Madras High Court
Cosmopolitan Club vs The Government Of Tamil Nadu on 11 August, 2022
Author: M.Duraiswamy
Bench: M.Duraiswamy
W.A.No.684 of 2021 & O.S.A.No.159 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.08.2022
PRONOUNCED ON : 11.08.2022
CORAM :
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
W.A.No.684 of 2021 & O.S.A.No.159 of 2021
and
C.M.P.Nos.3816 of 2021 and 7061 of 2021
W.A.No.684 of 2021
Cosmopolitan Club,
Rep., by its Honorary Secretary,
63, Anna Salai,Chennai-600 002 ... Appellant
vs.
1.The Government of Tamil Nadu,
Represented by the Secretary,
Housing and Urban Development Department,
Secretariat,
Chennai-600 009
2.The Government of Tamil Nadu,
Represented by the Secretary,
Revenue Department,
Secretariat,
Chennai-600 009
https://www.mhc.tn.gov.in/judis
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W.A.No.684 of 2021 & O.S.A.No.159 of 2021
3.The Member Secretary,
Chennai Metropolitan Development Authority,
ThalamuthuNatarajan Building,
No.1, Gandhi Irwin Building,
Egmore,
Chennai-600 008
4.The Commissioner,
Greater Chennai Corporation,
Ripon Building,
Chennai-600 003
5.Tamil Nadu Golf Federation,
Rep., by its Honorary Secretary,
Dhun Building, 4th Floor,
827, Anna Salai,
Chennai-600 002 .. Respondents
Prayer : Writ Appeal filed under Clause 15 of Letters Patent to allow the
above writ appeal by setting aside the order passed by the learned Judge dated
30.11.2020 made in W.M.P.No.6967 of 2020 in W.P.No.5947 of 2020, on the
file of this Court thereby allow the allow the writ miscellaneous petition as
prayed for.
For Appellant :Mr.T.R.Rajagopalan
Senior Counsel
for Mr.V.P.Sengottuvel
For R1 &R2 :Mr.J.Ravindran
Additional Advocate General
Asst. by Mr.C.Jayaprakash
https://www.mhc.tn.gov.in/judis
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W.A.No.684 of 2021 & O.S.A.No.159 of 2021
For R3 :Mr.P.Kumaresan
Additional Advocate General
Asst. by Mrs.Veena Suresh
For R4 :Mr.K.Raja Shrinivas
For R5 :Mr.P.R.Raman
Senior Counsel
for Mr.Seethapathy
O.S.A.No.159 of 2021
Cosmopolitan Club,
Rep., by its Honorary Secretary,
63, Anna Salai,
Chennai-600 002
... Appellant
v.
Tamil Nadu Golf Federation,
Rep., by its Honorary Secretary,
Dhun Building, 4th Floor,
827, Anna Salai,
Chennai-600 002 ... Respondent
Prayer :Original Side Appeals filed under Order XXXVI Rule 9 of Original Side
Rules 8 read with Clause 15 of the Letters Patent Appeal to allow the above
original side appeal by setting aside the order passed by the learned judge dated
30.11.2020 made in O.A.No.26 of 2019 in C.S.No.31 of 2019, on the file of this
https://www.mhc.tn.gov.in/judis
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W.A.No.684 of 2021 & O.S.A.No.159 of 2021
Court thereby allow the original application as prayed for.
For Appellant : Mr.T.R.Rajagopalan
Senior Counsel
for Mr.V.P.Sengottuvan
For Respondent : Mr.P.R.Raman
Senior Counsel
for Mr.Seethapathy
COMMON JUDGMENT
SUNDER MOHAN,J.
The appellant has preferred the above Appeals challenging the common order passed in O.A.No.26 of 2019 in C.S.No.31 of 2019 and W.M.P.No.6967 of 2020 in W.P.No.5947 of 2020 dated 30.11.2020.
