R. Kasthuribai vs The State of Tamil Nadu and Chennai Metro Rail Limited

K.K. Sasidharan, J.—Introductory:--

The Grant given by the Government of Madras in 1888 of a piece of land just opposite to the Central Railway Station, Madras, to Sir S.

Ramasami Mudaliar for construction of Choultry for the free use of railway travellers and for poor feeding with right to resume, without liability to

pay compensation, (if it ceases to be employed for the purpose for which it was granted or used for any other purpose), is now sought to be

resumed by the State of Tamil Nadu on account of violation of conditions of Grant and for allotment to the Chennai Metro Rail for the very same

public purpose of providing amenities to the railway passengers for which it was originally granted.

Facts in nutshell:--

The petitioners are lessees and sub-lessees, in possession of the building constructed by a Trust by name Rajah Sir Ramasamy Mudaliar Choultry,

situated just opposite to the Central Station, Chennai. Some of the petitioners are not having any semblance of right and they are in occupation of

the premises on account of the indulgence shown by the office of Administrator General and Official Trustee (hereinafter referred to as ""AG &

OT"") by receiving rent. It is also a matter of record that some of the lease agreements does not contain even a proper description of the schedule

of property. The petitioners in W.P. Nos. 28357 and 28358 of 2013 are the successor in interest of Thiru. Buhari, who was permitted to put up a

hotel building with a condition that after the efflux of lease period, he should vacate the premises without any claim for compensation.

Since a common issue has arisen in these batch of writ petitions with regard to the right of resumption of land by the Government after framing a

scheme by the High Court, I am not venturing to consider the lease hold right claimed by the petitioners in the individual writ petitions,

notwithstanding the fact that some of the leases/sub-leases are of recent origin.

The starting point of litigation:--

Before dealing with the issues raised by the petitioners, it is appropriate to recapitulate the background facts relating to the earlier round of

litigation.

(a) The Government of Tamil Nadu issued an order in G.O.Ms. No. 168 Revenue, dated 21 May 2012, resuming the land in T.S. No. 41,

(alleging violation of the terms of original Grant and also on account of a larger public purpose), and to hand it over to the Chennai Metro Rail Ltd.

(hereinafter referred to as CMRL) in connection with the formation of Metro Rail at Chennai.

(b) The Government Order dated 21 May 2012, and the consequential order passed by the AG & OT were challenged before this Court by the

petitioners in W.P. No. 19269 of 2012 etc. batch.

(c) The writ petitions were allowed by the learned single Judge with a direction to the Government to issue notice to the lessees, AG & OT, and

Co-Trustee and thereafter to pass fresh orders taking into consideration their objections.

(d) The common order dated 26 November 2012 was taken up by way of intra court appeal in W.A. Nos. 70 of 2013 to 88 of 2013 and 91 of

2013 to 106 of 2013. The Division Bench, by judgment dated 12 July 2013, allowed the appeals.

(e) The unsuccessful writ petitioners filed Special Leave petitions before the Hon''ble Supreme Court. The Supreme Court granted leave and after

recording the undertaking given by the learned Solicitor General, directed that all the affected parties should be given notices and an opportunity to

respond and accordingly, disposed of the appeal, by order dated 25 July 2013.

The direction of the Supreme Court reads thus:

For the aforesaid purpose, we would be satisfied to permit the State Government to issue notices to all the lease holders concerned on or before 5

August 2013. All the appellants here, if not served by the said date, will be at liberty to approach the concerned District Collector, Chennai and

obtain a copy of the notice from him. The appellants shall be permitted to respond to the said notice on or before 16th August, 2013. The

determination thereon, one way or the other, shall be rendered by the appellate authority within one week thereafter. In case, any of the appellants

are to be adversely affected, a well reasoned speaking order will be passed taking into consideration all the issues canvassed in the response to the

show cause notice. Likewise, the appellants would be at liberty to obtain the final order passed in the matter on or after 30th September 2013

from the office of the concerned District Collector, Chennai. In order to enable the appellants to avail of the remedy in accordance with law, the

State of Tamil Nadu shall not adversely affect the position in which the appellants are presently placed for a further period of two weeks after

passing of the said speaking order.

