IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 FAO.No. 63 of 2010() -------------------- I.A.NO.468/2010 IN OS.60/2010 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER/PLAINTIFF: -------------------------------------------------- THE TRIVANDRUM GOLF CLUB, REPRESENTED BY ITS SECRETARY, GOLF LINKS ROAD, KAWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1.STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. SMT. NIVEDITHA P.HARAN, PRESENTLY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. SRI. RAGHU, DEPUTY SECRETARY TO GOVERNMENT,REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM. ADV. SRI. RANJITH THAMPAN,ADDL.AG FOR R THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON 17/05/2010 PASSED THE FOLLOWING: ORDER IN I.A.NO.981/2010 IN F.A.O.NO.63/2010 DISMISSED. 17.5.2010 SD/- PIUS C. KURIAKOSE, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE PIUS C. KURIAKOSE & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.NO.63 OF 2010 () ----------------------------------- Dated this the 17th day of May, 2010 J U D G M E N T SATHEESACHANDRAN, J. The appeal is filed by the plaintiff in a suit for declaration that an order passed by the Government cancelling the licence agreement between the plaintiff and the Government is illegal, violative of the terms of the agreement and principles of natural justice, and hence null and void and unenforceable. 2. Plaintiff is a club namely “Trivandrum Golf Club” represented by its Secretary. The defendants in the suit are the Government and some public officials, with two of them sued in their individual capacity. In the suit, over and above seeking a decree of declaration as indicated above, the plaintiff has also asked for a decree of perpetual prohibitory injunction restraining the defendants from evicting the plaintiff from the plaint schedule property and interfering with or obstructing the FAO.63/10 2 plaintiff and its members from enjoying such property during the period specified under the licence agreement. An application for interim injunction identical to the perpetual prohibitory injunction sought for, till disposal of the suit, applied by the plaintiff, after hearing both sides, was dismissed by the court below, which, on the materials placed for the purpose of that interlocutory application, came to the conclusion that the plaintiff has not made out a case for the grant of such discretionary relief. Challenge in the appeal is against the order of the court below dismissing the application for interim injunction. 3. Plaintiff, namely, “Trivandrum Golf Club” is hereinafter referred to as the “Club”. Subject matter of the litigation is a property having an extent of 25.38 acres of land in Peerorkada village situate at Kawdiar in the heart of Trivandrum city, which is described as the plaint property in the suit. Property originally belonged to the erstwhile Maharaja of Travancore, and pursuant to the accession of the princely state of Travancore FAO.63/10 3 with the Union, it became Government land. Admittedly, even long before the accession of the property as Government land, a golf course had been established in such property and was enjoyed by the members of the royal family. After accession of the land to the Government, in 1950, the management of the golf course was entrusted to the Trivandrum Golf Club, which then was an unregistered association, without any written arrangement. Later, after one or two orders passed by the Government with respect to the use of the golf course by the Club, an agreement was entered into between the Government and the Club. Ext.A3 is the copy of that agreement dated 24.6.1967. The Government is styled as the 'licensor' and the Trivandurm Golf Club, the 'licensee' in the agreement. The terms of the licence specified that the golf course and attached buildings shall continue to be maintained by the Public Works Department of the Government but the right of user will be with the licensee. Period of the licence was fixed as 99 years. Among other conditions directing the licensee to pay a sum of Rs.40/- as fee for the user of the golf course and attached buildings, it was FAO.63/10 4 also stipulated that the licensor shall have the right to cancel the licence and resume the property at the expiry of 30 years giving the licensee two years notice. In the event of the licensee using the building and premises for any purpose other than for which it was given, it was provided that the licensor shall have the right to cancel the licence and resume the property at any time without notice. The terms of the licence stipulated that the property should not be used for any purpose other than for golf or other sports activities and other incidental social functions connected with sports. While the golf course and the buildings continued to be used by the Club under the licence agreement, complaints about the misuse of the property were levelled from several quarters, and the licensor, the Government initiated proceedings for cancelling the licence of the Club. Such complaints and proceedings taken by the Government have given rise to several rounds of litigations commencing as early from 1999 onwards, as evidenced from the judgments passed by this Court in previous cases, which have been produced and exhibited in the present interlocutory application giving rise to FAO.63/10 5 the order impugned in the appeal. A previous order passed by the Government terminating the licence was challenged by the Club and some of its members before this Court and that order was quashed under Ext.A13 common judgment rendered in the petitions holding that the order had been passed flouting the principles of natural justice as the ground on which cancellation was made was not stated in the show cause notice issued to the licensee. However, in Ext.A13 judgment, this Court also held that the Government has unfettered right under Ext.A3 deed to revoke the licence as embodied under clause xi of that deed. The Government