Madras High Court
Madras Gymkhana Club vs The Government Of Tamil Nadu on 18 February, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:432
W .P.No.30294 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on : 06.02.2025
Orders pronounced on : 18.02.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.30294 of 2024
and W.M.P.No.32975 of 2024
Madras Gymkhana Club,
Represented by its Honorary Secretary,
No.1, The Island Grounds,
Anna Salai, Chennai - 600 002. .. Petitioner
Versus
1. The Government of Tamil Nadu,
Represented by its Secretary,
Revenue Department,
Fort St. George, Chennai - 600 009.
2. The District Collector of Chennai,
Singaravelar Maligai,
Rajaji Salai, Chennai - 600 001.
3. Revenue Divisional Officer,
South Chennai Division,
Guindy, Chennai - 600 032.
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W .P.No.30294 of 2024
4. The Tahsildar, Guindy Taluk,
No.370, Richardson Park,
Saidapet, Chennai - 600 015.
5. The Tahsildar,
Velachery Taluk,
No.113, V.V.Koil Street,
Tharamani, Chennai - 600 015.
6. The Special Commissioner &
Commissioner of Land Administration,
Ezhilagam, Chepauk,
Chennai - 600 005.
7. The Department of Horticulture and Plantation Crops,
1, Wallaja Road, PWD Estate,
Chepauk, Chennai - 600 005. .. Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying for a Writ of Mandamus forbearing the respondents from causing
any further damage to the Golf Course, Annex building and allied areas
pending consideration of the representation of the petitioner, dated
25.09.2024.
For Petitioner : Mr.V.Raghavachari,
Senior Counsel,
for M/s.Viruksham Legal
For Respondents : Mr.J.Ravindran,
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W .P.No.30294 of 2024
Additional Advocate General,
Asstd. by Mr.A.Selvendran,
Special Government Pleader
ORDER
This Writ Petition is filed for a mandamus forbearing the respondents
from causing any further damage to the Golf Course, Annex building and
allied areas pending consideration of the petitioner's representation, dated
25.09.2024.
2. The petitioner's case is that, at its inception, the petitioner was a
society registered under the Societies Registration Act of 1860 and later
obtained registration under the Tamil Nadu Societies Registration Act of
1975, bearing registration No.48 of 1910. In the Race Course at Guindy, a
golf course established by the Madras Golf Club existed. The Madras Golf
Club and the Madras Gymkhana Club merged in 1887, and the petitioner has
maintained the golf course ever since. The Madras Gymkhana Club -
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M.G.C Golf Annex, Guindy, established in 1887, is the third oldest golf
course in the country. The records available to the petitioner indicate that
members of the petitioner and the Madras Race Club played the first seven
holes at the golf course in Island Grounds before traveling on horseback to
the golf course at Guindy to play four holes, then returning to the Island
Grounds Golf Course to play the remaining seven holes to complete a total
of 18 holes, which was the practice until the turn of the 20th century.
3. Additional details regarding the development of the game and the
establishment of a full-fledged Golf Course are also provided. The
petitioner constructed a Club House in 1951 at its own expense, which
includes kitchen, dining, recreation, and bar facilities. It is located on the
first floor of the building housing the race jockeys and measures
approximately 4,000 square feet. There are 50 staff members employed, and
nearly 400 to 500 members use the Golf Course on a regular basis. The
history of golf play and the various events conducted over the years are all
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documented. The petitioner asserts that it has been in possession,
management, and enjoyment of the Guindy Golf Course for over 140 years,
maintaining the said land at significant costs to meet international standards.
The petitioner club celebrated its 125th year of golf in 2002 and is set to
celebrate its 150th anniversary in 2027. Paragraph No.13 of the affidavit
reads as follows:-
" 13. I submit that the petitioner has established the
following rights by efflux of time over hundred years viz.,
a. To maintain the golf course with 18 holes for the
benefit of its members and to non member golfers on
payment of the green fee.
b. In furtherance of the above, to assure the golfers
to gain entry through Gate No.5.
c. To maintain a golf club house with club facilities
such as bar and restaurant.
d. To the unfettered use of the lawn near the golf
club house.
e. To uninterrupted supply of electricity, water for
drinking as well as for irrigating.
f. To use of adequate parking facilities for cars
near the golf club house and within the race course walls.
g. To conduct various golf tournaments and
training sessions."