In case, the appellants wish to avail of a remedy, it shall be open to them to approach the High Court in its writ jurisdiction for the said purpose.

(f) Thereafter the District Collector issued individual notices to the affected parties and received their response.

(g) The District Collector after examining the objections, submitted a report to the Government with recommendation to resume the land in T.S.

No. 41.

(h) The Government have examined the proposal in the light of the earlier proceedings and the objections raised by the affected parties and

resolved to resume the land by order dated 28 September 2013 in G.O.Ms. No. 380, Revenue (LD 1(1)) Department.

(i) The District Collector, Chennai, pursuant to the order dated 28 September 2013, issued notices dated 30 September 2013, directing the

petitioners to vacate and handover the respective premises to the Tahsildar, Fort Tondiarpet Taluk, on 15 October 2013.

(j) The Government Order dated 28 September 2013, and consequential eviction notices are under challenge in these writ petitions.

Substantial contentions:--

The petitioners have raised the following common contentions:--

(i) The Government have accepted the proposal made by the District Collector, without application of mind;

(ii) The Government have ignored the fact that permission was earlier granted by the Government in G.O. Ms. 488 dated 4 March 1948 and G.O.

Ms. 368 dated 3 October 1958 to put up construction and approving the lease granted to A.M. Buhari;

(iii) The Government earlier directed A.M. Buhari to approach the High Court for renewal of lease. This shows that the Government have

recognized the tenancy;

(iv) Scheme Decree in C.S. No. 90/1963 permits grant of lease. Since leases were permitted by the High Court, there was no violation of

conditions of Grant;

(v) Section 10 of Act 2 of 1913 gives jurisdiction to the High Court to appoint the Official Trustee as Trustee of Trust property. u/s 10(2), such

property would vest in the Official Trustee. Section 25 of the Act permits the High Court to pass appropriate orders regarding the trust property.

These aspects were not considered by the Government;

(vi) Since High Court has appointed the Trustee and is administering the property, Government lost its power to resume the land. The act of filing

application earlier seeking permission from the Court shows that the Government was aware of the said position;

(vii) The subject property is not needed for the purpose of metro rail.

The District Collector, Chennai District, filed a counter affidavit for and on behalf of the State of Tamil Nadu. According to the District

Collector, the Government have considered all the points raised by the individual petitioners and only thereafter, a finding was given. Since the

purpose for which Grant was given is no more in existence, the Government was justified in resuming the land. According to the District Collector,

the land belongs to the Government and as such, there is no need to take recourse to the provisions of the Land Acquisition. The AG & OT has

not raised any objection at any point of time against resumption. The petitioners being the lessees and sub-lessees are not entitled to challenge the

process of resumption.

The Managing Director, Chennai Metro Rail Ltd., in his counter affidavit submitted that CMRL is a special purpose vehicle formed for the

purpose of implementing the Chennai Metro Rail Project. The project is managed by the Government of India and the State Government by way

of equal equity contribution and subordinate debt. CMRL received loan from the Japan International Cooperation Agency. CMRL wanted the

subject land for the purpose of railway, and the heritage building would be preserved. CMRL contended that any delay would escalate the cost

and as such, it would not be in public interest to delay the matter.

Summary of submissions:--

Thiru. R. Muthukumarasamy, learned Senior Counsel for the petitioners in W.P. No. 28357/2013 contended that the Supreme Court set aside

the earlier order passed by the District Collector and directed the Government to pass a speaking order in the light of the objections made by the

lessees. The impugned order does not contain any discussion with regard to the grounds raised by the petitioners. The learned Senior Counsel

contended that in spite of the direction given to the Government to pass orders, the impugned order was passed only by the District Collector. It

was contended that the grounds mentioned in the impugned order is no more available to the Government on account of the subsequent events and

more particularly the Scheme Decree passed by the High Court and the direction given to the Official Trustee to take possession of the Trust

property. The learned Senior Counsel contended that Thiru. Buhari got permission from the Government and even from the Court and as such, it

cannot be said that it was a sub lease, warranting initiation of proceedings for resumption. The learned Senior Counsel further contended that the

Government and the District Collector failed to consider the substantial contentions raised by the petitioners and as such, the impugned order is

liable to be quashed.

