth respondent
since was allowed by the first respondent State Government, that is the basic
order, pursuant to which only now the impugned planning permission was
given by the second respondent and therefore the Government decision
should have been challenged without which, the consequential planning
permission given by the second respondent cannot be challenged.
3.22. With these averments, the fourth respondent has filed the
counter affidavit.
4. The stand taken by the sixth respondent as averred in the counter
affidavit filed by her are as follows :
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4.1. The sixth respondent claims to be one of the trustee of the
petitioner trust and she adopts the averments and contention of the writ
petitioner trust that, the trust is one of the co-owner of the land sought to be
developed by the fourth respondent trust and the planning permission was
given to the fourth respondent without the consent and notwithstanding the
objection of the writ petitioners as well as the sixth respondent.
4.2. The sixth respondent also has taken a stand that, since her
husband son Muthiah died on 24.01.1970 intestate, his undivided half share
in the entire property of 127 grounds had devolved on his legal heirs namely
the sixth respondent and her mother-in-law Meyyammai Achi equally, i.e.,
1/4 share each by operation of law. She further states that subsequently by a
registered Gift Deed, dated 28.03.1970, father Muthiah gifted his undivided
half share of 75 grounds out of the total extent of 150 grounds of land
comprised in R.S.No.4277, Mylapore village to the fourth respondent Trust.
Therefore these documents prove that, the son Muthiah, i.e., husband of the
sixth respondent got 75 grounds in R.S.No.4277.
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4.3. She further states that, after the death of her mother-in-law Rani
Meyyammai Achi who died intestate on 01.03.1970, her 1/4th undivided
share in the said lands in R.S.No.4277 had devolved on her husband, father
Muthiah and her younger son Dr.M.A.M.Ramaswamy, i.e., 1/8th undivided
share in the total extent of 150 grounds each. After the death of the father
Muthiah intestate on 12.05.1984, his 1/8th undivided share had devolved on
her, as the wife of the pre deceased son, i.e., son Muthiah and on his
younger son Dr.M.A.M.Ramaswamy, i.e., 1/16 share each in the total
extent of 150 grounds.
4.4. She further states that, M.A.M.Ramaswamy died on 02.12.2015,
leaving his last and final registered Will, dated 18.02.2015, where under, he
had bequeathed all properties which belongs to him on the date of his death
to the petitioner trust, namely Dr.M.A.M.Ramaswamy Chettiar of Chettinad
charitable trust established by him. Thus 5/16th undivided share to the
family of the sixth respondent and the petitioner trust is entitled to 3/16th
undivided share in the entire 150 grounds amounting to 75 grounds for both
herself and petitioners trust put together.
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4.5. It was further averred by the sixth respondent in her counter that,
since her father-in-law, i.e., father Muthiah was very much interested in
establishing educational institution and imparting education to all, the sixth
respondent started a society in the year 1986 and the said society established
and running a school, by name, Chettinad Vidhyashram in R.S.No.4277
with a consent and encouragement and co-operation of all the co-owners of
the property. The school has grown from strength to strength during the last
35 years. Substantial buildings had been put up for the school with +2
standards. The school is run in consonance with the desire and vision of
father Muthiah and son Muthiah in the same property owned and lived by
them, which is very appropriate.
4.6. The fourth respondent without disclosing in what land they
proposed to construct the building as they desired, for which they applied, in
the undivided share between the co-owners, the fourth respondent applied to
the CMDA, second respondent for grant of planning permission to develop
41 grounds in R.S.No.4277 out of the undivided total extent of 150 grounds.
If the proposed building is constructed, that would be in the midst of the
school premises, which is impermissible.
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4.7. Already 8 grounds of land in S.No.4277 and an extent of 19
grounds in S.No.4288 were gifted under the Gift Deed in the year 1995 by
the fourth respondent towards the Corporation of Chennai, the third
respondent herein for laying a public road. Now after deducting the 8
grounds, the fourth respondent would be entitled for 75-8 only 67 grounds.
The road frontage available for S.No.4277 is about 950 feet which should be
divided between the fourth respondent, the petitioner and the sixth
respondent family in proportion to their holding. Assuming without
admitting that the road frontage has to be decided equally between the R4 on
the one side and the petitioner and the R6 put together on the other side, the
R4 would be entitled only to 475 feet of the road frontage, whereas, as per
the proposed development, the fourth respondent has taken a road frontage
of about 560 feet which is beyond the entitlement of the fourth respondent.
Therefore on that ground also, the impugned planning permission ought not
to have been given. On coming to know about the move made by the fourth
respondent to get such a planning permission from the second respondent,
CMDA, the sixth respondent made written objections. However, the same
was not considered by the second respondent and they proceeded to give the
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planning permission through the impugned order.
4.8. It is further stated by the sixth respondent that, relying upon an
unregistered agreement of Gift, dated 09.03.1969 executed by father
Muthiah and son Muthiah jointly, the fourth respondent cannot claim the
ownership of the entire 127 grounds or 150 grounds and in this regard, the
09.03.1969 document since did not comply with Sections 122 and 123 of
the Transfer of Property Act and Section 17 of Registration Act, such a
document cannot be relied upon. Therefore the fourth respondent cannot
claim ownership of the entire 127 grounds.
4.9. Assuming that if a lease has been executed by the fourth
respondent on 29.10.2015 in favour of the society, where the sixth
respondent is the secretary, the execution of the said lease deed or the
acceptance of the same shall neither confer title in favour of the fourth
respondent in respect of 127 grounds nor prevent the lawful co-owners from
claiming title to a portion of the land. The lease is only subservient to title.
4.10. The sixth respondent has further stated in the counter that, she
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had already filed C.S.No.223 of 2021 before this Court, seeking for a
partition and separate possession of her share in respect of the said land in
R.S.No.4277. The fourth respondent trust filed C.S.No.198 of 2016
challenging the lease deed, dated 29.10.2015 in favour of the society. The
sixth respondent also stated that, she had filed A.No.334 of 2021 praying for
interim injunction against the fourth respondent not to put up construction in
the 41 grounds of land pending disposal of the suit in C.S.No.198 of 2016.
Since these proceedings are pending before this Court, no further action can
be taken by the fourth respondent to put up any construction, pursuant to
the impugned planning permission. Therefore supporting the case of the writ
petitioners, the sixth respondent has filed the counter and taken a stand as
stated supra.
5. The ninth respondent, namely, M/s. Chettinad Logistics Pvt., Ltd.,
though was initially not arrayed as a party in the writ petition subsequently
it had been impleaded as one of the party respondents. That is how R9 has
come into the picture who filed counter affidavit supporting the case of R4
and R5.
6. As per the averments made in the counter affidavit filed by the 9th
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respondent, it claims that, in respect of the remaining land of 41.630
grounds out of the total 127 grounds, i.e., after deducting the 86 grounds,
which is in possession of the sixth respondent and her society to run the
school referred to above, a lease was executed by the fourth respondent
through its erstwhile Managing Trustee, late Dr.M.A.M.Ramaswamy on
28.03.2011 for a monthly rent of Rs.2lakhs for use and occupation of the
land in 41.630 grounds. Initially the lease period was 6 years and it was
mutually agreed between 9th respondent and fourth respondent trust that, on
the expiry of the lease, the fourth respondent trust agreed to extend the lease,
on condition that, the land in 41.630 grounds be handed over to the fourth
respondent for the purpose of putting up a commercial complex, on which
the fourth respondent trust agreed to provide proportionate floor space to the
9th respondent company for the use and occupation as a lessee. The said
terms were agreed by the ninth respondent company herein and accordingly,
the lease arrangement was extended by another six years beginning from
01.06.2017.
7. It is the further averment of the ninth respondent in the counter
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affidavit that, since the sixth respondent attempted to interfere with the
peaceful possession, it lead to the ninth respondent company herein to file a
suit in O.S.No.201 of 2016 on the file of the VI Assistant City Civil Judge,
Chennai. The said Court granted injunction in favour of the ninth
respondent, which was challenged by way of Civil Miscellaneous Appeal
filed by the sixth respondent, where also the Appellate Court confirmed the
order passed by the trial Court and that has become final, therefore, there is
a injunction operating against the sixth respondent restraining the sixth
respondent from interfering with the peaceful possession of the 9th
respondent in the said land, i.e., 41.630 grounds as a lessee as per the lease
deed, dated 28.03.2011 extended with effect from 01.06.2017 for further six
years, i.e., up to 2023.
8. By stating these averments, the 9th respondent filed the counter
affidavit, supporting the case of the 4th and 5th respondents.
9. The second respondent, i.e., Chennai Metropolitan Development
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Authority, who issued the planning permission to the fourth respondent,
which is impugned herein, has made the following averments in the counter
affidavit filed :
9.1. The fourth respondent Trust represented by its general power of
attorney, the fifth respondent applied for the planning permission for the
proposed construction of High Rise Building for commercial purpose
consisting of extended double basement floor and ground plus 14 floors for
shop, hotel, rooms and office at Thandavarayan Street, Duraisamy
Dinakaran Road, Rajah Annamalaipuram, Chennai - 600 028, being
R.S.No.4277/6, Block No.1, Mylapore village.
9.2. They further stated that, earlier the planning permission
application submitted by the fourth respondent for the proposed
construction was examined and refused by letter, dated 18.11.2013. Against
the refusal order, the fourth respondent preferred an Appeal under Section
79 of the Tamil Nadu Town and Country Planning Act 1971. The Appeal
was presented before the Appeal Committee. Thereafter on 03.05.2016, a
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letter was received from the Secretary of the Kumararajah Muthiah School
of Traditional Arts and Crafts Society, i.e., the sixth respondent along with
the copy of the lease deed, dated 29.10.2015 with an objection that, the
fourth respondent shall not be given planning approval. The said objection
had been forwarded to the Government in Appeal No.D2/2334/2014, dated
22.08.2016.
9.3. Thereafter the Appeal Committee took note of clause 8 of the
Trust Deed, dated 14.03.1957 which entitle the trustees to sell, transfer or
otherwise alienate any of the shares set out and described in the schedule
and it shall be treated as a corpus of the trust and invested in such securities
and in such manner as the trustees may decide. Considering these aspects
with detailed deliberations, the committee allowed the appeal with a
direction to reserve the required OSR and remitted the issue back to the
CMDA, i.e., the second respondent to proceed further by taking action as
decided by the Appeal Committee.
9.4. The fourth respondent resubmitted the planning permission
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application and the same was examined and placed before the 253rd MSB
panel meeting held on 13.09.2019 and the planning permission application
resubmitted was forwarded to the first respondent Government on
05.11.2019 along with the recommendation of MSB panel and also sought
for the Government to clarify whether the payment of the OSR charges in
lieu of reservation of OSR land is applicable to the said case and also to
further clarify, whether the appeal decision implies that the unauthorised
subdivision is regularisable.
9.5. Thereafter the first respondent, i.e., the Government, vide letter
dated 18.11.2019 allowed the appeal with a direction to reserve the required
OSR area and to regularise the unauthorised sub division. As per the School
Education Department G.O.Ms.No.235, dated 24.05.1997, the minimum
extent of the land required for Higher Secondary School within the city area
is only three acres and which is satisfied by the residuary school site which
is approximately six acres, as a whole site under reference abuts public road
which is more than 18 metre wide, therefore such a proposal can be
approved. Thereafter the fourth respondent has preferred an Appeal on
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07.01.2020 with respect to OSR charges and the said appeal was also
allowed by the Government issuing orders vide G.O.Ms.No,74, dated
20.05.2020 by the first respondent and directed the second respondent to
collect the OSR charges in lieu of OSR under the provisions of rule 41(1) (b)
of the Tamil Nadu Combined Development and Building Rules 2019 (in
short, “the Development Rules”) at the time of issuance of planning
permission.
9.6. Since the applicant has complied all the Government conditions
and remitted the necessary charges, the final plan, i.e., the planning
permission in permit No.13259, dated 25.02.2021 was issued in Letter,
dated 25.02.2021, which is valid up to 24.02.2026.
9.7. By citing the aforestated averments, the second respondent, i.e.,
CMDA, justifies the planning permission granted to the fourth respondent.
10. The first respondent has filed an adoption counter affidavit
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adopting the stand taken by the second respondent in its counter affidavit
and it sought for leave of this Court to permit the first respondent to adopt
the counter affidavit of the second respondent insofar as it concern to the
first respondent and also to treat and read the same as part and parcel of the
adoption counter affidavit.
11. This is how the parties to the writ petition have filed their
respective pleadings.
