IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01-04-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN O.A.No.1201 of 2009 in C.S.No.1036 of 2009 And O.A.No.1202 of 2009 in C.S.No.1037 of 2009 And O.A.No.421 of 2009 and A.Nos.1930 and 1931 of 2009 in C.S.No.98 of 1957 O.A.No.1201 of 2009 ------------------- 1.Sanjay Gupta 2.M/s.Picnic Park Hotels Pvt Ltd., Represented by its Director, Sanjay Gupta 1132/2, Poonamallee High Road, Chennai-600 003. .. Applicants/Plaintiffs vs. 1.The Corporation of Chennai, Represented by its Commissioner, Ripon Buildings, Chennai-600 003. 2.M/s.Victoria Public Hall Trust, 1133, Poonamallee High Road, Chennai-600 003. .. Respondents/Defendants O.A.No.1202 of 2009 1.Rajendra Gupta 2.Ashoka Gupta 3.M/s.Picnic Park Hotels Pvt Ltd., Represented by its Director, Rajendra Gupta, No.1132/2, Poonamallee High Road, Chennai-600 003. .. Applicants/Plaintiffs vs. 1.The Corporation of Chennai, Represented by its Commissioner, Ripon Building, Chennai-600 003. 2.M/s.The Victoria Public Hall Trust, Represented by its Chairman, 1133, Poonamallee High Road, Chennai-600 003. .. Respondents/Defendants O.A.No.421 of 2009, A.Nos.1930 and 1931 of 2009 1.Rajendra Gupta 2.Ashoka Gupta .. Applicants/Plaintiffs vs. 1.Victoria Public Hall Trust, Represented by its Trustees, Having its Registered Office at 1133, Poonamallee High Road, Chennai-600 003. 2.The Sheriff of Chennai and Chairman, Victoria Public Hall Trust. 3.The Mayor of Chennai, Trustee, Victoria Public Hall Trust. 4.Southern India Chamber of Commerce, Trustee, Victoria Public Hall Trust. 5.Andhra Chamber of Commerce, Trustee, Victoria Public Hall Trust. 6.Rajah of Vizianagaram, Trustee, Victoria Public Hall Trust. 7.The President, The Madras Advocates Association , Trustee, Victoria Public Hall Trust. 8.The Corporation of Chennai, Represented by its Commissioner, Ripon Buildings, Madras. .. Respondents/Defendants For plaintiffs in C.S.Nos.1036 and 1037 of 2009 : Mr. T.R.Rajagopalan, Senior Counsel For the applicants in A.Nos.1930 and 1931 of 2009 and O.A.No.421 of 2009 : Mr.Satish Parasaran For Corporation of Chennai : Mr.P.S.Raman, Advocate General C O M M O N O R D E R One of the reminiscences of the colonial past, still standing as an archaeological monument in the heart of Chennai, is the Victoria Public Hall, off Poonamallee High Road near Central Railway Station. History shows that in a public meeting of the inhabitants of Madras, convened by the Sheriff of Madras, at Pachayappa's Hall, it was resolved on 17.3.1882 to erect a town hall for the use and benefit of the public. For the said purpose, the public were invited to subscribe to a fund already opened with M/s.Arbuthnot & Co. (which itself later plunged into litigation). Several citizens of Madras contributed various amounts and an influential Committee of the citizens of Madras was constituted to carry out the project of construction of a Town Hall. The Committee held negotiations with the then Municipal Commissioners for the Town of Madras, as a result of which, the Corporation passed resolutions dated 21.2.1883, 3.9.1884 and 24.9.1885, allotting land of an extent of about 57 grounds on a 99 year lease, on a rent of 8 annas per ground per annum. The allotment was in favour of the Committee. The lease was renewable on the expiry of the original period. 2. On 18.2.1888, a Deed of Trust was drawn up, to which the principal subscribers to the building fund of the Town Hall, were the parties of the first part and the Committee of persons constituted to carry out the project of construction of Town Hall were the parties of the second part. The original body of 12 Trustees constituted to handle the subscriptions, were included as parties of the third part. It was resolved under the said Deed of Trust that (i) the site leased out by the Municipal Commissioners (ii) the building as and when completed and (iii) the amounts collected, would all vest in the Board of Trustees. It was also provided in the Deed of Trust that the Town Hall constructed on the site, would be named as "Victoria Public Hall". 3. In 1889, the Rajah of Vizianagaram advanced a huge sum of money on a mortgage over the Victoria Public Hall on condition that if he was vested with nominating powers, he would forego the entire mortgage debt due to him. Therefore, the then Advocate General of Madras moved a suit in C.S.No.223 of 1905 on the file of this Court, seeking leave to amend the Deed of Trust, so as to provide for the appointment of a 13th Trustee by the Rajah Sahib of Vizianagaram and his successors. By a judgment and decree dated 9.1.1906, this Court was pleased to modify the Deed of Trust by framing a scheme and making a provision regarding the nomination of a 13th Trustee by the Rajah of Vizianagaram. 