Thiru. Vijay Narayan, learned Senior Counsel for the petitioners in W.P. No. 28358/2013, by placing reliance on the provisions of the Official

Trustees Act, 1913, and more particularly Section 25, submitted that on account of the Scheme Decree and the subsequent orders passed by the

High Court, it is not open to the Government to exercise the power of resumption. The learned Senior Counsel contended that the High Court

exercises power u/s 25 of the Act to pass orders in respect of property vested with the Official Trustee. Therefore the Government was not

correct in passing the impugned order without approaching the High Court to re-convey the property. The learned Senior Counsel by placing

reliance on the lease agreements contended that the leases were given with the knowledge of the Government and as such, it cannot be said that

there was violation of the conditions of grant. The learned Senior Counsel further contended that, by passing this order of resumption, the tenants

were deprived of their right to claim compensation.

Thiru. Yashod Varadhan, learned Senior Counsel for the petitioners in W.P. Nos. 28392 to 28393/2013 submitted that in view of the

provisions of the Official Trustees Act and vesting the property with the Official Trustee, the Government ceased to have any right in respect of the

land covered by the grant. The learned Senior Counsel contended that the remedy is only to approach the Civil Court for recovery of possession.

Mr. M.S. Krishnan, learned Senior Counsel for the petitioners in W.P. Nos. 28234 to 28238/2013 contended that the lessees have been in

possession and enjoyment of the property with the knowledge of the Government. The leases were granted by the Official Trustee. The lessees

could be evicted only in the manner known to law. The Government erred in issuing the impugned order notwithstanding the Scheme Decree and

the administration of property by the Official Trustee.

Thiru. J. Raja Kalifulla, learned senior counsel for the petitioner in W.P. No. 28/2013 submitted that the Government lost its right of

resumption on account of the Scheme Decree framed by the High Court. Therefore, the impugned order is a nullity.

Thiru. R. Natarajan, learned counsel for the co-trustee contended that the Government was in the know of things and as such, it cannot be said

that there was violation of the terms of grant. He would contend that the Government should have initiated proceedings under the Land Acquisition

Act to acquire the interest of tenants. The tenants are having every right to claim compensation. Similarly, Co-Trustee is also entitled to claim

compensation on account of the improvements made by the trust prior to the Scheme Decree. The learned counsel further contended that the

Government in a high-handed manner, issued the impugned order notwithstanding the scheme decree and the administration of property by AG &

OT and as such, the impugned order is liable to be quashed.

Thiru. Aravind Pandian, learned Additional Advocate General, contended that even according to the petitioners, the original charitable purpose

is no more in existence. The Government at all point of time maintained that in case the property is not used for the purpose for which it was given,

it would revoke the grant. When it is made out that the original purpose is no more in existence and the trust has given sub-lease of property, the

Government would be justified in taking action to resume the land. The learned Additional Advocate General contended that the fact the Court

framed a scheme decree, resulting in vesting the property with the A.G. & O.T., would not deprive the Government of its original right under the

grant to resume possession. It was submitted that the restoration of land is for a public purpose and the travelling public would be benefited. The

petitioners are spoiling the entire locality by doing various kinds of business, including trade in perishables. The public would not be benefited by

permitting the lessees to do business in Government Land. According to the learned Additional Advocate General, the legal representatives of Mr.

Buhari have given sub-lease to many tenants and they are enriching by making use of Government property.

Thiru. R. Thiagarajan, the learned senior counsel for CMRL, contended that the subject property is required for Metro Rail project. The

existing building would be retained as a heritage building and the land would be used for the benefit of commuters. The learned Senior Counsel

contended that the Government have reserved its right to resume the land. The Government having found that the land was not used for the original

purpose, rightly revoked the grant. It was further contended that there is no need to approach the High Court to resume possession. The learned

Senior Counsel submitted that the CMRL has already given the contract and each day delay would cause substantial financial liability on CMRL.

The learned Senior Counsel assured that reasonable compensation would be given to the lessees by CMRL.