12. ARGUMENTS :
Before delve into the arguments advanced by the learned
respective counsels appearing for the parties, for the sake of convenience,
the learned counsels who made arguments either opposing or supporting the
impugned order can be brought under two broad categories.
13. The writ petitioners and sixth respondent can be categorised as
Group-A, as the sixth respondent fully supports the case of the writ
petitioners.
14. Like that, the fourth and fifth respondents as well as the ninth
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respondent can be categorised as Group-B as the fourth respondent's case is
supported by the fifth and ninth respondents.
15. The official respondents, especially R2 and R1 want to sustain the
impugned order, therefore, they can also be treated as belongs to Group-B
and the arguments made by the respective learned Senior counsels and
counsels appearing for the parties would be dealt with accordingly.
16. Arguments by the A-Group :
The argument was lead by Mr.G.Masilamani, learned Senior
counsel appearing for the sixth respondent and Mr.R.Srinivas, learned
counsel appearing for the writ petitioners also argued extensively.
17. In order to sum up the arguments made on behalf of A-Group, the
following summary of arguments were noted :
17.1. There was a Trust created among the family members of father
Muthiah on 14.03.1957.
17.2. There was a Gift Deed on 24.03.1960, under which, the father
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Muthiah bequeathed half undivided share of the entire property at
S.No.4277 and 4288 at Sub Registration of Mylapore and Registration
District of Chennai to son Muthiah.
17.3. Only in the year 1970, there was a Deed of Declaration of Trust
executed by father Muthiah, under which, only half share, i.e., 75 grounds
of the total area of 150 grounds were transferred to the fourth respondent
Trust, thereby the remaining 50%, i.e., 75 grounds out of the total 150
grounds in the said two survey numbers belongs to the son Muthiah as per
the 24.03.1960 Gift Deed of father Muthiah, has never been transferred to
the fourth respondent, as before this date, i.e., 28th day of March 1970, the
son Muthiah on 24.01.1970 died intestate.
17.4. Therefore 75 grounds of the land, i.e., 50% of the total land has
never been transferred to the fourth respondent trust, therefore the said 75
grounds devolved to the family members like sixth respondent, mother of the
son Muthiah and subsequently after the demise of mother of son Muthiah,
that share devolved to son Muthiah's brother Dr.M.A.M.Ramaswamy.
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17.5. While that being so, on 18.02.2015, a Will was executed and
registered by Dr.M.A.M.Ramaswamy in Document No.6 of 2015 at SRO
Mylapore, under which, the property, i.e., the share of the said
M.A.M.Ramaswamy had been bequeathed to the first petitioner Trust.
17.6. The 09.03.1969 document is an unregistered agreement to gift
the half share of the entire property of the father Muthiah and the remaining
half share of son Muthiah towards the fourth respondent Trust, however,
subsequent to the 09.03.1969 document since the son Muthiah died on
24.01.1970, only the father Muthiah executed the registered document in
1970, i.e., on 28.03.1970, hence, the fourth respondent cannot rely upon
such an unregistered document, dated 09.03.1969.
17.7. As per Sections 122 and 123 of the Transfer of Property Act, the
gift was defined and how the transfer to be effected has been made.
17.8. Under Section 123 of the Act, for the purpose of making a Gift
of immovable property, the transfer must be effected by a registered
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instrument signed by or on behalf of the donor and attested by atleast two
witnesses.
17.9. By relying upon these provisions, the learned counsels
appearing for A-Group submitted that, since there was no registered
document, as the document, dated 09.03.1969 is only an unregistered
document, under which, the gift cannot be transferred, i.e., the gift of the
land, half share belong to the son Muthiah has not been transferred or the
transfer has not been effected to and in favour of the fourth respondent.
17.10. They also submitted that, every registerable document must be
registered under Section 17 of the Registration Act and without having a
registered document no ownership can be transferred and therefore, based
on 09.03.1969 document no ownership can be transferred even by way of
gift to and in favour of the fourth respondent as it runs contra to Section 17
of the Registration Act.
17.11. The fifth respondent before making an application to the
second respondent seeking planning permission must have understood that,
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50% of the entire property has not been conveyed to the fourth respondent
trust. In this context, it is the further submission of the learned counsels that,
under Rule 6 of the Tamil Nadu Combined Development and Building
Rules, 2019 (in short “the Development Rules”) the application should be
filed by all the owners to the CMDA.
17.12. They also submitted that the term co-owner as has been
explained by Ramanathar Iyer's “Law Lexicon” makes it clear that, co-
owner is as much as owner of the property, he owns every part of the
composite property. Therefore the application should have been filed by all
the co-owners, since it has not been filed as such and it was only filed by the
fifth respondent claiming to be the power of attorney holder of the fourth
respondent, it was not filed bonafidely.
17.13. In the year 1995, a Gift Deed was executed by the then
Managing Trustee of the fourth respondent of 27 grounds to and in favour of
the third respondent for forming the road. The 27 grounds must be deducted
only from 75 grounds, i.e., half share belonging to the fourth respondent,
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therefore, the remaining area is only 48 grounds. Hence, it cannot be
construed that, the fourth respondent can claim ownership for the entire
stretch of 150 grounds or 127 grounds as the case may be.
17.14. The title cannot flow by mere conduct of the parties unless and
until there are instruments in writing, registered duly under the Registration
Act, then only the title would flow from such documents and not by mere
conduct of parties. They also submitted that, since they are co-owners, hence
they have every right and locus to question the impugned order.
17.15. Moreover, they also submitted that, by the Will, dated
18.02.2015, the part of the property since has come to the petitioner Trust
and since the petitioner Trust also becoming a co-owner of the entire stretch
of the property, in order to protect the property being a legatee, the petitioner
has got every right. Hence, the writ petition is very well maintainable.
17.16. The lease executed by R4 to and in favour of R9, i.e.,
Chettinad Logistics is an unregistered document and moreover once the
lease expires, it cannot be automatically extended without the concurrence of
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the co-owners and therefore in this regard, since the Civil Suit filed by the
ninth respondent in O.S.No.201 of 2016 is pending, the lease deed of 2015
made in favour of the society represented by the sixth respondent should be
read down. When a partition suit is pending, it is not entitled for any party
to develop the property in such a fashion as proposed by the fourth
respondent to develop a multi storied commercial building.
17.17. They also submitted that, the road width abutting the property
in question is only 950 feet in the Thandavarayan Street, out of which, if the
petitioner Trust and sixth respondent and others who are legal heirs of the
son Muthiah are entitled for 50% of the entire property, they are entitled to
425 feet of frontage. Therefore the remaining 425 feet alone, for which the
fourth respondent entitled to, however, now as per the proposed plan 560
feet of the frontage has been taken by the fourth respondent which is
impermissible.
17.18. By virtue of this, since larger length of the frontage is proposed
to be taken by the fourth respondent for the proposed multi storied building,
the value of the remaining land, where the school of the sixth respondent is
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located and other connected land would get diminished.
17.19. They also submitted that more than 8000 students are studying
in the school run by the sixth respondent and therefore, priority must be
given to educational activities, which has already been developed. Therefore,
abutting the said school environment if such a multi storied commercial
buildings are developed, that would create a serious environmental issue and
in this regard, no proper study for traffic issue and pollution issue was
conducted before the planning approval was given by the second respondent.
Rule 16 of the 2019 Development Rules speaks about the primary
residential zone, where no permission under rule 16(6) can be given and no
opportunity was given either to the writ petitioners or to the sixth respondent
being the co-owner before deciding the application submitted by the fourth
respondent for getting the plan permission.
17.20. If there is no remedy for the writ petitioners to file a writ
petition herein, there would be no remedy for them. Hence, they submitted
that the maxim “ubi jus ibi remedium” would rescue the cause of the writ
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petitioners.
17.21. The dedication of the property to any charitable trust without
having a valid registered document may be accepted only in case of such
dedication to be made to HR & CE or Hindu Trust and not for any other
Trust like the fourth respondent. The alternative remedy plea raised by the
fourth and fifth respondents as well as the ninth respondent would not be
held to be a valid reason to entertain the case of the said respondents,
because, since against the co-owners the planning permission has been given
by the second respondent through the impugned order, hence they have
every right to challenge such planning permission before this Court.
17.22. In the impugned order, no proper reasons have been given as to
why, despite the earlier rejection of the application of the fourth respondent,
subsequently, the resubmitted application was accepted and therefore on
that ground also, the impugned order is liable to be interfered with. There
was total non-application of mind on the part of the second respondent
before granting the planning permission, they contended.
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17.23. Irrelevant factors are taken into consideration by the
Government, ergo it is arbitrary and violation of Article 14.
17.24. If at all the Government has taken any decision, that should
have been by way of Government Order, not by way of letter. The
Government in fact failed to exercise their power in proper perspective under
Section 79 of the Tamil Nadu Town and Country Planning Act.
17.25. The 19.07.2019 order of the Government is not under Section
79 of the Act, therefore it is non-est.
17.26. By making all these detailed submissions, learned Senior
counsel and counsel appearing for A-Group have relied upon number of
Judgments in support of their contention.
18. B-Group arguments was lead by learned Senior counsel
Mr.M.S.Krishnan, Mr.V.Raghavachari and Mr.T.Mohan also supported the
cause of the fourth respondent. Along with learned Senior counsel, they
made the following submissions :
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18.1. As per the Trust Deed, dated 14.03.1957, there were five
donors, i.e., five trustees, all are family members. On 24.03.1960, there was
a Gift Deed, under 09.03.1969 Deed of Gift, 150 grounds were dedicated to
the R4 trust including the subject property. On 28.03.1970, it was declared
to be the trust with the properties, on 10.05.1995 it was a Gift Deed to the
Corporation of Chennai for around 30 grounds. At present six people are
trustees in the fourth respondent. Out of 127 grounds, 86 grounds are
occupied or in possession of the society / sixth respondent / school. The
remaining is 41 grounds, for which on 28.03.2011, lease deed was executed
by the fourth respondent to the ninth respondent. On 02.08.2012, there was
a Board of Trustees Meeting of the fourth respondent, pursuant to which, an
unanimous decision was taken to develop the property at 41 grounds,
pursuant to which, power of attorney was executed by the Managing Trustee
of the Trust, M.A.M.Ramaswamy to the fifth respondent on 10.08.2012 for
taking all steps including making application to the CMDA to develop the
said property of 41.60 grounds.
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18.2. Pursuant to the said decision taken by R4 Trust, the fifth
respondent made application as a power of attorney of the fourth respondent
to the second respondent.
18.3. When the said application was in process based on the inputs
supplied by the fourth respondent Trust, the second respondent CMDA
having considered the application, has returned the same as the sub-division
made in respect of 41 grounds was not permissible, because, already the
entire 127 grounds have been shown as a single property, wherein already
permission sought for by the fourth respondent for construction of certain
buildings for the purpose of locating the school of the sixth respondent were
granted.
18.4. They also submitted that, subsequently, further inputs were
supplied by the fourth respondent to the CMDA as to how the 41 grounds
become a separate property as in between the 86 and 41 grounds, there is a
compound wall and moreover the school which runs in the 86 grounds of
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land requires only three acres of land as per the norms of the Government
and therefore, this 41 grounds can be independently developed by putting up
a multi storied commercial complex, in order to augment the revenue of the
trust towards the fulfilment of the object of the Trust and hence, the fourth
respondent through the fifth respondent sought for reconsideration by
preferring an appeal to the first respondent.
18.5. The first respondent's appeal filed against the order rejecting the
proposal of the CMDA was placed before the Appeal Committee of the
Government and they passed an order on 19.07.2019 in Letter No.1918/
UD-I/2014-7. The Government stated that, the Appeal Committee took note
that clause 8 of the trust deed, dated 14.03.1957 entitles the transfer or
otherwise alienate any of the shares set out and described in the schedule
thereunder provided. However, that the amount realised on such sale or
conversion or in the event of any of the company's going into the liquidation
in lieu of the said shares, shall be treated as the corpus of the trust and
invested in such securities and in such manner as the trustees may decide.
After detailed deliberation, by taking into account clause 8 of the Trust
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Deed, the Committee decided to allow the appeal filed by the fourth
respondent as against the order of the CMDA and with a direction to reserve
the required open space reservation, remitted the issue back to the second
respondent to pursue the matter further as per the decision as decided by the
Appeal Committee.