again, after giving notice afresh furnishing particulars of the violation of the terms of the agreement by the Club, cancelled the licence agreement directing the District Collector, Trivandrum to resume the property from the Club. Ext.A25 is the copy of that order. That order is challenged in the suit seeking a declaration that it is void and unenforceable. Pending suit, the plaintiff Club had applied for the interim injunction, which having been turned down under the impugned order, the appeal is preferred. FAO.63/10 6 4. The appellant Club has produced before us five booklets containing the copy of the plaint and copies of several documents, most of which are stated to have been produced before the court below for the purpose of the interlocutory application. Some documents not produced before the court below but only in the appeal, it is submitted by the learned counsel appearing for the appellant, have significance in adjudging the merit of the claim canvassed by the Club for the interim relief of injunction and also to test the veracity of the order impugned in the appeal. The respondents have filed a statement narrating the sequence of events leading to Ext.A25 termination order. Some supporting documents have also been produced with the above statement, perhaps, to throw more light on the facts stated thereunder. The appellant Club has filed a counter affidavit traversing the various statements filed by the respondents and also a statement showing dates and sequence of events that led to Ext.A25 termination order. We are considering an appeal from an interlocutory order emerging in a FAO.63/10 7 suit pending for adjudication. We cannot overlook the statutory interdictions covered under Rule 27 of Order 41 of the CPC in the reception of additional evidence in an appeal against an order passed by the court below on the interlocutory application. No party in such an appeal as of right can claim right to produce additional evidence and seek its consideration by this Court in deciding the correctness of the order impugned. The appellant Club has a case that some of the materials produced before the court below have not been taken into consideration; but, even in such a case, a proper application under Order 41 Rule 27 of the CPC as mandated by the statute is essential, so that this Court may consider whether such additional evidence which is stated to have been produced before the court below but not considered is essential for a proper adjudication of the disputed point between the parties. Needless to point out that any application under Order 41 Rule 27 of the CPC has to be heard along with the appeal at the time of hearing and the reception of additional evidence is permissible only if this Court finds that receiving it is essential for a proper decision in the case. The FAO.63/10 8 respondents have moved an application under Order 41 Rule 27 of the CPC for receiving the documents produced as additional evidence. Other than stating that such documents are 'highly necessary' to substantiate the case of the defendants sufficient ground has not been made out to receive them in appeal. Though the respective counsel had made some submissions with reference to the additional documents tendered, after hearing the appeal, we find that the documents produced by both sides do not require to be taken into account to pronounce a judgment on the disputed questions involved or for any other substantial cause. Additional evidence in an appeal even under Order 41 Rule 27 of the CPC can be resorted to by the appellate court only after the examination of the evidence on record. That provision does not entitle the appellate court to let in evidence at the appellate stage where even without such evidence it can pronounce the judgment in a case. Having regard to the fact that the order under challenge is passed in an interlocutory application and whatever materials already considered by the court below are sufficient to examine the correctness of the FAO.63/10 9 order impugned, we find that fresh materials tendered by the parties do not require to be considered for entering a decision in the appeal. We may also state that in the given facts of the case even if an application had been put up by the appellant under Order 41 Rule 27 of the CPC, no different conclusion is warranted as the materials on record considered by the court below is sufficient to pronounce the judgment as to whether or not the plaintiff is entitled to get an equitable relief of injunction as canvassed for, till the disposal of the suit. Some documents (14 in number), extracts taken from the websites of various golf clubs in India, are produced by the appellant in the appeal with a petition under Section 151 of the CPC for admitting them as evidence to show that all such golf clubs are having the facility of bar. Considering the limited question involved whether the Club, a licensee, has made out a prima facie case for interim injunction, we find such documents have no significance, and hence, the request for their reception by the appellant is not allowed. FAO.63/10 10 5. We heard the learned senior counsel Sri.T.Krishnanunni, who appeared for the appellant Club and also the learned Additional Advocate General Sri.Ranjith Thampan, for the respondents. The learned senior counsel Sri.T.Krishnanunni assailed the order of the court below with reference to Ext.A25 order passed by the Government terminating the licence agreement with the plaintiff Club. The attack against Ext.A25 order is projected mainly on three grounds. Inviting our attention to the specific imputations levelled in Ext.A15 show cause notice, the learned counsel contended that the grounds raised as to infringement of the terms of the licence are not factually true, for which reliance is placed on the terms of the agreement with reference to the various materials produced in the case. It is further contended that Ext.A25 termination order had been passed with a preconceived mind as the Government had already taken a decision to terminate the licence of the plaintiff Club. Referring to each and every specific imputations made in the show cause FAO.63/10 11 notice and the reply statement filed by the Club disputing such imputations, the learned counsel, with reference to the materials tendered, strenuously contended that none of the imputations levelled against the Club as to the infringement of the terms of the licence agreement has any basis, truth or merit. 