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Judgment
S. Mohan, O.C.J.
W.P. No. 7668 of 1986 came to be filed by the first respondent Annapoorna, Coimbatore to quash the order of the Government of Tamil
Nadu, made in G.O.Ms. No. 499. Municipal Administration and Water Supply Department, dated 17-4-1986. W.P. No. 7669 of 1986 is to
quash the order of the Commissioner, Municipal Corporation, Coimbatore dated 31-7-1986 in and by which the plan submitted by the writ
petitioner was rejected. The short facts of the case are as under� The first respondent (the writ petitioner) is a registered partnership firm
carrying on hotel business in Coimbatore Within the V.O.C. Park complex, there is a vacant land in the possession of the Coimbatore District
Stadium Committee which is the appellant in W.A.228 and 229 of 1989. It is this stadium committee which has constructed a stadium named after
the late Jawaharlal Nehru, the first Prime Minister of India. The space between the pillars is called as ""bay"", and out of 112 bays, 19 are used as
entrances and four bays are used for players and the rest of the 89 bays have been leased out to various lessees. The District Collector of
Coimbatore is the ex officio President of the Stadium Committee, and there are other officials who are members of the committee. The stadium
Administrative Officer is a Government servant in the rank of Deputy Tahsildar and the District Collector, also happens to be the Special Officer of
the Coimbatore Municipal Corporation in view of the fact that elections to the local bodies have not taken place hitherto.
The Coimbatore District Stadium Committee called upon the first respondent herein to establish a restaurant to which the first respondent
replied on 1-5-1980 asking for a vacant land lying opposite to shop Nos.54 to 58 to be leased out in order to establish a modern drive in-
restaurant. On 7-6-1980 a lease agreement was entered into in respect of shop Nos. 54 to 58. The lease was for a period of three years
commencing from 19-5-1980. A sum of Rs. 2,500 per shop was deposited by the first respondent. Thereafter the first respondent constructed
racks, leak proof ceiling and installed electrical fittings, etc. Permission was granted to spend about Rs. 16,000 per bay and monthly rent was fixed
at Rs. 650 per shop.
With regard to a portion of the vacant land which alone is the subject matter of the dispute before us which measures 1,24 acres opposite to
shops Nos.54 to 58 stretching between Grey Town Road and V.O.C. Park to be utilised by the drive-in restaurant, an agreement was entered
into on the very same day, viz., on 7-6-1980. The total lease was for a period of three years. Though this agreement was executed by the Stadium
Officer on behalf of the Stadium Committee, the rent was fixed at Rs. 14,400 per year. At this stage, it is necessary for us to quote Cl.7 of the
agreement :
The lease under this agreement is periodically renewable as in the case of and along with shops 54 to 58 and upstairs of E.10 subject however to
the bona fide requirements of the place for development of permanent Sports facilities. However, the Stadium Authorities agree that such
determination of lease if need be can be resorted subject to sufficient time being granted to the lessee to wind up the business taking into
consideration of the long gestation period required for the project and the return on the capital invested.
On 23-11-1981 the President of the Stadium Committee, viz., the Collector wrote a letter calling upon the first respondent to take early steps
for completing the work effectively failing which the lease will stand cancelled. Concerning the shops, the lease was renewed on 13-8-1984. On
18-6-1986 plans were sent to the Corporation through the Stadium Committee for putting up temporary constructions. However, they were not
forwarded and therefore an application was presented on 23-7-1986 to the Commissioner, Coimbatore Municipal Corporation. It was at this
stage, the Government of Tamil Nadu passed G.O. Ms. No. 499, dated 17-4-1956 directing the Corporation not to give any permission for the
construction of structures in the land. The Government sought to resume the entire properly and gave a direction to hand over the same to the
Corporation of Coimbatore The reason stated in the G.O. inter alia was that the Stadium Committee had no authority to lease out the property. It
was also stated that the lease granted in favour of the first respondent was contrary to the terms of G.O.Ms. No. 730, R.D. & L.A. Department,
dated 14-4-1976. Acting in pursuance of this G.O. the Commissioner by letter dated 29-7-1986 directed the demolition of the construction within
twenty four hours put up by the first respondent herein failing which steps were directed to be taken for the demolition and recover the costs from
the first respondent herein.
