Madras High Court
Q.Dawson vs Union Of India on 22 September, 2014
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2014 Coram The Honourable Mr.Justice B.RAJENDRAN W.P. No. 17810 of 2014 and M.P.No. 2 of 2014 Q.Dawson ...Petitioner Vs. 1.Union of India rep. by its Joint Secretary Medical Education & MCI Department of Health & Family Welfare Nirman Bhavan C-Wing, New Delhi-110 011. 2.The Chairman Medical Council of India Pocket-14, Sector-8 Dwarka Phase-I New Delhi-110 077. 3.State rep. by the Secretary Department of Health & Family Welfare Secretariat Fort St.George Chennai. 4.S.Jagathratchagan 5.Sri Lakshmi Ammal Educational Trust Management of Sree Balaji Medical College & Hospital No.29, Tilak Street T.Nagar, Chennai-17. 6.Bharath Institute of Higher Education & Research, No.29, Tilak Street T.Nagar, Chennai-17. 7.Saroja 8.Leena Hibba 9.David Chambers 10.Robin Chambers 11.Sylvia 12.Susan Chambers ...Respondents (Respondents 7 to 12 are impleaded as per the order of this Court dated 22.09.2014) Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the Medical Council of India, New Delhi, to dispose of the petitioner's representation, dated 14.11.2012, by conducting an enquiry in accordance with law especially with regard to decision on undisputed ownership and title of property and on merits within a specific time limit to be fixed by this Court. (Upon hearing the arguments of both sides, this Court reserved orders in the above Writ Petition on 09.09.2014 and the order is being passed today) For Petitioner : Mr.M.Murugan For Respondents : Mr.C.Kanagaraj for R.1 Mr.K.V.Dhanapalan Additional Government Pleader for R.3 Mr.Sathish Parasaran for Mr.N.Senthilkumar for R.4 Mr.Mani Sundar Gopal for R.5 Mr.G.Masilamani Senior Counsel for Mr.T.Sathiyamoorthi for R.6 Mr.K.Kumaresh Babu for respondents 7 to 12 * * * O R D E R
Writ Petition is filed for a Mandamus, to direct the second respondent to dispose of the petitioner's representation, dated 14.11.2012, by conducting an enquiry in accordance with law especially with regard to decision on Undisputed Ownership and title of property and on merits within a specific time limit to be fixed by this Court.
2. According to the petitioner, he was appointed as the Executor of the Will of one George Joseph Chambers, who lived in India, of erstwhile Chambers family. The descendants of George Alexander Chambers established the Chrome Leather Company in 1913 and that is how the present Chromepet area was named. According to him, the only living descendant, who is living in India, viz., George Joseph Chambers executed a Will in the year 2008 and the petitioner is appointed as Executor of the Will, reserving 50% of the property in his favour and the remaining 50% favouring his third wife and five children. The Will was probated by this Court in O.P.No.382 of 2010, by order dated 25.01.2011. Subsequently, the beneficiaries of the Will filed an application to revoke the Probate in 2011 and that has been converted into a Testamentary Original Suit being contested and is pending before this Court in T.O.S.No.7 of 2012. According to him, in the meanwhile, the fourth respondent claiming as Managing Director of Chrome Leather Company has leased out a huge property to the fifth respondent Trust, wherein, the Trustees are none other than the wife and daughter of the fourth respondent. The fifth respondent Trust applied to the second respondent/Medical Council of India for grant of permission to set up a private Medical College and they have been granted permission. According to him, as per Regulation 3.1.1. of the Medical Council of India Establishment of Medical College Regulations 1999 (Amended 2010) and UGC (Affiliation of Colleges by Universities) Regulations, 2009, there should be undisputed ownership and possession of land measuring not less than 2 acres (in this case 25 acres) if it is located in metropolitan cities and 5 acres if it is located in other areas. Therefore, according to the petitioner, since, there is a cloud in the ownership of the land, he had already lodged police complaint; that has not been taken into consideration. Then, he made a representation on 14.11.2012 stating that the fourth respondent got the property of M/s.Chrome Leather Company by claiming transfer of non-existed shares of the Complany in a bogus tender auction. Therefore, when the guideline of Undisputed Ownership is clear, the second respondent, who is the statutory body, should have considered his representation and proceeded in accordance with law, to cancel the licence. Aggrieved against the in action on the part of the second respondent, the petitioner has filed the present Writ Petition for a mandamus, directing the second respondent to dispose of his representation dated 14.11.2012, by conducting an enquiry especially with regard to decision on Undisputed Ownership and title of the property.