18.6. In the meanwhile since the sixth respondent has filed an
objection to the second respondent, not to process the application of the
fourth respondent, that was also forwarded as per the stand taken by the
CMDA to the Government, where the Appeal Committee having considered
all these aspects only, allowed the appeal filed by the fourth respondent by
letter of the Government, dated 19.07.2019.
18.7. The learned counsels would further contend that, though
attempt had been made by the sixth respondent in filing application after
application in the original suit filed by the ninth respondent before the City
Civil Court as well as in the Civil Suit filed by the fourth respondent
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challenging the lease deed executed by the Dr.M.A.M.Ramaswamy to and in
favour of the society / sixth respondent for the entire 127 grounds and also
in the Civil Suit filed by the sixth respondent herself seeking partition of the
property in question, all those Interlocutory Applications were ultimately
ended against the sixth respondent as well as the writ petitioner Trust.
Therefore by abusing the process of law, they once again approached this
Court by filing the present writ petition, challenging the order of the second
respondent granting planning permission to the fourth respondent.
18.8. Learned counsel would also contend that, as per the agreement
of Gift Deed, dated 09.03.1969, the entire property, i.e., 150 grounds
including the 127 grounds which is a larger extent, out of which the subject
property of 41 grounds is located, were dedicated to the trust created in this
regard dated 14.03.1957. The half share of father Muthiah and half share of
son Muthiah were jointly bequeathed in favour of the fourth respondent trust
by the said document, dated 09.03.1969.
18.9. However, at that time, since the parties to the gift deed wanted
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to get stamp duty exemption and they were awaiting orders in this regard
from the Government, the registered document was not made and therefore
they executed the said agreement to the Gift both by the father Muthiah and
son Muthiah jointly to and in favour of the fourth respondent on 09.03.1969.
18.10. They would further submit that, the son Muthiah died on
24.01.1970 and the mother of the son Muthiah Meyyammai Achi also died
on 01.03.1970. Therefore while the Gift Deed was registered by the father
Muthiah on 28.03.1970 to and in favour of the fourth respondent trust, the
undivided half share in about 150 grounds of land in R.S.No.4277 was
executed, wherein specifically it was mentioned that, both father Muthiah
and son Muthiah decided to gift the entire 150 grounds to and in favour of
the fourth respondent, i.e., reflected in the Document, dated 09.03.1969.
Moreover under the said document dated 09.03.1969, the very fourth
respondent has been put in possession of the entire land and these factors
have been suppressed by the petitioners while filing the present writ petition
before this Court, they contended.
18.11. The learned counsels also submitted that, insofar as the entire
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127 grounds are concerned, that has been gifted towards the fourth
respondent trust and which was put in possession by the 09.03.1969
document itself.
18.12. Assuming without, admitting that the said document, dated
09.03.1969 is an unregistered document, the 28.03.1970 document being a
registered one has ratified the gift, that was executed to and in favour of the
fourth respondent by both father and son Muthiah on 09.03.1969 itself and
based on which, every party of the family have started acting upon.
18.13. That is the reason why the fourth respondent through the then
managing trustee M.A.M.Ramaswamy permitted the sixth respondent to
start a society and to run a school in 10 grounds of land. However,
subsequently, the sixth respondent / society started occupying the 86
grounds including the 10 grounds. Therefore a compound wall was put up
by the fourth respondent separating the land used by the sixth respondent
for the school and allied purpose as well as the remaining land, i.e., 41
grounds which has been given by way of lease by the fourth respondent trust
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for a period of six years to the ninth respondent by lease deed, dated
28.03.2011.
18.14. On 10.08.2012, the fourth respondent appointed the fifth
respondent as its power agent, pursuant to the resolution of the trust, dated
02.08.2012 for the purpose of developing the 41 grounds to augment
revenue to the trust. Therefore immediately the fifth respondent being the
power agent of the fourth respondent trust, in order to execute the resolution
passed by the fourth respondent, dated 02.08.2012 had applied for planning
permission to the CMDA, which was processed for long years and ultimately
in 2019, the Government allowed the appeal filed by the fourth respondent,
pursuant to which on 25.02.2021, now the planning permission has been
given, which is impugned in the writ petition.
18.15. Therefore at no stretch of imagination, it can be argued that,
the entire property of 150 grounds including the property of 127 grounds,
out of which present subject matter is 41 grounds have not been gifted to the
fourth respondent trust. All the trustees have acted upon only as per the
aforestated arrangements which has been reflected in various instruments
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and the very sixth respondent being one of the trustees of the trust even in
the year 1957, at the time of the trust was formed, having all the knowledge
about these developments had only taken the 10 grounds initially and
occupied the remaining 76 grounds only with the consent and permission or
lease deed of the fourth respondent trust, thereby the title and possession of
the fourth respondent by action of the sixth respondent was accepted.
18.16. They further submitted that, the present issue to claim co-
ownership of the entire property surfaced only in the year 2015, as at the
time since there were some strained relationship between the fifth
respondent and his father, the erstwhile managing trustee of the fourth
respondent, Dr.M.A.M.Ramaswamy.
18.17. By sudden swift of activities, on 09.02.2015,
Dr.M.A.M.Ramaswamy constituted a trust, i.e., the first petitioner herein
and on 18.02.2015, the said M.A.M.Ramaswamy said to have executed a
Will, where under he bequeathed his properties both movable and
immovable in favour of the first petitioner and on 29.10.2015, the very same
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Dr.M.A.M.Ramaswamy on behalf of the fourth respondent without any
concurrence or support or permission or resolution of the fourth respondent,
had executed a lease deed to and in favour of the society represented by the
sixth respondent in respect of entire 127 grounds of R.S.No.4277 part, i.e.,
R.S.No.4277/7 for an annual lease rent of Rs.1,20,000/- and within a short
period, Dr.M.A.M.Ramaswamy died on 02.12.2015.
18.18. Therefore the learned counsels would contend that, the
circumstances and situation, where these documents were created on
09.02.2015, 18.02.2015 and 29.10.2015 is under great suspicion, in view of
the death of Dr.M.A.M.Ramaswamy shortly, that is on 02.12.2015. That is
the reason why the fourth respondent has filed Civil Suit in C.S.No.198 of
2016 challenging the lease deed, dated 29.10.2015 said to have been
executed by Dr.M.A.M.Ramaswamy in favour of the society represented by
the sixth respondent by laying the suit on 28.03.2016.
18.19. The learned counsels would also submit that, in the said suit as
well as in the subsequent suit filed by the sixth respondent, the sixth
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respondent filed Interlocutory Application seeking for order restraining the
fourth respondent from proceeding with the planning permission and
construction of the multi storied building as proposed and in that attempt,
they have not become succeeded.
18.20. The learned counsel also submitted that, insofar as the legal
plea raised by the writ petitioners side that, under Indian Succession Act,
i.e., in Section 211, the executor or administrator of a deceased person is his
legal representative for all purposes and all the property of the deceased
person vest in him as such, therefore the moment the Will has been executed
by Dr.M.A.M.Ramaswamy on 18.02.2015, the portion of the property
belongs to him bequeathed in favour of the petitioner trust is vest with them,
therefore the petitioner has every right and locus to oppose and challenge the
move made by the fourth respondent to get planning permission to develop
part of the the property, i.e., 41 grounds is concerned, such a right cannot be
automatically claimed by the writ petitioners, especially the first writ
petitioner trust without having the said Will get probated in the Court of law
and granted Letters of Administration of the Will, this has been
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contemplated under Section 213 of the same Act, i.e., Indian Succession Act.
Therefore the learned counsels would contend that, unless and until the Will
is probated and Letters of Administration is issued in favour of the first writ
petitioner, such a plea cannot be raised.
18.21. They would also submit in this regard that, the very O.P filed
in this regard by the first writ petitioner to get probate of the Will since has
been contested it has become Testamentary Original Suit and it is pending
before this Court. Hence, as of now absolutely no claim whatsoever can be
made by the writ petitioners in respect of 41 grounds, for which planning
permission has been given in favour of the fourth respondent. Therefore the
learned counsels contended that the petitioners have no locus to challenge
the impugned planning permission given by the second respondent.
18.22. Insofar as the half share of the entire property of 150 grounds
as claimed by the writ petitioners and sixth respondent side that, only father
Muthiah's property has been transferred or bequeathed in favour of the
fourth respondent Trust by the registered Deed, dated 28.03.1970 but not
the half share belongs to the son Muthiah and in view of 09.03.1969
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unregistered document, the half share of the son Muthiah cannot be
transferred in view of the provisions contained in the Transfer of Property
Act as well as the compulsory registration provision available in Section 17
of the Registration Act, learned counsels would contend that, those issues
cannot be canvassed in this writ petition, because, the very right of the writ
petitioners as well as the sixth respondent can only be decided conclusively
in the partition suit filed by the sixth respondent which is pending before
this Court and also in the Testamentary Original Suit filed by the first writ
petitioner which is also pending before this Court.
18.23. Therefore the learned counsels would contend that, the attempt
now made by the writ petitioners supported by the sixth respondent is
nothing but an abuse of process of law.
18.24. The learned counsel would also submit that, insofar as the
Development Rules are concerned, which is the governing statute as to how
the planning permission application are to be dealt with by the second
respondent CMDA, Rule 6 enables any owner, lessee or power of attorney
holder to make an application and it would be treated only as an applicant
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and based on the prima facie documents submitted by such applicant, such
planning permission application would be processed under the said rule and
in this regard, though initially the planning permission application submitted
by the fourth respondent was rejected by the second respondent, on appeal,
fourth respondent got succeeded and in this regard, the Government atleast
two times has passed orders in favour of the fourth respondent as in the first
time, the appeal was allowed, directing the CMDA to process and pursue the
application of the fourth respondent for sanction of planning permission and
in second time, the open space reserve charges in lieu of the open space
reserve was also permitted to be paid including the unauthorised such
division made within the property and therefore these decisions made by the
Government by exercising its power vest in them under the Tamil Nadu
Town and Country Planning Act has so far not been questioned by the writ
petitioner, therefore, the consequential order of the planning permission
given by the second respondent, which is impugned herein cannot be
questioned as there has been no independent action made by the CMDA
without the appeal of the fourth respondent being allowed by the
Government.
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18.25. Therefore the learned counsel appearing for the fourth, fifth
and ninth respondents have made a plea that, because of this writ petition,
where interim orders were granted, the process of making the construction
pursuant to the impugned planning permission is getting delayed, thereby
the fourth respondent being a charitable trust is incurring loss and hence,
they seek dismissal of this writ petition.
19. On behalf of CMDA, Mrs.Veena Suresh, learned standing counsel
appeared who has relied upon the counter affidavit filed by the CMDA and
also the typed set of documents which is borne out of records of the CMDA
pertaining to the present issue. She would submit that, the planning
permission application are to be dealt with under the Tamil Nadu Combined
Development and Building Rules, 2019 as well as the provisions of the
Tamil Nadu Town and Country Planning Act, 1971. She would submit that,
the application was submitted by the applicant, namely the fifth respondent
on behalf of the fourth respondent for obtaining planning permission under
rule 6 of the Development Control Rules.
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20. Along with the said application, though certain documents were
filed, the CMDA by relying upon the back file in this regard, had come to
the conclusion that, the entire stretch of land, i.e., 127 grounds were initially
shown as a single piece of land and based on the FSI being calculated for the
entire land, earlier building permissions were obtained by the fourth
respondent, where certain constructions had been made for locating the
school and expansion of the school.
21. When that being so, how the 41 grounds alone now can be treated
as a separate property and such an unauthorised division cannot be accepted
by the CMDA, on that ground initially the application was returned or
rejected by the CMDA.
22. As against which, when appeal was filed to the Government, the
Government after having considered the same in the Appeal Committee, has
allowed the appeal filed by the fourth respondent and thereafter the said
application resubmitted was placed before the 253rd MSB Panel Meeting
held on 13.09.2019 and thereafter further the planning permission
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application of the fourth respondent was forwarded to Government on
05.11.2019 along with the recommendation of the MSB panel and also
sought for the clarification as to whether payment of the OSR charges in lieu
of reservation of OSR land is applicable to the said case and also to clarify
whether the decision already taken by the Government allowing the appeal
of the fourth respondent implies that the unauthorised subdivision is
regularisable.
23. In order to give answers to all these queries by taking into account
of the recommendation made by MSB panel in its 253rd meeting, the
Government issued G.O.Ms.No.74, dated 20.05.2020.