While the matter stood thus, the Corporation rejected the application of the first respondent for putting up construction on 23-7-1986. It further
directed demolition of the appurtenant construction put up by the first respondent as per S. 296(2) of the Coimbatore Municipal Corporation Act.
That is how both the writ petitions came to be filed.
In the counter affidavit of the Stadium Committee the main stand taken was that though the agreements concerning the shops and the land were
admitted, it was not permissible on the part of the first respondent herein to put up construction. The Stadium Committee is not the owner of the
property. When the Government of Tamil Nadu has chosen to decide the ownership of the land which it could, the Stadium Committee cannot
oppose the same. The Stadium Committee is having the right of administration only. The only authority to decide as to who is to administer the
property viz. the vacant site is only the Government of Tamil Nadu.
In the counter affidavits filed by the Collector and the Municipal Corporation of Coimbatore, a specific stand was taken that the property did
not vest in the Stadium Committee at any point of time. Therefore it had no authority to lease. If ever the first respondent required any valid lease, it
must be had from the Corporation or the Government. The property vested with the Municipal Corporation under the Charitable Endowments
Act. Therefore the Government have rightly given the direction to the Municipal Corporation. The first respondent herein had no right to challenge
such a direction. Further the extent of 46 26 acres had been notified under Tamil Nadu Parks, Play fields and Openspaces (Preservation and
Regulations) Act, 1959. Therefore no one can commence any construction without the permission of the Government. Such a construction will be
opposed to the objects of the trust. Even if the District Collector had committed a mistake in his capacity as the President of Stadium Committee,
that cannot be taken as an action by the Government. Where the Collector had acted beyond his authority, the Government are not bound by the
same.
The learned single Judge came to the conclusion that since the Collector happened to be the President of the Stadium Committee and he was
also the Special Officer of the Corporation of Coimbatore, it was not open to him to take varying stands. Once the property had been notified
under the Charitable Endowments Act and when the Municipal Council had to act as a treasurer, it cannot claim ownership to the land. Even
Coimbatore City Municipal Corporation could not validly make any claim to this land. G.O.Ms. No. 730 R.D. & L.A. Department dated 14-4-
1976 not having been violated, there was no jurisdiction or any scope for passing the impugned order. In this view, the learned Judge allowed both
the writ petitions. Aggrieved by the same, the Commissioner, Coimbatore Municipal Corporation has preferred Writ Appeals Nos. 735 and 736
of 1988 whereas the Stadium Committee has preferred Writ Appeals Nos. 228 and 229 of 1989.
Mr. J. Kanakaraj, learned counsel for the Commissioner, Municipal Corporation, Coimbatore would first and foremost submit that the entire
scope of the case had been misunderstood hitherto. Here is a case where the Government wants to resume the property from the lessor of the first
respondent, viz. the Stadium Committee assuming without admitting that the Stadium is the owner of the property. The Stadium Committee states
that it has no objection to the resumption. Under those circumstances, what right the lessee from the Stadium Committee could have to question
the validity of the Government Order? As a matter of fact, the Stadium Committee is not the owner at all. Under the circumstances, where the title
of the Stadium Committee itself is in dispute and the Government have come to the conclusion that the Stadium Committee is not the owner and
directed resumption of the property from the lessee, it is not open to the first respondent herein to say that the Government cannot resume. As long
as there is no privity of contract between the first respondent (sic) may be by the resumption proceedings, the first respondent is directly affected.
But that is far from saying that the first respondent can question the validity of the G.O. The Government Order, as was submitted earlier, merely
resumed the property from the rightful owner making it explicitly clear that the Stadium Committee is not the owner. Therefore the lessee cannot
come and say that the Government will have to lease the property in its favour and that it is precisely the effect of questioning the Government
Order.