3. The learned counsel for the petitioner would submit that the second respondent may be directed to dispose of his representation dated 14.11.2012, by conducting an enquiry especially with regard to decision on Undisputed Ownership and title of the property.
4. The first respondent/Joint Secretary, Union of India, though, not filed counter, but, he is represented by a counsel, who would mainly contend that the petitioner first of all should make out a case that there is a legal necessity to consider his representation and there is a statutory duty cast upon the second respondent to consider the same. He would further contend that the petitioner has made only frivolous and baseless allegations, especially, when the Testamentary Original Suit is pending, he has no legal right to question the same. He would further add that even though, the petitioner was granted time to take notice to the second respondent, the petitioner has not even taken steps to serve the second respondent.
5. The third respondent is represented by Mr.K.V.Dhanapalan, learned Additional Government Pleader, who would contend that in the earlier round of litigations, the petitioner has been proved to be given unnecessary complaints and in the case on hand also, the petitioner has not proved his statutory right.
6. The fourth respondent is represented by Mr.Sathish Parasaran, learned counsel, who would contend that this Writ Petition is nothing, but a frivolous one. In this connection, he would point out to an order of this Court made in Crl.O.P.No.19104 of 2014, dated 23.07.2014, in which, a direction petition was filed by the petitioner praying to direct the third respondent therein, viz., Deputy Commissioner of Police to register FIR, investigate and to file final report on the basis of the complaint presented by the petitioner on 27.03.2014 before the Commissioner of Police, Chennai. He would point out that the complaint is nothing, but, the same has been reproduced in the present representation. He would further add that this Court in the said order has clearly pointed out that while invoking the order of probate granted in O.P.No.382 of 2010 in favour of the petitioner herein on the ground of fraud and suppression of material aspect and also for proper non-citation as put forth by the applicant in A.No.4402/2011 and dismissed other application Nos.2361 to 2363 of 2011, as the applicant has no locus standi to seek the remedy; that was challenged in O.S.A.No.256 of 2012, thereafter, it has been converted as Testamentary Original Suit and the learned Judge directed to dispose of the same on merits and in accordance with law. This Court in the said Crl.O.P. further observed that this Court has also in the earlier proceedings denied the claim of the petitioner and his principal as devoid of any merit. However, the petitioner's principal as well as the petitioner herein made successive applications on civil and original side and criminal side with identical allegations and the same were duly dealt with by the competent authority and by suppressing the same, the petitioner has come forward with the present petition, which amounts to forum shopping and abuse of process of law and ultimately, dismissed the petition. The learned counsel pointing out to the said order would submit that it is a clear case of abuse of process of Court, whether the petitioner has been going on approaching one after another forum.
