COMMON ORDER

1. One of the reminiscences of the colonial past, still standing as an archaeological monument in the heart of Chennai, is the Victoria Public Hall, off Poonamallee High Road near Central Railway Station. History shows that in a public meeting of the inhabitants of Madras, convened by the Sheriff of Madras, at Pachayappas Hall, it was resolved on 17.3.1882 to erect a town hall for the use and benefit of the public. For the said purpose, the public were invited to subscribe to a fund already opened with M/s.Arbuthnot & Co. (which itself later plunged into litigation). Several citizens of Madras contributed various amounts and an influential Committee of the citizens of Madras was constituted to carry out the project of construction of a Town Hall. The Committee held negotiations with the then Municipal Commissioners for the Town of Madras, as a result of which, the Corporation passed resolutions dated 21.2.1883, 3.9.1884 and 24.9.1885, allotting land of an extent of about 57 grounds on a 99 year lease, on a rent of 8 annas per ground per annum. The allotment was in favour of the Committee. The lease was renewable on the expiry of the original period.

2. On 18.2.1888, a Deed of Trust was drawn up, to which the principal subscribers to the building fund of the Town Hall, were the parties of the first part and the Committee of persons constituted to carry out the project of construction of Town Hall were the parties of the second part. The original body of 12 Trustees constituted to handle the subscriptions, were included as parties of the third part. It was resolved under the said Deed of Trust that (i) the site leased out by the Municipal Commissioners (ii) the building as and when completed and (iii) the amounts collected, would all vest in the Board of Trustees. It was also provided in the Deed of Trust that the Town Hall constructed on the site, would be named as "Victoria Public Hall".

3. In 1889, the Rajah of Vizianagaram advanced a huge sum of money on a mortgage over the Victoria Public Hall on condition that if he was vested with nominating powers, he would forego the entire mortgage debt due to him. Therefore, the then Advocate General of Madras moved a suit in C.S.No.223 of 1905 on the file of this Court, seeking leave to amend the Deed of Trust, so as to provide for the appointment of a 13th Trustee by the Rajah Sahib of Vizianagaram and his successors. By a judgment and decree dated 9.1.1906, this Court was pleased to modify the Deed of Trust by framing a scheme and making a provision regarding the nomination of a 13th Trustee by the Rajah of Vizianagaram.

4. The scheme decree framed in C.S.No.223 of 1905 was modified by another judgment and decree dated 13.12.1921, passed in C.S. No.263 of 1921, at the instance of the then Advocate General. By the said decree, the number of Trustees was prescribed as 12 and they were to be residents of the locality. The decree also stipulated that two of the Trustees shall always be drawn from the European

Community, two from Eurasian (Anglo Indian) Community, two from Hindu Community and two from the Mohammedan Community.

5. After about 32 years of the framing of the scheme by this Court in C.S.No.263 of 1921, an application was moved by the Trustees in A. No.918 of 1953 on the file of this Court, seeking permission of this Court to hand over the Hall to the Corporation of Madras. In the said application, the then Advocate General of Madras as well as some concerned citizens of the City intervened, raising objections to the very maintainability of such an application. By an order dated 24.4.1953, this Court dismissed the said application as not maintainable and referred the Trustees to seek redressal in appropriate proceedings under Section 92 CPC.

6. However, 4 persons by name K.Ranga Prasad (a pensioner), V.Srinivasan (an Advocate), T.S.Kumaraswami Mudaliar (a merchant) and Syed Hussain, joined together and instituted a suit in C.S.No.98 of 1957, after obtaining the consent of the then Advocate General of Madras Mr. V.K.Thiruvenkatachari, under Section 92 CPC, complaining that after the dismissal of the application A.No.918 of 1953, a truncated board of trustees surrendered possession of the premises to the Corporation of Madras, by creating circumstances enabling the Corporation to invoke the penal provisions of the original Lease Deed and gain re-entry. The prayers in the said scheme suit were as follows:-

(i) Declaring that the Trustees have ceased to be Trustees and they be removed as such from their offices;

(ii) that an account be taken and such of them as may be found to be in funds of the Trust Office or any income belonging thereto may be directed to pay back the same with interest thereon;

(iii) that the collusive handing over of the Victoria Public Hall to Corporation of Madras be declared to be null and void; and

(iv) that a proper and appropriate scheme may be framed by this Court for the purpose of effectuating the terms of the original Trust Deed and the scheme decree and providing adequate safeguards for the perpetual good management of the Victoria Public Hall;

7. In the above suit, the Trustees of Victoria Public Hall were cited as the first defendant and the Advocate General was cited as the second defendant. The Corporation of Madras was the third defendant. It appears from the judgment and decree dated 15.9.1961 passed in the said suit C.S.No.98 of 1957 that the first defendant viz., the Trustees of Victoria Public Hall as well as the second defendant Advocate General remained absent. Therefore, the first defendant was set ex parte. But the plaintiffs and the third defendant viz., the Corporation of Chennai entered into a Memorandum of Compromise. On the basis of the said Memorandum, a scheme was framed by this Court. Under the scheme, a new Board of Trustees was constituted, comprising of (i) the Sheriff of Madras as its Chairman (ii) the Mayor of Madras (iii) a nominee of the Southern India Chamber of Commerce (iv) a nominee of the Andhra Chamber of Commerce (v) a nominee of the Madras State Sangeeth Nataka Sangam (vi) a nominee of Rajah of Vizianagaram (vii) the President of Madras Advocates Association (viii) one non-official representative selected by High Court Madras and (ix) the Commissioner of the Corporation of Madras as the Secretary.

8. It was also recorded in the Memorandum of Compromise entered into between the plaintiffs in C.S.No.98 of 1957 and the Corporation of Madras that the Corporation had taken over possession of the Hall on account of the lease amounts not being paid and on account of the building not being maintained properly. It was further recorded therein that the Corporation had invested a sum of Rs.88,616.99 for renovating the Hall and making it fit and proper for use. Therefore, it was agreed in the said Memo of Compromise that the newly appointed Board of Trustees would pay a sum of Rs.19,861.89, being the accumulation of rent, in part payment of the expenses incurred by the Corporation for renovation and that the Trustees would also keep paying the entire proceeds of the Trust from this property, month by month towards payment of the expenses incurred by the Corporation till it was fully paid.

9. It appears that thereafter, the Board of Trustees agreed by an Agreement of Lease dated 11.7.1963 to sub-lease a portion of the property to one N.D.Gupta. But the building plan submitted by the Lessee N.D.Gupta was rejected by the Corporation on 30.4.1964 and the same was set aside by the Government later. Thereafter, the Corporation granted building permit on 29.12.1965 and the sub- Lessee put up a building, which was assigned Door No.1132.

10. Subsequently, in pursuance of a resolution passed on 27.5.1968, the Joint Secretary and Treasurer of the Victoria Public Hall executed a Deed of Lease on 17.6.1968 in favour of N.D.Gupta, granting a sublease of the land of an extent of 13 grounds and 1720 sq. ft.,with permission to the sub-Lessee to put up a one storeyed building including a mezzanine floor, as approved by the Trust Board. It was made clear in Clause 2 of the Deed of Lease that the sub-Lessee shall put up the one storeyed building at his own costs as per the plan approved by the Trust Board in conformity with architectural design of the main building and equip the same for the purpose of running a cafeteria. Under Clause 4, the sub-Lease was for a period of 18 years commencing from 1.4.1968. Under Clause 5, the sub-Lease was renewable at the option of the sub-Lessee for a further period of 22 years subject to certain conditions. Under Clause 6, the sub-Lessee was obliged, after the expiry of the period of sub-lease, to surrender possession of the property with all the superstructures standing thereon without claiming any compensation.

11. The Corporation filed a suit in C.S.No.2083 of 1968 on the file of the City Civil Court, challenging the sub-lease granted by the Board of Trustees in favour of N.D.Gupta. The Corporation also rejected an application for the grant of a license to run a hotel in the premises. But the refusal of the Corporation to grant a license to run a hotel was set aside in a writ petition in W.P.No.752 of 1969 by order dated 21.4.1969.

12. The suit O.S.No.2083 of 1968 filed by the Corporation challenging the sub-lease granted by the Board of Trustees in favour of N.D. Gupta was dismissed by the City Civil Court, upholding the power of the Trustees both under the scheme decrees and under Section 108 (j) of the Transfer of Property Act. Though the first appeal filed by the Corporation was allowed in their favour, the second appeals in S.A.Nos.1350 of 1970 and 1262 of 1971 filed respectively by N.D.Gupta and the Board of Trustees were allowed by this Court by a judgment and decree dated 23.11.1972.

13. Thereafter, the aforesaid Deed of Lease dated 17.6.1968 executed by the Board of Trustees in favour of N.D.Gupta underwent a modification by another Lease Deed dated 12.10.1973. By this deed dated 12-10-1973, the period of lease was stipulated as upto 30-9-2028 (period of 55 years). All modifications said to have been made under this Deed, were completely lopsided and loaded in favour of the sub-Lessee.

14. In pursuance of the modified Lease Deed, the sub-Lessee applied for permission to put up a multi storeyed hotel complex cum lodging house in the leased premises. The Corporation rejected the application for planning permit, but the said decision was set aside in W.P. No.4367 of 1975 and the matter remitted back to the Corporation. Again the Corporation rejected the application and the said decision was once again set aside by this Court in W.P.No.390 of 1978 by an order dated 21.3.1980. The appeal filed by the Corporation in W.A.No.129 of 1980 was dismissed by the Division Bench and the same was also confirmed by the Apex Court in SLP (Civil) No.4375 of 1980.

15. Thereafter, the Government issued G.O.Ms.No.985 dated 16.11.1981, permitting the sub-Lessee to put up a multi storeyed building comprising of ground plus 3 floors. In pursuance of the same, he constructed a building and the same was assigned Door No.1132/1.

16. On 6.10.1984, the Board of Trustees issued a notice to the Corporation, seeking extension of the lease of the entire extent of land of 57 grounds. It may be recalled that by virtue of the resolutions passed on 21.2.1883, 3.9.1884 and 24.9.1885 and by virtue of the earliest Deed of Lease dated 18.2.1888, it was the Municipal Commissioner who granted a lease of the land of an extent of 57 grounds to the Victoria Public Hall Trust, for a period of 99 years, with effect from 1.4.1886. Therefore, the lease was coming to an end by 31.3.1985. Hence the notice dated 6-10-1984 by the Trust seeking renewal of the lease for a further term.