24. In the said G.O.Ms.No.74, what has been decided by the Appeal
Committee, in its meeting held on 06.05.2019 with their minutes have been
given in detail. Following which, the Government after careful consideration
of the recommendation of the Appeal Committee decided to allow the appeal
petition. Accordingly, the Government allowed the appeal filed by the fourth
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respondent under Section 79 of the Tamil Nadu Town and Country Planning
Act for payment of OSR charges in lieu of earmarking OSR for the
proposed multi storied building. The Government also directs, in the said
G.O, the CMDA to pursue further action accordingly.
25. The Government also issued a letter, dated 16.06.2020, whereby
the appeal petition filed by the fourth respondent along with the letter of the
second respondent, dated 13.12.2019 considering the G.O, dated
25.04.2020, had allowed the said Appeal and directed the CMDA to take
further necessary action accordingly for issue of planning permission.
26. Only thereafter, since the fourth respondent has complied with all
such conditions imposed by the Government in the aforestated two orders,
i.e., G.O.Ms.No.74, dated 20.05.2020 as well as Government letter, dated
dated 16.06.2020, decided to grant planning permission and accordingly
such planning permission was given on 25.02.2021.
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27. In this context, the learned counsel for CMDA by producing the
relevant documents of the file concerned would further submit that,
whenever application is filed seeking for planning permission, only the
prima facie right of the party or applicant who made such application to
develop the property alone would be considered by the CMDA and whatever
planning permission is given by the CMDA, would not confer any title on
the applicant with regard to the property in which development is going to
be made and this has been made only in consonance with the Development
Control Rules, especially under Annexure III [under Rule 6(9)] of the
Development Control Rules.
28. In this context, the learned counsel for CMDA also invited the
attention of this Court about the relevant rules in the Development Control
Rules as well as the Annexure III.
29. The learned counsel would also contend that, the CMDA's
planning permission which is impugned in this writ petition is pursuant to
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the decision taken by the Government through the Appeal Committee twice
as referred to above. The decision taken to give direction to the CMDA to
pursue the application of the fourth respondent to grant planning permission
is pursuant to the MSB meetings recommendation which was accepted by
the Government through its Appeal Committee and what has been
deliberated and accepted by the Appeal Committee also has been stated in
G.O.Ms.No.74 and in letter, dated 16.06.2020. Therefore those decisions
taken by the Government is the basis for granting planning permission,
however those documents or orders issued by the Government have
admittedly not been questioned by the petitioners in this writ petition.
Therefore the consequential planning permission granted by the second
respondent cannot independently be challenged, she contended. By making
these submissions, the learned standing counsel appearing for CMDA seeks
dismissal of this writ petition.
30. Arguments were made by the learned Advocate General who
appeared on behalf of the first respondent :
30.1. By supporting the said contention made on behalf of the CMDA
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through the standing counsel, the learned Advocate General has contended
that, the Government having placed the issue before the Appeal Committee,
had decided to allow the appeal filed by the fourth respondent. He would
submit that, on 19.07.2019 there was a Government letter, pursuant to
which, the order of planning permission was given by the second respondent
on 25.02.2021.
30.2. In this regard, the learned Advocate General would submit that,
mere possessory right is enough to make an application to the second
respondent under Rule 6 of the Development Control Rules. The Court can
presume under Section 114 of the Indian Evidence Act, especially
illustration (e) of Section 114 that, existence of certain facts can be
presumed that the judicial and official acts have been regularly performed.
Therefore the learned Advocate General would submit that, exercising the
power vest with the Government under the Tamil Nadu Town and Country
Planning Act in Section 79 as well as the Development Control Rules, the
appeal filed by the fourth respondent was placed before the Appeal
Committee, wherein, after due deliberation, it was decided to accept the
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appeal filed by the fourth respondent. What has been deliberated and on
what basis decision has been taken is reflected in all the orders passed in
this regard by the Government.
30.3. The learned Advocate General would also submit that, insofar as
the plea raised by the learned counsel for the petitioner side that the order
passed by the Government is concerned, it must be only in the form of
Government Order and not by Government letter, learned Advocate General
would submit that, once a decision is taken by the Government, it may be
either in the form of Government Order or in the form of the Government
letter and it cannot be stated that, what has been stated in a Government
letter cannot have any effect as that of the Government Order.
30.4. In this regard, the learned Advocate General has also relied
upon a decision of the Kerala High Court in the matter of Sudheer C.B v.
State of Kerala and others, reported in 2009 SCC Online Kerala 6773,
where he relied upon the following passage :
"9. In view of the above decision, the claim of the
appellant that an executive order, issued in the
name of the Governor cannot be modified by a
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communication issued by the Secretary, cannot be
accepted. A decision of the Government stands,
until it is modified by a subsequent decision. By a
subsequent decision of the Government, any earlier
decision can be appropriately clarified or modified.
The second order need not necessarily be issued in
the name of the Governor. It can be issued in the
name of any of the Secretaries of the Government.
What is relevant is the substance of the order and
not its form. If there is a decision of the
Government which is taken by a Secretary to
Government, as per the Rules of Business, the
same can modify an earlier Government Order,
issued in the name of the Governor, even if the
latter decision is issued in the form of a letter of a
Government Secretary. A circular is a letter,
addressed to several persons simultaneously. So, a
circular is also a letter issued by the Government /
Government Secretary, bringing a particular
decision to the notice of several persons
simultaneously. The appellant does not have a case
that no decision was taken by the Government /
Secretary, as per the Rules of Business, before
issuing Ext.P3. Until the contrary is proved, we
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must presume that official acts have been regularly
performed and the common course of business has
been followed in this case also. In view of the
above position obtained under our Constitution, the
decisions of the learned Judges, taking a contrary
view, contained in Exts.P4 and P5 judgments,
cannot be upheld. "
31. The following Judgments have been cited by both sides in support
of their respective contentions on various aspects :
A-Group Counsels :
(1) Maneka Gandhi v. Union of India, (1978) 1 SCC 248
(2) E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3
(3) Mohinder Singh Gill v. Chief Election Commr, (1978) 1 SCC 405
(4) North Bihar Agency v. State of Bihar, (1981) 3 SCC 131
(5) Bhikhubhai Vithalabhai Patel v. State of Gujarat, (2008) 4 SCC
(6) Binapani Kar Chowdhury v. Sri Satyabrata Basu, (2006) 10 SCC
(7) Hubert Probhat Pereira v. Narayan Adhya, 2016 SCC Online Cal
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(8) M.Somasundaram & another v. Srinivasan & another, 2009-4-LW
(9) Satvithri Padmanabhan & 7 others v. M.Rajendran, 2009-4-LW
(10) FGP Ltd., v. Saleh Hooseini Doctor, (2009) 10 SC 223
(11) Arun Ganesh Dighe v. Kumudini Krishnaji Salakade and others,
2016 SCC Online Bom 15222
(12) Raichand Dhanji v. Jivraj Bhavanji and others, ILR (Bom)
Vol.LVI 65
(13) Kanhirakottil Mani and others v. Madhavi and others, 2017 SCC
Online Ker 519
(14) Ambika Prasad Thakur and others v. Ram Ekbal Rai and others,
(1966) 1 SCR 758
(15) Assistant Commissioner of State Tax and others v. Commercial
Steel Limited, MANU/SC/0872/2021
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(16) Academy of General Education, Manipal and another v. B.Malini
Mallaya, (2009) 4 SCC 256
(17) The Commissioner Bruhath Bangalore Mahanagara Palike and
others v. Faraulla Khan and others, MANU/SC/0381/2021
(18) Subba Naidu and another v. Kannia Naidu, 1949 SCC Online
Mad 364
(19) Kavitha Kanwar v. Pamela Mehta and others, 2020 SCC Online
SC 464
(20) Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar
Bharadwaj and others, 2021 SCC Online SC 868
(21) Union of India and another v. Tulsiram Patel, (1985) 3 SCC 398
(22) Shiv Kumar and another v. Union of India and another, (2019)
10 SCC 229
(23) K.S.Palanisami v. Hindu Community in General and Citizens of
Gobichettipalayam, (2017) 13 SCC 15
(24) Minor Ibramsa Rowther v. Sheik Meerasa Rowther, 1972-85-LW
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(25) Bhubaneshwar Prasad v. Sidheswar Mukherjee, 1971 (1) SCC
(26) Jai Singh and others v. Gurmej Singh, MANU/SC/0054/2009
(27) Joginder Singh and others v. Suresh Kumar & others, 2015 SCC
Online HP 864
B- Group Counsels :
(1) Narasinhaswamy Dharmakarta v. Venkatalingam, AIR 1927 Mad
(2) Narayanadoss v. Gulab Bi Bai, AIR 1927 Mad 1054
(3) Menakuru Dasaratharami Reddi and another v. Dudddukuru
Subba Rao and others, AIR 1957 SC 797
(4) Hem Nolini Judah and after her LR Marlean Wilkinson v. Isolyne
Sarojbashini Bose and others, AIR 1962 SC 1471
(5) Madhya Pradesh Industries Ltd., v. Union of India & others, AIR
1966 SC 671
(6) Ram Kumar Ram Chandra & Co., v. Commissioner of Income
Tax, UP, air 1966 All 100
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(7) Union of India v. Jyoti Prakash Mitter, (1971) 1 SCC 396
(8) S.Devaraj v. Commissioner of Wealth Tax, (1973) 90 ITR 400
(9) Babubhai Muljibhai Patel v. Nandlal Khodidas Barot & others,
(1974) 2 SCC 706
(10) Dharmadhar Mahasthavir, Rev v. Bengal Buddhist Association,
(1976) ILR 1 Cal 57
(11) R.Antony Doss & Ors, v. The State of Tamil Nadu & Ors., 1991-
2-LW 525
(12) Kapoor Chand v. Ganesh Dutt, 1993 Supp (4) SCC 432
(13) Union of India v. Jesus Sales Corpn, (1996) 4 SCC 69
(14) M.Vaidurayamma v. P.Suryanarayana Rao & Others, 1997-1-
LW-49
(15) Rukmani Devi and 4 others v. R.M.Lakshmandoss, 2001-1-LW-
(16) Hyderabad Potteries Private Limited v. Collector, Hyderabad,
(2001) 3 ALD 600
(17) Illachi Devi v. Jain Society, Protection of Orphans India, (2003)
8 SCC 413
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(18) Sumathi Devi v. State of Tamil Nadu, 2004(2) CTC 48
(19) Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311
(20) Crystal Developers v. Asha Lata Ghosh, (2005) 9 SCC 375
(21) The Commissioner of Income Tax (Central), Kanput v Dr (Miss)
Chandra Kanta Rohatgi
(22) K.Pavan Raj v. The Municipal Corporation of Hyderabad and
others, 2008 (1) ALD 792
(23) K.Saraswathy v. The State of Tamil Nadu & Ors., 2010 (3) LW
(24) G.Ganesan & others v. P.Sundari & others, (2011) 4 MLJ 98
(25) Sainath Mandir Trust v. Vijaya & others, (2011) 1 SCC 623
(26) Padmavathy Ammal v. Pachaiyappa Nainar & another, 2012-1-
LW-1017
(27) Nar Bahadur Khatiwada v. State of Sikkim & Ors.,
MANU/SI/0014/2013
(28) Radhey Shyam c. Shhabi Nath, (2015) 5 SCC 423
(29) Alarmel Valli & Ors. v. The Secretary, Urban & Housing
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Department & Ors., MANU/TN/0437/2016
(30) Sri Sri Dhadhibaban Mahaprabhu Bije at Bhatli v. Paramananda
Sahu, AIR 2020 Ori I
32. Though number of such decisions have been relied upon by both
sides, in view of the discussion going to be made to reach a conclusion as to
the issue raised in this writ petition, all these judgments having been
considered by this Court and by taking out the proposition and principle laid
down therein and having considered the said principle, this Court has
proceeded to find out the answer to the issue.