THE ISSUE:--

The petitioners have raised a fundamental issue with regard to the authority of the Government to resume the land by invoking the resumption

clause contained in the original grant, in view of the subsequent decree passed by the High Court, framing a scheme to the trust and directing AG

& OT to take over the land and administer it in accordance with the Scheme Decree. The factual history:--

In order to decide the issue regarding the authority of the Government to resume the land in view of the changed circumstances, necessarily, a

reference to the original Grant, its conditions and the developments thereafter, should be made.

The Government of Madras, by G.O.Ms. No. 534, Revenue, dated 6 August 1888, and the subsequent order dated 22 November 1888, in

G.O.Ms. No. 812, allotted land to an extent of 1.33 acres in T.S. No. 41 and 43/2 in Block No. 7 of Vepery Village to Sir S. Ramasamy

Mudaliar, for putting up a Choultry and with a mandatory condition that it should be made available for the free use of railway travellers.

The Government in both the grants covered by G.O.Ms. Nos. 534 and 812, incorporated the following condition regarding resumption of

land:

That the land shall be liable to resumption without compensation, if it ceases to be employed for the purpose for which it is granted, or is used for

any other purpose without permission of Government.

The grant was therefore a conditional one. The Government was entitled to resume the land:

(a) If it was not used for the purpose for which it was given; or

(b) If it is used for any other purpose without permission.

The Government issued an order in G.O.Ms. No. 763, Revenue, dated 9 December 1898, whereby and whereunder, Government granted

the land to Sir. S. Ramaswamy Mudaliar and permitted him to put up permanent sheds for feeding the poor and destitute persons of all classes.

The following two conditions were annexed to the Grant

(a) That the land shall revert to Government when it ceases to be used for the purpose for which it was granted;

(b) That should the property be at any time resumed by Government, the compensation payable therefor shall in no case exceed the cost of its

present value, whichever shall be less of any buildings erected or other works executed on the land.

The grant was made on the basis of the request made by Sir S. Ramasamy Mudaliar, to the Government of his intention to give ""feeds to one

hundred poor people in destitute and helpless circumstances and or all classes or castes, one meal every day in perpetuity"".

It is therefore, clear that the Grant was made for a specific purpose of charity reserving the right by the Government to resume the land, in case

it is not used for such charitable purposes.

The Government having found that Sir. S. Ramasamy Mudaliar after putting up construction failed to use it for the purpose for which it was

granted, directed the Collector of Madras to resume the land. The Government wanted the Collector to take the views of Sir S. Ramasamy

Mudaliar as to whether he was prepared to give up the site, if Government were to pay the value of the existing sheds. There were exchange of

correspondence between the Collector and Sir S. Ramasamy Mudaliar. It is a matter of record that ultimately, Sir S. Ramasamy Mudaliar by his

letter dated 9 October 1909 informed the Collector that he was willing to surrender the land. However, he submitted that in case he was given

time, he would use the land for the specific purpose of charity from 1 January 1910.

The order passed by Hon''ble Mr. Justice Palaniswamy in C.S. No. 90 of 1963 shows that the Government did not press the request for

surrender. Similarly, Sir S. Ramasamy Mudaliar, did not act up to his promise.

Sir S. Ramasamy Mudaliar constructed a restaurant inside the compound, without obtaining permission from Government. It was constructed

to augment the income of Choultry. The Government found that sheds were permitted to be constructed to sell provisions to the passengers staying

in the Choultry. However, land and sheds were actually not used for the said purpose.

The Government issued a warning to Sir S. Ramasamy Mudaliar, as per order in G.O.Ms. No. 1094 dated 5 April 1910. By then, Sir S.

Ramasamy Mudaliar appears to have fallen ill and his family members assured the District Collector by letter dated 18 May 1910 that the original

purpose would be respected and in fact, poor feeding has already been commenced.

(a) The order passed by the High Court dated 24 July 1970 in C.S. No. 90 of 1963 shows that Thiru. Ramakrishnan, who succeeded Sir S.

Ramsami Mudaliar, contrary to the conditions of assignment of land by the Government, granted a lease of 7020 sq.ft. of land to Thiru. Buhari, as

per registered Document dated 29 February 1957.

(b) The Government on coming to know the violation of conditions of Grant passed an order dated 11 June 1958 and called upon the Collector to

issue notice to the trustee as to why land should not be resumed on account of breach of conditions of grant. The District Collector issued a notice,

to which a reply was sent by the trustee that the trust would stand to gain and that the lessee agreed to vacate after the lease term, without claiming

compensation for the improvements made by him.