4. The scheme decree framed in C.S.No.223 of 1905 was modified by another judgment and decree dated 13.12.1921, passed in C.S. No.263 of 1921, at the instance of the then Advocate General. By the said decree, the number of Trustees was prescribed as 12 and they were to be residents of the locality. The decree also stipulated that two of the Trustees shall always be drawn from the European Community, two from Eurasian (Anglo Indian) Community, two from Hindu Community and two from the Mohammedan Community. 5. After about 32 years of the framing of the scheme by this Court in C.S.No.263 of 1921, an application was moved by the Trustees in A. No.918 of 1953 on the file of this Court, seeking permission of this Court to hand over the Hall to the Corporation of Madras. In the said application, the then Advocate General of Madras as well as some concerned citizens of the City intervened, raising objections to the very maintainability of such an application. By an order dated 24.4.1953, this Court dismissed the said application as not maintainable and referred the Trustees to seek redressal in appropriate proceedings under Section 92 CPC. 6. However, 4 persons by name K.Ranga Prasad (a pensioner), V.Srinivasan (an Advocate), T.S.Kumaraswami Mudaliar (a merchant) and Syed Hussain, joined together and instituted a suit in C.S.No.98 of 1957, after obtaining the consent of the then Advocate General of Madras Mr. V.K.Thiruvenkatachari, under Section 92 CPC, complaining that after the dismissal of the application A.No.918 of 1953, a truncated board of trustees surrendered possession of the premises to the Corporation of Madras, by creating circumstances enabling the Corporation to invoke the penal provisions of the original Lease Deed and gain re-entry. The prayers in the said scheme suit were as follows:- (i) Declaring that the Trustees have ceased to be Trustees and they be removed as such from their offices; (ii) that an account be taken and such of them as may be found to be in funds of the Trust Office or any income belonging thereto may be directed to pay back the same with interest thereon; (iii) that the collusive handing over of the Victoria Public Hall to Corporation of Madras be declared to be null and void; and (iv) that a proper and appropriate scheme may be framed by this Court for the purpose of effectuating the terms of the original Trust Deed and the scheme decree and providing adequate safeguards for the perpetual good management of the Victoria Public Hall; 7. In the above suit, the Trustees of Victoria Public Hall were cited as the first defendant and the Advocate General was cited as the second defendant. The Corporation of Madras was the third defendant. It appears from the judgment and decree dated 15.9.1961 passed in the said suit C.S.No.98 of 1957 that the first defendant viz., the Trustees of Victoria Public Hall as well as the second defendant Advocate General remained absent. Therefore, the first defendant was set ex parte. But the plaintiffs and the third defendant viz., the Corporation of Chennai entered into a Memorandum of Compromise. On the basis of the said Memorandum, a scheme was framed by this Court. Under the scheme, a new Board of Trustees was constituted, comprising of (i) the Sheriff of Madras as its Chairman (ii) the Mayor of Madras (iii) a nominee of the Southern India Chamber of Commerce (iv) a nominee of the Andhra Chamber of Commerce (v) a nominee of the Madras State Sangeeth Nataka Sangam (vi) a nominee of Rajah of Vizianagaram (vii) the President of Madras Advocates' Association (viii) one non-official representative selected by High Court Madras and (ix) the Commissioner of the Corporation of Madras as the Secretary. 8. It was also recorded in the Memorandum of Compromise entered into between the plaintiffs in C.S.No.98 of 1957 and the Corporation of Madras that the Corporation had taken over possession of the Hall on account of the lease amounts not being paid and on account of the building not being maintained properly. It was further recorded therein that the Corporation had invested a sum of Rs.88,616.99 for renovating the Hall and making it fit and proper for use. Therefore, it was agreed in the said Memo of Compromise that the newly appointed Board of Trustees would pay a sum of Rs.19,861.89, being the accumulation of rent, in part payment of the expenses incurred by the Corporation for renovation and that the Trustees would also keep paying the entire proceeds of the Trust from this property, month by month towards payment of the expenses incurred by the Corporation till it was fully paid. 9. It appears that thereafter, the Board of Trustees agreed by an Agreement of Lease dated 11.7.1963 to sub-lease a portion of the property to one N.D.Gupta. But the building plan submitted by the Lessee N.D.Gupta was rejected by the Corporation on 30.4.1964 and the same was set aside by the Government later. Thereafter, the Corporation granted building permit on 29.12.1965 and the sub- Lessee put up a building, which was assigned Door No.1132. 