4. While the respondents issued G.O.Ms.No.343, dated 06.09.2024,
this was related only to the termination of the lease made with the Madras
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Race Club, and no notice or Government Order was served on the petitioner
before they proceeded to seal Gate No.5 of the petitioner's club, barring
entry to its members. The respondent Nos. 1 to 5 entered the petitioner's
premises, including the Golf Course. No opportunity was given, and no
procedure established by law was followed by the respondents. It has been
reported in the newspapers that the Golf Course premises were transferred to
the seventh respondent for the construction of an eco-park.
5. If any work is started, it will cause grave prejudice to the petitioner.
The petitioner submitted a detailed explanation to the Revenue Divisional
Officer's communication, dated 12.09.2024, directing the petitioner's club to
furnish supporting documents regarding the claims made by the petitioner's
club. Even the Government authorities issued fire licenses, etc. FL2 license
was also given by the Tamil Nadu Excise Department. Therefore, by the
said representation, dated 25.09.2024, the petitioner highlighted its
possession for over 140 years and sought to reopen Gate No.5. Pursuant
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thereto, the third respondent called the petitioner for an in-person enquiry
along with supporting documents on 07.10.2024.
6. In the meantime, since the access to the Golf Course and Annex
building was prevented, the petitioner was constrained to file a suit in the
Original Side of this Court. Application No.5131 of 2024 in
C.S.Sr.No.132555 under Section 80(2) of the Code of Civil Procedure,
seeking for the dispensing with the statutory notice to be issued to the
defendants, was listed for hearing on 03.10.2024. While so, on 14.10.2024,
the respondents entered into the Golf Course area with machinery, including
J.C.B and dug a trench to the size of 50 meters x 20 meters. From the action
of the respondents, it is clear that it acted in a manner to overreach the
jurisdiction of the Court and to frustrate the petitioner's civil remedy by
avoiding to answer the claim of the petitioner.
7. The petitioner is informed that the same is undertaken to create a
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water body to collect rainwater during the ensuing monsoon season to
ensure that the rainwater does not drain onto the five-furlong road. Already,
a pond exists on the western side of the Golf Course. There are two existing
tanks on the western side, which are also recently deepened by the Madras
Race Club. The respondents, in a surreptitious manner, are attempting to
alter the nature of the Golf Course permanently to nullify the petitioner's
longstanding rights to use the Golf Course. The damages caused to the
petitioner would be close to Rs.50,00,000/-. The petition submitted by the
petitioner is pending enquiry. The particulars as to the proceedings that
were filed to the Madras Race Club regarding these disputes are also
mentioned. On the said premises, the prayer is made.
8. The Writ Petition is resisted by filing a counter-affidavit. It is
stated that the petitioner does not hold right, title or interest over the
demised premises. The entire land measuring 160.86 acres was leased out
only to the Madras Race Club. There seems to be an unlawful permission
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that is granted by the Madras Race Club in favour of the petitioner, and the
respondent authorities are not privy to the same. The petitioner also filed
similar suits with similar prayers, and by the order, dated 19.10.2024, the
application to dispense with Section 80 notice was dismissed, in which it
was categorically mentioned that there exists no relationship between the
respondents and the petitioner, and his application now stands dismissed.
The Government, through G.O.Ms.No.343, dated 06.09.2024, had
terminated the lease agreement in favour of the Madras Race Club. The
proceedings concerning taking possession from the Madras Race Club are
mentioned. Thereafter, except to permit the training of horses through Gate
No.3A for 15 days, the possession of the entire area was taken.
9. The Madras Race Club also filed a suit in C.S.F.No.124968 of 2024
praying to institute the suit without serving a notice under Section 80. The
said permission is granted by the Court, but the said entity did not number
its suit to date. The Government resumed the demised lands in entirety on
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09.09.2024. Due process of law has been followed while taking possession
from the said Madras Race Club. The petitioner obtained a certificate of
registration on 19.02.1970. Its existence for over 147 years is denied.