17. Since the Corporation did not respond to the request for extension of lease, for another 99 years, the Board of Trustees filed a suit in O.S.No.1349 of 1985. The suit was decreed on 7.4.1993, granting a declaration that the Trust was entitled to have the lease extended by another 99 years on the same terms and conditions as contained in the original Lease Deed dated 18.2.1888. The first appeal filed by the Corporation in A.S.No.334 of 1993 was dismissed on 31.8.1995 and the second appeal filed by them in S.A.No.144 of 1997 was dismissed by this Court for non-prosecution on 7.11.2001.

18. Thereafter, the Board of Trustees passed a resolution on 11.3.2009, renouncing and dissolving the Trust and resolving to surrender all the properties to the Corporation. The resolution also authorised the then Additional Advocate General to approach this Court for the grant of leave.

19. Thereafter, the Board of Trustees entered into a Memorandum of Compromise with the Corporation on 15.7.2009. As per the terms of the compromise, the Trust handed over all the properties to the Corporation and gave up their claim for extension of lease.

20. Subsequently, the Corporation got the second appeal S.A. No.144 of 1997 restored to file (it had earlier been dismissed for non-prosecution on 7.11.2001). After restoration, the Trustees as well as the Corporation filed the Memo of Compromise dated 15.7.2009 into Court and got the second appeal disposed of in terms of the said Memo of Compromise, by a judgment and decree dated 21.8.2009.

21. Thereafter, the Corporation issued proceedings dated 28.8.2009, directing the sub lessees (the legal heirs as well as the companies floated by N.D.Gupta) to vacate the property and hand over vacant possession. These notices were challenged in W.P.Nos.18531 to 18533 of 2009 and interim orders were also granted in favour of the writ petitioners.

22. The Corporation also issued several notices of demolition dated 29.9.2009 and the same became the subject matter of challenge in W.P. Nos.21519 to 21525 of 2009. Even in these writ petitions, an interim order of status quo was granted in favour of the writ petitioners.

23. In the meantime, upon coming to know of the resolutions passed by the Board of Trustees on 11.3.2009, renouncing and dissolving the Trust and handing over the properties to the Corporation, two persons by name Rajendra Gupta and Ashoka Gupta, who are the sons of late N.D. Gupta, took out two applications in A.Nos.1930 and 1931 of 2009 in the scheme suit in C.S.No.98 of 1957. The prayer in the former application was for reconstitution of the Board of Trustees of the Victoria Public Hall Trust and the prayer in the latter was for re-vesting the properties back to the Trust from the Corporation.

24. Since the prayers made in A.Nos.1930 and 1931 of 2009 filed in the scheme suit C.S.No.98 of 1957 are in the nature of final reliefs, the applicants have also taken out one more application in O.A.No.421 of 2009, seeking an interim order of injunction restraining the Board of Trustees as well as the Corporation from interfering with their leasehold rights as sub lessees in the property.

25. During the pendency of the above 3 applications viz., O.A.No. 421 of 2009 and A.Nos.1930 and 1931 of 2009 in the scheme suit C.S.No. 98 of 1957, two civil suits have also come to be instituted. They are C.S. Nos.1036 and 1037 of 2009.

26. C.S.No.1036 of 2009 has been filed by (i) Sanjay Gupta, son of late N.D.Gupta and (ii) Picnic Park Hotels Pvt. Ltd., against (i) Corporation of Chennai and (ii) Victoria Public Hall Trust. The reliefs sought in this suit are:-

(i) Declaring that the Deed of Lease executed by the second defendant in favour of the plaintiff on 12.10.1973 is valid till 30.9.2028 and is binding on the first defendant;

(ii) Declaring that the resolution dated 11.3.2009 passed by the second defendant trust surrendering all its properties to the first defendant, including the schedule mentioned property, is null and void and not binding on the plaintiffs;

(iii) Declaring that the Memorandum of Compromise dated 15.7.2009 entered into between the defendants 1 and 2 and filed in S.A.No.144 of 1997 on the file of this Court, is null and void and not binding on the plaintiffs;

(iv) Granting a decree of permanent injunction, restraining the defendants from in any manner interfering with the plaintiffs right of peaceful possession and enjoyment of the schedule mentioned property as sub-lessees under the second defendant, pursuant to the Scheme Decrees framed by this Court in C.S.No.263 of 1921 and C.S. No.98 of 1957.

27. C.S.No.1037 of 2009 has been filed by (i) Rajendra Gupta, (ii) Asoka Gupta, both sons of late N.D.Gupta and (iii) Picnic Hotels Pvt. Ltd., against (i) Corporation of Chennai and (ii) Victoria Public Hall Trust. The reliefs sought in this suit are:-

(i) Declaring that the resolution dated 11.3.2009 passed by the second defendant Trust surrendering all its properties to the first defendant, including the schedule mentioned property, is null and void and not binding on the plaintiffs;

(ii) Declaring that the Memorandum of Compromise dated 15.7.2009 entered into between the defendants 1 and 2 and filed in S.A.No.144 of 1997 on the file of this Court, is null and void and not binding on the plaintiffs;

(iii) Granting a decree of permanent injunction, restraining the defendants from in any manner interfering with the plaintiffs right of peaceful possession and enjoyment of the schedule mentioned property as sub-lessees under the second defendant, pursuant to the Scheme Decrees framed by this Court in C.S.No.263 of 1921 and C.S. No.98 of 1957.

28. Pending disposal of the suits C.S.Nos.1036 and 1037 of 2009, the plaintiffs seek interim orders in O.A.Nos.1201 and 1202 of 2009 respectively. The interim orders sought are, for an injunction restraining the defendants from interfering with the plaintiffs right to peaceful possession and enjoyment of the property leased out by the Victoria Public Hall Trust in favour of late N.D.Gupta.

29. Thus, I have on hand, 5 applications, out of which 3 arise out of the scheme suit in C.S.No.98 of 1957 and 2 arise out of two fresh suits. But (i) the parties to all the applications (ii) the cause of action and (iii) the property forming the subject matter of all of them, are one and the same. Therefore, all the applications were taken up together and I have heard Mr. T.R.Rajagopalan, learned Senior Counsel appearing for the plaintiffs in C.S.Nos.1036 and 1037 of 2009, Mr.Satish Parasaran, learned counsel appearing for the applicants in A.Nos.1930 and 1931 of 2009 and O.A.No.421 of 2009 and Mr.P.S.Raman, learned Advocate General, appearing for the Corporation of Chennai.

30. In view of the fact that all the 3 applications filed in the scheme suit C.S.No.98 of 1957 seek to project an interest in the public trust and in view of the fact that the other two suits viz., C.S.Nos. 1036 and 1037 of 2009 seek to subserve private interests of the sub-lessees of a Trust property, let me first take up for disposal, the applications filed in the scheme suit.

A.Nos.1930 and 1931 of 2009 and O.A.No.421 of 2009:

31. As stated earlier, the prayer in A.No.1930 of 2009 is for reconstitution of the Board of Trustees and the prayer in A.No.1931 of 2009 is for re-vesting the properties back to the Trust. The prayer in O.A. No.421 of 2009 is only for an interlocutory order and hence its outcome is linked to the applications for injunction in the other two suits. Therefore, let me first deal with A.Nos.1930 and 1931 of 2009.

32. Mr.Rajendra Gupta, who has sworn to the affidavits in support of both these applications, has stated that he is the Managing Director and the other applicant is a Director in a company by name Picnic Hotels Pvt. Ltd. Both of them are the sons of late N.D.Gupta.

33. From paragraphs 1 to 7 of the affidavits in support of these applications, the deponent has narrated the sequence of events that led to the conferment of leasehold rights in favour of his father and the right that the sub-lessees have till 31.3.2028 by virtue of a modified Lease Deed dated 12.10.1973. In other words, paragraphs 1 to 7 project the personal interests that the applicants have, in the property of a Public Charitable Trust, in respect of which this Court had framed a scheme decree. In paragraph 8, the deponent has stated as to how he came to know about the surrender of the property by the Trust to the Corporation. In paragraph 9, the deponent has extracted a legal opinion tendered by a senior member of the Bar on 4.2.1965 as to whether the property could be surrendered by the Trust to the Corporation or not. In paragraphs 10 and 11, the applicants have assailed as invalid and as an act of breach of trust, the action of the Board of Trustees in surrendering the property to the Corporation.

34. Thus in the affidavit in entirety, the applicants have projected only their personal interests, out and out. They have not even made a formal statement, for whatever it was worth, that they are interested in the management and administration of the Trust or that they subscribe to the objects for which the Trust was created and schemes framed by this Court. Therefore, it is necessary to see at the outset, as to whether the applications are maintainable in law.

35. It is needless to point out that to invoke the jurisdiction of this Court under any of the clauses in sub-section (1) of Section 92 CPC, the following conditions are to be satisfied:-

(i) Either there is an allegation of breach of any express or constructive trust created for public purposes of a charitable or religious nature or alternatively the direction of the Court is deemed necessary for the administration of the Trust.

(ii) Persons moving the Court must have an interest in the Trust and

(iii) Such persons must have obtained the leave of the Court.

36. At the outset, the applicants herein are not persons having an interest in the Trust. They are persons having an interest in the property of the Trust, by virtue of being sub-lessees. Even in the affidavits in support of the above applications, the applicants do not claim to be persons having an interest in the Trust. Therefore, the second requirement stated above, is not satisfied.

37. The applicants have not taken recourse to section 92, CPC. If they had applied for leave under Section 92, they would have been called upon to establish that they are persons interested in the Trust. Therefore, the applicants have cleverly short circuited the matter by taking out interlocutory applications in the suit, in which this court framed a scheme earlier. In other words, the applicants seek to achieve indirectly, what they could not have achieved directly.

38. In order to buttress his contention that the applications are maintainable in law, the learned Senior Counsel for the applicants relied upon the following decisions:-

(i) Venkatanarasimha Rao vs. Subba Rao {AIR 1923 Mad. 376 [LQ/MadHC/1922/245] }

(ii) Ramaswami Chettiar vs. Karumuthu Sivalingam {AIR 1957 Mad. 597 [LQ/MadHC/1957/41] }.

