IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11-3-2010 Coram The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.A.No.403 of 2008 & M.P.Nos.1 and 2 of 2008 W.A.No.404 of 2008 & M.P.Nos.1 and 2 of 2008 W.A.No.403 of 2008 1. The Executive Officer, Contonment Board, St.Mount-cum-Pallavaram, Chennai – 600 016. 2. The Union of India, Ministry of Defence, rep.by its Director of General, Defence Estates, West Block-4, R.K.Puram, Sector-1, New Delhi – 110 006 3. The Principal Director, Ministry of Defence, Southern Command, Pune – 411 011. 4. Defence Estates Officer, Madras Circle, 306, Teynampet, Anna Salai, Chennai – 600 018. ... Appellants Vs. U. Venkatesh ... Respondent This writ appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single Judge dated 7.12.2007 in W.P.No.7486 of 2006. W.P.7486 of 2006:- is filed under Article 226 of Constitution of India to issue a writ of mandamus to direct the respondents to pass appropriate order permitting the petitioner to use the leasehold rights for the commercial purpose for 90 years in https://hcservices.ecourts.gov.in/hcservices/ relating to the property in premises GLRS/18 GLRS No.387/18A and GLRS No.387/18-B St.thomas mount cum Pallavaram Cantonment an extent of 34446 Sq.ft. to fix and collect the annual rent and premises as per market value of the year 1997 and also direct the 1st respondent to sanction the building plan in favour of the petitioner. W.A.No.404 of 2008 1. The Union of India, Ministry of Defence, rep.by its Director of General, Defence Estates, West Block-4, R.K.Puram, Sector-1, New Delhi – 110 006 2. The Under Secretary, Ministry of Finance, Government of India, New Delhi. 3. The Principal Director, Ministry of Defence, Southern Command, Pune – 411 011. 4. Defence Estates Officer, Madras Circle, 306, Teynampet, Anna Salai, Chennai – 600 018. ... Appellants Vs. U. Venkatesh ... Respondent This writ appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single Judge dated 7.12.2007 in W.P.No.46666 of 2006. W.P.No.46666 of 2006.is filed to under Art 226 of Constitution of India to issue a writ of certiorarified Mandamus to call for the records of the 2nd respondent relating to the order dated 7.11.2006 bearing MOD I.D.NO.26-V/US(D)/D (Lands)2003 and the same communicated by the 4th respondent by letter dated 20/11/2006 bearing No.N/193/WP 8993/2006/38/MC and quash the same as illegal and arbitrary and consequently direct the respondents to pass appropriate order permitting the petitioner to use the lease hold rights for commercial purpose for https://hcservices.ecourts.gov.in/hcservices/ 90 years in relation to the property in the premises GI RS.No.387/18 GLRS No.387/18-A GLRS NO.387/18-B St.Thomas Cum Palavaram Cantonment to an total extent of 34446 sq.ft. thereby forbear the respondents from in any manner interfering with the construction work carried on by the petitioner. For Appellants in both writ appeals : Mr.M.Ravindran, Addl.Solicitor General, assisted by Mr.S.Udhayakumar, SCGSC For Respondent in both writ appeals : Mr.R.Thyagarajan, Senior Counsel for Mr.V.Balakrishnan COMMON JUDGMENT N. PAUL VASANTHAKUMAR, J. W.A.No.403 of 2008 is filed by the Ministry of Defence, Government of India; the Executive Officer, Contonment Board, Chennai; and two others against the order dated 7.12.2007 passed by the learned single Judge in W.P.No.7486 of 2006, filed by respondent herein against the Ministry of Defence, Government of India. 2. W.A.No.404 of 2008 is also filed by the Ministry of Defence, Government of India and three others against the order dated 7.12.2007 in W.P.No.46666 of 2006, filed by the respondent herein. 3. Since the issue involved in both these cases and the parties to both the writ petitions are one and the same, and common order was passed in both the writ petitions by the learned single Judge, these writ appeals are disposed of by this common judgment. 4. The parties in this common judgment will be referred to as arrayed in the writ petitions. 5. The subject matter of both the writ petitions according to the writ petitioner is in respect of the leasehold land in GLRS Nos.387/18, 387/18A and 387/18B of St.Thomas Mount, measuring 34,446 sq.ft. for conversion of the leasehold right from residential purpose to commercial purpose and for the sanction of building plan in favour of the petitioner by collecting market value of the year 1997 by the Defence Ministry, Government of India. The land in GLRS No.387/18 is measuring to an extent of https://hcservices.ecourts.gov.in/hcservices/ 0.35 acres (15,246 sq.ft) surrounded by contonment road and GST road, opposite to Chennai Airport. The said land was leased out for dwelling purpose. According to the respondents in writ petitions, there is dispute with regard to the total area of leasehold right of the land and the department contend that the total area is 19200 sq.ft. and not as claimed by the petitioner i.e., 34,446 sq.ft. and the balance area measuring 0.35 acre is at present lying vacant, and that the petitioner cannot claim any right over the said 0.35 acres land as it exclusively belongs to the Ministry of Defence, Government of India. The period of leasehold right will be over by 2028. 