(c) The Government appears to have not taken any follow up action thereafter.

(d) Subsequently Mr. Buhari, executed a modified lease agreement wherein it was specifically stated that he would not claim compensation while

vacating the premises.

(e) The High Court recorded a factual finding in C.S. No. 90 of 1963 that the lease was not for the benefit of the trust and it was heavily worded in

favour of the trustee.

The mismanagement of the affairs by the trustee, made the Advocate General to file a suit for framing a scheme for the better and proper

management of the public charitable trust, by removing the trustee.

The suit was decreed after contest, by judgment and decree dated 24 July 1970 in C.S. No. 90 of 1963. The High Court framed a scheme

and appointed the official trustee to take over the administration of trust.

The scheme framed by the High Court permitted the trust to grant leases of vacant lands or portion thereof, not required for the purpose of

Choultry for a period not exceeding five years. In case the lease is for a term exceeding five years, Official Trustee was directed to obtain

permission from High Court.

Some of the petitioners took lease of premises through Court. There are sub lessees and total strangers, who are also claiming tenancy rights.

The petitioners have raised a legal question by placing reliance on Section 25 of the Official Trustee Act, 1913.

Section 25 of Act 2 of 1913 reads thus:

Power of High Court to make orders in respect of property vested in Official Trustee.

The High Court may make such orders as it thinks fit respecting any trust property vested in the Official Trustee, or the [income] or produce

thereof.

According to the petitioners, by virtue of the Scheme Decree in C.S. No. 90 of 1963, the trust property vested in the official trustee.

Therefore, only the High Court has got authority to pass orders in respect of trust property.

The Collector of Madras originally filed an application before the Court in M.P. No. 5516 of 2010 in C.S. No. 90 of 1963 to direct the AG &

OT to convey the property in T.S. No. 43/2, to the Chennai Metro Rail for public purpose. The application was later withdrawn.

The Government thereafter initiated action to evict the petitioners. The Government issued an order in G.O. Ms. No. 168, Revenue

Department dated 21 May 2012 resuming the land and to allot it to Chennai Metro Rail. The Tahsildar, Fort Tondiarpet Taluk, issued a

consequential notice dated 21 June 2012 calling upon the AG & OT to handover vacant possession of the land after evicting the tenants. The AG

& OT pursuant to the said notice, directed the petitioners to vacate and handover possession of the land.

The Government Order in G.O.Ms. No. 168 Revenue Department dated 25 June 2012 and the consequential notices were challenged in

W.P. No. 19469 of 2012 etc. batch by the petitioners and ultimately, resulted in remanding the matter to the Government by the Hon''ble Supreme

Court.

Analysis:--

The principal question is whether the Government lost once for all, the right to resume the land, on account of the Scheme Decree in C.S. No.

90 of 1963, and as to whether by resuming land, the Government violated Section 25 of the Official Trustees Act 1913.

There is no dispute that a Scheme was framed by this Court for better management of the trust. The scheme was framed only for the trust and

it was not in relation to the property. Even before the Scheme Decree, the property was in the possession of some of the tenants. The learned

Judge directed the AG & OT to take possession of the land for proper management.

Even though AG & OT took the management of property pursuant to the scheme decree, the fact remains that the nature of property remained

the same. The character of property has not undergone any change.

The property was given to Sir S. Ramasamy Mudaliar for a definite purpose. The Government wanted Sir S. Ramasamy Mudaliar to construct

a Choultry for the free use of travellers. The Government made it very clear that in case the land is not used for the specific purpose, it would be

resumed without any liability to pay compensation.

The binding factual finding in C.S. No. 90 of 1963:--

This Court in C.S. No. 90 of 1963, recorded a clear factual finding that charity was not conducted regularly and properly. The learned Judge

observed that poor feeding appears to have been done for some time, but was discontinued. The decree in C.S. No. 90 of 1963 clearly supports

the case of the Government that the land was not used for the purpose for which it was given by way of Grant. The decree in C.S. No. 90 of 1963

was upheld by the Division Bench in O.S.A. No. 55 of 1970.