2.The appellant filed a suit in C.S.No.31 of 2019 praying for permanent injunction restraining the respondent in O.S.A.No.159 of 2021 from taking a unilateral decision with respect to leasehold lands or proceeding with the construction of the club house or any other development on the Cosmo-TNGF Golf Course established on the Joint Lease hold land of the appellant and the respondent. The appellant also filed two applications in the said Suit in https://www.mhc.tn.gov.in/judis 4/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 O.A.No.26 of 2019 praying for interim injunction, restraining the respondent in any way proceeding with the construction of the club house or any other development on the Joint Lease hold land-Golf Course of the appellant and the respondent and in the said suit filed an application in O.A.No.11 of 2020 praying for an interim injunction restraining the respondents from pursuing 5 th respondent's applications for planning permit and building permit with Chennai Metropolitan Development Authority (in short ''CMDA'') with respect to the construction work of the club house or any other development of the Joint Lease hold land.
3. The appellant had also filed W.P.No.5947 of 2020 praying for Writ of Certiorari to quash the planning permission issued by the CMDA in respect of the application filed by the 5th respondent in W.A.No.684 of 2021/respondent in O.S.A.No.159 of 2021. They filed W.M.P.No.6967 of 2020 praying for stay of the planning permission issued by the CMDA. The learned Single Judge, on hearing the above writ petition, felt that, the order passed in O.A.No.11 of 2020 will have a direct bearing on the issues raised in the writ petition and directed the Registry to post the writ petition along with O.A.No.11 of 2020. Accordingly, the Registry, after obtaining appropriate orders from the Hon'ble https://www.mhc.tn.gov.in/judis 5/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 the Chief Justice, listed the writ petition along with the Applications in the Suit. The learned Single Judge, after hearing the arguments, dismissed the Applications and the Writ Miscellaneous Petition filed by the appellant by a common order. The appellant has preferred the above Original Side Appeal and the Writ Appeal aggrieved by the Common order. Both the Appeals were listed before us pursuant to the orders of the Hon’ble the Chief Justice.
4.The facts leading to the dispute between the appellant and the respondent in the O.S.A have been elaborately set out in the impugned order passed by the learned Single Judge. We do not propose to repeat the same here, except those that are essential for the purpose of deciding the above appeals. The Appellant and the Respondent are joint lease holders of the suit schedule property. Initially, the Appellant was the lessee of the Government property since 1933. The Government of Tamil Nadu renewed the lease in 1966 for a period of 30 years. Even before the expiry of the lease, both the appellant and the respondent requested the Government to grant lease in their favour. The Government refused to grant lease in favour of the appellant. The Appellant challenged the refusal to renew the lease by way of writ petition. This Court dismissed the Writ Petition and also the Writ Appeal filed https://www.mhc.tn.gov.in/judis 6/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 challenging the dismissal of the Writ Petition. Thereafter, the appellant and the respondent in the O.S.A. entered into a Memorandum of Understanding (MOU) dated 11.01.2001 and a Supplemental MOU dated 22.02.2001. Pursuant to the MOU, the appellant and the respondent jointly applied to the Government for grant of lease. The Government, in G.O.Ms.No.138 dated 24.03.2001, granted Joint Lease in favour of the appellant and the respondent. The Government, thereafter, on 28.06.2002, cancelled the Joint Lease. Both the appellant and the respondent challenged the cancellation and obtained interim orders. While so, the respondent unilaterally decided to construct a club house in the Golf Course without discussing with the appellant. The appellant, aggrieved by the said action, filed a suit in C.S.No.339 of 2008 before this Court and obtained interim orders. While so, both the appellant and the respondent requested the Government to withdraw its earlier order cancelling the lease. Based on the representation, the Government issued G.O.M.S.No.33, dated 23.01.2009, and restored the joint lease granted in favour of the appellant and the respondent for a period of thirty years from 07.01.1996. While so, the appellant and the respondent entered into another agreement, dated 21.06.2012, and pursuant to the said agreement, the Civil Suit in C.S.No.339 of 2008, filed by the appellant, was withdrawn. On https://www.mhc.tn.gov.in/judis 7/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 14.09.2018, the Government issued a show cause notice to both the appellant and the respondent alleging violation of lease conditions. While so, the respondent, during the third week of December 2018, laid foundation for building a club house in the Golf Course. The instant dispute relates to the construction of the club house by the respondent in the Golf Course.