6. Originally, by a lease deed dated 22.11.1932, the leasehold right was given to one S.Easwara Iyer of Meenambakkam under Section 280 of the Contonments Act, 1924 (Act 2 of 1924). There is a specific condition in the lease deed that annual rent is to be paid at all times during the continuance of the lease and the land shall be used only for residential purpose. At present, the writ petitioner is the lessee of the land. When the leasehold right was transferred to the petitioner, he filed an affidavit of undertaking on 20.9.2005 stating that by Conveyance Deed dated 9.3.2005, the leasehold right was registered by document No.4384/2005 and the said land will not be used for any commercial purpose, unless and until the Ministry of Defence, Government of India approves the change of purpose from residential to commercial, about which there is a specific mention in the lease deed and in case the Government of India does not accept the plea for change of purpose, the petitioner shall not claim any compensation or damages from the Government as the Government of India is the owner of the leasehold land, which has the full right to accept or reject the petitioner's application seeking conversion of the land use. 7. When an application was submitted by the petitioner for conversion of land from residential to commercial purpose, the Ministry of Defence rejected the same by order dated 16.1.2006. However, the petitioner applied for approval of the building plan before the Executive Officer, Contonment Board, St.Thomas Mount- cum-Pallavaram, Chennai. The said application was returned by the Estate Officer on 17.3.2006, which was re-submitted by the petitioner on 27.3.2006. Again the application was returned on 18.5.2006. 8. The petitioner filed W.P.No.8939 of 2006 and challenged the order dated 16.1.2006 passed by the Ministry of Defence and the said writ petition was disposed of by order dated 27.4.2006 with direction to the Ministry of Defence to pass fresh orders in the light of the permission granted to M/s.Oriental Hotel Limited, https://hcservices.ecourts.gov.in/hcservices/ located in the adjacent survey number and remanded the matter to pass fresh orders within twelve weeks as stated supra. Thereafter the order dated 7.11.2006 was passed by the Ministry of Defence, which is challenged in W.P.No.46666 of 2006. 9. In the said order dated 7.11.2006 it is stated that in the case of M/s.Oriental Hotel Limited conversion was granted from residential to commercial purpose for setting up Flight Kitchen Catering Service for Chennai Airport, which was in the nature of public utility, whereas in the case of the petitioner, the commercial purpose for which conversion was sought for is to set up an automobile showroom and automobile workshop, which cannot be treated as public utility and therefore the request of the petitioner seeking conversion cannot be agreed to. 10. The conversion of land use from residential to commercial purpose though was not granted by the Defence Ministry, the petitioner filed W.P.No.7486 of 2006 seeking a writ of mandamus and prayed for permission to use the leasehold right for commercial purpose for 90 years relating to the property in GLRS Nos.387/18, 387/18A and 18B to an extent of 34,446 sq.ft., by fixing and collecting annual rent and premium of the year 1997 and consequently to direct the Executive Officer, Contonment Office, to sanction the building plan in favour of the petitioner. The petitioner also filed W.M.P.No.8228 of 2006 and prayed for an interim order of injunction to restrain the respondents, their agents or servants from in any manner interfering with the rights of the petitioner in using the leasehold land and put up construction in the said land, to be used for commercial purpose for 90 years, paying the premium amount to the Ministry of Defence. The interim injunction order was granted by this Court on condition to deposit Rs.10 lakhs, in addition to the payment of annual rent as fixed by the Department. The petitioner, after depositing the amount, without approval of the building plan or orders from the Defence Ministry for conversion of the usage of land from residential to commercial purpose, started construction of the building at his own risk. 11. It is to be noted that even though the subsequent writ petition filed by the petitioner viz., W.P.No.8939 of 2006 was disposed of on 27.4.2006, the earlier writ petition filed in W.P.No.7486 of 2006 was kept pending by the petitioner