(iii) Suraj Narain vs. Mangilal {AIR 1972 Raj. 172 [LQ/RajHC/1972/13] }

39. In Venkatanarasimha Rao, the suit was instituted with the sanction of the Advocate General under Section 92 CPC, by 3 persons claiming to be members and trustees of a Hindu Samaj, for carrying out the Trust contained in the Will of the Rajah of Rajahmundry. The three Executors named under the Will declined office and it was contended that the defendant could not be sued, as he was not a Trustee. It is in such circumstances that Spencer, J., speaking for the Division Bench held that the person who is the heir at law and in possession of the property which is impressed with the character of Trust property, has an interest in and is a proper party to such suit. Therefore, the said decision related to a case where the locus of the person who was sued was in question, but the locus of the person who sued, was not in question. It was no where near the point as to whether a person in possession of a Trust property as a sub-lessee and whose only interest is in retaining the Trust property to himself than in salvaging the Trust itself, is a person interested in the Trust or not.

40. The decision in Ramaswami Chettiar {AIR 1957 Mad. 597 [LQ/MadHC/1957/41] }, comes some where close to the point raised in these applications. It was a case where 5 persons instituted a suit on the file of the Sub Court of Sivaganga after obtaining the consent of the Advocate General under Section 92 CPC, as persons interested in an Annadhana Chattiram established in Rameswaram. One Sivalingam Chettiar filed an application under Order I, Rule 10, CPC, seeking to get impleaded as a co-plaintiff on the ground that he was a prominent citizen of the locality and also an honorary Magistrate and that as a man interested in the proper management of the Trust, he could also effectively prosecute the suit. But his application was opposed on the ground that he was not motivated by any interest in the welfare of the Trust, but motivated by a selfish desire to make a profit out of it. The said opposition was raised in view of the fact that the proposed party had obtained a lease of a Trust property in an auction held by a Commissioner of Court. Therefore, the impleading application was opposed on the ground that the proposed partys interest was only on the property. Rejecting the said objection, Panchapakesa Ayyar, J., held that the proposed party will be a person interested in the proper management of the Trust, even if it were only for the safety of his own lease. But the said decision cannot go to the rescue of the applicants, in view of the fact that it arose out of a revision petition challenging the order of the lower Court allowing the application for impleadment. There were 5 plaintiffs in the suit in that case, who had instituted the suit after obtaining sanction from the Advocate General under Section 92 CPC. The objection to the application for impleadment of the Lessee as a co-plaintiff, came not from the plaintiffs, but from the first defendant. Therefore, there is a vital distinction between the decision in Ramaswami Chettiar and the case on hand. It is one thing to say that a Lessee can also be impleaded as a co-plaintiff in a suit instituted by two or more persons recognised as having an interest in the Trust, than to say that such a Lessee can do all by himself, what the persons interested in the Trust could do.

41. In any case, the above decision (in Ramaswami Chettiar) may not be any avail to the applicants any more, in view of the decision of the Apex court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner {2004 (3) SCC 137 [LQ/SC/2004/107] }. In that case, the tenants in respect of a property belonging to a Trust by name Shaneshwar Deosthan Trust, filed a civil suit, praying for a declaration that they are the tenants of those properties and for a permanent injunction restraining the Trustees from interfering with their possession and their right to carry on business in the shops. The plaint was rejected by the trial Court under Order VII, Rule 11, CPC, on the ground that under Section 80 of the Bombay Public Trusts Act, 1950, the Civil Court had no jurisdiction. The District Court confirmed the same on a regular appeal and the second appeal filed before the High Court of Bombay, was also dismissed. Though the appeal filed by the tenants was allowed by the Supreme Court, on the ground that the Civil Court had jurisdiction to adjudicate the reliefs claimed in clauses (A), (B) and (C) of the plaint, the Supreme Court held that the relief prayed in para (D), was not maintainable. The relief prayed for by the plaintiffs in clause (D) of the prayer portion of the plaint was to direct the Assistant Charity Commissioner to enquire into the illegal acts committed by the Trustees and to issue appropriate directions. In other words, the prayer made in clause (D) was similar to the reliefs that could be sought in a suit under Section 92 CPC, by persons having an interest in the Trust. Consequently, the suit was maintainable only if it satisfied the requirements of Section 50 of the Bombay Public Trusts Act, 1950. Section 50 of the said Act, is more elaborate than Section 92 CPC. But all the essential ingredients of Section 92 CPC are found in Section 50 of the Bombay Public Trusts Act, 1950. The said Section also requires "two or more persons having an interest". In the light of the said requirement of section 50 of the Bombay Public Trusts Act, 1950, the Supreme court held in para 22 of the said decision that the prayer in para (D) of the plaint was not maintainable, in as much as a tenant of the Trust does not fall within the category of a person having an interest in the Trust. Therefore, the decision in Ramaswami Chettiar {AIR 1957 Mad. 597 [LQ/MadHC/1957/41] } is of no avail to the applicants.

42. In Suraj Narain, a Division Bench of the Rajasthan High Court was concerned with a case where a suit was instituted under Section 92, with the sanction of the Advocate General of Rajasthan by 3 persons. The prayer in the suit was for the removal of defendants 1, 3 and 4 from trusteeship and for the cancellation of a gift deed executed by the first defendant in favour of the second defendant. When the locus standi of the plaintiffs was questioned, the Division Bench ruled in favour of the plaintiffs on the ground that they were taking serious efforts to preserve and protect the property and that they themselves were deriving benefit out of the property by using the same. But this decision cannot also advance the cause of the applicants, since the Trust involved in the said case comprised of a "bagichi" (orchard) with a Dharamsala, a well and a chhatri. It was found by the Court that devotees used to take bath in the well and worship the idol of Mahadeoji installed in the chhatri. The usage of a well and a temple by a devotee, is completely different from the usage of a Trust property by a person exploiting it for commercial purposes. While the plaintiff in the case before the Rajasthan High Court was a devotee using the well and the temple, the applicants herein are persons who are commercially exploiting the property of the Trust. Therefore, the said decision cannot advance the cause of the applicants.

43. As a matter of fact, the Courts have considered even third parties as "persons interested in the Trust", if they establish that the subservience of their private interest, would eventually lead to the subservience of the interest of the Trust also. For instance, when the Trustees seek to lease out or sell the property of the Trust and a third party challenges the decision on the ground that there was collusion and that he himself was prepared to offer more amount, such a third party could certainly be taken to be a person interested in the Trust, though his personal interest may be inextricably intertwined with the interest of the Trust.

44. An illustration of the above could be found in the decision of the Supreme Court in Swami Shankaranand vs. Mahant Sri Sadguru Sarnanand {2008 (14) SCC 642 [LQ/SC/2008/1307] }. In that case, the Supreme Court pointed out that in cases where sanction is sought under Section 92(1)(f) CPC, even a third party would be a person aggrieved, if he establishes that he is otherwise interested in the welfare of the Trust.

45. In the case on hand, the applicants do not even pretend to have an interest in the welfare of the Trust. Their interest is only in safeguarding their sub-lease rights in the land. There is no material on record to show that this Victoria Public Hall served any public purpose, after the grant of the lease in favour of N.D.Gupta in the year 1963. After 1963, it had served only the private interests of N.D.Gupta and the companies floated by him. Today the legal heirs of N.D.Gupta and the companies floated by him, are running a restaurant, a lodging house and even a Bar. When the Corporation served an eviction notice and refused to renew the license for running a boarding cum lodging house and when the Commissioner for Prohibition and Excise refused to renew the FL-3 License for running a Bar, the applicants filed writ petitions in W.P.Nos.18531, 18532 and 18533 of 2009 on the file of this Court. In all these writ petitions, the Victoria Public Hall Trust is also one of the respondents. Though no relief is claimed by the applicants herein against the Trust in those writ petitions, it is clear that the applicants are pitted against the Trust, as its adversaries (technically) in those writ petitions. Therefore, in my considered view, the applicants are not persons interested in the Trust and they cannot seek the reconstitution of the Board of Trustees and the re-vesting of the properties in the Trust.

46. Several contentions were raised to the effect (i) that a Public Charitable Trust cannot be dissolved by way of resolutions and (ii) that the dissolution of the Trust is contrary to the scheme decree. But these contentions cannot be raised by the applicants, who have an interest only in their sub-lease rights in the Trust property, without even a semblance of any interest in the Trust itself. The applicants have also not shown that the subservience of their private interests would also subserve the interests of the Trust. It must be pointed out that the applicants and the companies in which they are the shareholders and Directors, are in possession of the land of the extent of about 13 grounds and 1720 sq. ft., in Poonamallee High Road, near Central Railway Station, on a monthly rent of Rs.2,500/- per month. According to them, the period of lease extends upto 30.9.2028. Therefore, the continuance of such a lease upto 30.9.2028, on a monthly rent of Rs.250/- from 1-10-1973 to 30-9-1986 and Rs.500/- from 1-10-1986 to 30-9-2008 and Rs.2,500/- from 1-10-2008 to 30-9-1028, in respect of such a vast extent of land in the heart of the City, would not certainly serve the interest of the Trust. Therefore, the applications A.Nos.1930 and 1931 of 2009 are dismissed. Consequently, the interim application O.A.No.421 of 2009 is also dismissed.

O.A.No.1201 of 2009 in C.S.No.1036 of 2009 And O.A.No.1202 of 2009 in C.S.No.1037 of 2009

47. As pointed out in the early portions, these applications are for interim orders of injunction restraining the respondents from interfering with the right of the plaintiffs to be in peaceful possession and enjoyment of the suit schedule property. The reliefs sought in the main suit are for a declaration that the resolution passed by the Victoria Public Hall Trust on 11.3.2009, surrendering the entire leasehold land of about 57 grounds to the Corporation is null and void and also for a declaration that the memo of compromise dated 15.7.2009 recorded in the second appeal S.A.No.144 of 1997 is also null and void. Apart from these two sets of declaration, the plaintiffs in both the suits are also seeking decrees of permanent injunction to protect their possession. In C.S.No.1036 of 2009, there is also an additional prayer for a declaration that the Lease Deed executed by the second defendant in favour of the plaintiff on 12.10.1973 is valid till 30.9.2028 and binding on the first defendant-Corporation.