5.The appellant claimed that the respondent in O.S.A.No.159 of 2021, have no right to construct a club house in the Golf Course notwithstanding the agreement dated 21.06.2012, wherein, the respondent was permitted to create its own facilities including a club house at the Golf Course. The appellant claimed that this agreement is subject to the Joint Lease granted by the Government in favour of the appellant and the respondent. The appellant's contention was that no lease deed was executed in terms of the Board Standing Order No.24-A and the action of the respondent was in violation of the conditions of the lease prescribed in Appendix XXX-A (the form of grant of State Land) under BSO No.24-A. According to the appellant, there must be a joint application seeking for consent for establishing Club House, Joint Application for seeking planning permit and any construction should be done only with the consent of the Collector. The appellant's further case was that the https://www.mhc.tn.gov.in/judis 8/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 unilateral decision taken by the respondent to put up a club house was contrary to the terms of G.O.M.S.No.33, dated 23.01.2009. For all the above reasons, the appellant prayed for interim injunction against the respondent.
6.The appellant's case in the writ petition was that the third respondent in Writ Appeal herein ought not to have granted planning permission, since the appellant had violated the conditions of Board Standing Order No. 24-A and the conditions in G.O.M.S.No.33, dated 23.01.2009. The third respondent ought to have seen that the appellant and the respondent held joint lease and ought not to have entertained the application made only by the respondent. The third respondent ought to have considered the representation of the appellant and since they failed to consider their objections, the planning permission granted, is liable to be set aside.
7.The respondent's case in brief was that, since the appellant did not maintain the Golf Course properly, they had applied for lease in the year 1996. The appellant's request for renewal of lease was refused by the Government. Their challenge to that refusal was dismissed. Thereafter, MOU was entered into between the appellant and the respondent and they made a joint request https://www.mhc.tn.gov.in/judis 9/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 for lease and the Government, by G.O.M.S.No.138, dated 24.03.2001 granted joint lease in favour of the appellant and the respondent for a period of 30 years commencing from 1996. Though the Government decided to cancel the lease again in the year 2002, the respondent was able to persuade the Government to withdraw its decision to cancel the lease. Due to the efforts taken by the respondent, the Government passed G.O.M.S.No.33, dated 23.01.2009, granting joint lease to the appellant and the respondent, with renewed and additional terms. The respondent's case was that they need not consult the appellant before putting up any club house. In fact, the appellant filed a similar suit in C.S.No.339 of 2008, aggrieved by the respondent's decision to build a club house. The said suit was subsequently withdrawn by the appellant and the appellant cannot re-agitate the same issue in the instant suit. The appellant and the respondent entered into another agreement, dated 21.06.2012, in which also, the right of the respondent to construct own club house was recognized. The respondent acted in terms of G.O.M.S.No.33, dated 23.01.2009. The Bipartite Land Management Committee, in its meeting held on 04.07.2019, granted permission to the respondent to construct a single storey building measuring an extent of 15000 sq.ft., which was to be used as club house. The respondent's case was that the G.O. contemplated two https://www.mhc.tn.gov.in/judis 10/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 Bipartite Land Management Committees. One for the appellant and one for the respondent, which were independent of each other and there was no necessity for calling the members of the other committee for the meeting conducted by one. The entire attempt of the appellant was only to prevent the respondent from putting up the club house contrary to what was agreed upon between them in the MOUs.