10. Subsequently, in pursuance of a resolution passed on 27.5.1968, the Joint Secretary and Treasurer of the Victoria Public Hall executed a Deed of Lease on 17.6.1968 in favour of N.D.Gupta, granting a sublease of the land of an extent of 13 grounds and 1720 sq. ft.,with permission to the sub-Lessee to put up a one storeyed building including a mezzanine floor, as approved by the Trust Board. It was made clear in Clause 2 of the Deed of Lease that the sub-Lessee shall put up the one storeyed building at his own costs as per the plan approved by the Trust Board in conformity with architectural design of the main building and equip the same for the purpose of running a cafeteria. Under Clause 4, the sub-Lease was for a period of 18 years commencing from 1.4.1968. Under Clause 5, the sub-Lease was renewable at the option of the sub-Lessee for a further period of 22 years subject to certain conditions. Under Clause 6, the sub-Lessee was obliged, after the expiry of the period of sub-lease, to surrender possession of the property with all the superstructures standing thereon without claiming any compensation. 11. The Corporation filed a suit in C.S.No.2083 of 1968 on the file of the City Civil Court, challenging the sub-lease granted by the Board of Trustees in favour of N.D.Gupta. The Corporation also rejected an application for the grant of a license to run a hotel in the premises. But the refusal of the Corporation to grant a license to run a hotel was set aside in a writ petition in W.P.No.752 of 1969 by order dated 21.4.1969. 12. The suit O.S.No.2083 of 1968 filed by the Corporation challenging the sub-lease granted by the Board of Trustees in favour of N.D. Gupta was dismissed by the City Civil Court, upholding the power of the Trustees both under the scheme decrees and under Section 108 (j) of the Transfer of Property Act. Though the first appeal filed by the Corporation was allowed in their favour, the second appeals in S.A.Nos.1350 of 1970 and 1262 of 1971 filed respectively by N.D.Gupta and the Board of Trustees were allowed by this Court by a judgment and decree dated 23.11.1972. 13. Thereafter, the aforesaid Deed of Lease dated 17.6.1968 executed by the Board of Trustees in favour of N.D.Gupta underwent a modification by another Lease Deed dated 12.10.1973. By this deed dated 12-10-1973, the period of lease was stipulated as upto 30-9-2028 (period of 55 years). All modifications said to have been made under this Deed, were completely lopsided and loaded in favour of the sub-Lessee. 14. In pursuance of the modified Lease Deed, the sub-Lessee applied for permission to put up a multi storeyed hotel complex cum lodging house in the leased premises. The Corporation rejected the application for planning permit, but the said decision was set aside in W.P. No.4367 of 1975 and the matter remitted back to the Corporation. Again the Corporation rejected the application and the said decision was once again set aside by this Court in W.P.No.390 of 1978 by an order dated 21.3.1980. The appeal filed by the Corporation in W.A.No.129 of 1980 was dismissed by the Division Bench and the same was also confirmed by the Apex Court in SLP (Civil) No.4375 of 1980. 15. Thereafter, the Government issued G.O.Ms.No.985 dated 16.11.1981, permitting the sub-Lessee to put up a multi storeyed building comprising of ground plus 3 floors. In pursuance of the same, he constructed a building and the same was assigned Door No.1132/1. 16. On 6.10.1984, the Board of Trustees issued a notice to the Corporation, seeking extension of the lease of the entire extent of land of 57 grounds. It may be recalled that by virtue of the resolutions passed on 21.2.1883, 3.9.1884 and 24.9.1885 and by virtue of the earliest Deed of Lease dated 18.2.1888, it was the Municipal Commissioner who granted a lease of the land of an extent of 57 grounds to the Victoria Public Hall Trust, for a period of 99 years, with effect from 1.4.1886. Therefore, the lease was coming to an end by 31.3.1985. Hence the notice dated 6-10-1984 by the Trust seeking renewal of the lease for a further term. 17. Since the Corporation did not respond to the request for extension of lease, for another 99 years, the Board of Trustees filed a suit in O.S.No.1349 of 1985. The suit was decreed on 7.4.1993, granting a declaration that the Trust was entitled to have the lease extended by another 99 years on the same terms and conditions as contained in the original Lease Deed dated 18.2.1888. The first appeal filed by the Corporation in A.S.No.334 of 1993 was dismissed on 31.8.1995 and the second appeal filed by them in S.A.No.144 of 1997 was dismissed by this Court for non-prosecution on 7.11.2001. 