48. The contentions raised by the plaintiffs, in the suits as well as in the applications for injunction, are as follows:-

(i) that the resolution passed by the Board of Trustees, dissolving the Trust and handing over the leasehold land to the Corporation, is contrary to the scheme decree passed in C.S.No.98 of 1957 and is also contrary to law since a Public Trust cannot be dissolved;

(ii) that the Compromise Decree in S.A.No.144 of 1997 is null and void, since the second appeal filed by the Corporation of Chennai against the Victoria Public Hall Trust was earlier dismissed for non-prosecution, resulting in a benefit to the Trust and that such a benefit cannot be thrown away by the Trustees by entering into a Memo of Compromise contrary to the interests of the Trust; and

(iii) that under the Lease Deed dated 12.10.1973, the plaintiffs have a valid sub-lease upto 30.9.2028 and that therefore, they cannot be dispossessed by an indirect method.

VALIDITY OF THE DISSOLUTION OF THE TRUST AND THE SURRENDER OF THE PROPERTY:

49. The first contention of the plaintiffs is that a Public Charitable Trust created under a Deed of Trust and which is administered under a scheme framed by this Court under Section 92 CPC, cannot be dissolved.

50. It is true that there is no provision of law under which a public trust can be dissolved. If circumstances so warrant, the properties of the trust, with the prior permission of the court can be transferred to any other trust having similar objects, applying if necessary, the cy pres doctrine.

51. But Section 77 of the Indian Trusts Act, 1882, lists out four circumstances in which a Trust will get extinguished. They are (i) when its purpose is completely fulfilled (ii) when its purpose becomes unlawful (iii) when the fulfilment of its purpose becomes impossible by destruction of the Trust property or otherwise or (iv) when the Trust, being revocable, is expressly revoked.

52. However, the Savings clause in Section 1 of the Indian Trusts Act, 1882, stipulates that nothing contained in the Act, would apply to public or private religious or charitable endowments or to trusts to distribute prizes taken in war among the captors. Therefore, Section 77 of the Indian Trusts Act, 1882, per se cannot be invoked if the trust in question is a public trust.

53. A perusal of the Deed of Trust dated 18.2.1888 shows that in a public meeting of the inhabitants of Madras, called by the Sheriff of Madras on 17.3.1882 at Pachayappas Hall, it was unanimously resolved to erect a Town Hall for the use and benefit of the public. In paragraph 9 of the Deed of Trust, it was declared that the Trustees shall stand seized and possessed of an amount of Rs.7,400/- and of all monies which shall thereafter be subscribed for the purpose of erection of the Victoria Public Hall and other objects specified. Clause 12 of the Deed contains a small indication of the purposes for which the Victoria Public Hall is to be put to use. It reads as follows:-

"12. To permit the said Victoria Public Hall with the hut buildings and appurtenances therein or any part or parts thereof to be used for any of the following purposes that is to say for any public or private meetings, exhibitions, lectures, concerts, dinners, balls, theatrical or musical performances, nautches or other entertainments and as reading writing and newspaper rooms or libraries and for any other purposes conducting to the moral; social intellectual and physical welfare or rational recreation of the inhabitants of or visitors to Madras or any portion of such inhabitants or visitors and without reference to caste, creed or nationality in such manner and subject to such terms and conditions and rules as the Trustees for the time being of these presents shall from time to time direct or sanction."

54. Therefore, there can be no dispute about the fact that it is a Public trust. It is on this premise that at the earliest point of time, this Court permitted an amendment of the Deed of Trust, in C.S. No.223 of 1905 and modified the scheme by a decree in C.S.No.263 of 1921. Ultimately, this Court framed a full-fledged scheme in C.S.No.98 of 1957, on the premise that it is a Public trust. Therefore, the provisions of Section 77 of the Indian Trusts Act, 1882 may not apply per se to the trust in question.

55. However, in Sheikh Abdul Kayum vs. Mulla Alibhai {AIR 1963 SC 309 [LQ/SC/1962/271] }, the Supreme Court held in paragraph 23 as follows:-

"It is true that Section 1 of the Indian Trusts Act, makes the provisions of the Act inapplicable to public or private religious or charitable endowments and so these Sections may not in terms apply to the Trust now in questions. These Sections, however, embody nothing more or less than the principles which have been applied to all Trusts in all countries."

56. Without referring to the decision in Sheikh Abdul Kayum, another Bench of the Apex Court expressed similar views in State of Uttar Pradesh vs. Bansi Dhar {1974 (1) SCC 446 [LQ/SC/1973/392] }, wherein it was held in para 18 as follows:-

"The next question is whether the Indian Trust Act, 1882, applies to the present case. The Courts below have agreed themselves into an application of Section 83 of the Trust Act. Sri Dixit rightly objects to this course having been expressly excluded from its ambit. But while these provisions proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Trusts Act, they cannot become untouchable where public trusts are involved. Care must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Court below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application."

57. The portion of the decision of the Supreme Court extracted above, makes it clear that though the provisions of the Indian Trusts Act, 1882, may not apply per se to public trusts, the Courts can always invoke the universal rules of equity and good conscience, sanctified by the statute relating to private trusts. To come to the said conclusion, the Apex Court drew inspiration from the following English decisions:-

(i) The decision in Re Ulverston and District New Hospital Building Trust {1966 (1) Ch. 622}, where the particular charitable purpose for which the fund was intended, was found to have failed abinitio.

(ii) The decision of the Privy Council in Commissioner, Lucknow Division vs. Deputy Commissioner of Partapgarh {AIR 1937 PC 240 [LQ/PC/1937/67] }, where subscriptions were paid to a Committee for fulfilling a charitable purpose, but the same could not be carried out on account of impracticability.

(iii) The decision in Re Rymer {1895 (1) Ch. 19}, where a bequest was made in favour of a particular institution, but that institution ceased to exist in the Testators lifetime and the legacy could not be applied cy pres (as nearly as possible).

(iv) The decision in Re University of London Medical Sciences Institute Fund {1909 (2) Ch. 1}, in which the University of London was wound up to found an institute of Medical Sciences, but the supervening circumstances prevented the proposed scheme.

58. Therefore, what is important, is to see if the provisions of Section 77 of the Indian Trusts Act, 1882, reflect a rule of equity and good conscience. I think they do so and hence, there is no embargo upon this Court to test the action of the Board of Trustees on principles analogous to those contained in Section 77.

59. On facts, it is seen that the Trust was created in 1882. The only object for which the Trust was created, was to erect a Town Hall to hold meetings, concerts etc. The land over which the Town Hall was constructed, was neither purchased out of subscriptions made by donors nor gifted by the Corporation. The land of the extent of 57 grounds was given only on lease for a period of 99 years by the Corporation. Though the lease was granted for 99 years, with the noble object of utilising the entire place for erecting a Town Hall and fulfilling the objects of the Trust, the Trust failed to fulfil the purposes for which it was created. It may be that till 1963, the Town Hall and the land were put to use for the purpose for which the Trust was created and the land was leased to the Trust. But there is nothing on record to show that after 1963, the Victoria Public Hall was ever put to the public use for which it was constructed. After 1963, a substantial portion of the land viz., 13 grounds and 1720 sq. ft., is in the possession and enjoyment of a private individual (N.D.Gupta) and the companies floated by him (the plaintiffs in both the suits), on a monthly rent of Rs.250/- from 1-10-1973 to 30-9-1986 and Rs.500/- from 1-10-1986 to 30-9-2008 and Rs.2,500/- from 1-10-2008 to 30-9-2028. Therefore, in my considered opinion, the objects of the Trust actually got obliterated in 1963 itself and the final obsequies for the Trust were performed in 1973 when a modified deed of sub-lease was entered into with N.D.Gupta for the period upto 30.9.2028. In other words, it is not the resolution passed by the Trustees on 11.3.2009 that actually dissolved the Trust. It was the resolution passed on 12.10.1973, granting a sub lease upto 30.9.2028 to Mr. N.D.Gupta of a very valuable land in the heart of the City at a throw away rent, that actually drove the final nail on the coffin of the Trust. If the resolution passed on 11.3.2009 resolving to dissolve the Trust is viewed in this context, it would be clear that the same was based on justice, equity and good conscience.

60. In any case, a perusal of the Minutes of the meeting of the Board of Trustees held on 11.3.2009 shows that the cry of the applicants as though the trust had been dissolved, is not factualy correct. Actually 10 resolutions were passed in the said meeting. Resolution Nos.2, 3, 4 and 9 are of relevance and they are extracted as follows:-

"Resolution No.2

The purpose and usage of V.P.Hall was public and private meetings exhibition, lectures, concerts, and dinners, theatrical and musical performance and entertaining programmes, reading writing development of libraries and for any other purpose conductive to the moral social, intellectual and cultural welfare, without reference to the caste, creed or nationality.

The Chennai Corporation cannot spend money out of its own fund since the building is not owned by them. The land originally belongs to Chennai Corporation, hence it may be resolved that all the land and buildings to be handed over to Chennai Corporation for future in maintenance and restoration of V.P.Hall to its original glory and prominence. The Chennai Corporation will not permit to alter the structure, usage and purpose of the building in any way.

Resolution No.3

1. The Trust may be dissolved and Government may form the Trust so as to restore the original glory of the V.P. Hall.

2. The objects of the new Trust will be similar to the objects of the V.P. Hall Trust.

Hence it is resolved that the existing Trustees chosen to resign and may tender resignation of all members of the Trust so as to reconstitute the new Trustees. The Government may reconstitute the New Trust fully owned by Government, which can work to restore the original glory of the V.P. Hall. The new schemes and names of the Trustees may be submitted the High Court for approval.

Resolution No.4

It is resolved that the Trust will hand over the possession of the building to the Chennai Corporation from 1st April 2009. It is also resolved that the assets, investments, deposits, savings and amount in the current account of the V.P. Hall Trust Board may be handed over to the Chennai Corporation.

Resolution No.9

As per Section 92 of C.P.C., 1908, the direction of the Court is necessary for enforcing the administration of the V.P. Hall Trust. Therefore, the Advocate General or two or more persons and having obtained the leave of the Court and to file an appropriate petition before the Honble High Court on behalf of the State Government.