8.The first respondent in the above said Writ Appeal filed a counter in the writ petition stating that the Government had issued G.O.M.S.No.174, Revenue and Disaster Management, dated 19.06.2019, to form two Bipartite Land Management Committees, which comprised of Senior Officers from the Government as well as the Senior Office bearers of the appellant and the respondent respectively. The first meeting of the Bipartite Land Management Committee of the respondent was convened on 04.07.2019 and taking note of the representation made by the respondent, the Bipartite Land Management Committee gave consent to them for putting up the construction. In fact, the first respondent also stated that the appellant had not come forward to convene a meeting of the Bipartite Land Management Committee formed for them to discuss the issues relating to the lease.
https://www.mhc.tn.gov.in/judis 11/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021
9.The 3rd respondent filed a counter in the writ petition stating that, since they were not restrained by the orders of this Court, they had granted planning permission to the respondent for construction of a Club House and that the question of obtaining concurrence of the appellant was left open to be decided by this Court by the order in O.A.No.11 of 2020, dated 09.01.2020.
10. The learned Singe Judge observed that the issues in the suit and in the Writ petition filed by the appellant revolved around the single issue, namely, whether the respondent could put up a club house for the benefit of their members without the consent and approval of the appellant. The learned Single Judge extracted sub Clauses (v) and (vii) of clause 4 of the agreement entered into between the appellant and the respondent, in which, the parties agreed that the respondent shall have right to create the facilities such as club house in the Golf Course. The learned Single Judge found that the second agreement dated 21.06.2012, was entered into between the parties, after the appellant unsuccessfully challenged G.O.M.S.No.33, issued by the 1st respondent in W.A.No.684 of 2021. In that agreement also, Clause 20 stipulated that the respondent can create their own facilities including their own club house at the Golf Course. The learned Single Judge also observed https://www.mhc.tn.gov.in/judis 12/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 that the respondent had obtained the consent of their Bipartite Land Management Committee, pursuant to Clauses 11 (iii) and (iv) of the G.O.M.S.No.33. In fact, the appellant had never challenged these two clauses of the said G.O. The learned Single Judge further observed that there was no necessity for the respondent to obtain consent of the appellant to build a club house. The learned Single Judge further held that, in G.O.M.S.No.33, the first respondent in W.A.No.684 of 2021 made it clear that there would be two separate Bipartite Land Management Committees, each for the appellant and the respondent, though in the earlier G.O, they had contemplated only a single Land Management Committee for both. The learned Single Judge, after observing so, found that the appellant had not made out a prima facie case for grant of injunction and the balance of the convenience was not in their favour and consequently, dismissed the applications.
11. Mr.T.R.Rajagopalan, learned Senior Counsel representing Mr.V.P.Sengottuvel, for the appellant submitted;
(a) that the appellant had made out a prima facie case for grant of injunction and the balance of the convenience was in their favour and the learned Single Judge ought to have decided the rights and responsibilities of joint lessees, before holding that the appellant had not made out a prima facie https://www.mhc.tn.gov.in/judis 13/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 case;
(b) that the joint lease was granted by the first respondent in the Writ Appeal under Board Standing Order No.24-A. The first respondent is yet to execute the grant as per the Form given in Appendix XXX-A of BSO 24-A in favour of the appellant and the respondent. As per G.O.M.S. No.33, the lease was granted only on the basis of the usual conditions stipulated in BSO 24-A of the Revenue Standing Orders. Clause 9 of the said form in Appendix XXX-A stipulated that the building must be constructed only in accordance with the plan annexed to the said Appendix. Clause 11 stipulated that the grantee can erect building of a permanent character only with the previous written consent of the Collector. Since the respondent has not complied with the said conditions, they should not be permitted to build a club house;