33. DISCUSSION :
The Genealogy of the family of the private parties is as follows :
GENEALOGY
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ANNAMALAI CHETTIAR
(BY WILL DATED
04.03.1948)
M.A.MUTHIAH CHETTIAR M.A.RAMANATHA CHETTIAR
(WAS ADOPTED BY
I. WILL DATED 09.02.1970
ANNAMALAI CHETTIAR'S
II.DIED ON 12.05.1984 BROTHER)
M.A.CHIDAMBARAM
MEYYAMMAI ACHI
I. WILL DATED 15.12.1969 A.C. MUTHAIAH
II. DIED ON 01.03.1970
M.A. MUTHIAH M.A.M. RAMASWAMY
CHETTIAR I. IMPUGNED WILL DATED
I. DIED ON 24.01.1970 18.02.2015
II. DIED INTESTATE II. DIED ON 02.12.2015
SIGAPI ACHI ASHWIN MUTHAIAH
I. DIED ON 24.03.2006
MEENA MUTHIAH
II. DIED INTESTATE
M.A.M.R. MUTHIAH
ADOPTED ON 09.02.1996
M.A.M.M. ANNAMALAI
ADOPTED ON 21.01.1983
GEETHA MUTHIAH
SIGAPI RAMASWAMY
MEYYAMMAI
34. Though voluminous documents have been filed, lengthy
arguments were advanced by the learned respective counsels appeared for
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both sides for more than 16 days, many number of Judgments have been
cited by both sides, this Court after having analysed all these documents,
citations and submissions made by the learned counsels, is of the view that,
the issue raised in this writ petition, for the purpose of arriving at a decision,
can be categorised as three parts. Part I is the locus of the petitioner to file
the writ petition, Part II is the right and title of the parties over the property
in dispute and Part III is the procedure and decision making process
undertaken by the CMDA and the State Government in granting planning
permission to the fourth respondent, which is impugned herein. Hence I
propose to discuss the issue raised in the writ petition only under these three
heads.
35. I. LOCUS OF THE WRIT PETITIONERS and
II. RIGHT AND TITLE OF THE PARTIES :
The point of locus was predominantly raised by the B-Group
lawyers who appeared on behalf of R4, R5 and R9. They contended that, the
entire property of 150 grounds originally was gifted by father Muthiah and
son Muthiah by way of agreement of Gift Deed, dated 09.03.1969.
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Thereafter reiterating or amplifying the said action on the part of the father
Muthiah and son Muthiah for the entire stretch of 150 grounds, on
28.03.1970 the Deed of Declaration of Trust pertains to the fourth
respondent has been made by way of registered document by father Muthiah
alone.
36. The reason for such a document, dated 28.03.1970 was made only
by father Muthiah alone is that, between 09.03.1969 and 28.03.1970 both
the son Muthiah as well as lady Meyyammai Achi, wife of father Muthiah
and mother of son Muthiah died on 24.01.1970 and 01.03.1970
respectively. However, if we look at the document, dated 09.03.1969, the
following can be found out from it.
"This Agreement of Gift made this the 9th day of
March 1969 by Dr.Rahah Sir Muthiah Chettiar of
Chettinad, son of late Rajah Sir Annamalai
Chettiar of Chettinad, Industrialist, residing at
Chettinad House, Raja Annamalaipuram, Madras-
28 and Kumara Rajah M.A.M.Muthiah Chettiar,
son of the aforesaid Dr.Rajah Sir Muthiah Chettiar
of Chettinad, industrialist residing at Chettinad
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House, Raja Annamalaipuram, Madras-28 both of
whom are hereinafter referred to as the DONORS
in favour of Rajah Muthiah Chettiar Charitable and
Educational Trust, a Trust registered by a Deed of
Trust, dated 14th March 1957 and enjoying the
exemption under Sec.80-G of the Income Tax Act
1961 under an order, dated 25.03.1968 issued by
the Income Tax Officer, City Circle II(3) with its
office at Chettinad House, Raja Annamalaipuram,
Madras-28 hereinafter referred to as the DONEE
witnesseth as follows.
...
...
...
2. The Trustees of the Donee shall utilise the
income from the scheduled property for the objects
mentioned above.
3. The Trustees of the Donee shall have absolute
right to sell the property and invest the proceeds in
such a manner as the trustees may decided in their
discretion.
4. The Trustees shall have the right to utilise also
the corpus for any of the purpose mentioned above.
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5. The Donors have put the trustees of the Donee
in possession of the properties from today.
The Donors undertake to execute a document of
Gift and register the same as soon as the exemption
is obtained from the Government of Tamil Nadu
for the stamp duty payable for the Deed."
(Emphasis supplied)
37. Only pursuant to the said document, dated 09.03.1969, the
28.03.1970 document was executed by the father Muthiah as in between the
son Muthiah died. In the said document, dated 28.03.1970, the following
has been made :
"Whereas the Donor and his eldest son Kumara
Rajah M.A.M.Muthiah Chettiar, pursuant to an
agreement and declaration dated 9.3.1969 have
jointly conveyed the entire property to the Trust
and put the Trustees in possession thereof from
9.3.1969.
Whereas it is now though desirable to execute a
registered document in respect of the same.
Whereas the eldest son who executed the
declaration jointly with the donor died on the 24th
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January 1970 and as the execution of a joint
document for the entire property is not possible at
this stage.
Whereas the Donor is desirous of executing this
registered document relating to his undivided half
share in the vacant land more particularly
described in the schedule hereunder."
38. From the recital of these two documents, it should be noted that,
in the 1969 document, the donors undertook to execute a document of gift
and register the same, as soon as the exemption is obtained from the
Government of Tamil Nadu for the stamp duty payable for the deed.
Therefore they waited for getting exemption for paying the stamp duty and
in the meanwhile, son Muthiah died. Therefore the 28.03.1970 document
was executed only by father.
39. Only in this context, it was the vehement contention on the part of
the A-Group lawyers supporting the writ petitioners that, without a valid
registered document, no title of an immovable property would get
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transferred. In support of their contention, they rely upon Sections 122 and
123 of the Transfer of Property Act as well as Section 17 of the Registration
Act.
40. Their contention is that, the entire property though was intended
to be gifted to the fourth respondent by document, dated 09.03.1969, that is
not the document at all in the eye of law in view of the same being an
unregistered one. Therefore, if at all anything to be conveyed by a registered
document, only document dated 28.03.1970 can alone be taken in to
account and if that is taken in to account only the father Muthiah has gifted
the half share belongs to him in the total property, i.e., only 75 grounds,
hence, that 75 grounds alone had been transferred in favour of the fourth
respondent.
41. In this regard, it is one thing to be noted that, in 1969 document,
in clause 5, both father Muthiah and son Muthiah have stated that the
donors have put the trustees of the donee in possession of the property from
today, i.e., 09.03.1969.
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42. It may not be the title in stricto sensu passed on in respect of the
son's Muthiah's, 50% share to and in favour of the fourth respondent trust
but the fact remains that, even under the 09.03.1969 document, the fourth
respondent has been put in possession in respect of the entire 150 grounds
and in the said document, both the father Muthiah and son Muthiah signed
and they jointly executed the said document. Therefore prima facie we can
conclude that the fourth respondent has been put in possession by the
donors, i.e., father Muthiah and son Muthiah in respect of the entire
property, i.e., 150 grounds in R.S.No.4277 with effect from 09.03.1969
itself.
43. Though it was an argument advanced on behalf of A-Group
lawyers supporting the petitioner's cause that, if any donation or gift of
immovable property by any unregistered document towards a trust which is
not being a Hindu Religious or HR & CE Trust is made, such kind of gift or
donation under which the property cannot be vested with the trust unless
and until it is donated or gifted to and in favour of an hindu idol or HR &
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CE, the said arguments and the ultimate result of such arguments can only
be tested in the Civil Suit which are pending in various Courts as stated
supra. But the fact remains that, the fourth respondent has been put in
possession w.e.f, 09.03.1969 by the donors, i.e., both father Muthiah and
son Muthiah and that fact, for the sake of this writ petition, as a prima facie
view, can be accepted.
44. One more subsequent event would strengthen the said view taken
by this Court is that, the erstwhile managing trustee of the fourth respondent
Dr.M.A.M.Ramaswamy has executed a lease deed in favour of the society,
namely Kumararajah School of Traditional Arts and Crafts, represented by
the sixth respondent being the Secretary of the society, by a lease deed,
dated 29.10.2015 in respect of entire 127 grounds at R.S.No.4277/7.
45. If it is the case of the A-Group lawyers supporting the cause of the
writ petitioners that, only half of the entire property was transferred in
favour of the fourth respondent by virtue of the Document, dated
28.03.1970 and not the remaining half belongs to the son Muthiah, on what
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basis Dr.M.A.M.Ramaswamy the erstwhile trustee of the fourth respondent
executed the lease deed on 29.10.2015 to the society represented by the
sixth respondent in respect of entire 127 grounds is a pertinent question.
Therefore this action on the part of the said M.A.M.Ramaswamy who was
the lessor in the lease deed, dated 29.10.2015 and the society represented by
the sixth respondent who stood as lessee, supports the aforestated view
taken by this Court insofar as the possession enjoyed by the fourth
respondent trust for the entire property right from 09.03.1969.
46. Though it was vehemently contended by A-Group counsels
supporting the cause of the petitioners that, the part of the property belongs
to the said late Dr.M.A.M.Ramaswamy since has been bequeathed in favour
of the petitioner trust by virtue of the Will, dated 18.02.2015 and the
moment the said Will is executed by the said M.A.M.Ramaswamy in favour
of the petitioner trust, as per Section 211 of the Indian Succession Act, the
property is vest with the petitioner trust and therefore, in order to protect the
said property, the petitioner can act upon by filing the present writ petition
opposing the move made by the fourth respondent to have the proposed
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construction of the multi storied building, for which the impugned planning
permission was given by the CMDA, this Court feels that, the B-Group
lawyers, in order to meet the said arguments of the other side, has quoted
Section 213 of the Indian Succession Act, which says that, no right as
executor or legatee can be established in any Court of justice, unless a Court
of competent jurisdiction in India has granted probate of the Will, under
which the right is claimed or has granted letters of administration with the
Will or with a copy of an authenticated copy of the Will annexed.
47. Therefore it is purely a legal question to be decided by the
competent Civil Court, after adducing evidence by both sides, as to whether
the A-Group is entitled to get relief under Section 211 of the Indian
Succession Act or the B-Group can succeed under Section 213 of the said
Act.
48. However the fact remains that, as on date, the situation of getting
a probate or a letter of administration has not arisen since the O.P to get
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probate filed by the petitioner trust since has been contested by the fourth
respondent, it has become Testamentary Original Suit and is pending
consideration before the original side of this Court.
49. Therefore the claim made on behalf of the A-Group counsel
supporting the cause of the petitioners by quoting Section 211 of the Indian
Succession Act would not advance the cause of the petitioner side much.
50. It is also the contention of the A-Group counsel that, the petitioner
trust as well as the sixth respondent being the co-owners of the entire
property, of every inch of the property each co-owner will have right and
therefore unless and until the partition suit filed by the sixth respondent is
finalised and partition is effected, no development can be undertaken by any
party in the entire stretch of property as such development would cause
damage to the other co-owners is concerned, this Court finds that, the said
argument assuming that is to be accepted, whether the petitioners and R6
would be entitled to thwart the attempt made by the fourth respondent to
develop the part of the property by constructing the multi storied building is
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the question.
51. In this regard, if we note the averments made in the counter
affidavit filed by the sixth respondent, she has stated that, the sixth
respondent and the petitioner trust put together are entitled to 5/16th
undivided share of the entire 150 grounds. Whether such entitlement as
claimed by the sixth respondent and the petitioner trust is a rightful claim or
not cannot be decided by this Court in the writ proceedings and that can be
gone into and decided only by the Civil Courts in the pending Civil Suits.
52. In this context, it is further to be noted that, in the Civil Suit filed
by the ninth respondent before the City Civil Court, i.e., O.S.No.201 of
2016, the VI Assistant City Civil Judge, by order, dated 11.04.2016 has
granted an ad-interim injunction restraining the respondents / defendants
including the society represented by the sixth respondent from interfering
with the ninth respondent's peaceful possession and enjoyment over the
scheduled property, i.e., 41 grounds. The said order was appealed by the
society represented by the sixth respondent in C.M.A.No.68 of 2016, where
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the VI Additional District Judge, Additional City Civil Court at Chennai, by
order, dated 30.07.2019 dismissed the appeal by confirming the order
passed by the VI Assistant Judge, dated 11.04.2016 as referred to above and
it was submitted by the learned counsel appearing for the parties that the
said order has become final as of now.