7. The fifth respondent has filed a detailed counter stating that the Writ Petition is only an abuse of process of Court. The petitioner is a vexatious litigant and hence, the Writ Petition is liable to be dismissed in limini. The petitioner is in the habit of fabricating and creating documents. Originally, the petitioner in the capacity of Power of Attorney Holder of George Joseph Chambers gave two complaints dated 01.06.2006 and 18.01.2007 stating that one A.Nagappa Chettiar forged and fabricated bogus documents and became Managing Director of Chrome Leather Company and thereby in connivance and conspiracy with Bank officials obtained loan and brought the entire properties of the said Company in public auction, therefore, all the share certificates of the said Company were forged and fabricated and therefore, the purchase of forged and fabricated shares by fourth respondent under collusion with A.Nagappa Chettiar and Bank officials is null and void. Originally case in Cr.Nos. 304 and 305 of 2007 were registered against the Directors and officials of Chrome Leather Company and after investigation, both cases were closed as Mistake of Fact and it was found that petitioner has made false claim in the complaints to threaten the genuine purchasers to get wrongful gain. Thereafter, a complaint was lodged by the officials of Chrome Leather Factory against the petitioner stating that he had forged and fabricated the death certificates of Kelland Huxford Chambers and Ida L.Chambers and created a bogus person as sole legal heir of George Alexander Chambers with intention to grab the properties belonging to the Company. The FIR was registered in Cr.No.175 of 2011 and charge sheet was laid on 11.12.2012 under Sections 420, 465, 467, 468 r/w. 471 of IPC against the petitioner and further it was found out that the petitioner based on the alleged Will executed by George Joseph Chambers had entered into a sale agreement for a sum of Rs.6.57 lakhs with one Suresh Paul and has illegally created Encumbrance on the property belonging to the Company. Thereafter, two Public Interest Litigations were filed as against the petitioner's attempt to grab 83.33 acres of land belonging to Arulmighu Thirusoolanathar Temple at Thirusoolam, in W.P.Nos.1435 and 3647 of 2008 before this Court and the Division Bench of this Court by order dated 10.04.2008 directed the CBCID Investigating Agency to investigate the conspiracy hatched by the petitioner and George Joseph Chambers along with other accused persons for grabbing the lands of the Temple. In that case also, CBCID filed charge sheet dated 01.09.2009 in Cr.No.1 of 2008 for offences under Sections 465, 467, 468, 471, 420, 109 and 120(B) IPC against the petitioner and others. In fact, the Chrome Leather Company itself filed W.P.Nos.33248 and 33249 of 2007 praying to quash the Legal Heirship Certificate issued to George Joseph Chambers and this Court by order dated 01.02.2008 quashed the Legal Heir Certificate. In fact, an application No.3899 of 2007 in O.P.No.178 of 1969, was filed by George Joseph Chambers and this Court by order dated 08.07.2008 held that the petitioner cannot have any claim over the properties of the petitioner Company claiming himself as an Executor of the Will of George Joseph Chambers. Ultimately, the probate passed by this Court in favour of the petitioner in O.P.No.382 of 2010, dated 25.01.2011, was revoked by this Court by order dated 29.06.2012 on the ground of fraud, suppression of materials relevant to the case and also for proper non-citation. Thereafter, the O.P. was converted as Testamentary Original Suit and the same is pending before this Court in T.O.S.No. 7 of 2012, in which, the legal heirs of George Joseph Chambers had filed written statement and he has categorically stated that the petitioner's intention is to grab the property and they have traced out the title to the property, which dates to long back and it would clearly indicate that after the death of Ida.L.Chambers, the property in issue had not changed hands dubiously. The lands were owned by Chrome Leather Factory, of which shares were wholly held by Ida.L.Chambers and that she has disposed of the shares to one Nagappa Chettiar even during her life time and the petitioner himself has made a representation only on the basis of the order of probate, dated 25.01.2011, but, the probate was revoked as early as on 29.06.2012, therefore, the present representation made on the basis of the order of probate cannot stand and the petitioner suppressed various factors. In the counter, the fifth respondent has further averred that the Writ Petition involves serious and several disputed questions of fact and the subject matter is subjudice in T.O.S.No.7 of 2012 on the file of this Court besides being abuse of process of Court, the petitioner having failed in all his attempts has come forward with the Writ Petition.
8. The learned counsel appearing for the fifth respondent would contend that now what the petitioner wants the second respondent to consider by way of representation is the subject matter in T.O.S.No.7 of 2012, which is subjudice in T.O.S.No.7 of 2012; that cannot be adjudicated by way of representation. For the proposition, what cannot be considered, cannot be directed to be considered, he relied upon the decisions of this Court in Anathula Sudhakar v. P. Buchi Reddy, reported in (2008) 4 SCC 594; M. Ingaci vs. The Commissioner, Devakottai Municipality, Sivagangai District, reported in 2010 2 Law Weekly 785, and in C. Jacob v. Director of Geology and Mining, reported in (2008) 10 SCC 115.