(c) that the decision taken in the Bipartite Land Management Committee meeting held on 04.07.2019, was not valid in law, since it was based on incorrect representation made by the respondent without giving an opportunity to the appellant to participate in the said meeting. Futher, the Principal Secretary, who had earlier issued show cause notice to both the appellant and the respondent on 14.09.2018, had not taken any action on the basis of the said Show Cause Notice. He had convened the meeting without taking any decision https://www.mhc.tn.gov.in/judis 14/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 on the reply sent by the joint lessees to the show cause notice. He had not convened Bipartite Land Management Committee meeting with the appellant. The Government representatives, including the said Principal Secretary, who left in the middle of the meeting, had signed the minutes. All these would go to show that the Committee acted in haste, illegal and partial manner, behind the back of the appellant. The Committee did not assess the need for a huge facility to the extent of 15,000 sq.ft for the club house;
(d) that the agreement between the appellant and the respondent does not, in any way, waive or alter the rights of a joint lessee, which is otherwise recognized by law;
(e) that notwithstanding the agreement between the appellant and the respondent, unilateral application by the respondent for the planning permit was contrary to BSO 24-A;
(f) that the agreement dated 21.06.2012 is a voidable Agreement, since the clause did not provide for revenue sharing between the Joint lessees. The appellant, who had established the Golf Course in the 1930s, is making a loss and the respondent, who had obtained possession only in the year 2001, has made huge profits without sharing the income with the other joint lessee. The https://www.mhc.tn.gov.in/judis 15/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 respondent have committed breach of agreement by not paying the admitted amount of Rs.65,00,000/- to the appellant from the year 2019 onwards;
(g) that the planning permission granted by the third respondent in W.A.No.684 of 2021 was not in accordance with law and it was in violation of Clause 11 of the Appendix XXX-A of BSO 24-A, inasmuch as the Collector did not give consent for putting up construction, and that the decision taken in the Bipartite Land Management Committee meeting held on 04.07.2019 cannot be construed as prior approval of the competent Authority. The third respondent in the Writ Appeal had not taken into consideration the objection filed by the appellant, while granting the planning permission and had acted in undue haste to favour the respondent.
12. Mr.P.R.Raman, learned Senior Counsel for the 5th respondent in W.A.No.684 of 2021 and the respondent in O.S.A.No.159 of 2021 submitted;
(a) that the submissions of the appellant were misconceived and the appellant did not make out a case of violation of any right. The parties had entered into an agreeement, in which, the right of the respondent to construct a club house in the Golf Course without reference to the appellant was https://www.mhc.tn.gov.in/judis 16/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 recognized. The terms of the agreement would make it clear that the administration of the Golf course shall vest with the respondent and there is nothing in the agreement to suggest that the respondent have to seek the concurrence of the appellant in the matter of administration of the Golf Course and for constructing a Club House;
(b) that, since the earlier suit in C.S.No.339 of 2008, filed by the appellant seeking the very same relief was dismissed as settled out of Court, the appellant cannot re-agitate the very same issue once again;
(c) that the respondent had paid substantial consideration for the agreement entered into between the appellant and the respondent on 21.06.2012 and hence, the appellant is bound by the terms of the agreement;
(d) that the appellant had challenged the G.O.M.S.No.33 before this Court in W.P.No.4255 of 2009 including condition No.11 (iii), which provides that, any construction of building should be made only after obtaining approval from the Bipartite Land Management Committee. The writ petition was dismissed by this Court by the order dated 28.04.2009 and the Writ Appeal was also dismissed. When the S.L.P filed before the Hon’ble Apex Court challenging the order passed in the Writ Appeal was pending, the https://www.mhc.tn.gov.in/judis 17/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 appellant and the respondent entered into the second agreement dated 21.06.2012. Since the appellant had huge dues payable to the first respondent in W.A.No.684 of 2021, the respondent had paid substantial sums to the appellant to help them clear the dues and entered into the agreement;
(e) that the Bipartite Land Management Committee meeting was held on 04.07.2019. In that meeting, a well considered decision was taken by the Committee taking into account the pros and cons and also taking into consideration the assurance of the Respondent’s representative that the Golf playing members of the appellant can continue to use the Golf Course upon payment of appropriate subscription and other charges. The learned Senior Counsel, therefore, submitted that the learned Single Judge was justified in dismissing the interim applications and the order does not suffer from any infirmity.