Considering the specific need for water management, the following works
are undertaken:-
"Short-Term Measures:
i. Conduct Scientific Studies:
•Carry out topographical and geological surveys using
proper consultants such as Anna University and Indian
Institute of Technology.
ii. Enhance Existing Infrastructure:
•Deepen existing ponds further and expand them as
required.
•Excavate additional ponds with huge capacity at Madras
Race Club to increase Ground Water Recharge and to
avoid bailing out of rain water from Madras Race Club.
iii. Implement Reverse Pumping:
•Deploy additional high-capacity motors for reverse
pumping into the Adyar River to discharge water at
maximum possible capacity.
iv. Defunct Existing Internal Storm Water Drain (SWD):
•Cease the use of current internal Storm Water Drain
(SWD) constructed in an unauthorised manner to avoid
untoward incidents inconvenience to public and damage to
public property due to flooding by bailing out of rainwater
from Madras Race Club.
Long-Term Measures:
i. Conduct Comprehensive Studies:
•Utilize consultants from Anna University and Indian
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Institute of Technology to conduct thorough topographical
and geological surveys, and implement their
recommended solutions.
ii. Obtain Approval from Greater Chennai Corporation:
•Seek concurrence from Greater Chennai Corporation
before executing any new plans. Construction of new
Storm Water Drain (SWD) from Madras Race Club to
Adyar with concurrence of Greater Chennai Corporation.
iii. Maximize Recharge Systems:
•Develop systems to maximize water recharge within
Madras Race Club to achieve self-sufficiency and reduce
reliance on Adyar River pumping."
10. In addition to the existing three ponds, four ponds with seven-
meter depth are being established. The work of excavation of additional
ponds is also completed. On account of the same, a large area that was
suffering on account of inundation did not suffer water stagnation during the
monsoon season in 2024. The water got stored in the ponds. Even in the
rest of the area, horticulture gardens, public green spaces, etc., will be
provided. The entire land is used for the greatest public good.
11. Heard Mr.V.Raghavachari, learned Senior Counsel for the
petitioner and Mr.J.Ravindran, learned Additional Advocate General for the
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respondents.
12. Mr.V.Raghavachari, learned Senior Counsel for the petitioner,
would submit that even before the Race Club came into existence, the
petitioner Club was in occupation of the said lands. Thus, the possession of
the petitioner preceded that of the Race Club. The petitioner Club is, thus,
in settled, continuous and long possession of over 140 years, and therefore,
the action of the respondents in taking possession from the petitioner
without following any due process of law is, ex facie, illegal. Even if ponds
are dug and the property is put into use, the illegality requires that this Court
should restore the possession of the petitioner, and even if the respondents
have any right, they have to follow the due process of law.
13. Even a trespasser or an encroacher is entitled to a notice. No legal
process whatsoever under any law was followed while evicting the
petitioner from the land as well as the building occupied by it. The entire
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action is high-handed and illegal. The organisation has been contributing to
the sport for over a century, and it is a very reputed organisation, which can
be seen from the various prestigious tournaments it has conducted. The
writings of historians have described the same, the members are suddenly
put to prejudice on account of the action. The possession of the petitioner is
recognized by the Government themselves when they issued a fire license,
FL2 license, etc., in respect of the bar that is maintained by the petitioner.
Therefore, when the petitioner was in settled possession, the same could not
have been taken without following due process of law.
14. Secondly, adverting to the Civil Suit, the learned Senior Counsel
would submit that it is true that the Civil Suit was filed, but the permission
to file the suit by dispensing Section 80 notice is refused. Therefore,
nothing has been determined on merits by the Competent Court for the
respondents to claim res judicata. The suit was filed for a different purpose,
and this Writ Petition was filed that even when the petitioner made a
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representation and when the same was pending enquiry, when the possession
is sought to be taken, the petitioner has no other go than to approach this
Court.