The said Government Order itself is an interdepartmental communication. Such an inter-departmental communication directing resumption of
the land from the (sic) rightful? owner cannot be questioned by a person who has nothing to do with the resumption proceedings. If at all the lessee
could have any grievance against the Stadium Committee, that is entirely a different matter for which the forum under Art. 226 of the Constitution
of the India is not proper one. Lastly it is submitted that in any event the first respondent has no right to continue as on today because there is no
valid lease in favour of the first respondent concerning the vacant site. The original lease had come to an end by efflux of time. Therefore unless and
until the lease is renewed, no valid grievance can be projected. The learned Judge has merely proceeded on the basis that because the President of
the Stadium Committee and the Special Officer of the Corporation happen to be one and the same person viz. the Collector, he cannot take
varying stands. First of all the Stadium Committee is not the statutory authority. Secondly, as submitted earlier, that is not the owner of the
property. Thirdly, the Commissioner of the Coimbatore Municipal Corporation is a statutory authority functioning under the Coimbatore Municipal
Corporation Act. Therefore the two cannot be mixed and the Collector cannot be blamed for the same as though he took varying stands. Even
conceding that for a moment, that cannot prevent the Government which is the owner of the property to resume the land from the rightful owners.
The Government Order no doubt mentions reasons for the resumption, viz. the lease in favour of the first respondent herein and the violation of
the terms of G.O. Ms. No.730 R.D. & L.A. Department, dated 14-4-1976. On that score again it cannot be contended that the lease has been
validly given by the Stadium Committee and therefore the resumption cannot be done. On the contrary, unless and until it is established that the
Stadium Committee has the power to lease, the first respondent will have no case as to whatever.
Mr. S.M. Loganathan, learned counsel appearing for the appellants in W.A. Nos. 228 and 229 of 1989 adopts the argument of Mr.
Kanakaraj
The learned Government Pleader would submit that if the case had been appreciated in the proper perspective, much of the questions would
have been easily solved. All that the Government purported to do is that when the Stadium Committee had no authority to lease the vacant land,
the Government merely directed resumption of the property. It is not claimed by the Stadium Committee that the property belonged to that
Committee. In such an event, where the Stadium Committee had acted beyond its powers, resumption is justifiably warranted. It matters little what
exactly was the nature of the transaction between the Stadium Committee and the first respondent because the Government proceeded on the
fundamental basis, while issuing the Government Order that the Stadium Committee had no authority whatever. The Government also found
factually that there was a violation of Government Order Ms. No. 730 R.D. & L.A. Department, dated 14-4-1976. For these reasons, if
resumption is ordered and the Stadium Committee does not object to the resumption the first respondent can have no valid grievance to make.
In opposition to the above arguments, Mr. G. Subramaniam, learned counsel for the first respondent (the writ petitioner) would say that that it
is incorrect to argue that the writ petitioner is not affected by the Government Order, in fact it is directly affected by the Government Order
because it is the lease in favour of his client which comes to be terminated as far as the vacant site is concerned. If the effect of the Government
Order is that, then the first respondent has every right to question the same. In support of the said submission reliance is placed on the decisions
reported in Raja Ram Jaiswal Vs. State of Bihar, and Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and
Others, . On that basis it is argued that no doubt there is no privity of contract between the writ petitioner and the government. However, where
the government passes an order which has the effect of nullifying the valid right of the writ petitioner, viz. the first respondent herein, it can be
questioned under the writ jurisdiction of this court. When the property was leased in favour of his client, the first respondent herein, the Stadium
Committee held out that it had the ownership and everyone proceeded on that basis. The President of that Stadium Committee is no other than the
Collector of the District and it is the same Collector who happened to be the Special Officer of the Coimbatore Municipal Corporation. Having
leased out the property qua the President of the Stadium Committee, he cannot adopt a volte face attitude while playing the role of Special Officer
of the Coimbatore Municipal Corporation. This is precisely what the learned Judge has found and commented upon. Then again if the basis of the
Government Order is that the Stadium Committee has no authority to lease, that assumption is wrong. As a matter of fact, it has every authority to
do so, and believing on such a representation of the Stadium Committee, the first respondent has burnt the boats. Then again there is no violation
of G.O.Ms. No. 730 R.D. & L.A. Department dated 14-4-1976. Looked at from this point of view, there will no difficulty in upholding the
judgment of the learned single Judge.