Hence, it is resolved to engage Thiru P.S.Raman, Additional Advocate General-I of Government of Tamil Nadu to file an appropriate petition before the Honble High Court of Madras."

61. A careful reading of Resolution Nos.2, 3, 4 and 9 would show

(i) that the purpose of handing over the land and the Victoria Public Hall to the Chennai Corporation was to restore its original glory, since it was the Corporation which was compelled to spend money for renovation and maintenance of the building, without any reward either for the Corporation or for the Trust;

(ii) that there was an indication in Resolution No.3 to the effect that the Government would be requested to form a new Trust, with objects similar to the V.P. Hall Trust to enable the restoration of the original glory of the building; and

(iii) that the then Additional Advocate General was requested to file necessary petition under Section 92 CPC before this Court.

62. Therefore, the contention of the applicants/plaintiffs that the Trust had been dissolved and that such dissolution is unknown to law, is factually wrong. Resolution No.2 uses only the expression "may be dissolved" and not the expression "hereby dissolved". This is why, the same Resolution talks about the formation of a new Trust and Resolution No.9 talks about necessary application to be moved under section 92.

63. The decision in Sheikh Abdul Kayum, is relied upon by the plaintiffs to drive home the point (as enunciated in paragraph 24 of the decision) that the Trustees cannot transfer their duties, functions and powers to some other body of men except with the permission of the Court and that there is no principle of law which permits such abdication of Trust in favour of another body of persons. But it is in the very same decision that the Supreme Court referred to Sections 1, 46 and 47 of the Indian Trusts Act and came to the conclusion that the provisions of the Indian Trusts Act embody nothing more or less than the principles which have been applied to all Trusts in all countries. In the case on hand, there has been no abdication by the Trustees, of their duties and responsibilities, without the permission of the Court. The very resolutions passed on 11.3.2009 show that the resolutions were provisional and were made subject to the approval of the Court. Therefore, the first contention of the applicants cannot be accepted.

64. It is contended by the learned Senior Counsel for the applicants/plaintiffs that the alternation of the original purposes of a public Trust cannot be ordered even by a Court under Section 92(3), unless the conditions prescribed in clauses (a) to (e) therein are satisfied. In support of the said contention, the learned Senior Counsel relied upon the decision of the Supreme Court in Ratilal Panachand Gandhi vs. State of Bombay {AIR 1954 SC 388 [LQ/SC/1954/49] } and a judgment of this Court in Thirumuruga Kirupananda Variyar Thavathiru Sundaran Swamigal Medical, Educational and Charitable Trust vs. State of Tamil Nadu {AIR 2002 Madras 42}.

65. Section 92(3) deals with cases where the Court may alter the original purpose for which a Public Trust was created and allow the property or income of the Trust to be applied cy pres. But the case on hand is not one where the object of the Trust is sought to be altered or where the income of the Trust is sought to be applied cy pres. The Trustees had only decided to request the Government to form another Trust for the purpose of restoring the original glory of the Victoria Public Hall and directed the Additional Advocate General to file necessary application under Section 92 CPC. None of the resolutions passed on 11.3.2009 seeks either to alter the purposes of the Trust or to apply the income or property of the Trust cy pres. On the contrary, the very purpose of the resolution dated 11.3.2009 is to restore the original glory. Therefore, the said contention has no relevence to the facts of the present case.

66. In any case, in Ratilal Panachand Gandhi, the Supreme Court was concerned with the Constitutional validity of the Bombay Public Trusts Act, 1950. While holding Section 55(c) and a portion of Clause (1) of Section 56 as void, the Supreme Court pointed out that those provisions allowing a diversion of property belonging to a Public Trust offends the doctrine of cy pres. Similarly in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust case, a Division Bench of this Court held that the doctrine of cy pres would apply only when a Charitable bequest failed or became incapable of being performed. Therefore, the said decision is also of no application to the facts of the case since the very resolution challenged in the suit professes to advance the purpose for which the Public Trust was originally created and not to obliterate the purpose. In such circumstances, the first contention of the plaintiffs is liable to be rejected.

VALIDITY OF THE COMPROMISE AND THE DECREE:

67. The next contention of the applicants/plaintiffs is that the dismissal for non-prosecution, of the Second Appeal S.A.No.144 of 1997 filed by the Corporation of Chennai against the Victoria Public Hall Trust, actually enured to the benefit of the Trust. But by consenting to the restoration of the second appeal and by suffering a decree on the basis of a Memorandum of Compromise, the Trustees had acted against the interests of the Trust. Therefore, it is contended by the applicants/plaintiffs that the surrender of the leasehold land by the Trust to the Corporation, in pursuance of the Memo of Compromise dated 15.7.2009 was fraudulent and not binding upon the sub-lessees.

68. But a careful reading of the compromise memo would show that the Victoria Public Hall is now about 120 years old. There are materials on record to show that the cost of carrying out repairs and maintenance, constantly fell upon the Corporation of Chennai, without any benefit accruing to them. Even at the time when a scheme decree was framed in C.S.No.98 of 1957 by consent on 15.9.1961, there was an indication that an amount of Rs.88,616.99 had to be spent on renovation. Now a period of nearly 50 years have gone. The Memo of Compromise indicates that the present cost of renovation of the Public Hall was estimated at Rs.10 crores. Moreover, there were also several shops inside the premises, which were run without any lease or license. The task of evicting the shop keepers also fell upon the Corporation. The original lease of the entire extent of 57 grounds by the Corporation in favour of the Trust for 99 years, expired on 1.4.1985. Though the Trust filed a suit in O.S.No.1349 of 1985, seeking a declaration that they are entitled for the extension of a lease by another 99 years and also got a decree on 7.4.1993 and though the same was confirmed on appeal in A.S.No.334 of 1993 by a judgment dated 31.8.1995, no Deed of renewal of lease came to be executed by the Corporation in pursuance of the decrees of two Courts below. Even after the dismissal of the second appeal S.A.No.144 of 1997 on 7.11.2001 for non-prosecution, no Deed came to be executed. The Trust also did not file any petition for execution of the decree. Therefore, the decree never got executed either through court or outside. In such circumstances, the Trustees took a decision not to continue to have this white elephant, as they had to depend upon the Corporation for its maintenance and renovation. Hence, they entered into a compromise with the Corporation and the same cannot therefore be termed as fraudulent.

69. As stated earlier, it is not open to the applicants to take cudgels for the Trust, as their interest is purely private and not public. In any case, there is no prayer in both the above suits, to set aside the decree passed in S.A.No.144 of 1997 based upon the memo of compromise. Even assuming without admitting that the compromise decree passed in S.A. No.144 of 1997 is not to the benefit of the Trust, it cannot be stated to be a nullity. No compromise decree can be declared to be a nullity, solely on the ground that it is not to the benefit of one of the parties to the decree. It is more so, when the parties to the compromise decree do not challenge the same as a nullity. As a matter of fact, what is beneficial and what is not beneficial to the Trust, has to be decided by the Trustees, subject however to the supervision of the Court. The Resolutions passed on 11.3.2009 and the memo of compromise entered into on 15.7.2009, prima facie show that the decision taken by the Trustees, was beneficial to the Trust. Therefore, the second contention that the compromise decree is null and void, cannot be accepted.

70. Contending that any compromise of disputes involving Public Trusts is not permissible without the leave of the Court, the learned Senior Counsel for the plaintiffs relied upon the following decisions:-

(i) Narayanasami Mudali vs. Board of Religious Endowments {AIR 1930 Madras 629}

(ii) K.Meenakshi Ammal vs. Commissioner, Hindu Religious and Charitable Endowments {AIR 1966 Madras 475}

(iii) Radhakrishna Rice Mill Company vs. Jumma Maseedh {AIR 2003 AP 70 [LQ/TelHC/2002/506] }

71. Narayanasami Mudali, is a case where a suit brought by the Board of Commissioners for the modification of a scheme under the Madras Religious Endowments Act, was sought to be compromised with certain defendants. The District Judge rejected the request on the ground that the compromise was not in the interests of the temple in question. Therefore, the said decision stands on a different footing as it arose under Order XXIII, Rule 3, CPC. In the case on hand, the memo of compromise was accepted by a learned Judge of this Court in the second appeal S.A. No.144 of 1997 and a decree was passed in terms of the memo of compromise. Therefore, it should be presumed, unless otherwise established, that the learned Judge passed a decree in terms of the memo of compromise only after coming to the conclusion that it was for the benefit of the Trust. I am not coming to this conclusion merely on presumptions and surmises. The memo of compromise as well as the judgment passed by the learned Judge in S.A.No.144 of 1997 shows that the parties as well as the Court were conscious of the enormous amount of money required for the renovation of the Public Hall. Without any obligation on their part, either under the Lease Deed of the year 1888 or under the scheme decree, the Corporation was spending money on renovation. Though the Trust could have compelled the Corporation to renew the lease, the Trust could not have compelled the Corporation to spend money on renovation and maintenance. If the Corporation had refused to take this burden, a huge financial burden would have been cast upon the Trust, to renovate and maintain the public hall. Therefore, it is possible that the Court considered the surrender of the leasehold land as a great benefit accruing to the Trust and hence accepted the Compromise.

72. The decision in K.Meenakshi Ammal, also arose out of a compromise sought to be recorded under Order XXIII, Rule 3, CPC. The decision in Radhakrishna Rice Mill Company, quotes with approval the decision of this Court in Narayanasami Mudali, and is also for the same proposition that compromises recorded in respect of the properties of a Public Trust stand on a different footing. But as pointed out above, the memo of compromise was accepted by a learned Judge of this Court and a decree passed in the second appeal after due application of mind as to the benefits accruing to the trust. Therefore, it is futile to contend that the compromise was invalid or that it was not beneficial to the trust.

73. A contention was raised that the Commissioner of the Corporation was one of the Trustees of the Victoria Public Hall Trust and that by subscribing to the resolution dated 11.3.2009, for the surrender of the leasehold property by the Trust to the Corporation, the Commissioner acted in the interests of the Corporation, but contrary to the interests of the Trust. It is also contended that there has always been a clash of interests between the Corporation and the Trust as seen from the series of litigation between them. As a consequence, the Commissioner of the Corporation who was always a part of the Trust, had conflict of interests between his calling as the Commissioner of the Corporation and his duties as a Trustee. Therefore, it is contended that the resolution to which such a person was a party, is tainted and cannot be accepted.