Before the Division Bench in O.S.A. No. 55 of 1970, a contention was taken with regard to the power of the Government to resume the land.

The Division Bench observed that the land and buildings would go together which the public is entitled to use, and it is only when the land was not

put to use, the provision for resumption would arise. The Division Bench further observed that it is not necessary to speculate on what would

happen in case of resumption of land. Therefore, even the Division Bench recognized the right of resumption in spite of framing a scheme for the

trust.

It is true that the Government approved the lease given to Buhari, to augment the revenue of Trust. It was for the purpose of doing charity by

raising money. However, such acts would not constitute a waiver of its right of resumption. When it is made out that the land was not used for

charitable purpose, and more particularly for the benefit of travellers coming to Madras by rail, it would give a cause of action to the Government

to resume land notwithstanding the grant of lease to the petitioners. What is relevant here is the abandonment of the original purpose.

The land is situated in a prime location, just opposite to the Central Station, Chennai. The land worth several crores of rupees is now in the

possession of few tenants with right to give sub-lease. There is a mushroom growth of shops, by converting one shop into many, by the existing

lessees, for their benefits. The Trust is not the beneficiary. The property given by the Government for a particular purpose is now used altogether

for a different purpose. Even the petitioners have no case that there is a Choultry in the land and the travellers are highly benefited. There are only

hotels and guest houses run by private parties, travel agencies, foreign articles shops and similar other establishments. The public has no benefit by

retaining this Government property in the hands of the petitioners. In fact, the office of the AG & OT has been acting as a rent collection agent

from lessees and sub lessees giving a free hand to all of them to keep possession in perpetuity and without prohibiting sub lease.

Section 25 of the Official Trustees Act gives power to the High Court to pass orders regarding trust property. However, in the subject case,

there is no need for such permission in view of the condition of grant regarding resumption and the finding given by the learned Judge in C.S. No.

90 of 1963 that the land is not used for the purpose for which it was used, and the related observation of the Division Bench in O.S.A. No. 55 of

1970 that it is only when the land is not put to use, the provision for resumption would arise. In fact, this is not an ordinary case of resumption and

re-allotting the land to private parties.

The plan produced by the Chennai Metro Rail clearly proves the public purpose for which this land is required. The Chennai Metro Rail

agreed to preserve the heritage building. The land is necessary for the convenience of the travelling public. The face of Chennai Central area would

undergo a sea change on account of the proposed development by Chennai Metro Rail. The private interest in such cases must give way to larger

public interest.

The learned counsel for the Co-Trustee contended that in case the Government requires the land for public purpose, proceedings under the

Land Acquisition Act should be resorted to. There is no merit in the said contention. The land belongs to the Government. It was given for a

specific public purpose, with a rider. The Government, having found that the land is not used for the particular public purpose, wanted to resume it

and allot it for another public purpose.

The memo dated 3 October 2012 filed by CMRL clearly shows that compensation would be given to all the displaced persons. The memo

reads thus:

I state that the respondent has framed policy for the relief and rehabilitation for the project affected persons, consistent with the policy of the

Government of Tamil Nadu, to provide Relief and Rehabilitation to those persons whose land/property has to be acquired for implementing the

project. The Chennai Metro Rail Limited in the circumstances agrees to pay compensation as per its scheme for relief and rehabilitation under

relevant category and for immovable structures if entitled under law as determined by the appropriate forum having due regard to the interests

which are eligible for such compensation.

The petitioners would be given adequate compensation by CMRL. There is no need for land acquisition for the said purpose.

The Supreme Court in Azim Ahmad Kazmi and Others Vs. State of Uttar Pradesh and Another, , having found that the deed of grant contain a

provision for resuming possession, rejected the contention taken by the grantee that possession could be taken only by resorting to legal

proceedings.

Thiru. Abdul Nazeer, learned counsel for some of the petitioners, contended that the Government must file a civil suit to recover possession.

The said contention ignores the nature of Grant. The land was not given to the trust. It was given to an individual viz., Sir S. Ramasamy Mudaliar.