Having regard to the factual controversy as to whether the Stadium Committee is the owner or not, which requires to be settled in the first
instance before we go into the terms of the impugned Government Order, we proceed to delineate the facts after providing the necessary
background.
In the year 1913, the Coronation Park Committee was formed to commemorate the Coronation of King George V. By G.O. Ms. No. 35,
Revenue, dated 4-1-1913, the Government sanctioned 8.09 acres of land in favour of the Coronation Park Committee, Coimbatore for the
purpose of a public Park and recreation ground. The Government Order reads as under:-
With the approval of the Government of India, the Government sanction the alienation, free of charge for the occupancy right and free of
assignment of 8.09 acres of land in the village of Anupparapalayam in the Coimbatore District forming part of the land known as ''Deer Park'' in
favour of Coronation Park Committee for the purpose of a public park and recreation ground.
The grant will be subject to the following conditions:�
(i) The land shall be used for the purpose of a public park and recreation ground.
(ii) If the land is not used at any time or ceased to be used for the purpose for which it is granted, the Government may resume it; and
(iii) In the event of such resumption or in the even of the compulsory acquisition of the land by Government for any purpose, the compensation
payable therefor shall not exceed the initial cost or the value at the time of resumption or acquisition which ever shall be the less, of any
improvements executed on the land by the Coronation Park Committee.
By G.O.Ms. No. 273 Revenue Department dated 1-12-1915 the Government sanctioned the exemption from payment of assessment of 38.17
acres of land in Anupparpalayam village, Coimbatore District forming part of the Coronation Park and recreation ground and the exemption was
under the following conditions:-
The land shall be used as a public park and recreation ground.
If the land is not used or at any time ceased to be so used, the Government may revoke the exemption and imposed full assessment on the land.
By G.O.Ms. No. 1462 dated 5-10-1917. The Coronation Park vested with the Treasurer of Charitable Endowments as per S. 6(1) of the
Charitable Endowments Act of 1890. Thereafter by Notification No. 1246 dated 13-11-1917 the vesting published in the gazette. It is stated
therein that since the District Board of Coimbatore under whose management ""the Coronation Park� it Coimbatore now is, has under S. 6(i) of
the Charitable Endowments Act, 1890 made an application for the vesting in the Treasurers of Charitable Endowments, Madras, of the property
known as ''The Coronation Park'' at Coimbatore, comprising of the lands described in the schedule annexed thereto, the Governor in Council, in
exercise of his powers under S. 4(1) of the Act, directed the said property to be vested in the Treasurer of Charitable Endowments upon trust for
the purpose and subject to the conditions set forth in a scheme under S. 5 of the Act for the Administration of the Trust. In the Scheme that is
appended to the Notification, it is stated that ""whereas the District Board of Coimbatore under whose management ''the Coronation Park'' at
Coimbatore now is, has under S. 6(1) of the Charitable Endowments Act, 1890 made an application for the settlement of a scheme for the
administration for the said property, the Governor in Council in exercise of his powers under S. 5(1) of the Act hereby directs that the said
property shall be administered by the District Board of Coimbatore."" On 12-12-1940 the Scheme was modified and the administration was
entrusted to the Municipal Council of Coimbatore. The Notification was published in the Government Gazette dated 17-12-1940.
By G.O.Ms. No. 1680, Education dated 27-6-1962, the Government approved the proposal of the Madras State Sports Council to establish
coaching centres for men and women in four districts including Coimbatore. The Collector of the District shall be the President of the Council and
the Vice President will be the Deputy Superintendent of Police. The official member will be the District Educational Officer other than the one
appointed as General Secretary or the Head Quarters Municipal Commissioner. The District Educational Officer at Headquarters shall be the
General Secretary and Treasurer. The Council will also have non-official members. The Council shall be an executive body affiliated with the State
Sports Council.