74. It is true that the Corporation and the trust were involved in a series of litigation, whose details are as follows:

DETAILS OF CASES BETWEEN CORPORATION AND V.P. HALL TRUST:

S. No.

Case No. & Court

Filed by

Filed against

Prayer

Result

1

C.S.No.98 of 1957

High Court, Madras

Interested Persons

Trustees, VP Hall Trust

Challenging the renunciation of Trust by the Trustees; and the surrendering of all Trust properties back to the Corporation and for framing a scheme for proper administration of the Trust

Decreed on 15.9.1961.

2nd Scheme framed.

2

O.S.No.2083 of 1968

City Civil Court

Corporation of Chennai

VP Hall Trust

Declaration that VP Hall Trust was not entitled to sublease 13 grounds and 1720 sq. ft., to N.D.Gupa

Dismissed on 17.6.1969.

3

S.A.No.

1350 of 1970, High Court,

VP Hall Trust

Corporation of Chennai

Against the judgment and decree rendered in First Appeal

Allowed on 23.11.1972.

4

O.S.No.1349 of 1985

City Civil Court,

VP Hall Trust

Corporation of Chennai

Specific performance for the extension of the lease for a further period of 99 years from April 1985

Decreed on 7.4.1993

5

A.S.No.334 of 1993

City Civil Court, Madras

Corporation of Chennai

VP Hall Trust

Against judgment and decree dated 7.4.1993

Dismissed on 31.8.1995

6

S.A.No.144 of 1997

High Court, Madras

Corporation of Chennai

VP Hall Trust

Against judgment and decree dated 31.8.1995

Dismissed for non-prosecution on 7.11.2001, but

restored by order dated 21.8.2009 and Disposed of in terms of compromise dated 15.7.2009 between Corporation and VP Hall Trust.

Therefore, it is contended on behalf of the plaintifffs that the resolution dated 11-3-2009 to which such a Trustee having a conflict of interest with the Trust was a party, should be rejected by the Court. In support of the said contention, the learned Senior Counsel appearing for the applicants/plaintiffs relied upon the following decisions:-

(i) Kanhaya Lal vs. National Bank {AIR 1923 Privy Council 114}

(ii) K.Swaminatha Aiyar vs. Jambukeswaraswami Temple {AIR 1930 Madras 372}

(iii) L.Janakirama Ayyar vs. P.M.Nilakanta Ayyar {1954 2 MLJ 486}

(iv) L.Janakirama Iyer vs. P.M.Nilakanta Iyer {AIR 1962 SC 633 [LQ/SC/1961/346] }

(v) M.V.Ramasubbier vs. Manicka Narasimachari {AIR 1979 SC 671 [LQ/SC/1979/77 ;] }

(vi) M/s.Shanti Vijay and Co. vs. Princess Fatima Fouzia {1979 (4) SCC 602 [LQ/SC/1979/356] }

(viii) Krishna Mohan Kul Alias Nani Charan Kul vs. Pratima Maity {2004 (9) SCC 468 [LQ/SC/2003/900] }

75. In Kanhaya Lal, the Privy Council was concerned with a case where a person advanced money to a company to pay off its debentures and to discharge the loan to the bank. Therefore, he was appointed as the Managing Agent of the company. He raised a loan by mortgaging the property of the company. The mortgagee brought the property of the company to sale through his power agent and the Managing Agent of the company, himself bought the property of the company. It is in such a background that the Privy Council held that when anyone is in a fiduciary position, he cannot sell to himself.

76. The decision in K.Swaminatha Aiyar, is to the effect that a Trustee cannot buy the properties of the Trust himself and he cannot sell any of his properties to the Trust either. In L.Janakirama Ayyar, it was pointed out that a Trustee is under a disability to purchase a Trust property and that the said disability is statutorily incorporated in Sections 52 and 53 of the Indian Trusts Act. The said decision was also upheld by the Supreme Court. The decision of the Apex Court in M.V.Ramasubbier, is also to the effect that a person in a fiduciary position like a Trustee is not entitled to make a profit for himself or a member of his family and that he is not allowed to put himself in any such position in which a conflict may arise between his duties as a trustee and his personal interests. It is relevant to note that in this case the Supreme Court was concerned with a sale made in favour of the son of one of the Trustees.

77. In M/s.Shanti Vijay and Co., the Supreme Court pointed out that the power conferred upon the Board of Trustees, though discretionary, should be exercised reasonably and in good faith and that such a power may be controlled by the Court. In Krishna Mohan Kul Alias Nani Charan Kul, the Supreme Court held that a person standing in a fiduciary relation to another, has a duty to protect the interests given to his care and that the Court would watch zealously, all the transactions between such persons so that the protector may not use his influence or the confidence to his advantage. It was further held therein that a person who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of in that confidence.

78. A careful consideration of the principles laid down in all the above decisions show that they are of no application to the case on hand for various reasons. They are:-

(i) Though the Commissioner of the Corporation of Chennai was one of the Trustees of the Victoria Public Hall Trust, the resolutions dated 11.3.2009 to which he was a party, were not to his personal benefit. Even if the resolution is given an interpretation as sought to be given by the plaintiffs, it enured only to the benefit of the Corporation of Chennai. The Commissioner of the Corporation had no personal interest in the surrender of the land by the Trust to the Corporation. Therefore, I do not agree that there was any conflict of interest between his position as the Trustee and as the Commissioner of the Corporation.

(ii) As I have pointed out earlier, I do not even accept the proposition that the surrender of the leasehold land by the Trust to the Corporation was beneficial to the Corporation. It was actually beneficial to the Trust since the Trust was saved of the botheration (a) to maintain and renovate the Public Hall and (b) to evict the shopkeepers.

(iii) In any case, Resolution No.9 passed on 11.3.2009 made it clear that an application would be made to this Court under Section 92 CPC, for the approval of the resolution dated 11.3.2009. The Resolution had already received the approval of this Court in the second appeal in S.A.No.144 of 1997. While exercising original jurisdiction under Section 92 CPC in this case, I have also found the resolutions to be beneficial to the Trust and liable to be approved. Therefore, I do not accept the contention (a) that the resolution dated 11.3.2009 conferred a great benefit upon the Corporation and (b) that the participation of the Commissioner of the Corporation made the resolution invalid due to any conflict of interest.

79. Contending that the Resolutions passed on 11.3.2009 for dissolving the Trust and surrendering the leasehold land to the Corporation, were tainted by mala fides and fraud, the learned Senior Counsel for the plaintiffs submitted that fraud vitiates all solemn acts and that a mala fide exercise of power makes the whole action void. To drive home these points, the learned Senior Counsel relied upon the following decisions:-

(i) State of AP vs. T.Suryachandra Rao {2005 (6) SCC 149 [LQ/SC/2005/718 ;] }

(ii) Bhaurao Dagdu Paralkar vs. State of Maharashtra {2005 (7) SCC 605 [LQ/SC/2005/827] }

(iii) A.V.Papayya Sastry vs. Government of AP {2007 (4) SCC 221 [LQ/SC/2007/301] }

(iv) Express Newspapers Pvt. Ltd vs. Union of India {1986 (1) SCC 133 [LQ/SC/1985/323] }

80. There is no doubt about the proposition that fraud vitiates all solemn acts and that malice and arbitrary exercise of power strikes at the root of fairness. But I fail to understand as to how the facts of the case on hand would fall under the category of fraud and mala fide exercise of power. As stated earlier, the purpose for which the trust was created and the land was leased to the trust for 99 years by the Corporation was actually defeated by the trustees in 1973 by sub-leasing 13 grounds and 1720 sq.feet to N.D Gupta upto the year 2028, without any rhyme or reason when the earlier lease was in force till 2008. Unmindful of the detriment to public interest, the Trust was retaining the lease without performing the obligations of the trust, leading to a huge financial burden on the Corporation. The only person who stood to benefit, by the Trust clinging on to the property, was the sub lessee. But, the decision to surrender the land, was beneficial to everyone except the sub lessees and hence the same cannot be termed as fraudulent or arbitrary.

81. It is true that from the year 1964, the sub-lessee N.D.Gupta was engaged in a series of litigation with the Corporation of Chennai, until he breathed his last. On 30.4.1964, the Corporation refused permission to him to construct a hotel. But the Government set aside the said order by G.O.Ms.No.1689 of 1965 dated

21.1.1965. In 1968, the Corporation filed a suit in O.S.No.2083 of 1968, challenging the sub-lease granted by the Trust in favour of N.D.Gupta, but the same was dismissed and the dismissal was confirmed by this Court in S.A.Nos.1350 of 1970 and 1262 of 1971. Similarly, the order of the Corporation rejecting the application of N.D.Gupta for the grant of a license to run a hotel, also became the subject matter of writ petitions. Subsequent applications of N.D.Gupta for putting up multi storeyed buildings, also met with stiff resistance from the Corporation and every time the obstacles placed by the Corporation were got removed through Court orders by N.D.Gupta. For easy reference, the details of the litigation between N.D.Gupta and the Corporation are furnished in a tabular column as follows:

DETAILS OF CASES BETWEEN N.D.GUPTA AND THE CORPORATION/V.P. HALL TRUST:

S.No.

Case No. & Court

Filed by

Filed against

Prayer

Result

1

W.P.No.752 of 1969

High Court, Madras

N.D.Gupta

Corporation of Chennai

Mandamus for issuance of hotel license

Writ issued on 21.4.1969.

2

S.A.No.1262 of 1971

High Court, Madras

N.D.Gupta

Corporation of Chennai

Against the judgment and decree rendered in First Appeal

Allowed on 23.11.1972.

3

W.P.No.4367 of 1975

High Court, Madras

N.D.Gupta

Corporation of Chennai

Seeking a Writ of Mandamus, forbearing the Corporation from calling upon him to produce the judgment passed by this Honble High Court dated 23.11.1972 in S.A.

Writ issued on 13.8.1976

4

W.P.No.542 of 1977

High Court, Madras

N.D.Gupta

Corporation of Chennai

Mandamus to Corporation to pass orders on the building permit application

Rendered infructuous by rejection of building permit application on 12.7.1977.