The materials available on record would prove that it was only the Grantee who later formed a trust. It was only the mismanagement of the trust,

which was the subject matter of Scheme Decree proceedings. The Government have absolutely no connection with the trust. The petitioners are

tenants under the trust. There is no privity of contract between the Government and the trust. Similarly, there is no such privity of contract between

the Government and the petitioners. The petitioners are claiming certain rights under the Trust. It was only on account of the failure to give notice to

the petitioners notwithstanding their continuous possession, the matter was remanded by the Hon''ble Supreme Court. The AG & OT has not

challenged the proceedings for resumption. The petitioners have no legally enforceable right against the Government. They are claiming right only

under the Trust. The trust is bound by the original conditions of grant.

The finding recorded by this Court in C.S. No. 90 of 1963 to the effect that the land was not used for the purpose for which it was not given

and the related observation with regard to misuse of land and the undue benefits given to the private parties would operate as res judicata and as

such, it is not possible to entertain the argument that there was no violation of the conditions of grant. Even according to AG & OT, there are no

charitable activities now, except giving money out of Trust funds to certain organizations. This was not the charitable purpose for which the land

was given originally by the Government.

The misuse of funds and commission of acts prejudicial to the interest of the trust by the then trustee Thiru. S.V. Ramakrishnan made this Court

to frame a Scheme. The Scheme would not change the nature of conditions of grant. Merely because AG & OT has taken possession of land and

lease was granted to private parties pursuant to the terms of decree, it cannot be said that the Government lost the right to enforce the fundamental

terms of contract or the right to take action for breach of conditions of grant.

The legal representatives of Thiru. Buhari has taken up a contention that when a request was made by him to extend the lease, the Government

directed him to approach the High Court on account of the Scheme Decree. This would not mean that the Government has waived its right

reserved under the deed of Grant. The Government has not given the lease to Buhari. It was given only to Sir S. Ramasami Mudaliar. It is true that

the Government issued an order in G.O.Ms. No. 368, dated 3 October 1888 indicating the manner in which lease agreement should be prepared.

When it was made out that the land was not in the possession of Sir S. Ramasami Mudaliar, or his successor in interest and that it was managed by

the AG & OT, as per the order passed by the High Court, the Government was perfectly justified in its stand that it cannot grant extension of lease

to Thiru. Buhari and that he has to approach the High Court.

The permission given by the Government, and indicated in the relevant orders, were not in modification of the original grant. The permission

was given only to Thiru. Buhari and it was to occupy a portion of the premises. The other petitioners have no right to rely on the said permission to

challenge the action taken by the Government to resume the land.

The grant in the subject case and its revocation have to be considered in the light of Section 2 and 3 of Government Grant''s Act.

The provisions read as follows:--

Section 2. Transfer of Property Act, 1882, not to apply to Government grants. Nothing in the Transfer of Property Act, 1882 (4 of 1882),

contained shall apply or by deemed ever to have applied to any grants or the transfer of land or of any interest therein heretofore made or hereafter

to be made [by or on behalf of the [Government]] to, or in favour of any person whosoever; but every such grant and transfer shall be construed

and take effect as if the said Act had not been passed.

Section 3. Government grants to take effect according to their tenor.

All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect

according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.

Section 3 of the Government Grant''s Act is an answer to the legal contention raised by the petitioners with regard to the power of the

Government to resume the land on account of the subsequent events culminating in passing a Scheme Decree and entrusting the property with the

AGOT and the leases granted by AGOT.

Section 3 of the Government Grant''s Act would operate notwithstanding a scheme decree passed later and vesting the property with AG &

OT. It is to be mentioned here at the cost of repetition that the scheme was in relation to the Trust. The action, giving management of property to

the AG & OT, was only a consequential act. Such acts would not bind the Government on account of Section 3 of the Government Grant''s Act. It

is therefore not necessary to obtain the permission of High Court for the purpose of enforcing the right reserved by the Government while giving

grant.

The Supreme Court in Hajee S.V.M. Mohamed Jamaludeen Bros. and Co. Vs. Govt. of T.N., , indicated the salient features of a Government

grant and the unfettered right given to the Government to enforce the conditions of grant.

The Supreme Court held:--

The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a

Government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any

restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common

law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the Government to

enforce any condition or limitation or restriction in all types of grants made by the Government to any person. In other words, the rights, privileges

and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms are inconsistent with

the provisions of any other law.