18. Thereafter, the Board of Trustees passed a resolution on 11.3.2009, renouncing and dissolving the Trust and resolving to surrender all the properties to the Corporation. The resolution also authorised the then Additional Advocate General to approach this Court for the grant of leave. 19. Thereafter, the Board of Trustees entered into a Memorandum of Compromise with the Corporation on 15.7.2009. As per the terms of the compromise, the Trust handed over all the properties to the Corporation and gave up their claim for extension of lease. 20. Subsequently, the Corporation got the second appeal S.A. No.144 of 1997 restored to file (it had earlier been dismissed for non-prosecution on 7.11.2001). After restoration, the Trustees as well as the Corporation filed the Memo of Compromise dated 15.7.2009 into Court and got the second appeal disposed of in terms of the said Memo of Compromise, by a judgment and decree dated 21.8.2009. 21. Thereafter, the Corporation issued proceedings dated 28.8.2009, directing the sub lessees (the legal heirs as well as the companies floated by N.D.Gupta) to vacate the property and hand over vacant possession. These notices were challenged in W.P.Nos.18531 to 18533 of 2009 and interim orders were also granted in favour of the writ petitioners. 22. The Corporation also issued several notices of demolition dated 29.9.2009 and the same became the subject matter of challenge in W.P. Nos.21519 to 21525 of 2009. Even in these writ petitions, an interim order of status quo was granted in favour of the writ petitioners. 23. In the meantime, upon coming to know of the resolutions passed by the Board of Trustees on 11.3.2009, renouncing and dissolving the Trust and handing over the properties to the Corporation, two persons by name Rajendra Gupta and Ashoka Gupta, who are the sons of late N.D. Gupta, took out two applications in A.Nos.1930 and 1931 of 2009 in the scheme suit in C.S.No.98 of 1957. The prayer in the former application was for reconstitution of the Board of Trustees of the Victoria Public Hall Trust and the prayer in the latter was for re-vesting the properties back to the Trust from the Corporation. 24. Since the prayers made in A.Nos.1930 and 1931 of 2009 filed in the scheme suit C.S.No.98 of 1957 are in the nature of final reliefs, the applicants have also taken out one more application in O.A.No.421 of 2009, seeking an interim order of injunction restraining the Board of Trustees as well as the Corporation from interfering with their leasehold rights as sub lessees in the property. 25. During the pendency of the above 3 applications viz., O.A.No. 421 of 2009 and A.Nos.1930 and 1931 of 2009 in the scheme suit C.S.No. 98 of 1957, two civil suits have also come to be instituted. They are C.S. Nos.1036 and 1037 of 2009. 26. C.S.No.1036 of 2009 has been filed by (i) Sanjay Gupta, son of late N.D.Gupta and (ii) Picnic Park Hotels Pvt. Ltd., against (i) Corporation of Chennai and (ii) Victoria Public Hall Trust. The reliefs sought in this suit are:- (i) Declaring that the Deed of Lease executed by the second defendant in favour of the plaintiff on 12.10.1973 is valid till 30.9.2028 and is binding on the first defendant; (ii) Declaring that the resolution dated 11.3.2009 passed by the second defendant trust surrendering all its properties to the first defendant, including the schedule mentioned property, is null and void and not binding on the plaintiffs; (iii) Declaring that the Memorandum of Compromise dated 15.7.2009 entered into between the defendants 1 and 2 and filed in S.A.No.144 of 1997 on the file of this Court, is null and void and not binding on the plaintiffs; (iv) Granting a decree of permanent injunction, restraining the defendants from in any manner interfering with the plaintiffs' right of peaceful possession and enjoyment of the schedule mentioned property as sub-lessees under the second defendant, pursuant to the Scheme Decrees framed by this Court in C.S.No.263 of 1921 and C.S. No.98 of 1957. 27. C.S.No.1037 of 2009 has been filed by (i) Rajendra Gupta, (ii) Asoka Gupta, both sons of late N.D.Gupta and (iii) Picnic Hotels Pvt. Ltd., against (i) Corporation of Chennai and (ii) Victoria Public Hall Trust. The reliefs sought in this suit are:- (i) Declaring that the resolution dated 11.3.2009 passed by the second defendant Trust surrendering all its properties to the first defendant, including the schedule mentioned property, is null and void and not binding on the plaintiffs; (ii) Declaring that the Memorandum of Compromise dated 15.7.2009 entered into between the defendants 1 and 2 and filed in S.A.No.144 of 1997 on the file of this Court, is null and void and not binding on the plaintiffs; (iii) Granting a decree of permanent injunction, restraining the defendants from in any manner interfering with the plaintiffs' right of peaceful possession and enjoyment of the schedule mentioned property as sub-lessees under the second defendant, pursuant to the Scheme Decrees framed by this Court in C.S.No.263 of 1921 and C.S. No.98 of 1957. 