5

W.P.No.390 of 1978

High Court, Madras

N.D.Gupta

Corporation of Chennai

Certiorarified Mandamus challenging the rejection of building permit

Allowed on 21.3.1980

6

W.A.No.129 of 1980

High Court, Madras

Corporation of Chennai

N.D.Gupta

Against order dated 21.3.1980 in W.P.No.390 of 1978

Dismissed on 2.4.1980

7

SLP (Civil) No.4375 of 1980

Supreme Court

Corporation of Chennai

N.D.Gupta

Against order dated 2.4.1980 in W.A.No.129 of 1980

Dismissed on 17.4.1980

8

W.P.No.18532 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

Sons of N.D.Gupta

1. Corporation of Chennai

2. VP Hall Trust

3. Commissioner, Excise and Prohibition

Certiorarified Mandamus to quash Corporations eviction notice dated 28.8.2009

Withdrawn on 3.12.2009

9

W.P.No.18533 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

Sons of N.D.Gupta

1. Corporation of Chennai

2.VP Hall Trust

3. Commissioner, Excise and Prohibition

Mandamus directing Corporation of Chennai to renew the boarding and lodging license

Disposed of with directions on 3.12.2009

10

W.P.No.18531 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

Sons of N.D.Gupta

1. Corporation of Chennai

2.VP Hall Trust

3. Commissioner, Excise and Prohibition

Mandamus directing the Commissioner (Prohibition and Excise) to issue FL-3 license

Pending

11

W.P.No.21519 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3.M/s.Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.146 of 2009

Pending with an order of status-quo.

12

W.P.No.21520 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3.M/s.Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.145 of 2009

Pending with an order of status-quo.

13

W.P.No.21521 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3.M/s.Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.150 of 2009

Pending with an order of status-quo.

14

W.P.No.21522 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3. M/s.Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.144 of 2009

Pending with an order of status-quo.

15

W.P.No.21523 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3. M/s.Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.147 of 2009

Pending with an order of status-quo.

16

W.P.No.21524 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3. M/s. Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.148 of 2009

Pending with an order of status-quo.

17

W.P.No.21525 of 2009

High Court, Madras

1. Rajendra Gupta

2. Asoka Gupta

3. M/s. Picnic Hotels Pvt Ltd

1. Corporation of Chennai

2. The Executive Engineer, Zone III

Certiorarified Mandamus to quash Notice of demolition dated 29.9.2009 issued in its letter No.149 of 2009

Pending with an order of status-quo.

18

W.P.No.1349 of 2010

High Court, Madras

Sanjay Gupta and another

Corporation of Chennai

Certiorari to quash the boarding license

Interim Stay granted.

82. But merely because of the perennial litigation in which the sub-lessee N.D.Gupta got engaged with the Corporation, it cannot be concluded that the act of the Trust in surrendering the leasehold land to the Corporation is either fraudulent or brought forth by mala fide exercise of power. As a matter of fact, the allegations of mala fides pleaded by the plaintiffs, are primarily directed at the Corporation of Chennai, whose Commissioner is the Secretary of the Trust and whose Mayor is one of the Trustees. But there are no allegations either against the Trust or against the other Trustees. The Minutes of the meeting held on 11.3.2009 shows that it was attended by 7 persons, including (i) M.Saravanan, the Chairman of the Trust (ii) the representative of the Rajah of Vizianagaram (iii) the President of the Madras High Court Advocates Association (iv) the representative of the South India Chamber of Commerce and (v) the representative of Iyal Isai Nataka Mandram. No allegations of mala fides are made against any of them. It is too much to assume that all these 5 persons acted merely as puppets at the instance of the Mayor and the Commissioner of the Corporation.

83. Similarly, the Memorandum of Compromise entered into in the Second Appeal cannot also be termed as fraudulent. This contention proceeds on the basis that the benefit of the renewal of lease for a further term of 99 years, granted by two Courts below and confirmed by this Court by dismissing the Second Appeal for non-prosecution, was thrown away by the Trust by consenting to the restoration of the Second Appeal and by consenting to a decree for the surrender of the property. But there is an underlying presumption in this contention that the renewal of the lease was for the benefit of the Trust and the surrender of the lease was adverse to the interests of the Trust. But this presumption itself is ill founded. As pointed out elsewhere in this order, if the Trust had not agreed to the surrender, the Corporation would have washed its hands off the responsibility of renovating and maintaining the Public Hall. As seen from the Resolutions dated 11.3.2009, the cost of renovation had been estimated at Rs.10 crores. The Public Hall is more than 120 years old. It is not the case of the plaintiffs that the Trust had such a huge corpus fund or such a huge rental income from out of which the cost of renovation could have been met. Therefore, in my considered view, the surrender of the lease, rather than the renewal of the lease, was actually for the benefit of the Trust. Once it is found so, there can be no allegation of fraud against the Trust, for entering into a compromise, for the benefit of the Trust. Hence, the allegations of fraud and mala fides cannot be accepted.

LEASE UPTO 2028:

84. The next contention which is the most important contention of the applicants is that they are in occupation of the land of an extent of 13 grounds and 1720 sq. ft., validly subleased to them and that they have also constructed 3 multi storeyed buildings at a huge cost running to several crores of rupees, in pursuance of a valid Deed of Lease. The last Lease Deed was dated 12.10.1973 and the period of lease goes upto 30.9.2028. Therefore, it is the contention of the applicants (i) that as Lessees lawfully in possession in pursuance of a registered Lease Deed and (ii) as persons who had put up multi storeyed buildings at a huge cost after obtaining orders from this Court, they cannot be dispossessed by the Corporation by adopting devious methods.

85. In order to test the validity of the above contention, we may have to again go back to historical facts, which are as follows:-

(i) The earliest Deed of Sub-lease granted by the Victoria Public Hall Trust in favour of N.D.Gupta (the predecessor of the plaintiffs) was dated 11.7.1963.

(ii) The next Deed of Lease executed by the Trustees in favour of N.D.Gupta was dated 17.6.1968. It was for a period of 18 years with effect from 1.4.1968. Therefore, the lease was to expire on 31.3.1986. The Deed of Lease also contained a provision for renewal for a further period of 22 years. Even if this extension is taken into account, the lease would have expired on 31.3.2008. But the right to obtain renewal from 1.4.1986 for a further period of 22 years upto 31.3.2008, was subject to the Trust itself obtaining renewal of the lease beyond 1.4.1985 from the Corporation. This is made clear in Clause 5 of the Lease Deed dated 17.6.1968.

(iii) But for reasons which are not clear, a Lease Deed came to be executed on 12.10.1973, granting a lease upto 30.9.2028 (for a period of about 55 years). The rent fixed by this Deed was Rs.250/- per month from 1.10.1973 to 30.9.1986, Rs.500/- per month from 1.10.1986 to 30.9.2008 and Rs.2,500/- per month from October 2008 to 30.9.2028.

86. A careful analysis of the covenants contained in the above Deeds of Lease and the manner in which the last of the Lease Deeds came to be executed, would reveal the following:-

(i) When the Lease granted under the Deed dated 17.6.1968 was for a period of 18 years commencing from 1.4.1968 and going upto 31-3-1986 with a right to N.D.Gupta under Clause 5 to seek renewal for a further period of 22 years from 1.4.1986 upto 31.3.2008, there was no occasion or need for another Deed of Lease dated 12.10.1973, conferring a benefit upto the year 2028. This creates a serious suspicion on the conduct of the Trustees.

(ii) Admittedly, the original lease of the land by the Corporation to the Trust itself was to expire on 1.4.1985. Therefore, the Trustees had no right as on 12.10.1973 to execute a Deed of Sub-lease that would go upto the year 2028.

(iii) In any event, the Trust did not obtain any permission under Section 92(1)(f) CPC, for leasing out such a vast extent of land of 13 grounds and 1720 sq. ft., located on Poonamallee High Road sandwiched between the Central Railway Station and Rippon building at a throw away rent of Rs.250/- per month from 1.10.1973 to 30.9.1986, Rs.500/- per month from 1.10.1986 to 30.9.2008 and Rs.2,500/- per month from October 2008 to 30.9.2028.

87. Therefore, in my considered view, the Lease Deed dated 12.10.1973 is -

(i) adverse to the interests of the Trust.

(ii) null and void and not binding on the Corporation, in as much as it tended to go beyond the original period of lease prescribed under the Lease deed dated 18-2-1888 and

(iii) not valid, in as much as the question whether it was for the benefit of the Trust was not put to test in an application filed under Section 92 (1)(f) CPC.

Therefore, the entire claim of the plaintiffs on the basis of the said Deed dated 12.10.1973 cannot be sustained.

88. It is no doubt true that the Apex Court held in Madappa vs. M.N.Mahantha Devaru {AIR 1966 SC 878 [LQ/SC/1965/260] } that Section 92(1)(f) does not in any way circumscribe or take away from the Trustees or Managers of Public Trusts, the right of ordinary administration of Trust property which would include letting, selling, mortgaging or exchanging such property for the benefit of the Trust. However, the Supreme Court added in the same decision that there may be situations where it may be necessary to alienate Trust property which might require Courts sanction and that that is the reason why a provision exists in clause (f) of Section 92 (1).

89. In R.Venugopala Naidu vs. Venkatarayulu Naidu Charities {1989 Supp.(2) SCC 356}, the Court reiterated that the property of religious and charitable endowments or institutions must be zealously protected and that sale by private negotiations which is not visible to the public eye and which may even give rise to public suspicion should not therefore be permitted, unless there are special reasons to justify the same.

90. In Gowri Shankar vs. Joshi Amba Shankar Family Trust {1996 (3) SCC 310 [LQ/SC/1996/460] }, the Apex Court went a step further. In that case, the Trustees obtained the permission of the High Court to sell the property at the highest price and entered into an Agreement for sale for a consideration of Rs.9 lakhs. A week later, the tenants of the property made an offer of Rs.14,40,000/-. After informing the tenants that their offer would be considered, the Trustees filed an application before the High Court, seeking permission to sell the property to the agreement holder, representing that the offer of Rs.9 lakhs made by the agreement holder was reasonable and highest. On the basis of the assertion of the Trustees, permission was granted by the High Court. Upon coming to know of the same, the tenants filed an application. The learned single Judge of the High Court allowed the application and set aside the sale on the ground of fraud. The decision was reversed by the Division Bench, but the Supreme Court restored the order of the learned single Judge on the ground that a fraud was played upon the Court. Therefore, it is clear that the Court has a duty and obligation to test whether the right claimed by third parties against a Trust, on the bais of documents executed by the trustees, is a right properly and validly acquired or not.