Thiru. M. Abdul Nazeer, learned counsel made an attempt to challenge the satisfaction arrived at by the Government to hand over the land to

CMRL. The subjective satisfaction arrived at by the State as to whether a particular property is required for a public purpose is normally not

justiciable. It is for the Government to form an opinion in such matters. In any case, it is not the case of petitioners that construction of metro rail

and providing connectivity are not in public interest.

The failure to determine compensation would not render the act of resumption void. The compensation could be arrived at even after

resumption by adopting a method agreeable to both the parties. In this case, determination of compensation is not an issue or difficult task because

of the readiness on the part of CMRL to assess and pay compensation to the petitioners.

The Supreme Court in Union of India and others Vs. Harish Chand Anand, , while considering the entitlement of the Government to resume

the land u/s 3 of the Grant Act, observed that determination of value of the building erected by the grantee is a ministerial act and payment thereof

is the resultant consequence.

The petitioners have taken up a contention that the direction was only to the Government to consider the issue. However, the enquiry was

conducted only by the District Collector and as such, the order is bad. There is absolutely no merit in the above contention. The District Collector

conducted enquiry and a proposal was made to the Government. The Government have examined the proposal in a detailed manner and arrived at

a decision. The annexure to the Government Order is self explanatory. The Government have considered each and every point raised by the

petitioners and answered it one after another. The Government have given clear and cogent reasons for resumption of land without the intervention

of Court. Therefore, the petitioners were not correct in their contention regarding non-application of mind.

The petitioners are mainly on technicalities. They want compensation in spite of making a provision in the lease agreement that they would not

claim compensation for the superstructure put up by them. It is only for the purpose of compensation, the petitioners have contended that

proceedings under the Land Acquisition Act should be resorted to. There is no point in directing the Government to initiate process of acquisition,

in view of the offer made by CMRL to pay reasonable compensation to the petitioners.

Overriding Public Interest :--

The plan and project report produced by CMRL clearly shows that the subject land is required for urban inter-modal integration. The recent

press release by CMRL claims that Chennai Central would become the city''s transport hub. The note reads thus:--

When the Metro Rail is ready to run, the Chennai Central station junction will be a classic case of urban intermodal integration. Nearly every form

of public ground transport - buses and trains (suburban, inter-State and mass rapid transit system-MRTS) - will be linked to the Metro Rail station

at Chennai Central.

A few years down the line, when Metro Rail becomes operational, this point will be the ideal interconnect for public transport in the city, say

Metro Rail officials.

The pace of construction of Chennai Central Metro station - the largest of the underground stations, sprawling 70,000 sq. m. at a depth of 25

metres - is gaining ground.

The station will have six entry/exit points for access to Southern Railway, suburban and MRTS stations, Ripon Buildings and Rajiv Gandhi

Government General Hospital. ''We will create footpaths for the convenience of pedestrians who may want to switch from one mode of transport

to another,'' the official says.

There will be adequate parking, over three layers, for about 500 cars and 1,000 two-wheelers, according to officials.

Chennai Metro Rail, being built at a cost of Rs. 14,600 crore, will have two corridors - one, connecting Washermenpet to the airport via Chennai

Central and the other from Chennai Central to St. Thomas Mount. Chennai Central Metro station will be the hub that will connect both these

corridors.

The Government have taken a decision to resume the land to restore the public purpose for which it was originally given to Sir Ramasami

Mudaliar. The benefit to public would outweigh the loss to the petitioners. The petitioners have enjoyed the Government land for all these yeas.

Now it is time to vacate and handover for larger public purpose.

Direction:--

CMRL is directed to assess the reasonable compensation payable to the petitioners, with the assistance of the District Collector, Chennai,

forthwith. The District Collector and the Chief Engineer, Public Works Department are directed to assist the CMRL to assess the compensation.

CMRL is directed to pay compensation to the petitioners as expeditiously as possible, and in any case, on or before 10 January 2014. In the

upshot, I dismiss the writ petitions challenging the legality and correctness of the order directing resumption of land. No costs. Consequently,

connected miscellaneous petitions are also dismissed.