for ulterior purpose, even though only a mandamus was sought for against the Estate Officer to sanction the building plan in favour of the writ petitioner. The said application was already returned as stated supra and due to the pendency of the said writ petition, the interim order was also continued and the writ petitioner proceeded with the construction work. https://hcservices.ecourts.gov.in/hcservices/ 12. In W.P.No.46666 of 2006, which was filed challenging the order of rejection dated 6.11.2006, no interim order was sought for. Both the writ petitions were allowed by the learned single Judge by a common order dated 7.12.2007 on the ground that the Defence Ministry granted permission for conversion of land to M/s.Oriental Hotel Limited, which is controlled by M/s.Taj Group of Hotels, a private sector doing hotel business, and quashed the order of the second respondent/Ministry of Defence dated 7.11.2006 and directed to grant permission for conversion and also to execute the lease deed in favour of the petitioner for commercial purpose for 90 years, within a period of five months. 13. Insofar as W.P.No.7486 of 2007 is concerned, the learned single Judge applied the deeming provision for the grant of planning permission under Section 181(6) of the Contonments Act, 1924, in respect of the building plan submitted in March, 2006 and directed the respondent to give permission for conversion of the purpose of the land by collecting commercial rent and premium and adjust the amount of Rs.10 lakhs by deducting the said amount deposited in terms of interim order and execute the sale deed in favour of the petitioner for commercial purpose for 90 years. 14. As against both these orders, the present writ appeals are preferred by the Department contending that the lease was granted for dwelling purpose only with a valid right upto 2020- 2021 and 2020-2028 and the front portion of the land measuring 0.35 acres is lying vacant, which belongs to Contonment Board, and the same was not leased out to the petitioner. The request for the change of use of the land for commercial purpose from residential use having been rejected and without obtaining permission from the Defence Ministry, approval of the building plan was sought for, which was also returned, the petitioner ought not to have commenced construction in the land for commercial purpose, in the land earmarked for residential use only. The rejection of application seeking building approval by the competent authority viz., Estate Officer specifically states that the petitioner has not obtained necessary permission from the Central Government for conversion of use of the land from residential to commercial. When the application itself was returned twice i.e., second return after resubmission and the application having been submitted without the permission of the Central Government, the learned Judge is not justified in applying the deeming provision, as if valid application was pending before the coming into force of the Amendment Act. The grant of conversion of use of the land in favour of M/s.Oriental Hotel Limited for Flight Kitchen at Pallavaram is for public utility, which is essential to cater to the needs of the national and international flight passengers, whereas the petitioner has sought https://hcservices.ecourts.gov.in/hcservices/ for conversion of the subject matter of the land for his personal use and not for public purpose, and therefore there is every justification to reject the request of the petitioner seeking conversion of the use of the land. The petitioner is not justified in commencing the construction by taking the law into his own hands, without following the due process of law, in spite of rejection of his request seeking conversion of usage of land as well as the building plan approval, which is totally unauthorised and the petitioner's actions are abuse of process of court. The petitioner is bound by his undertaking affidavit dated 20.9.2005 specifically stating that the land will not be used for any commercial purpose unless and until the Ministry of Defence, Government of India, approves the change of purpose and also by stating that in the event Government does not accept the plea of change of purpose, he shall not claim any compensation or damage from the Government and also specifically stated that the Government of India being the owner of the leasehold land, is having absolute right to accept or reject the application seeking conversion. Thus, the learned single Judge is not only wrong in allowing the writ petitions but also in giving positive direction to execute the lease deed for 90 years. 