15. The learned Senior Counsel would rely upon the judgment of the
Hon'ble Supreme Court of India in Padhiyar Prahladji Chenaji (Deceased)
through Legal Representatives Vs. Maniben Jagmalbhai (Deceased)
through Legal Representatives and Ors. , more fully relying upon
paragraphs Nos.26 and 27 to contend that the possession could not have
been taken except by due process of law. For the same proposition, the
learned Counsel would rely upon the judgment of the Hon'ble Supreme
Court of India Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu
(Dead) by LRs. and Anr. more specifically upon paragraph No.8. He
would submit that law will come to the aid of the person in peaceful and
settled possession by injuncting even a rightful owner from using force or
1 (2022) 12 SCC 128
2 (2004) 1 SCC 769
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taking the law into his own hands and also by restoring him in possession
even from the rightful owner. The learned Senior Counsel also relied upon
the judgment of the Supreme Court in Krishna Ram Mahale (Dead) by his
LRs. Vs. Shobha Venkat Rao to contend that even a trespasser has to be
issued with a notice, and due process of law has to be followed.
16. The learned Senior Counsel would rely upon the judgment of the
Hon'ble Supreme Court of India in Munshi Ram and Ors. Vs. Delhi
Administration to contend that even a true owner is not entitled to throw
away a trespasser who is in settled possession. The principle of
acquiescence would come in the way of the true owner claiming such rights.
The learned Senior Counsel would rely upon the judgment of the Hon'ble
Supreme Court of India in In Re: Directions in the matter of demolition of
structures , more specifically relying upon paragraph No.90 onwards to
contend that the structures cannot be demolished and even encroachers
3 (1989) 4 SCC 131
4 1967 SCC OnLine SC 80
5 2024 INSC 866
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cannot be thrown out without following due process of law.
17. Per contra, Mr.J.Ravindran, learned Additional Advocate General
for the respondent Nos.1 to 7 would submit that firstly, the prayer in the
Writ Petition has become infructuous since already the possession has been
taken and the construction of ponds is also over. Secondly, he would submit
that the main prayer is only to consider the representation, and the
Government is willing to dispose of the representation within such time as
may be directed by this Court. Thirdly, he would submit that the petitioner
was never in possession, and the entire land was leased out only to the
Madras Race Club. Possession has been duly taken from them, and they
have also obtained leave to file a Civil Suit by getting an order of dispensing
with Section 80 notice. Thereafter, they have not taken any further action.
18. As far as the petitioner is concerned, already, the petitioner filed a
Civil Suit with a prayer to dispense with Section 80 notice. The said
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application was dismissed by the order dated 19.10.2024. On a perusal of
the prayer in the said suit and the plaint, it can be seen that the very same
cause of action is disclosed in the plaint and when, by the order, the Court
has held that the petitioner does not even have locus standi and dismissed
the suit, then, the same is binding on the petitioner and once again, claiming
possession, the petitioner cannot maintain the present Writ Petition.
19. The petitioner cannot have two parallel remedies at the same time
as it is averred that the petitioner has also filed an intra-court appeal against
the said order, which is not yet numbered. The learned Additional Advocate
General, placing the set of pictures detailing the nature of works undertaken
in the entire land, would submit that already, four new ponds have been
created, and by the rains during the monsoon,2024, all the four ponds are
brimming with water. The possession of the land has been resumed, and it
has been handed over to the appropriate authorities in carrying out further
development work. The works are in progress. The learned Additional
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Advocate General, pointing to the plight of the citizens of Chennai,
especially, in Velachery area during the monsoon where large extent of
residential area used to be submerged in water for months together starting
from November, December and January, and submit that on account of these
works, now, there was no inundation at all during the present year.
20. The learned Additional Advocate General would submit when the
works are being carried out for such a pious and important public purpose
that the prayer of the petitioner should not be entertained by this Court.
21. I have considered the rival submissions made on either side and
perused the material records of the case.
22. At the outset, the petitioner claims that it is a society registered
under the Societies Registration Act, 1860. The averment made in
paragraph No.3 of the affidavit is that the petitioner at the inception was the
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society registered under the Societies Registration Act. It had subsequently
registered under the Tamil Nadu Societies Registration Act, 1975, bearing
registration No.48 of 1910. But the said registration number is 48/1970. The
petitioner itself has filed the said certificate of registration along with a
typed set of papers in page No.34, and the Serial No.48/1970 cannot be
under the Tamil Nadu Societies Registration Act, 1975, which came into
force later. The certificate itself reads that it is registered under the Societies
Registration Act, 1860. If the petitioner had already registered itself as a
society under the Societies Registration Act, then why it registered itself for
the second time in the year 1970 is questionable. Therefore, the very claim
of the petitioner society as if it is established in the late 1800 and is in
existence for so many years by itself is not established before this Court, and
the writ petition is to be dismissed on this sole ground.