13.Mr.P.Kumaresan, learned Additional Advocate General, appearing for the 3rd respondent in W.A.No. 684 of 2021, submitted that they have granted planning permission, since the application was in accordance with law. The learned Additional Advocate General also submitted that this Court had not restrained them from considering the application for planning permission. In fact, this Court, by the order dated 09.01.2020 passed in O.A.No.11 of 2020 https://www.mhc.tn.gov.in/judis 18/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 in C.S.No.31 of 2019, observed that it was open for the respondent to file and prosecute application for planning and building permission. This Court also clarified that it was open to the appellant to bring to the notice of the 3rd respondent or any Authority that such application should not be made or pursued without the concurrence of the appellant. The learned Single Judge further held as follows:
''In view of the fact that the necessity for such concurrence is an open issue, which is to be decided by this Court, list the applications for hearing on 05.02.2020.'' Therefore, the learned Additional Advocate General submitted that the issue of necessity for concurrence, was kept open by this Court and they had granted planning permission subject to the orders of this Court. The learned Additional Advocate General further submitted that the writ petition filed by the appellant was not maintainable, since they have not exhausted the alternative remedy to file an appeal under Section 79 of the Tamil Nadu Town and Country Planning 1971, if they were aggrieved by the order granting planning permission.
14. We have given our anxious consideration to the submissions made https://www.mhc.tn.gov.in/judis 19/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 by the learned Senior Counsels, the learned counsels for the parties and to the pleadings and documents available on record.
15. We find that the grievance of the appellant appears to be that their rights as joint lessees have been infringed. The appellant's case is that, notwithstanding the agreement entered into between the appellant and the respondent, which no doubt, recognized the right of the respondent to put up the club house in the Golf Course, the respondent have not fulfilled their obligations, which is mandated under law. The appellant, in support of their case, would rely upon the statutory and common law governing the rights and liabilities of joint lessees. That apart, it is their case that the Government had granted lease on certain conditions including the special conditions specified in G.O.M.S.No.33. The conditions for grant of lease is governed by BSO 24-A and the first respondent in W.A.No.684 of 2021 had not executed the lease deed as mandated under the said BSO in the Form contained in Appendix XXX-A. Had the first respondent in W.A.No.684 of 2021 executed the lease deed in that Form, two conditions, namely, (i) Clause 9, which provides for construction of building as per the plan annexed to the said Appendix XXX-A and (ii) Clause 11, which provides for seeking prior approval of the Collector https://www.mhc.tn.gov.in/judis 20/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 to make any construction, would have to be complied with.
16. We are the view that the said contention of the appellant cannot be accepted for the reason that the lease was granted in favour of the respondent by virtue of G.O.M.S.No.33, which prescribed certain special conditions, which are unique. These conditions are not found in regular leases. The special conditions are more stringent and provides for more control of the Government over the activities of the lessees. These special conditions subsumes the other regular conditions prescribed to ensure control of the Government over the lessees. Once the Bipartite Land Management Committee consisting of officials of the Government have approved the construction of the club house, the submission that the Collector's consent must have been obtained and the plan must be in a particular form, is not only highly technical, but cannot be legally sustained. That apart, if the appellant's submission that in the absence of joint lease deed under BSO 24-A, the respondent cannot put up construction, is accepted, then, the appellant also would have no locus to challenge any action of the respondent in their capacity as joint lessee, in the absence of the lease deed. Therefore, we are of the view that the submission that BSO 24-A has been violated, cannot hold water.