53. That apart in the pending Civil Suits, i.e., in C.S.No.198 of 2016
and C.S.No.223 of 2021, applications were filed, i.e., A.No.1831 of 2016
and O.A.No.334 of 2021 in C.S.No.198 of 2016 and O.A.No.412 of 2021 in
C.S.No.223 of 2021. All these applications, of course pursuant to the
remand order made by a Division Bench of this Court, was considered by a
learned Judge, who passed order in the said applications by way of common
order, dated 09.02.2022, which has been subsequently circulated by the
learned counsel appearing for the fourth respondent, where, the learned
Judge, for the limited purpose of disposing the said Interlocutory
Applications, have exhaustively discussed the issue raised therein and the
finding given by the learned Judge to some extent can be made use of by this
Court in this writ proceedings :
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"81. The pleadings of Kumararani Tmt. Meena
Muthiah and the Society which is running the
school in the previously instituted suit by the
plaintiff Trust in C.S. No.198 of 2016 contradicts
her statement made in the plaint as well in the
affidavit in C.S. No.223 of 2021, wherein, she
claims ownership of 5/32rd share by way of
inheritance and has disputed the Deed of
Declaration of Trust dated 28.03.1970 for the
entire suit ?A? schedule property by which the
plaintiff Trust in C.S. No.198 of 2016 became the
absolute owner. Contradictory statements have
been made by the plaintiff Kumararani Tmt.
Meena Muthiah in both the suits viz., C.S. No.198
of 2016 and C.S. No.223 of 2021. The documents
subsequently executed after the deed of declaration
of Trust deed dated 28.03.1970 under which the
plaintiff Trust in C.S. No.198 of 2016 claims to
have become the absolute owner of the suit ?A?
schedule property were not disputed by the
plaintiff in C.S. No.223 of 2021 or the sixth
defendant Society earlier which prima facie shows
that the plaintiff in C.S. No.223 of 2021 and the
sixth defendant Society have recognised the
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ownership of the plaintiff Trust in C.S. No.198 of
2016.
82. After a lapse of more than 50 years from the
date of the agreement of Gift deed dated
09.03.1969 and the Deed of Declaration of Trust
dated 28.03.1970, the plaintiff in C.S. No.223 of
2021 has taken a diametrically opposite stand
disputing the Deed of Declaration of Trust deed
dated 28.03.1970 under which the entire suit
schedule ?A? property was donated to the plaintiff
Trust in C.S. No.198 of 2016.
83. A party seeking equitable relief must approach
the Court with clean hands and there shall not be
any suppression or inconsistency. The plaintiff in
C.S. No.223 of 2021 has now taken a completely
contradictory stand to what was taken in C.S.
No.198 of 2016. In C.S. No.223 of 2021, the
plaintiff has sought for partition whereas in C.S.
No.198 of 2016, Kumararani Tmt. Meena Muthiah
as well as the Society which is running the school
have relied upon the lease deed dated 29.10.2015
for the purpose of protecting their possession over
the entire suit ?A? schedule property. Though the
plaintiff in C.S. No.223 of 2021 may plead that as
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a co~owner such an inconsistent stand can be
legally taken, the said issue cannot be decided in
an interlocutory application but can be decided
only after trial. Therefore, the judgments relied
upon by Mrs. Chitra Sampath, learned Senior
Counsel for Kumararani Tmt. Meena Muthiah and
the Society that as a co~owner of the suit
Schedule ?A? property even though the lease deed
dated 29.10.2015 was recognised by the plaintiff
in C.S. No.223 of 2021 can claim partition cannot
be decided in an interlocutory application but if at
all can be decided only after trial.
...
...
...
89. In the case on hand, the plaintiff in CS.No.223
of 2021 and the sixth defendant society in the said
suit, which is running the school is admittedly in
possession of the suit B schedule property
measuring about 86 grounds. These interlocutory
applications pertain only to the suit C schedule
property measuring 41.63 grounds. The plaintiff in
CS.No.223 of 2021 claims partition of 5/32 share
in the suit A schedule property measuring 127
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grounds approximately and assuming that if the
same is allowed by this Court and a preliminary
decree as prayed for is passed, the extent will be
only approximately 20 grounds which is much less
the extent of the suit B schedule property which
measures 86 grounds which is currently under the
possession of the plaintiff in CS.No.223 of 2021
and the Society which is running the school.
90. But on the other hand, the plaintiff Trust in
CS.No.198 of 2016 has already got approval from
the planning authorities for construction of a
multistory building complex over the suit C
schedule property and proof has also been
produced before this Court in the form of a receipt
issued by the Chennai Metropolitan Development
Authority to show that a sum of Rs.35,91,90,000/~
has been paid towards prescribed fees for getting
building plan sanction from the Chennai
Metropolitan Development Authority by the
plaintiff Trust in CS.No.198 of 2016. It is also
contended by the plaintiff Trust in CS.No.198 of
2016 that in all put together a sum in excess of
Rs.40,00,00,000/~ (Rupees forty crores only) has
been spent for getting approval from the Chennai
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Metropolitan Development Authority.
...
...
...
97. The comparative mischief, hardship and
inconvenience is heavier on the side of the plaintiff
Trust in CS.No.198 of 2016 when compared to the
plaintiff in CS.No.223 of 2021and the sixth
defendant Society in the said suit, insofar as the
development of the suit C schedule property is
concerned. Having spent substantial sums of
money for obtaining the building plan approval for
construction of the Multistorey building complex
over the suit C schedule property and having right
as an absolute owner, admittedly over 50% of the
suit A schedule property even according to the
plaintiff in CS.No.223 of 2021 and the society
which is running the school, the balance of
convenience is only in favour of the plaintiff Trust
in CS.No.198 of 2016 and not on the side of the
plaintiff in CS.No.223 of 2021 and the sixth
defendant Society in the said suit. Accordingly,
inconvenience caused to the ?PARTIES
DISPUTING THE LEASE dated 29.10.2015? is
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far greater than to the ?PARTIES AFFIRMING
THE LEASE dated 29.10.2015?, if development is
not allowed to take place in the suit C schedule
property.
...
...
...
117.Clause 19 of the Deed of Indenture, dated
14.03.1957, stipulates that any resolution to be
passed by the plaintiff Trust in C.S.No.198 of
2016 shall be decided by majority of the Trustees
present at the meeting and the decision of the
majority shall be final. However, the lease deed,
dated 29.10.2015 in favour of the sixth defendant
Society in C.S.No.223 of 2021 does not refer to
any resolution passed by the majority of the
Trustees of the plaintiff Trust in C.S.No.198 of
2016. Section 48 of the Indian Trust Act, though
not applicable to a public trust, also stipulates that
co~trustees cannot act singly and when there are
more Trustees than one, all must join in the
execution of the Trust, except where the instrument
of Trust otherwise provides. Therefore, on a prima
facie consideration, this Court will have to
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necessarily accept the resolution, dated 10.08.2012
passed by the plaintiff Trust in C.S.No.198 of
2021 deciding to develop the suit C schedule
property, as the said resolution has been signed by
all the then Trustees of the plaintiff Trust in
C.S.No.198 of 2016."
54. These findings given by the learned Judge in disposing the said
applications in the two pending Civil Suits filed by the parties, one is by the
fourth respondent, another one is by the sixth respondent makes it
abundantly clear that, assuming the sixth respondent as well as the
petitioner trust is going to get some share as they claim in the respective
Civil Suits, from out of the 127 grounds entire property, that would be
comparatively lesser than the 41 grounds which is the subject matter in this
writ petition. Therefore absolutely no prejudice would be caused to the writ
petitioners and the sixth respondent and hence, the learned Judge, refused to
grant any interim order as they prayed for and rejected their applications.
55. Insofar as the locus of the writ petitioners to challenge the
planning permission given by the second respondent in this writ petition is
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concerned, the first writ petitioner being a trust created in the year 2015
claimed to have some portion of the property, i.e., some portion in 127
grounds by virtue of the Will executed by the late Dr.M.A.M.Ramaswamy in
the year 2015 and therefore as a legatee in order to protect the property, they
wanted to stall the proposed construction to be undertaken by the fourth
respondent and hence, they moved the writ petition they claimed.
56. Only to that limited extent, the writ petition can be considered to
be a maintainable one, however on merits, whether the plea raised by the
writ petitioners supported by the sixth respondent, can be accepted or not is
altogether is a different question, for which, this Court has already made the
above discussion arising out of various documents and also the view
expressed by the learned Judge exactly on the connected issue between the
same parties. These aspects would go to show that, though the petitioner can
file this writ petition, for which, he may have the locus standi but on merits,
whether he can succeed or not is concerned, prima facie this Court feels that,
the said issue raised by the petitioner claiming the ownership of part of the
property and the same claim made by the sixth respondent to be the owner
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of some part of the property and thereby become co-owners and therefore
they are entitled to protect the entire property, i.e., 127 grounds is
concerned, the said stand taken by the petitioner side supported by the sixth
respondent cannot be accepted by this Court, for the simple reason that,
admittedly the sixth respondent is holding 86 grounds, where a pucca school
has been constructed, which admittedly has been functioning for the past
about 30 years.
57. If at all the sixth respondent is entitled for 5/16 or 5/32 share of
the entire property, on what basis the sixth respondent is holding the 86
grounds of the entire land by putting up a compound wall either by the sixth
respondent or the fourth respondent, thereby within the 86 grounds, nobody
is permitted to enter except the sixth respondent and her society. This action
on the part of the sixth respondent and the society supported by the
petitioner trust would make it abundantly clear that, the co-owner theory is
only placed against the fourth respondent trust and the very same co-owner
theory is not adopted by the sixth respondent and the society as well as the
petitioner trust. Hence the co-owner theory vehemently projected by the A-
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Group lawyers is liable to be rejected.
58. III. PROCEDURE AND DECISION MAKING PROCESS
UNDERTAKEN BY THE CMDA AND THE STATE GOVERNMENT:
58.1. Whether the CMDA as well as the State Government acted in
accordance with law in granting the planning permission?
58.2. In order to delve into the said question, first we must see the
decision taken by the fourth respondent trust to develop the property of 41
grounds.
58.3. The minutes of the meeting of the Board of Trustees of the
fourth respondent trust, dated 02.08.2012 reads thus :
"Trustees present :
Dr.M.A.M.Ramaswamy, Managing Trustee
Mr.M.A.M.R.Muthiah, Trustee,
Mrs.Geetha Muthiah, Trustee
Mr.K.Chidambaram, Trustee
Mr.RM.Palaniappan, Trustee
Dr.M.A.M.Ramaswamy, Managing Trustee
presided over the meeting.
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The Trustees discussed about the development of
the land owned by the Trust and situated in
R.S.No.4277/6 extent measuring about 7168.50 sq
mtr. He also suggested that the surplus funds of the
Trust could be utilized for construction of
commercial building in R.S.No.4277/6 and can be
let out after putting up construction, so that there
will be income to the Trust and the value of the
immovable property will also be increasing.
The Trustees approved the suggestion given by
Mr.M.A.M.R.Muthiah. Accordingly, the Trust
decided to authorize Managing Trustee
Dr.M.A.M.Ramaswamy to execute a General
Power of Attorney in favour of Trustee
Mr.M.A.M.R.Muthiah to sign all applications,
forms, plans and other documents in connection
with the construction of multi storeyed commercial
building before the competent authorities like
Chennai Metropolitan Development Authority
(CMDA), Corporation of Chennai etc., in the name
of Trust. Accordingly the trustees passed the
following resolutions :
"RESOLVED that Dr.M.A.M.Ramaswamy,
Managing Trustee be and is hereby authorized to
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execute General Power of Attorney in favour of
Mr.M.A.M.R.Mutiah to develop the land by putting
up commercial building in RS # 4277/6 at
Thandavarayan Street, Rajah Annamalaipuram,
Chennai - 600 028."
"RESOLVED that Mr.M.A.M.R.Muthiah, Trustee
be and is hereby authorized to sign all applications,
forms, plans and other documents in connected
with the development of land owned by the Trust
and situated at RS # 4277/6. He further be
authorized to sign letters, deeds and all clarification
for such development of the land before the
competent authorities like Chennai Metropolitan
Development Authority (CMDA), Corporation of
Chennai and all other State Government and also
Central Government departments for all purposes
including for construction of building as per the
existing laws in the name of Trust as Power of
Attorney Agent."
With a vote of thanks to the Managing Trustee the
meeting concluded."
58.4. Pursuant to the said resolution, on 10.08.2012 a general power
of attorney was executed by the then managing trustee of the fourth
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respondent trust, Dr.M.A.M.Ramaswamy to and in favour of the fifth
respondent.