9. The legal representatives of George Joseph Chambers have also filed a petition seeking to implead themselves as respondents 7 to 12 in the Writ Petition and the same was allowed by this Court today. The learned counsel appearing for respondents 7 to 12 would deny the execution of the Will and after they came to know the grant of probate was opposed and the matter is subjudice in T.O.S.No.7 of 2012. Pursuant to the filing of O.S.No.314 of 1980, the Sub-Court, Chengalpattu, permitted the Central Bank of India to sell the shares of the Company along with its properties. M/s. VKK Charities was the successful bidder and the said tender for Rs.6.5 Crores and the same was confirmed by the Bank by its letter dated 31.01.1994 and VKK Charities vide its letter dated 29.05.1995, nominated Dr.S.Jathrakshagan to receive the shares in his own name and he was appointed as the Managing Director of the Company. The Central Bank of India has also issued a Certificate, dated 05.06.1995, that Chrome Leather Company has paid all their dues as per the compromise settlement and there are no dues. When the genuineness of Will is in dispute in T.O.S. , the prayer in the Writ Petition as such cannot be maintained.
10. Heard both sides. By consent, the main Writ Petition itself is taken up for final disposal.
11. The only point for consideration in this Writ Petition is as to, whether the petitioner's representation has to be considered by the second respondent.
12. The matter in issue has a long chequered history. Originally, the probate passed by this Court in favour of the petitioner in O.P.No.382 of 2010, dated 25.01.2011, was revoked by this Court by order dated 29.06.2012. The Chrome Leather Company filed O.S.A.No.256 of 2012, seeking to convert the Original Petition into a Testamentary Original Suit and this Court by judgment dated 06.09.2012 has converted the Original Petition into Testamentary Original Suit, in which, the Division Bench has extracted the history of the case as follows:-
1)George Alexander Chambers also known as G.A. Chambers married thrice. He amassed huge wealth particularly in Zamin Pallavaram. He founded Chrome Leather Company Limited. Huge track of property formed part of this company. While alive on 18.12.1930, he executed a Will in favour of his third wife Ida L.Chambers, whereunder, he had bequeathed considerable extent of property. He was not alive to witness the fight between his third wife and a son born to him through his another wife. But, to buy peace, there was compromise between them.
2) Thereafter, Mrs.Ida executed a Will on 29.10.1949. It appears that Chrome Leather Company Limited raised loans with Central Bank of India. The Company fell into huge arrears, naturally, the Bank enforced the mortgage. The property was brought to sale. It was purchased by a third party, namely, the appellant, at the auction.
3) Subsequently, one George Joseph Chambers emerged. He claimed himself a son of Kelland Huxford Chambers, who is son of Ethel Mary Chambers, who is first wife of George Alexander Chambers. George Joseph Chambers claimed himself an heir to late G.A.Chambers, exactly as his grandson.
4) On 13.08.1930, Mrs.Ida died issueless. In O.P.No.178 of 1969, the Administrator-General sought for probating her Will. Letters of Administration was granted. George Joseph Chambers filed Application No.3899 of 2007 to revoke it. However, On 08.07.2008, it was dismissed by the learned single Judge.
5) On 06.08.2008, George Joseph Chambers passed away. Q.Dawson, the first respondent herein, claiming himself as his Power Agent as well as executor of his Will dated 6.2.2008 filed O.P.NO.382 of 2010 to probate the Will. On 06.08.2008, the Will has been probated.
6) Chrome Leather Company Limited, a third party filed Application No.2361 of 2011 to revoke the Order dated 25.01.2011. Saroja, her children and also of her husband's 1st wife filed Application No.4402 of 2011 seeking similar relief. On 25.1.2011, the learned single Judge allowed Application No.4402 of 2011 on the ground that they have established a just cause and also referring to Explanation (b) to Section 263 of the Indian Succession Act,1925 held that the power of attorney adopted certain fraudulent activities. However, the Application filed by the present appellant has been dismissed on the ground that he has no caveatable interest and he has no locus standi to seek a remedy.