17.That apart, we find that the joint lessees have voluntarily entered into https://www.mhc.tn.gov.in/judis 21/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 the agreement, supported by consideration, which defines their respective rights and liabilities. We are of the view that the said agreement would be binding on both the lessees as regards their mutual rights and obligations. The terms of the agreement are neither contrary to the conditions of the grant of lease by the Government nor illegal.
18.As regards the submission that the Bipartite Land Management Committee's decision taken on 04.07.2019 is partial, illegal and hasty, we are of the view that the said submission also cannot be accepted. The Bipartite Land Management Committee had taken into consideration, all the factors keeping in mind, the interest of the Government and the lessees. The 1 st respondent in W.A.No.684 of 2021 has filed a counter in the Writ Petition in W.P.No.5947 of 2020 to the effect that the Committee also took into consideration the representation made on behalf of the respondent that the members of the appellant can continue to play at the Golf Course upon payment of appropriate subscription and other charges as may be levied by the respondent. The submission that the Principal Secretary was not available till the end of the meeting and hence, the Committee’s decision is bad, only exposes the fact that the appellant's case is without any legal basis. In the https://www.mhc.tn.gov.in/judis 22/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 meeting the Principal Secretary was represented by other Secretaries and also the Principal Secretary signing the Minutes, which confirms his approval. Further, we find that the appellant has no role in the said Bipartite Land Management Committee meeting. If the appellant's right to question the decision of the Bipartite Land Management Committee is recognized, the very purpose of the Government constituting two Committees would be defeated. Therefore, in our view, the appellant has no right to question the decision of the Bipartite Land Management Committee pertaining to the respondent. That apart, they have not challenged this minutes by way of any separate proceedings.
19. The submission that the respondent have violated the terms of the agreement dated 21.06.2012, also cannot be countenanced. The only grievance of the appellant is that the respondent have started poaching the Golf playing members of the Appellant by admitting them into the respondent's federation. This, in our view, cannot amount to violation of the agreement. We are of the view that, if the golf playing members are attracted towards the respondent and its facility, it cannot be said that the respondent had violated the terms of the agreement. The Appellant’s argument, which in effect restricts the freedom of https://www.mhc.tn.gov.in/judis 23/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 choice of the golf playing members as well, cannot be countenanced. The other argument that the Travancore Pavilion situated on the suit property is sufficient to cater to the needs of the golfs and there was no necessity for the respondent to construct another Club House, is liable to be rejected. The agreement is very clear on this aspect. Having agreed to permit the respondent to construct their own Club House on receipt of consideration, the appellant cannot go back and prevent the respondent to construct the Golf Course.
20.The other submission of the learned senior counsel for the appellant is that the planning permission was granted without the concurrence of the appellant is in violation of the conditions of lease stipulated in BSO 24. We have already held that the conditions of the lease stipulated in BSO 24-A gets subsumed in the special conditions imposed in G.O.M.S.No.33. That apart, the appellant had made representations to the 3rd respondent in W.A.No.684 of 2021 once on 31.01.2019 and again on 03.12.2019, stating that the planning permission ought not to have been granted without their concurrence. The learned Single Judge of this Court, in O.A.No.11 of 2020 in C.S.No.31 of 2019, was pleased to observe that the necessity of such concurrence is an open https://www.mhc.tn.gov.in/judis 24/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 issue which had to be decided by this Court. In view of the specific order of this Court, we are of the view that the 3rd respondent in W.A.No.684 of 2021 was justified in granting permission. Further, the 3rd respondent had specifically stated that the order granting planning permission does not confer ownership or title in favour of the applicant, and that, all disputes with regard to the ownership and title could be decided only by the competent Civil Court. The order of the 3rd respondent, in our view, does not suffer from any illegality. On the other hand, the 3rd respondent had passed a well considered order taking into account the respondent's objection for the grant of planning permission, which, according to the 3rd respondent, can be decided only by the Competent Civil Court.