On 28-2-1947 the Coimbatore Municipal Council passed a resolution proposing bye-laws for the functioning of the Stadium Committee. The
Government acting on the same sanctioned a sum of Rs. 5,00,000 for the construction of the Stadium. This was under G.O.Ms. No. 1987 dated
15-10-1969. Then again resolution No. 1660 was passed allotting an extent of 6.27 acres of land to the Stadium Committee for the construction
of the Stadium. By G.O.Ms. No. 2215 Education Department, dated 24-12-1971, the Government permitted the District Sports Council,
Coimbatore to construct a Stadium at Coimbatore at a cost not exceeding Rs.25,00,00. Thereafter G.O.Ms. No. 502 R.D. & L.A. Department
dated 20-3-1973 came to be passed in and by which the Government of Tamil Nadu under S. 310(1) of the Tamil Nadu District Municipalities
Act, 1920 approved and confirmed the bye-laws framed by the Coimbatore Municipal Council in its resolution No. 1429 dated 28-2-1987 for
construction, administration and maintenance of the Stadium at V.O.C. Park, Coimbatore. Inter alia the bye-laws mentioned about the vesting of
the property and by law 14 which is very important for our purpose reads as follows:-
All the properties shall vest in the Municipal Council, Coimbatore but the management of the affairs of the stadium shall be by the Stadium
Committee and the same shall be carried on in accordance with these bye-laws.
From the above it is clear that the, vesting was with the then Municipal Council, Coimbatore and the Stadium Committee had the power only to
manage the affairs of the stadium, and such affairs had to be conducted in accordance with the provisions of the bye-laws. By G.O.Ms.1845, R.D.
& L.A. Department dated 7-9-1973, the Government permitted the Coimbatore Municipal Council to advance a sum of Rs. 9,00,000 to the
District Sports Council, Coimbatore as loan on simple interest at 8 per cent per annum for completion of work connected with the construction of
Stadium in V.O.C. Park, Coimbatore. Then G.O.Ms. No. 2215 Education dated 24-12-1971 was passed reconstituting the Committee as
Stadium subcommittee. By this G.O. the Government authorised the District Sports Council itself to function as the Stadium Management
Committee and to look after the functions like collection of rent, supervision and utilisation of the facilities available in the Stadium. One other
provision was for the creation of a separate ''Stadium Sub-Committee'' with the Collector as its President. The object of constituting the Stadium
Committee was to look after the administration, maintenance and periodical control of the activities in the stadium.
Thus at no point of time the property came to be vested with the Stadium Committee. It was under these circumstances, when the Government
came to know that the lease had been granted in favour of the first respondent, it issued the impugned Government Order. As we observed above,
we are concerned only with the lease of the vacant land in front of shop Nos. 54 to 58. In the impugned G.O.R.D. No. 499 dated 17-4-1986 it is
clearly stated that since the V.O.C. Park belongs to the Coimbatore Municipal Corporation which Corporation is the successor-in-interest to the
Coimbatore Municipal Council, without the sanction of the Government, the leasing of the open space in favour of the first respondent herein is
clearly without authority. Further it is in contravention of G.O.Ms. No. 730 R.D. & L.A. Department dated 14-4-1976 which in paragraph 3(2)(a)
bans the sanction of long lease, exceeding three years, in respect of the general public It was under these circumstances, the Government directed
the resumption of the land and after resumption of the property, the property be handed over to the Coimbatore Municipal Corporation. If the
above proceedings clearly point out as to how the property came to be vested with the Coimbatore Municipal Corporation and as per bye-law
(14) which we have extracted above the Stadium Committee was merely to supervise the property, it cannot by any stretch of imagination be
contended that the Stadium Committee had the power to lease out the property to the first respondent herein. The fact that the Collector of the
District happens to be the President of the Stadium Committee which itself came to be constituted only by an administrative order of the
Government, will not confer authority to grant such a lease because while acting as Special Officer of the Coimbatore Municipal Corporation, he
acts as the statutory authority. Therefore it cannot be contended that the Municipal Corporation has granted the lease. As a matter of fact, we did
not hear Mr. G. Subramaniam advancing such an argument. All that he endeavored to say was that because the head of the Stadium Committee
and the head of the Corporation, viz. the Special Officer, happens to be one and the same person, viz. the Collector, the Collector cannot take
different stands. This approach to our mind is not legal. It is not uncommon in administrative parlance that one and the same person exercises
different functions in different capacities. The fact that the President of the Stadium Committee and the Special Officer of the Corporation happen
to be one and the same person cannot confer any power on the Stadium Committee to lease out the property in favour of the first respondent. This
is where we are unable to support the reasoning of the learned single judge.