28. Pending disposal of the suits C.S.Nos.1036 and 1037 of 2009, the plaintiffs seek interim orders in O.A.Nos.1201 and 1202 of 2009 respectively. The interim orders sought are, for an injunction restraining the defendants from interfering with the plaintiffs' right to peaceful possession and enjoyment of the property leased out by the Victoria Public Hall Trust in favour of late N.D.Gupta. 29. Thus, I have on hand, 5 applications, out of which 3 arise out of the scheme suit in C.S.No.98 of 1957 and 2 arise out of two fresh suits. But (i) the parties to all the applications (ii) the cause of action and (iii) the property forming the subject matter of all of them, are one and the same. Therefore, all the applications were taken up together and I have heard Mr. T.R.Rajagopalan, learned Senior Counsel appearing for the plaintiffs in C.S.Nos.1036 and 1037 of 2009, Mr.Satish Parasaran, learned counsel appearing for the applicants in A.Nos.1930 and 1931 of 2009 and O.A.No.421 of 2009 and Mr.P.S.Raman, learned Advocate General, appearing for the Corporation of Chennai. 30. In view of the fact that all the 3 applications filed in the scheme suit C.S.No.98 of 1957 seek to project an interest in the public trust and in view of the fact that the other two suits viz., C.S.Nos. 1036 and 1037 of 2009 seek to subserve private interests of the sub-lessees of a Trust property, let me first take up for disposal, the applications filed in the scheme suit. A.Nos.1930 and 1931 of 2009 and O.A.No.421 of 2009: 31. As stated earlier, the prayer in A.No.1930 of 2009 is for reconstitution of the Board of Trustees and the prayer in A.No.1931 of 2009 is for re-vesting the properties back to the Trust. The prayer in O.A. No.421 of 2009 is only for an interlocutory order and hence its outcome is linked to the applications for injunction in the other two suits. Therefore, let me first deal with A.Nos.1930 and 1931 of 2009. 32. Mr.Rajendra Gupta, who has sworn to the affidavits in support of both these applications, has stated that he is the Managing Director and the other applicant is a Director in a company by name Picnic Hotels Pvt. Ltd. Both of them are the sons of late N.D.Gupta. 33. From paragraphs 1 to 7 of the affidavits in support of these applications, the deponent has narrated the sequence of events that led to the conferment of leasehold rights in favour of his father and the right that the sub-lessees have till 31.3.2028 by virtue of a modified Lease Deed dated 12.10.1973. In other words, paragraphs 1 to 7 project the personal interests that the applicants have, in the property of a Public Charitable Trust, in respect of which this Court had framed a scheme decree. In paragraph 8, the deponent has stated as to how he came to know about the surrender of the property by the Trust to the Corporation. In paragraph 9, the deponent has extracted a legal opinion tendered by a senior member of the Bar on 4.2.1965 as to whether the property could be surrendered by the Trust to the Corporation or not. In paragraphs 10 and 11, the applicants have assailed as invalid and as an act of breach of trust, the action of the Board of Trustees in surrendering the property to the Corporation. 34. Thus in the affidavit in entirety, the applicants have projected only their personal interests, out and out. They have not even made a formal statement, for whatever it was worth, that they are interested in the management and administration of the Trust or that they subscribe to the objects for which the Trust was created and schemes framed by this Court. Therefore, it is necessary to see at the outset, as to whether the applications are maintainable in law. 35. It is needless to point out that to invoke the jurisdiction of this Court under any of the clauses in sub-section (1) of Section 92 CPC, the following conditions are to be satisfied:- (i) Either there is an allegation of breach of any express or constructive trust created for public purposes of a charitable or religious nature or alternatively the direction of the Court is deemed necessary for the administration of the Trust. (ii) Persons moving the Court must have an interest in the Trust and (iii) Such persons must have obtained the leave of the Court. 36. At the outset,