58.5. The fifth respondent on behalf of the fourth respondent filed the
application seeking planning permission at the 41 grounds. The application
was processed and a decision was taken by the second respondent CMDA,
which is reflected in the file of the second respondent which has been
produced by the learned standing counsel for CMDA before this Court for
perusal, where the following has been stated :
"Raja Muthiah Chettiar & Educational Trust have
applied for planning permission for the proposed
construction of Double Basement floor (Stack
parking in upper Basement) + Ground Floor + 2
Floors (Hotel-33 Rooms) + 3rd floor to 13th floor
(Office) + 14th floor (terrace floor - AC plant)
Commercial Building (Hotel & Office),
Thandavarayan Street, Duraisamy Dinakaran
Road, Chennai in R.S.No.4277/6, Block No.93 of
Mylapore village in MSB No.1036/2012, dated
07.09.2012.
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2. As per initial scrutiny remarks the site u/r falls in
primary residential use zone and the site u/r falls in
CRZ-II area. As per DR rule 6(8) the areas
designated for PR in the SMP, site abutting road of
width 18m and above are deemed to have been
zoned for commercial use zone. Where in the
proposed commercial activity (Hotel & Office) is
permissible.
3. As per inspection report, the site under reference
lies at a distance more than 100m from Adyar
River and more than 500m from Bay of Bengal.
The Google map put below may please be seen.
Ownership
As per the ownership document furnished, the
original extent of the site that existed prior to
5.8.1975 was 150 grounds (33444.82 sq.m). As
per Trust Declaration Deed 635/1970, originally
Dr.Raja Sir Muthiah Chettiar and his elder son
Kumara Raha, M.A.M.Muthiah Chettiar had been
in possession and enjoyment of the property. Later
both of them pursuant to the agreement and
declaration dated 9.3.1969 jointly conveyed the
entire property to the trust and put the trustees in
possession thereon from 9.3.1969. In order to
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execute the register document in respect of the
same, Dr.Raja Sir Muthiah Chettiar has executed
registered document relating to his undivided half
share in the vacant land in favour of the Raja
Muthiah Chettiar Charitable and Educational
Trust. Subsequently, the said Trust has given
General Power of Attorney to M.A.M.R.Muthiah
for land of extent 7168.5 sq.m.
Hence, the document has been executed only for
half undivided share of 150 grounds in favour of
the Trust. The documentary evidence for the other
half undivided share which was in ownership with
Kumara Raja Muthiah executed in favour of the
Trust has not been furnished. As per the PLR
extract furnished, the extent of the site is only
7168.5 sq.m. Though patta for extent of 7168.5
sq.m is furnished, the connected document in
favour of Raja Muthiah Chettiar Charitable
Educational Trust for the extent of 7168 sq.m. has
not been furnished. Unless document for the extent
of the site is furnished, the feasibility of
regularization of unauthorised sub division if any
could be confirmed. As per the document furnished
the site has been unauthorisedly sub divided from
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33444.82 sq.m to 7168.5 sq.m."
58.6. Thereafter the CMDA file further states that, the back file of the
property concerned was called for and verified, where they found that, three
times already planning permission / building permission was obtained by the
fourth respondent and in respect of this, the following has been noted.
"Back file No.C4/5558/90
This relates to planning permission for construction
of school building in R.s.No.4277/4. Planning
permission was issued on 01.10.1990 for school
building in land of extent 28347 sq.m. On perusal
of the documents, it is found that deed of
declaration of Trust by Dr.Rajah Sir Muthiah
Chettiar for land of extent 150 grounds being part
of R.S.No.4277 was settled in favour of Rajah
Muthiah Chettiar Charitable and Educational
Trust. Patta in favour of the Estate of Kumara
Rajah M.A.M.Muthiah Chettiar represented by
M.A.Rajah Sir Muthiah Chettiar and Rajah
Muthiah Chettiar Charitable and Educational Trust
of extent 28347 sq.m has been furnished.
Back file No.C4/15096/1991
Subsequently, the Rajah Muthiah Chettiar
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Charitable and Educational Trust applied for
additional construction and regularization of
existing building in the same site of extent 28347
sq.m in R.S.No.4277/4 and the same was approved
in this office letter No.C4/15096/1991, dated
07.02.1992.
Back file No.C4/14232/1993
This relates to planning permission for the
proposed additional construction in R.S.No.4277/4
in land of extent 28347 sq.m. Planning permission
was issued in letter No.C4/14232/1993, dated
08.03.1994.
On perusal of the documents now furnished,
though the site under reference (R.S.No.4277/6) is
a separate S.No. and PLR extract has also been
furnished for this S.No., the site under reference is
a part of R.S.No.4277/4. Hence, from the back
files, it is observed that the applicant has earlier
obtained planning permission for school building
including the site under reference (R.S.No.4277/6).
As already planning permission has been obtained
for school building availing FSI for the extent of
site wherein now Hotel building is proposed, now
the applicant cannot sub divide the school site and
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proposed hotel building.
In view of above, the PPA for construction of Hotel
building cannot be considered as the site forms
part of the school site already approved by CMDA.
Further, the proposed Hotel building in the school
site is also not allowable as it is not a compatible
activity within the already approved school site.
Informing above, the PPA may be returned
unapproved."
58.7. This is how the proposal was earlier rejected or returned, as
against which the fourth respondent preferred appeal to the Government. On
13.09.2019, the 253rd MSB Panel Meeting was held, where certain decision
was taken. On 05.11.2019 based on the MSB Meeting, the fourth
respondent's request was forwarded by the CMDA to the Government,
where the CMDA has stated the following :
"Against the refusal order of CMDA the applicant
has preferred appeal under section 79 of TNCP
Act, 1971. The appellant presented the case before
the appeal committee. The committee took note that
the clause 8 of the trust deed (Document No.213/4,
dated 14.03.1957) entitles the trustees to sell,
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transfer or otherwise alienate any of the share set
out and described in the schedule there under
provided however that the amount realized on such
sale or conversion, or in the event of any of the
companies going into liquidation in lieu of the said
shares shall be treated as the corpus of the trust and
invested in such securities and in such manner as
the trustees may decided. After detailed
deliberations, the committee allowed the appeal
with a direction to reserve the required OSR and
remitted the issue back to CMDA. In view of
above, Government in the reference 3rd cited remit
back the issue to CMDA to pursue action as
decided by the Appeal Committee.
4. Now the applicant resubmitted the Planning
Permission Application in the reference 1st cited
was examined and placed before the 253rd MSB
Panel Meeting held on 13.09.2019."
58.8. The CMDA also requested the Government to clarify the
position whether the OSR charges in lieu of OSR can be collected.
58.9. On 18.11.2019, the Government vide letter No.22558 has
written the following :
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"I am directed to invite your attention to the
reference cited. With reference to the clarification
sought for by Chennai Metropolitan Development
Authority on payment of Open Space Reservation
Charges in lieu of reservation, it is pointed out that
the Appeal Committee in its meeting held on
6.5.2019 has allowed the appeal with a direction to
reserve the required Open Space Reservation area.
This implies that the appeal has been allowed based
on a specific condition of reservation of Open
Space Reservation area to regularise the
unauthorised sub-division. Hence, the question of
payment of Open Space Reservation Charges in
lieu of reservation of Open Space Reservation area
does not arise.
2. In view of the above, original records of Chennai
Metropolitan Development Authority bearing
C.No.C3(S)/730/2019 with current file page No.1
to 385 and Note file page No.1 to 31 ( 1 volume) is
returned herewith with a request to comply with the
directions of the Appeal Committee and also
examine the other planning parameters including
scrutiny of residuary plot details as per rules in
force. The receipt of the original records may
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kindly be acknowledged.
Yours faithfully,
for Principal Secretary to Government"
58.10. Since the requirement of a school as per the Government
G.O.Ms.No.235, School Education Department, dated 24.05.1997 was only
three acres and more than that area is available with the school belongs to
the sixth respondent which is functioning, therefore the sub-division made in
respect of 41 grounds by the fourth respondent to develop it as a separate
property can be permitted.
58.11. This was the stand taken by the Government and accordingly,
G.O.Ms.No.74, dated 20.05.2020 was issued by the Government, where
after considering the recommendation of the Appeal Committee, the
Government has passed the following order :
"9. Therefore, the Government after careful
consideration of recommendation of the Appeal
Committee have decided to allow the appeal
petition. Accordingly, the Government allows the
appeal filed by the Trustees, M/s. Rajah Muthiah
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Chettiar Charitable and Educational Trust
representation by GPA Thiru.M.A.M.R.Muthiah,
Chennai under section 79 of Tamil Nadu Town and
Country Planning Act, 1971 for payment of Open
Space Reservation Charges in lieu of earmarking
Open Space Reservation for the proposed Multi-
storeyed Building R.S.No.4277/6, Block No.93 of
Mylapore village in Thandavarayan Street,
Duraisamy Dinakaran Road, Chennai and direct
Chennai Metropolitan Development Authority to
collect Open Space Charges in lieu of Open Space
Reservation under the provisions of Rule 41(1) (b)
of TNCD & BR, 2019 during the issuance of
planning permission.
10. The Government also directs Chennai
Metropolitan Development Authority to pursue
further action accordingly."
58.12. Consequently, on 16.06.2020, by letter Ms.No.78, the
Government passed further order which reads thus :
"4. The Government after careful examination, have
directed to accord approval to recommendation of
253rd Multi storeyed Building panel. Accordingly,
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the Government approve the recommendations of
the 253rd MSB Panel to issue planning permission
to M/s. Rajan Muthiah Chettiar Charitable and
Educational Trust, represented by GPA
Thiru.M.A.M.R.Muthiah for the proposed
construction of High Rise Building for commercial
purpose consisting of Extended Double Basement
floor; parking, Ground floor + 2 floors : Shop, Hotel
& Rooms and 3rd floor to 8th floor + 9th floor (pt)
+ 10th floor (pt) + 11th floor (pt) + 12th floor (pt) +
13th floor (pt) + 14th floor (pt) : office at
Thandavarayan Street, Duraisamy Dinakaran Road,
Rajaya Annamalaipuram, Chennai - 600 028,
bearing R.S.No.4277/6, Block No.93 of Mylapore
village subject to payment of Development charges
and other charges and subject to satisfaction of
usual conditions imposed in No Objection
Certificates given by various departments and the
condition imposed by the Multi-storeyed Building
Panel as detailed below :
i) Revised plan rectifying all the drafting
defects and required particulars listed in the agenda
item No.9/253 in Annexure-I to be obtained before
issue of planning permission.
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ii) NOC from DF & RS, Police (Traffic), AAI and
Environmental clearance are to be obtained before
issue of planning permission.
iii) Structural design vetted by PWD to be obtained
before issue of planning permission.
iv) Structural Stability Certificate for the entire
structure and specifically that the basement top slab
below the extended circulation at ground level
should be designed for firefighting vehicular loads
from PWD shall be obtained before issue of
planning permission.
v) CCTV camera to be installed at regular interval
of 50.00 m along the road which is abutting the site
boundaries before issue of completion certificate.
5. I am to request you to obtain an undertaking
before issue of planning permission from the
applicant to the effect that he would fulfill all the
provisions under Tamil Nadu Combined
Development & Building Rules, 2019 and
conditions imposed. I am also to request you to
make regular inspection to the building to avoid any
deviation in construction and to ensure that all the
conditions are carried out in the Multi-storeyed
Building.
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6. I am therefore to request you to take necessary
further action accordingly for issue of planning
permission.
7. The original file of Chennai Metropolitan
Development Authority bearing No.C3(S)/233/2019
[C.F.No.1 to 431 pages and N.F. No.1 to 41 (1
volume)] is returned herewith. The receipt of the
same may be acknowledged."
58.13. In this process, though it was contended by the A-Group
lawyers supporting the cause of the petitioner, that the objection raised by
the petitioner trust as well as the sixth respondent for granting planning
permission by the second respondent has not at all been considered is
concerned, in fact the definite stand of the CMDA is that, that objection was
forwarded to the Government, which was placed before the Appeal
Committee Meeting. Originally the Appeal Committee meeting was held on
15.04.2019, where the agenda pertaining to the fourth respondent trust was
deferred to the next meeting on 06.05.2019.
58.14. On the next meeting, on 06.05.2019, the agenda was taken
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into account, accordingly, the following decision has been taken by the
Appeal Committee in respect of the fourth respondent's Appeal :
"The Appeal Committee went through the records
and contention of the appellant in respect of refusal
of PPA for the proposed Basement floor + Ground
floor + 14 floors commercial building (Hotel and
Office) at R.S.No.4277/6, Block No.93, Mylapore
village in Thandavarayan Street, Duraisamy
Dinakaran Road, Chennai.