Now coming to the argument of Mr. Kanakaraj, we find that the impugned G.O. merely attempts to set right an illegality committee by the
Stadium Committee in granting the lease and directing resumption on two very valid grounds. After resumption the property will stand restored to
the Municipal Corporation of Coimbatore. If the Standing Committee has no power to lease, certainly the Government will be well within its
powers to direct resumption and hand over the same to the Municipal Corporation of Coimbatore. We have already extracted the relevant part of
G.O.Ms. No. 730 dated 14-4-1976. Therefore there is a clear violation of the said G.O. Where therefore the writ petitioner, namely, the first
respondent herein had obtained a lease from a body which had no authority or right over to the property and which had come to be vested long
back with the then Coimbatore Municipal Council, its successor-in-interest being the appellant in W.A. Nos. 735 and 736 of 1988, namely, the
Coimbatore Municipal Corporation, the first respondent cannot contend before us that the impugned Government Order is bad. When we say so,
we are not obvious to the development of modern case law enlarging the jurisdiction under Art. 226 of the Constitution making it available to any
person as was pointed out in the decisions reported in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , and Shri K.
Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others, But where the Stadium Committee without the authority of
law had leased the lands to the third respondent and in the resumption proceedings taken by the Government the Stadium Committee takes up the
stand that it has no authority and therefore it has no objection to the resumption being ordered, how could the lessee from a person who had no
right over the property come and question the validity of the Government Order. That is the crux of the matter. We are not saying that the writ
petition is not maintainable. The question is against whom the writ petitioner could have grievance. As a matter of fact the writ petitioner, viz., the
first respondent is in an unenviable position. It is not open to the first respondent to say having regard to S. 115 of the Evidence Act that its lessor,
namely, the Stadium Committee has no title. Equally it cannot say that though the property had vested with the Coimbatore Municipal Corporation,
because the Special Officer happens to be the Collector, that grievance could be projected against the Corporation.
In this connection we can usefully quote the relevant provisions of S. 3 of the Coimbatore City Municipal Corporation Act, 1981. The section
reads as under :
S. 3 : The Municipal authorities and their incorporation�
(1) There shall be a corporation charged with the municipal government of the city of Coimbatore to be known as the municipal corporation of
Coimbatore.
(2) The corporation shall, by the said name, be a body corporate, shall have perpetual succession and a common seal and subject to any
restrictions or qualifications imposed by this Act or any other enactment, shall be vested with the capacity of suing or being sued in its corporate
name, of acquiring, holding or transferring property movable or immovable, or entering into contracts and of doing all things necessary for the
purpose of its constitution,
(3) For the efficient performance of the functions of the corporation, there shall be the following municipal authorities of the Corporation, namely,
(a) a council,
(b) Standing committees, and (c) a Commissioner
If therefore the Municipal Corporation of Coimbatore is a body corporate having a perpetual succession and a common seal, it does not
matter who the Special Officer is, even though he happens to be the District Collector. Thus we find that by no stretch of imagination can the first
respondent in these appeals, viz. the writ petitioner, be heard to contend that it could support the title of the Stadium Committee and on that basis
attack the validity of the Government Order. This exactly is what we are endeavoring to point out by saying that while its grievance could be
against the Stadium Committee, it cannot question an interdepartmental communication with regard to resumption when the Stadium Committee
which had leased the property in favour of the first respondent has no objection to the resumption proceedings.
More than all that, as on today, no document is produced before us to show that there is a valid renewed lease in favour of the first respondent
concerning the site in question. If that be so, even from this point of view, the 1st respondent can have no case. For all these reasons we allow the
writ appeals, set aside the order of the learned Judge and dismiss the writ petitions. There will be no order as to costs in these appeals.