15. Mr.M.Ravindran, learned Additional Solicitor General submitted that the writ petitioner is a Lessee of the land, owned by the Ministry of Defence, and he is bound by the lease deed, which contains a clause to use the land only for residential use and not for commercial purpose. The petitioner is also bound by his undertaking affidavit and he is also bound by the clause contained in the lease deed as well. The learned Additional Solicitor General also submitted that the petitioner has repeatedly filed writ petitions and abused the process of the Court and till date no permission to convert the use of the land is granted by the competent authority viz., Central Government and it is the policy of the Government not to give permission to convert the defence land for commercial purposes. The learned counsel also submitted that the exception given to M/s.Oriental Hotel Limited is only by taking note of the public purpose for which the hotel is located i.e., for catering the needs of the Flight passengers and not for any personal use of any private person and no other person was granted permission for conversion of usage of land and therefore the learned Judge was not justified in giving positive direction granting permission to use the land for commercial purpose and giving direction to execute the lease deed for 90 years. The petitioner having abused the process of the Court by securing interim order without obtaining permission for usage, cannot plead equity in his favour. The learned Additional Solicitor General prayed for allowing both the writ appeals. https://hcservices.ecourts.gov.in/hcservices/ 16. Mr.R.Thyagarajan, learned Senior counsel appearing for the writ petitioner on the other hand submitted that the petitioner is discriminated by the respondents by not granting permission for using the land for commercial purpose and therefore the learned single Judge was justified in granting the relief in the writ petitions. The learned Senior Counsel also submitted that the petitioner having completed construction of the building pursuant to the interim order passed by this Court and also commenced automobile showroom in the said building, if the writ appeals are allowed, the petitioner will be put to serious prejudice and the petitioner is ready and willing to pay the commercial rate of rent and prayed for dismissal of the above writ appeals. 17. We have considered the rival submissions made by the learned Additional Solicitor General for the appellants as well as the learned Senior Counsel appearing for the respondent/writ petitioner. 18. The writ petitioner is a Lessee of 19,200 sq.ft. and the lease was granted only for residential use and not for commercial purpose. Though the Deputy Director General, Defence Estate, by letter dated 15.5.1997 recommended for the sanction of change of use of the land, admittedly the Ministry of Defence, Government of India, the competent authority/owner of the land, did not grant any such permission. The Ministry of Defence, Government of India granted permission to M/s.Oriental Hotel Limited for construction of a Flight Kitchen for 30 years by order dated 11.7.1996. The reason for the grant of permission for the said hotel is mentioned in the said order as well as in the corrigendum issued on 19.7.1999. The copy of the corrigendum issued on 19.7.1999 is available at page No.3 of the typed set of papers filed by the respondent in the writ appeals. 19. Petitioner made a representation before the Defence Ministry on 22.7.1997, a copy of which is filed in the typed set of papers and the same was forwarded by the Estate Officer, Defence, to the Principal Director, Defence Estate, Ministry of Defence, Southern command, Pune, on 30.7.1997. The petitioner's further letter dated 25.2.1999 addressed to the Secretary, Ministry of Defence, states that the Director General, Defence Estate, Ministry of Defence, New Delhi, conveyed the Ministry's decision dated 7.5.1999 to the counsel for the petitioner stating that the petitioner's request cannot be considered on the basis of the directives of the Prime Minister's views, under which no defence land can be transferred or alienated, as the ownership of the same always vests with the Ministry of Defence, Government of India. The petitioner's plea then was that it is not a transfer https://hcservices.ecourts.gov.in/hcservices/ of the land and therefore there was no debarment in considering the request of the petitioner regarding change of use. The Government of India rejected the request of the petitioner for conversion of use of the land and the decision was communicated by the Defence Estate Office, Chennai, through letter dated 19.9.2002. The petitioner's request for reconsideration and the direction issued by this Court to reconsider the petitioner's claim in the light of the grant of permission to M/s.Oriental Hotel Limited, was also considered by the Ministry of Defence, Government of India more than once and it is categorically stated in the decision of the Government of India that the petitioner cannot compare his case with that of M/s.Oriental Hotel Limited as it is the specific and special case for the establishment of the Hotel to cater to the needs of the international and national Flight passengers, considering the public purpose for which it was located, and insofar as the petitioner's request is concerned, it is purely for personal purpose and the same is impermissible. 