13. Similarly, Crl.O.P.No.19104 of 2014 was filed by the petitioner, in which, a direction was sought for by him to direct the third respondent therein, viz., Deputy Commissioner of Police to register FIR, investigate and to file final report on the basis of the complaint presented by the petitioner on 27.03.2014 before the Commissioner of Police, Chennai. In the said Crl.O.P. this Court, by order dated 23.07.2014, has categorically held as under:-
12.As far as the present petitioner is concerned, the grant of probate to the alleged Will executed by GJ Chambers in his favour, was already revoked and the original petition was also converted as Testamentary suit, GJ Chambers, Principal of the petitioner, while alive was directed to approach civil forum to establish his right and the petitioner who is the so called executor of the Will of the Principal, is now bound to continue his case in the original testamentary suit. That being the factual state of affairs, the petitioner has no locus standi to maintain any action against the present management of the company who is the owner of the property. Further, it has also held in paragraph Nos. 14 and 15 as under:-
14. Here again, the complaint received by the third respondent Deputy Commissioner of Police, Central Crime Branch, Vepery, Chennai, was already enquired into and closed. Whereas, the complaint received by the fourth respondent was assigned CSR and pending enquiry. As rightly argued by the learned Additional Public Prosecutor, neither Principal nor the petitioner have any locus standi to maintain any action against the actual legal heirs of George Alexander Chambers. The property belonging to George Alexander Chambers had already been bequeathed to his third wife Ida.L.Chambers and Roy Metcalf Chambers who dealt with the same in accordance with the right available to them and the same was subsequently sold to the counter petitioner Chrome Leather Company Limited, who have been in peaceful possession and enjoyment of the property and the right of peaceful possession and enjoyment of the counter petitioner is also recognised by this Court in the earlier proceedings. This Court has also in the earlier proceedings, denied the claim of the petitioner and his principal as devoid of any merit. However, the petitioner's principal as well as the petitioner herein made successive applications on civil and original side and criminal side with identical allegations and the same were duly dealt with by the competent authority and by suppressing the same, the petitioner has come forward with the present petition, which amounts to forum shopping and abuse of process of law.
15.The learned Additional Public Prosecutor in the course of argument, also brought it to the notice of this Court about the case pending against the petitioner in C.C.No.1083/2012 for the offences under Sections 420, 465, 467, 468 r/w. 471 IPC.
14. With this background, when we analyse the very representation of the petitioner, dated 14.11.2012, the representation is nothing, but, based as the Executor and Successor in Title to the intestate property would contend that the College has been built on lands which was grabbed on transfer of bogus shares of M/s.Chrome Leather Company. In the said representation, he also challenges the compromise decree, dated 19.02.1965. In the representation, he would also contend that the shares were purchased by bogus tender auction. It was further averred that the petitioner has already submitted a petition to the Central Bureau of Investigation, New Delhi, therefore, he would submit that the second respondent has to consider the representation. The whole episode is based on, the petitioner as the Executor of the Will, but, the Will under challenge is subjudice in T.O.S.No.7 of 2012, unless, that is decided his right to question all these things will not arise. Even otherwise, the matter, which has been referred to, is a very old matter, which has long chequered history and the Court on several occasions had occasion to deal with the same. Therefore, what the petitioner really wants the second respondent/Medical Council of India to decide is the subsequent interest thereon, which is the subject matter subjudice in T.O.S. No.7 of 2012, therefore, what cannot be considered by the authority cannot be directed to be considered by this Court. It is well settled principle of law.
15. For the proposition that when a representation is made, how, it should be directed to be considered, learned counsel appearing for the fourth respondent has relied upon the judgment of the Hon'ble Supreme Court reported in (2008) 10 SCC, 115, C.Jacob vs. Director of Geology and Mining. In the said judgment in paragraph Nos. 14, 15 and 16, the Hon'ble Supreme Court has held as under:-
14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for consideration. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing consideration of such claims.