6. The next line of attack projected by the learned counsel against Ext.A25 order of termination was that materials not supplied to the Club nor referred to in Ext.A15 show cause notice were relied by the Government in passing the termination order. In that context, reference made in Ext.A25 order as to the website of the Club in which letting out of the rooms in the buildings and also the premises at the rates fixed is pointed out by the learned counsel contending that no such allegation was raised in the show cause notice calling for any explanation nor at the time of hearing, and so much so, the termination order of the licence passed on such a ground as well is patently illegal and unsustainable under law. Yet another challenge against Ext.A25 order is mooted and pressed into service on the ground that the FAO.63/10 12 public official who heard the matter, the Principal Secretary to Government, 2nd defendant, who is impleaded in her personal capacity as well in the suit as the 3rd defendant, was biased and she was predetermined to cancel the licence with the Club in view of what had transpired in the earlier round of litigations between the parties which gave rise to initiation of contempt proceedings by this Court against that official. Even at the time when the hearing on the proceedings under Ext.A15 show cause notice was being held, a Special Leave Petition filed by the 2nd defendant to remove some observations made by this Court castigating her conduct with regard to the earlier litigation between the parties was pending before the apex court is highlighted by the counsel to contend that the hearing conducted by that public official was biased, totally unfair and against the principles of natural justice, and so much so, on that sole ground itself Ext.A25 termination order is unsustainable. The Club had raised the apprehension even before the hearing was conducted, imputing bias on the above public official, 2nd defendant, but still she heard the matter and passed the FAO.63/10 13 termination order is canvassed by the learned counsel to impeach the value and merit of Ext.A25 termination order. Expatiating the activities of the Club, in particular, the heavy expenditure incurred by it for maintaining the golf course, which is stated to be collected mainly from voluntary contribution from its members, and the need for preservation of the well maintained golf course in the capital city of the State, it is contended by the learned counsel that Ext.A25 order, which is impugned as actuated by mala fides out of political consideration, if allowed to be implemented, will result in destruction of the golf course within a matter of no time. Plaintiff Club has made out a prima facie case for maintaining the status quo allowing its continuous user of the plaint property as of now till disposal of the suit, after a fullfledged trial, giving opportunity to substantiate its case as to the illegality and unenforcibility of Ext.A25 termination order, and so much so, the order impugned in the appeal has to be reversed allowing the interim order of injunction applied for by the Club, is the submission of the counsel. FAO.63/10 14 7. Per contra, the learned Additional Advocate General Sri.Ranjith Thampan emphasising that the Club has only permissive occupation, and as a licensee, it has no competency to seek any of the reliefs canvassed in the suit, narrated the sequence of events, which culminated in the passing of Ext.A25 termination order. The Club, it is contended, had flagrantly violated the terms and conditions under Ext.A3 licence deed. The learned Additional Advocate General submitted that the very object for which the golf course and the premises (the plaint property) were handed over to the Club was 'to promote tourism'. Negating that object, and in violation of the terms of Ext.A3 deed, the Club had engaged in activities for profit making. FL-4 licence for operating a bar was obtained in the premises suppressing material facts and even without obtaining any permission from the Government. Plaint property, which belong to the Government was shown as the asset of the Club even in its balance sheet and also website, and in doing so, the licensee Club was setting up a title as against the licensor – the FAO.63/10 15 Government. When the licence contemplated carrying out of sports activities and that alone, the premises were let out for film shooting, receptions and meetings and even the rooms of the heritage building were let out for collecting rent and also for conducting a bar obtaining FL-4 licence suppressing material facts. Such acts by the Club amounted to flagrant violation of Ext.A3 licence deed, which mandated the use of the premises only for the sports activities. Inviting our attention to the judgments rendered by this Court in previous cases between the parties and also the sequence of events right from the report of the Public Accounts Committee of the State Legislature, way back in 1969, questioning the propriety of spending funds from the public revenue for the buildings and premises in the plaint property, which are being used by a private Club, it is submitted by the learned Additional Advocate General that the directions/orders issued by the Government to amend the Articles of Association of the Club to give effect to the purport and object of the Government in directing inclusion of six Government nominees in the Executive Committee of the Club FAO.63/10 16 has not been complied by the Club so far. Even now under the bylaws of the Club (Ext.A1) as under clause 22, the quorum fixed for a Committee meeting is 3 is pointed out by the learned Additional Advocate General to contend that inclusion of six Government nominees in the Committee out of the 11, the total strength, has been rendered practically meaningless and ineffective. The Club, which is in the hands of a few people, defeating the very purpose for which the management of the golf course was entrusted, is now catering to the interest of some affluent members of the Association and the main activity is profit making and not anything connected with sports, is the submission of the learned Additional Advocate General. 