21.That apart, we are of the view that the appellant ought to have exhausted the alternative remedy available to them, to file an appeal under Section 79 of the Tamil Nadu Town and Country Planning 1971 before filing the Writ Petition. The Appellant, claiming to be a joint lessee, is aggrieved by the grant of planning permission to the other joint lessee and has raised several factual questions. The learned Senior Counsel submitted that “any person aggrieved” in Section 79 would only mean party to the proceedings and that https://www.mhc.tn.gov.in/judis 25/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 since the appellant was not a party to the proceeding, they would not fall within the expression “any person aggrieved”. We are unable to accept this submission, since the expression is wide enough to include all persons aggrieved by the decision of the Planning Authority taken under Section 49 of Act. It is not the appellant's case that they are not aggrieved by the decision. The following Judgements were cited by the learned senior counsel for the appellant a) Srimathi K.Ponnalagu Ammani V. The State of Madras reported in AIR 1953 Madras 482 SCC 501 and b) V.N.Krishna Murthy and Another vs. Ravikumar and Others reported in (2020) 9 SCC 501. In Srimathi K.Ponnalagu Ammani's case, this Court was dealing with the question of granting leave to a person, who was not a party to the proceedings, to appeal against the decision, if he is aggrieved by the order or prejudicially affected by it. In our view, the said case has no application to the facts of the instant case. In V.N.Krishna Murthy's case the Hon'ble Apex Court held as follows:
''19.The expression “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised (vide Shanti Kumar R. https://www.mhc.tn.gov.in/judis 26/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 Canji v. Home Insurance Co. of New York [Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1974) 2 SCC 387] and State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] ).'' The above observations of the Hon'be Apex Court would make it clear, that the appellant would fall within the category of the ''person aggrieved'', since even according to them, their rights have been adversely affected by the order of the 3rd respondent in W.A.No.684 of 2021.
22.Though it is trite that this Court can always exercise its power under Article 226 of Consitution of India, notwithstanding the availability of alternative remedy, we find that the appellant has not made out a case for such exercise of power in this case. In view of the fact that the appellant has raised disputes which are factual in nature, between private parties arising out of an agreement entered into between them, we are of the view that the appellant's writ petition is not maintainable.
23.We are, therefore, of the view that the order of the learned Single Judge impugned, is in accordance with law and does not call for interference by this Court. We also record the submission of the learned Senior Counsel for https://www.mhc.tn.gov.in/judis 27/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 the respondent that the Golf playing members of the appellant would be permitted to use the Golf Course and the club house to be constructed, on payment of the stipulated charges.
24.With the above observations, the above Writ Appeal and Original Side Appeal are dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.
[M.D., J.] [S.M., J.] 11.08.2022 Index : Yes/No Speaking Order/Non Speaking Order vsn https://www.mhc.tn.gov.in/judis 28/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 To
1.The Secretary, Housing and Urban Development Department, Secretariat, Chennai-600 009
2.The Government of Tamil Nadu, Represented by the Secretary, Revenue Department, Secretariat, Chennai-600 009
3.The Member Secretary, Chennai Metropolitan Development Authority, ThalamuthuNatarajan Building, No.1, Gandhi Irwin Building, Egmore, Chennai-600 008
4.The Commissioner, Greater Chennai Corporation, Ripon Building, Chennai-600 003
5.The Honorary Secretary, Dhun Building, 4th Floor, 827, Anna Salai, Chennai-600 002 https://www.mhc.tn.gov.in/judis 29/30 W.A.No.684 of 2021 & O.S.A.No.159 of 2021 M. DURAISWAMY, J.
and SUNDER MOHAN, J vsn Pre-delivery Common Judgement W.A.No.684 of 2021 and O.S.A.No.159 of 2021 and C.M.P.Nos.3816 of 2021 and 7061 of 2021 11.08.2022 https://www.mhc.tn.gov.in/judis 30/30