15. The present case is a typical example of representation and relief. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9-4-2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the petitioner has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18-7-1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the Department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the Department in which the petitioner had worked had been wound up as long back as in 1983 itself and the new Department had no records of his service.
16. The petitioner neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show-cause notice dated 8-7-1982 and failed to produce the second or subsequent sheets of the said show-cause notice in spite of being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the petitioner had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to consider a representation relating to a stale issue.Pension for service of less than 20 years. In the decision cited supra, the Hon'ble Supreme Court has categorically stated how an innocuous prayer to consider the representation relating to a stale issue create havoc. This case is squarely applicable to the facts of the present case.
16. In this context, I wish to follow the decision of the Division Bench of this Court reported in 2010 2 Law Weekly 785, M. Ingaci vs. The Commissioner, Devakottai Municipality, Sivagangai District, in which I am also a party, wherein the Division Bench held that there are several instances where unscrupulous petitioners have misused the direction issued to "consider". It was further held that there are large-scale misuse of the orders "to consider". The Division Bench also relied on para Nos. 18 to 210 of the decision of the Honourable Supreme Court reported in the case of A.P. SRTC vs. G. Srinivas Reddy (2006) 3 SCC 674 = 2006, 3 Law Weekly 170, wherein in Para Nos. 18 to 20, it was held as under:-
"18. We may also note that sometimes the High Court dispose of the matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may.
19. There are also several instances where unscrupulous petitioners with the connivance of 'pliable' authorities have misused the direction 'to consider' issued by Court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to 'consider' and dispose of the representation. When the court disposes of the petition with a direction to 'consider', the authority grants the relief, taking shelter under the order of the court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing rant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider' may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction 'to consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption in to regular service is a species of cases, where there has been large-scale misuse of the orders 'to consider'.
20. Therefore, while disposing of the writ petition with a direction 'to consider', there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter."
17. For the proposition that when there is a cloud over the property, whether the representation can be directed to be considered, was decided by this Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594. In the said decision, the Hon'ble Supreme Court in paragraph No.14 has held as under:-
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiffs title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a persons title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
18. But, in the case on hand, the fourth respondent is the owner of the property, who has leased out the property to the fifth respondent Trust and the fifth respondent Trust as a valid lessee applied to the second respondent/Medical Council of India for permission to set up a private Medical College and they have been granted permission and they have started a College and running the College. This Writ Petition seeking to direct the second respondent to consider the representation of the petitioner, dated 14.11.2012, without the T.O.S. being decided in his favour and which is subjudice in T.O.S.No.7 of 2012, cannot be directed to be considered by the second respondent, as the same facts, which have been raised in T.O.S. and subjudice before this Court, were pleaded in the representation, dated 14.11.2012.
19. It is evident from the decisions of the Hon'ble Supreme Court cited supra that mere direction to consider one's representation will result in adverse consequences and it will give rise to renewing a stale, untenable or dead claim, the innocuous prayer cannot be granted.
20. For the foregoing discussions held, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
22.09.2014 paa Index: Yes/No Internet: Yes/No Note: Issue Today To
1.The Joint Secretary Union of India Medical Education & MCI Department of Health & Family Welfare Nirman Bhavan C-Wing, New Delhi-110 011.
2.The Chairman Medical Council of India Pocket-14, Sector-8 Dwarka Phase-I New Delhi-110 077.
3.The Secretary Department of Health & Family Welfare Secretariat Fort St.George Chennai.
4.Sri Lakshmi Ammal Educational Trust Management of Sree Balaji Medical College & Hospital No.29, Tilak Street T.Nagar, Chennai-17.
5.Bharath Institute of Higher Education & Research, No.29, Tilak Street T.Nagar, Chennai-17.
B.RAJENDRAN,J paa Pre-Delivery Order in W.P. No. 17810 of 2014 22.09.2014