20. In the light of the above categorical rejection of request of the petitioner distinguishing the case of the petitioner from that of M/s.Oriental Hotel Limited, and the return of the petitioner's application seeking plan approval by the Estate Officer twice in March and April, 2006, which was suppressed by the petitioner and the petitioner having obtained interim order on a wrong statement stating that his application was pending, he is not entitled to invoke the deeming provision for the grant of building approval. This attitude of the petitioner cannot be approved by this Court. 21. Even assuming that the application seeking building plan approval was kept pending, the same cannot be treated as valid application, as getting permission from the Ministry of Defence is the prior requirement to submit the building plan approval and without the said permission, any application submitted cannot be treated as valid application at all. It is well settled in law that even if the deeming provision is applicable, the application submitted should be a legal and valid one as per law, and only in the case of inaction on the part of the planning authority, one can rely upon the deeming provision. 22. The conduct of the petitioner in approaching the Court and obtaining an interim order without disclosing the non-grant of permission by the competent authority viz., the Defence Ministry for using the land for commercial purpose and commencement of construction of the building and completing the building is illegal and the same cannot be taken advantage of by the petitioner. If at all anybody is to be blamed, it should only be the petitioner, because he only took the risk and put up https://hcservices.ecourts.gov.in/hcservices/ construction, admittedly without approval of the Defence Ministry and without planning approval from the Estate Manager, as required under the Contonments Act, 1924. The petitioner is bound by the lease agreement and his own undertaking affidavit dated 20.9.2005. 23. The petitioner cannot plead equity on the alleged ground that the construction of the building is already completed pursuant to the interim order of this Court and the same is in use as an automobile showroom. The said interim order passed by this Court is always subject to the final orders to be passed in the writ petition and in writ appeal. The interim order was obtained by the petitioner as if the application for planning permission was kept pending. But the fact is otherwise. Hence the petitioner is not entitled to rely on the interim order obtained by him to sustain the illegal construction. 24. The discrimination alleged by the petitioner is disproved by the learned Additional Solicitor General appearing for the appellants. The said permission was granted taking note of the special reason and the same cannot be treated as a precedent and admittedly the petitioner's commercial use is not for public purpose and it is purely for personal use of doing car business. 25. The Honourable Supreme Court in the decision reported in (2009) 2 SCC 27 : 2009 (8) Supreme 30 (Priyanka Estates International (P) Ltd. v. State of Assam) held that the buildings constructed unauthorisedly, are bound to be demolished. In this case, the petitioner admittedly constructed the building in question, without obtaining required permission from the Defence Ministry regarding change of land use from residential to commercial and also without obtaining building plan approval from the Estate Officer, as required under the Contonments Act, 1924. 26. In view of our above findings, we are of the view that the writ appeals filed by the appellants deserve to be allowed and the orders of the learned single Judge are liable to be set aside. Consequently, both the writ appeals are allowed and the writ petitions filed by the petitioners are dismissed. No costs. Connected miscellaneous petitions are also closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Executive Officer, Contonment Board, St.Mount-cum-Pallavaram, Chennai – 600 016. 2. The Director General Ministry of Defence, Defence Estates, West Block-4, R.K.Puram, Sector-1, New Delhi – 110 006 3. The Principal Director, Ministry of Defence, Southern Command, Pune – 411 011. 4. The Defence Estates Officer, Madras Circle, 306, Teynampet, Anna Salai, Chennai – 600 018 2 ccs to Mr.S. Udayakumar, SCCG, SR. 16410 W.A.Nos.403 & 404/2008 KA (CO) kk 18/3 https://hcservices.ecourts.gov.in/hcservices/