8. Challenge against Ext.A25 termination order passed by the Government imputing bias on the public official, 2nd defendant, who heard the matter, is resisted by the learned Additional Advocate General contending that it was an institutional hearing and order of termination was passed by the Government as approved by the Minister. Since there is no case FAO.63/10 17 that the Government or Minister is biased, the attack against the order imputing bias on the public official, who heard the matter, has no merit at all, according to the learned Additional Advocate General. Reliance is placed on Sudheer.T. v. M.V.Susheela and others (2009 (4) ILR Kerala 121) and State of Kerala v. Krishna Kumar (2009 (3) KLT 274) to contend that in a case of institutional hearing, bias imputed against the officer who heard the matter has no significance. The learned Additional Advocate General inviting our attention to the reliefs canvassed in the suit urged that the main relief canvassed for a declaration that Ext.A25 termination order is void and unenforceable is not available to a licensee in the absence of establishing a case that it has got an irrevocable licence as covered under Section 60(b) of the Indian Easements Act. Ext.A3 licence enjoyed by the Club is terminable even without a notice by the licensor as per the terms of that deed. When that be so, the suit itself as framed is not entertainable and at the most, the licensee Club is entitled to only compensation for termination of the licence, provided, sufficient ground is made FAO.63/10 18 out establishing such claim as under Section 64 of the Indian Easements Act, is the further submission of the learned Additional Advocate General. The decree of perpetual prohibitory injunction canvassed as the second relief in the suit, it is urged, is sought not as a further relief to the main relief of declaration, but, as an independent relief. That relief is couched in such terms, according to the learned Additional Advocate General, as one for specific performance of Ext.A3 licence deed till the expiry of the period provided under that deed. A licensee cannot seek for specific performance of the licence, submits the learned Additional Advocate General. As the suit is shown to be not maintainable the discretionary relief of injunction is not at all allowable, is the further submission. The order passed by the court below dismissing the application for injunction of the plaintiff Club, in the circumstances, does not warrant any interference, submits the learned Additional Advocate General. 9. The most significant question to be looked into on the materials placed and rival submissions made is the legal FAO.63/10 19 entitlement of the plaintiff Club, admittedly, a licensee, to get a discretionary relief of interim injunction against the Government the licensor, the paramount title holder of the land, preventing it from causing any obstruction to the enjoyment of the plaint property by the licensee till disposal of the suit. No doubt, the legal entitlement of the plaintiff Club to seek the equitable relief of injunction has to be examined with reference to the facts involved in the case and also the law applicable. The very foundation of the claim for interim injunction, and in fact, all the reliefs in the suit is based on a contract, a licence agreement between the Cub and the Government over the use of the plaint property. The termination of the licence under Ext.A25 order is challenged in the suit as void and unenforceable, and over and above a declaration as such a decree of perpetual injunction as against the licensor is also applied for. In such circumstances, it is imperative to examine under which rule of Order 39 of the Code of Civil Procedure, the relief of interim injunction fall for consideration. The cases in which temporary injunction may be granted are covered by Rules 1 and 2 of Order 39 of the CPC. In FAO.63/10 20 the present case, since the plaintiff Club has sought for an injunction to restrain the defendants from interfering with its user over the plaint property after the termination order (Ext.A25), impeaching the validity of that order, Rule 1 of Order 39 of the CPC alone has application. The learned counsel for the plaintiff Club has submitted before us that though the relationship of the Club and the Government is of a licensee and licensor, there are contracts to the contrary which render the licence arrangement irrevocable. What are the terms of contract to the contrary taking the licence arrangement between the parties outside the ambit and scope of termination insulating it with irrevocability was not canvassed or pointed out on the premise that such questions are germane only in considering the maintainability of the suit and not at a stage while determining the prima facie case to be shown for sustaining an application for interim injunction to claim a discretionary relief. We, however, have no doubt that in determining the legal entitlement of the plaintiff club for the equitable relief of injunction whether the licence arrangement it has over the plaint property is revocable FAO.63/10 21 or not at the instance of the licensor Government is vital, decisive and of crucial value. 10. In the plaint, a copy of which is produced, and also in the reply