23. Even considering that the petitioner society has existed from late
1880s, it is the claim of the society that it was using the particular piece of
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land for playing Golf. While so, it is the case of the petitioner society that it
was prior user even to the Madras Race Club. If that be the situation, by a
lease agreement, dated 08.03.1946, registered as Document No.1039/1946,
it can be seen that it is the Madras Race Club which had applied to the
Governor of Madras to lease out the entire land admeasuring 160.80 acres to
it for recreation games and sports with a chief sport being Racing. The
possession of the entire land, including what is said to be there in the
possession of the petitioner, was handed over to the said Madras Race Club.
Therefore, if at all any grievance that is there for the petitioner Club, the
grievance dates back to 08.03.1946, whereby the land, to which it claims
possession, was leased out, and the possession was handed over to the
Madras Race Club. Even with the Madras Race Club, the lease deed was
subject to the rights of the Government or the Collector of the Chengalpattu
district to resume the premises if they require them for any public purpose.
24. The petitioner did not raise its little finger or make any claim at
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the relevant point of time or at any time thereafter. Therefore, it cannot
claim possession from 08.03.1946 or thereafter. The lease agreement in
Clause IV categorically prohibits the Madras Race Club not to under-let or
part with the possession of the demised premises. Therefore, the petitioner
cannot claim that it is in possession of the premises, from 08.03.1946. The
cause of action of the petitioner being dispossessed dates back to the year
1946. If at all the petitioner is said to be original Club, which was
conducting the Golfing activity, no action whatsoever has been taken for
these 90 years and now, it is too late in the day for the petitioner to claim
itself to be in possession. More so when the petitioner is an entity that came
into being by its registration only in the year 1970.
25. Further, it not only remained silent as its rights got extinguished
by the Madras Race Club being put into possession of the entire extent, it
seems that the petitioner also had some kind of an arrangement with the
Madras Race Club. The petitioner claims that it has constructed a club.
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But, as per the averment of the affidavit, it is on the first floor of the
construction made by the Madras Race Club. Secondly, no sub-tenancy is
pleaded. In the absence of any pleading relating to sub-tenancy, at best, it
can be seen that it is a kind of permission/license from the Madras Race
Club that was granted to the petitioner and thus, no possession can be
pleaded.
26. The submissions made by the learned Senior Counsel regarding
following of due process of law, issuing of notice, etc., would all arise if
only the petitioner is in possession of the premises. The petitioner is not
pleading that it is the real owner of the property. The petitioner is not
pleading that it is a sub-tenant under the Madras Race Club. It is its
specific pleading as to some permission to enter through Gate No.5 and its
members being permitted to play golf and use the bar/club. Even assuming
that to be correct, the only conclusion that can be made is that the petitioner
was permitted to carry on certain activities as a licensee by the Madras Race
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Club and by the said permission, it cannot be said that the petitioner was in
possession of the premises. In this regard, useful reference can be made to
the judgment of the Hon’ble Supreme Court of India in Associated Hotels
of India Ltd. Vs. R.N. Kapoor , and paragraph No.28 of the said judgment
reads as follows:-
"28. There is a marked distinction between a lease
and a licence. Section 105 of the Transfer of Property
Act defines a lease of immovable property as a transfer
of a right to enjoy such property made for a certain
time in consideration for a price paid or promised.