The appellant presented the case. The committee
took note that the clause 8 of the Trust Deed
(Document No.213/4 dated 14.03.1957) entitles
the Trustees to sell, transfer or otherwise alienate
any of the shares set out and described in the
schedule there under provided however that the
amount realized on such sale or conversion, or in
the event of any of the companies going into
liquidation in lieu of the said shares shall be
treated as the corpus of the trust and invested in
such securities and in such manner as the Trustees
may decide.
After detailed deliberations, the Committee
allowed the appeal with a direction to reserve the
required OSR space and remitted the issue back to
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CMDA."
58.15. Therefore it has become clear that, though initially the
application of the fourth respondent was rejected or returned by the CMDA,
the fourth respondent's Appeal was considered by the Government under
Section 79 of the Tamil Nadu Town and Country Planning Act, where the
MSB panel meeting and its resolution was taken into account and twice the
matter was placed before the Appeal Committee of the Government, where
also the Appeal Committee has considered the inputs supplied as well as
clause 8 of the Trust Deed, where the fourth respondent trust is empowered
to exploit the property for the purpose mentioned therein and also taken into
account that the sub-division is allowable, the Government thought it fit to
allow the appeal of the fourth respondent and accordingly, direction were
given twice to the CMDA to pursue further.
58.16. Usual conditions as per the Development Control Rules have
been imposed by the Government or directed to be imposed by the CMDA
and those conditions were imposed and the statutory fee to the extent of
more than Rs.40 crores were directed to be paid which was also complied
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with by the fourth respondent.
59. In view of the definite facts, which are placed before this Court for
consideration and those factors can be culled out from the documents filed
by both sides, where it is an admitted case on the part of the writ petitioners
as well as the sixth respondent that, 75 grounds of land out of the total 150
grounds belongs to the father Muthiah alone has been transferred to the
fourth respondent and the fourth respondent in the year 2012, in its Trust
Board Meeting, unanimously resolved to develop 41 grounds of the land,
which has been separately earmarked and pursuant to which, fifth
respondent was appointed as power of attorney holder and the fifth
respondent as a power of attorney holder of the fourth respondent made an
application to the second respondent CMDA which was considered and
rejected, as against which fourth respondent filed appeal before the
Government who after considering the appeal based on the inputs supplied
by the CMDA, of course based on the MSB panel meeting resolution,
decided to accept the appeal and pursuant to which by imposing all usual
conditions, the building permission has been granted.
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60. As has been held by the learned Judge, in the order quoted herein
above, while disposing various applications filed by the parties in the
pending two Civil Suits, neither the sixth respondent nor the writ petitioners
can claim the entire stretch of property, i.e., 127 grounds. The co-owners
theory projected by their side, has already been rejected by this Court by the
conduct of both the parties, as admittedly the sixth respondent is in
possession of 86 grounds of land, for which admittedly the sixth respondent
is not entitled to.
61. Moreover, 2015 lease deed executed by the then managing trustee
of the fourth respondent trust is in respect of entire 127 grounds, which was
accepted by the sixth respondent, as a Secretary of the society, therefore
even on that date, it was the stand of the sixth respondent that, the entire
property belongs to the fourth respondent.
62. It is not the case of either the writ petitioners or the sixth
respondent that, the fourth respondent is not represented by fifth respondent
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or the fourth respondent is not entitled to even the 50% of the entire 127
grounds.
63. It was the stand of the fourth respondent that the entire 127
grounds belongs to the fourth respondent, for which, they relied upon the
1969 document, as I have discussed in the earlier paras, from the date of
1969 document both the father Muthiah and son Muthiah jointly put the
fourth respondent in possession of the entire property and all the parties who
are none other than the closely netted relations in a single family have acted
upon for decades together.
64. Based on these conduct of the parties and the documents
produced before this Court, whether the title will flow in respect of entire
127 grounds in favour of the fourth respondent trust is the prime question to
be answered by the Civil Court in the pending Civil Suits, especially in the
Civil Suit filed by the sixth respondent herself seeking a partition for her
share.
65. Also the Civil Suit filed by the fourth respondent, questioning the
lease executed by the then managing trustee M.A.M.Ramaswamy to and in
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favour of the society represented by the sixth respondent it is yet another
civil dispute arising out of the same property which can also be decided only
after full fledged trial to be conducted in this regard.
66. Even the petitioner trust whether can seek any portion of the
property because of the Will executed by the said Dr.M.A.M.Ramaswamy in
the year 2015 is also a question which can conclusively be decided only in
the Testamentary Original Suit which is also pending in the original side of
this Court.
67. When that being the legal and factual position, the plea raised by
the writ petitioners as well as the sixth respondent, whether could be
accepted or not is concerned, this Court is of the firm view that, for the
present, their claim of ownership that is co-owner or the right of lessee or
under any capacity, cannot be conclusively decided in this writ proceedings,
based on which, they cannot question the right of the fourth respondent to
get the planning permission for developing only 41 grounds.
68. Insofar as the process of considering the application and deciding
it in favour of the fourth respondent by the CMDA, of course as per the
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order passed by the first respondent Government, in the appeal filed by the
fourth respondent is concerned, the Development Control Rules is very clear
in this regard and this has been mainly canvassed by the learned counsel
appearing for the fourth, fifth and ninth respondents.
69. In Rule 6 of the Development Control Rules, it has been stated
that, for the purpose of obtaining planning permission or building permit,
the applicant who should be the owner of the land or lease holder or power
of attorney holder who has right over the land to develop, shall submit an
application online in the prescribed form to the competent authority.
70. Therefore the application can be submitted either by the owner of
the land or lease holder or even power of attorney holder.
71. Here in the case in hand, the claim of the fourth respondent is
that, they are the owner of the property in entirety and applicant is the fifth
respondent on behalf of the fourth respondent, who is the power of attorney
holder of the fourth respondent. Therefore based on this prima facie view,
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the application was entertained by the CMDA and it was processed.
72. Rule 11 of the Development Control Rules makes it clear that, the
permission granted by the competent authority shall not mean responsibility
or clearance of the following aspects :
(a) title or ownership of the site or building;
(b) easement right etc.,
Therefore the title or ownership of site or building is not cleared or decided
by virtue of the permission granted by the CMDA, that has been made clear
under Rule 11.
73. In this regard, Annexure III under Rule 6(9) has been heavily
relied upon by the learned counsels in B-Group supporting the cause of the
fourth respondent, where the following has been stated :
"Planning Permission Application is processed
based on the compliance to land use provisions in
the respective development plan in force and the
Tamil Nadu Combined Development and Building
Rules.
Compliance to the provisions of other relevant Act
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and Rules with respect to construction is the
responsibility of the applicant or owner and the
competent authority is not responsible for any
lapse;
Planning Permission for buildings is issued in
accordance with the provisions of the Town and
Country Planning Act, 1971 and the rules made
thereunder.
Issuance of Planning Permission by competent
authority under the statutory provisions does not
confirm any ownership or title over the property, in
favour of the applicant. Before issuing Planning
Permission for any development, competent
authority in this regard, checks only the aspect of
applicant's right over the site under reference to
make the development thereon based on the copies
of the documents (such as Sale Deed, Patta, Lease
Deed, Gift Deed etc., and GPA) furnished by the
applicant along with his / her application to prove
the same. Thus, competent authority primarily
considers only the aspect whether the applicant
prima facie has a right to carry out development on
the site under reference.
Any person who acquires interest in the property
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shall ensure independently about the ownership
and the applicant's right before acquiring the same.
Further, if any individual claim right (or) title over
the property he / she / they shall have to prove it
before the appropriate or competent Court to decide
on the ownership or get the matter settled in the
Court of Law and competent authority is not the
statutory authority to decide on this matter."
74. It has been made abundantly clear that, the competent authority
primarily considers only the aspect whether the applicant prima facie has a
right to carryout development on the site under reference. It has further been
unambiguously stated in the Development Rules in the said annexure that,
any person who acquires interest in the property shall ensure independently
about the ownership and the applicant's right before acquiring the same.
They shall have to prove it before the appropriate or competent Court to
decide on the ownership or get the matter to be settled in the court of law.
75. Therefore the ownership / title issue would never be decided and
in fact it cannot be decided by the CMDA or even by the Government while
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allowing the appeal under Section 79 of the Act.
76. The ownership and title can be decided if there is any dispute only
by the competent civil court, which forum the parties who made objections
have already approached. The writ petitioner has filed a O.P which has been
converted into TOS and the sixth respondent already filed a suit for
partition. These two Civil litigations will take care of the plea of claiming
right and title over the property in question made by the writ petitioner as
well as the sixth respondent. Therefore as of now, based on the prima facie
satisfaction, the CMDA acted upon by entertaining the application and
processed the same. Thereafter though it was rejected for some other
reasons, the appeal was allowed by the Government by placing the same
before the Appeal Committee twice and the reasons for allowing the appeal
has also been stated which has been exhaustively discussed herein above.
77. The said action on the part of the CMDA has been defended by
the learned Standing counsel appearing for the CMDA as well as the learned
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Advocate General who appeared for the State Government and they have
stated that, for the purpose of giving planning permission, only the
presumption with regard to the right of the party who made the application
for getting a planning permission is enough to come to a safe conclusion,
that such kind of permission can be granted provided the applicant
satisfy all other parameters as provided under the Tamil Nadu Town and
Country Planning Act as well as 2019 Development Rules.
78. In the case in hand, from the point of view of the State
Government or the CMDA, the applicant, i,e, the fourth respondent is not in
lack of any such fulfilment of the conditions imposed either under the Act or
under the 2019 Rules. Therefore to that extent, the action on the part of the
State Government in allowing the appeal and the consequential action on the
part of the CMDA to grant planning permission cannot be said to be infirm
and therefore the challenge made against such planning permission given by
the CMDA, i.e, the second respondent which is impugned in this writ
petition cannot be sustained.
79. Some technical objection though had been raised by the A-Group
counsels supporting the cause of the writ petitioners, that the decision of the
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Government must be reflected only through a Government Order and not by
the letter is concerned, the learned Advocate General met the point by citing
a decision which is quoted herein above.
80. The format is not important, only the decision of the Government
is paramount which has been in unequivocal term conveyed by the
Government, either by Government Order or by Government Letter and
therefore on that score, no advantage can be taken by the petitioner side.
81. CONCLUSION :
In view of the aforestated facts and circumstances and discussions
herein above made, this Court is inclined to dispose of this writ petition with
the following orders :
(i) the locus of the writ petitioners is to be accepted to file
this writ petition challenging the impugned order, accordingly it
is accepted.
(ii) However the impugned order on its own merits is to
be sustained accordingly it is sustained.
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(iii) The right and title over the property in question since
cannot be decided by this Court in this writ proceedings and the
same can be decided conclusively only in the civil proceedings
which have already been instituted by the parties concerned and
are pending before the original side of this Court as well as in
the City Civil Court, those decisions with regard to the title over
the property can be best decided by the respective Civil Courts
in the said civil proceedings.
(iv) The reasons stated, discussions made and what has
been observed during the discussion in this order has been made
only to reach the conclusion of the issue raised in this writ
petition alone as to the sustainability or otherwise of the
impugned planning permission given by the second respondent,
hence those findings given in this order shall not stand in the
way to decide the title over the property or the dispute raised by
the parties with regard to the title over the property in question
independently by the competent civil Court where the Civil Suits
are pending as stated supra.
82. Before parting with the case, this Court wants to remind the
private parties of this lis about the famous saying in Tamil which emphasise
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that “Unity is Strength”. “To thH;e;jhy; nfho ed;ik” “Koodi
Vaazhnthal Kodi Nanmai”, means if you are united you will be benefited
enormously.
83. With all these aforestated, since the writ petition fails and is liable
to be dismissed, it is dismissed accordingly. The interim order of stay
granted on 27.08.2021 in W.M.P.No.19289 of 2021 therefore is hereby
vacated. The vacate stay petition in W.M.P.No.23161 of 2021 hence is
allowed. Consequently, other connected miscellaneous petitions are closed.
However there shall be no order as to costs.
23.06.2022
Index : Yes
Speaking order
tsvn
To
1. The Principle Secretary to the Government
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State of Tamil Nadu
Housing & Urban Development Department,
Chennai - 600 009.
2. The Member Secretary
Chennai Metropolitan Development Authority
Thalamuthu-Natarajan Maaligai,
No.1, Gandhi Irwin Road,
Egmore, Chennai - 600 008.
3. The Commissioner
Corporation of Chennai
Rippon Buildings,
Chennai - 600 002.
R.SURESH KUMAR, J.
tsvn
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Order
in
W.P.No.18058 of 2021
23.06.2022
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