Under Section 108 of the said Act, the lessee is entitled
to be put in possession of the property. A lease is
therefore a transfer of an interest in land. The interest
transferred is called the leasehold interest. The lessor parts
with his right to enjoy the property during the term of the
lease, and it follows from it that the lessee gets that right
to the exclusion of the lessor. Whereas Section 52 of the
Indian Easements Act defines a licence. Under the
aforesaid section, if a document gives only a right to
use the property in a particular way or under certain
terms while it remains in possession and control of the
owner thereof, it will be a licence. The legal possession,
therefore, continues to be with the owner of the
property, but the licensee is permitted to make use of
the premises for a particular purpose. But for the
permission, his occupation would be unlawful. It does
not create in his favour any estate or interest in the
property. There is, therefore, clear distinction between the
two concepts. The dividing line is clear though sometimes
6 1959 SCC OnLine SC 62
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it becomes very thin or even blurred. … "
(emphasis supplied)
Thus, all arguments relating to dispossession without due process of
law stand rejected.
27. The petitioner also filed a Civil Suit. The prayer in the Civil Suit
is as follows:-
"a) A declaration that the Plaintiff and its members
have a right to the use and enjoy of the suit property,
including the right to continue golfing activities, as has
been peacefully exercised for the past 147 years.
b) A declaration that the Defendant's act of locking
Gate No.5 on 09.09.2024, thereby preventing access to the
members of the Plaintiff Club, is illegal.
c) A permanent injunction restraining the
Defendants from interfering with or obstructing the
plaintiff and its members from enjoying the Suit Property
for Golfing activity.
d) Mandatory injunction directing the Defendants
to unlock Gate No.5 and permit access to the Suit Property
as it was earlier to the closing and sealing of the Gates of
the Plaintiff's Golf Club.
e) And pass such other order as this Hon'ble Court
may deem fit in the interest of justice."
Thus, it can be seen that it is on the self-same cause of action.
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28. The suit was filed with an application under Section 80(2) of the
Code of Civil Procedure to dispense with the issue of notice under Section
80. While considering the same, by the order dated 19.10.2024, the Court
has found that the schedule-B property, which was claimed by the petitioner,
is without any survey number of clear description. The situs of lis, being the
Government land and the lessee, admittedly being the Madras Race Club
and the lease was terminated, and the plea of applicant/plaintiff that they co-
existed with M.R.C. does not confer any legal right or locus standi. On the
said findings, the application was dismissed.
29. If it is left as final, the same adversely determines the right of the
petitioner, and if the petitioner has left the same as final, then this Writ
Petition is not maintainable. However, it is stated that the petitioner has
stated an appeal is filed, and the same is yet to be numbered. If the
petitioner is still pursuing the above suit remedies, the filing of this Writ
Petition for the self-same cause of action and grievances is not entertainable.
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Thus, the Writ Petition is liable to be dismissed.
30. It is also pertinent to point out that at the end of the day, it is
Government land. It was given for sporting purposes with a rider that even
the Collector of Chengalpattu can enter if there is any public purpose
involved. There is a grave need and dearth of water bodies in the city of
Chennai. This property is located in the middle of the city with a
humongous number of residential colonies and commercial buildings
surrounding the same. It will now serve as an alternative for the rainwater to
get stored, preventing inundation of many areas. It will improve the
groundwater table. When such is the public purpose with which it is taken, it
is for the members of the petitioner Club to ask themselves, can they not
play Golf in the other Golf Clubs that are available, and can they not use any
other premises for their recreational Club activities/bar?
31. Accordingly, finding no merits, this Writ Petition stands
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dismissed. There shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
18.02.2025
Neutral Citation : yes
grs
To
1. The Secretary,
Revenue Department,
Fort St. George, Chennai - 600 009.
2. The District Collector of Chennai,
Singaravelar Maligai,
Rajaji Salai, Chennai - 600 001.
3. The Revenue Divisional Officer,
South Chennai Division,
Guindy, Chennai - 600 032.
4. The Tahsildar, Guindy Taluk,
No.370, Rchardson Park,
Saidapet, Chennai - 600 015.
5. The Tahsildar,
Velachery Taluk,
No.113, V.V.Koil Street,
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Tharamani, Chennai - 600 015.
6. The Special Commissioner &
Commissioner of Land Administration,
Ezhilagam, Chepauk,
Chennai - 600 005.
7. The Department of Horticulture and Plantation Crops,
1, Wallaja Road, PWD Estate,
Chepauk, Chennai - 600 005.
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D.BHARATHA CHAKRAVARTHY, J.
grs
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18.02.2025
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