91. The second part of Section 36 of the Indian Trusts Act, 1882, which indicates the "general authority of a Trustee", contains an express prohibition to the effect that no Trustee shall lease out a trust property for a term exceeding 21 years, without the permission of a Principal Civil Court of Original Jurisdiction. Though the leases granted for a period exceeding 21 years, without obtaining the permission of the Court are not void under this section as being malum prohibitum, they are avoidable at the option of cestui que trust {see Kadir Ibrahim vs. Arunachellam (4 IC 1082)}.

92. The principle underlying this section 36 of the Indian Trusts Act,1882, is based on equity and good conscience and there is no reason as to why the same principle cannot be extended to public trusts. As pointed out by the Supreme court in Sheik Abdul Kayum (AIR 1963 SC 309 [LQ/SC/1962/271] ) and State of U.P. vs. Bansi Dhar {(1974) 1 SCC 446 [LQ/SC/1973/392] }, to which I have already made a reference, any general principle of law relating to the management and administration of Trusts, if based on equity and good conscience, can certainly be applied to public trusts. Such principles would not become untouchables ( as pointed out by the Apex court in Bandi Dhar) merely because they also find a place in the Indian Trusts Act.

93. It will be interesting to note that the Second Part of Section 36, prohibiting the Trustees from granting a long term lease for a period exceeding 21 years without the express permission of a Principal Civil Court of Original Jurisdiction, was inserted only on the recommendations of the Indian Law Commission, in 1882. After independence, the Law Commission of India presided over by Justice T.L. Venkatarama Aiyer (Retd.) submitted certain proposals in its Seventeenth Report on 6.1.1961, for revising the Trusts Act, 1882. In paragraph 51 of its report, the Law Commission actually recommended the reduction of the period of 21 years prescribed in the Second Part of Section 36, to 5 years. Paragraph 51 of the Seventeenth Report of the Law Commission of India reads as follows:-

"51. The period for which a trustee may lease property without the permission of the Court is 21 years. Whatever might have been the justification in 1882 when the Act was passed, in the present conditions, such a long period whether for agricultural or non-agricultural leases is not justified, as it would result in alienating away the benefit of the future for a longer period. Under some of the present Acts, both Central and State, the period fixed is 5 years. Most of the State Acts relating to religious endowments fix periods ranging from five to ten years. The Bombay Public Trusts Act fixes a period of ten years in the case of an agricultural lease and three years in the case of a non-agricultural lease. This is the only Act which makes the period as long as ten years, but in view of the recent Acts, we think it proper to reduce the period from 21 years to five years."

94. If the Law Commission had felt even in the year 1961 that a long term lease (exceeding 5 years) of a property belonging to a private trust, without obtaining the permission of the principal civil court of original jurisdiction is injurious to the Trust, there is no reason as to why such a principle should not be regarded as one founded upon equity and good conscience. If the principle is founded upon equity and good conscience, then it would apply to public trusts also, despite its berth in section 36 of the Indian Trusts Act, 1882 (as pointed out by the Apex court).

95. In The Committee of Management of Pachayappas Trust vs. Official Trustee of Madras {1994 (1) SCC 475 [LQ/SC/1993/991] }, the Supreme Court held that a long term lease of the property belonging to a Public Trust, should be only by public auction. In that case, a vast extent of property was bequeathed by one C.Kandaswamy Naidu under a Will, in favour of the Trustees of Pachayappas Charities. The Official Trustee of Madras was appointed as the Executor. An application was taken out by a third party, seeking a direction to the Official Trustee to lease out the land belonging to the Trust for a period of 50 years. The application was allowed by a learned Judge of this court. In the appeal before the Division Bench, a contention was raised that the long term lease of the public property could not be granted except by way of public auction. The Division Bench rejected the said contention on the ground that if the Official Trustee himself leases out the property, he should do so by public auction and that when a lease is granted by an order of Court, there was no necessity to go in for a public auction. While reversing the concurrent decisions of the learned single Judge and the Division Bench of this court, the Apex Court quoted with approval the observations of Cardozo, J., in Meinharal vs. Salman, on the standard of fiduciary conduct expected of a Trustee to the following effect:-

"A Trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is then the standard of behaviour ....... Only thus has the level of conduct for fiduciaries been kept at a higher level than that trodden by the crowd".

The Apex Court then went on to hold that when the disposal of a public property, by way of sale or lease, itself partakes the character of a Trust, it is equally true of the property belonging to religious institutions and endowments. Coming down very heavily upon the learned single Judge as well as the Division Bench of this Court, the Supreme Court observed in paragraph 41 as follows:-

"41. Before parting with the case we feel constrained to say that the order dated May 2, 1986 passed by the learned Single Judge which was affirmed in appeal by the Division Bench as well as the order dated October 28, 1987 passed by the Division Bench on the application for modification leave an impression that the learned Judges were more concerned with the interests of Respondent 2 than those of the Trust Estate though the primary duty of the Court was to safeguard the interest of the Trust which was being administered by the Official Trustee and in doing so they not only ignored the objections raised by the residuary legatee who was the beneficiary under the Trust, but also did not accept the suggestions made by the Official Trustee in the interest of the Trust. In the matter of grant of leases and licenses and award of contracts by the executive, the decisions of this Court require the authorities to apply standards or norms which are not arbitrary, irrational or irrelevant. People expect much higher standards from the judiciary and rightly so. It would be a sad day if an impression gains ground that the judiciary is not free from the malaise that afflicts other fields of State activity. We need say no more at this stage."

96. Therefore, it is clear that the very Lease Deed dated 12.10.1973 executed by the Trustees for a period of 55 years without any rhyme or reason in favour of Mr.N.D.Gupta is vitiated. It is true that in 1963, the initial lease was by public auction. It is seen from the judgment in O.S.No.2083 of 1968 (filed by the Corporation against the Trustees and the sub-lessee) that the trustees invited sealed tenders and thereafter leased out 10 grounds to N.D.Gupta under a registered lease deed dated 11-7-1963. But by a subsequent Lease Deed dated 17-6-1968, the terms of the lease were modified to the benefit of the sub-lessee and a larger extent namely 13 grounds and 1720 sq.feet was leased out for a period of 18 years with effect from 1.4.1968 with a clause for its renewal for a further period of 22 years (expiring in 2008). When this deed dated 17-6-1968 was in force, there was no occasion for the Trustees to execute another Lease Deed on 12.10.1973. The Lease Deed dated 12.10.1973 is bad for two reasons viz., (i) that the Trust did not seek the approval of this Court under Section 92(1)(f) and (ii) that the Trust did not go in for a public auction. The resistance put up by the Corporation right from the beginning, cannot be seen in isolation, but should be seen only in the context of the manner in which the Trustees had betrayed the Trust reposed in them by entering into the lease deed dated 12-10-1973. In such circumstances, the plaintiffs cannot claim any benefit under such a document dated 12.10.1973 and their continuance beyond 31.3.2008, cannot be recognised by this Court as that of a lawful Lessee (31.3.2008 is the date on which the renewed term of 22 years under the Lease Deed dated 17-6-1968 would also come to an end).

97. Once it is seen that the plaintiffs cannot be termed as lawful Lessees after 31.3.2008, they cannot be treated in a manner different from the shopkeepers who were evicted by the Corporation and whose eviction got upheld by this Court. Therefore, there cannot be an injunction to protect their protection.

98. It is contended by the learned Senior Counsel for the plaintiffs that there was nothing wrong in the Trust entering into a modified sub-lease on 12.10.1973 with Mr.N.D.Gupta for a period upto 30.9.2028, though the lease between the Corporation and the Trust itself was to expire on 1.4.1985. According to the learned Senior Counsel, the lease granted by the Corporation in favour of the Public Hall Trust was a lease in perpetuity and that therefore, the renewal after 1-4-1985 was automatic at the option of the Lessee. In support of his contention, the learned Senior Counsel placed heavy reliance upon the decision of the Apex Court in State of U.P. vs. Lalji Tandon {2004 (1) SCC 1 [LQ/SC/2003/1096 ;] }.

99. It is true that a lease in perpetuity is permissible, as pointed out by the Supreme Court in paragraph 13 of the aforementioned case. After pointing out that where a covenant for renewal exists, its exercise is a unilateral act of the Lessee and that the consent of the Lessor in such cases is unnecessary, the Supreme Court quoted with approval, the principles of law enunciated by a Division Bench of the Calcutta High Court in Secretary of State for India in Council vs. A.H. Forbes {(1912) 17 IC 180} and a Division Bench of the Andhra Pradesh High Court in Syed Jaleel Zane vs. P.Venkata Muralidar {AIR 1981 AP 328 [LQ/TelHC/1980/55] }. On the facts of the case before them, the Supreme Court pointed out in paragraph 18 that the original lease granted in 1887 which came to an end in 1937 was renewed by a fresh Deed dated 20.2.1945 and that at the end of the term prescribed therein, the State did not exercise its right of re-entry in 1987. Therefore, the Court concluded that in the absence of any material to show that only one renewal was possible, the stand taken by the Government could not be accepted. When a contention was raised by the State of UP that the provisions of the Land Acquisition Act, 1894 had also been invoked, the same was rejected on the ground that the Government cannot acquire its own property. While holding so, the Court pointed out in para 20 that the renewal of lease cannot be denied in the garb of the so called acquisition notification.

100. A careful reading of the above decision of the Supreme Court would show that the principles laid down therein, could be taken advantage of only by the Lessee viz., the Victoria Public Hall Trust. The Trust has not raised a contention that they wanted to have the lease automatically renewed for a further term from 1.4.1985. Though that was their case at the beginning, they had a change of mind in 2009 and they entered into a compromise with the Corporation in the second appeal. Therefore, it is futile on the part of the plaintiffs, who are only sub-lessees, to attempt to thrust a renewal (or automatic renewal) of the lease upon an unwilling Lessee. The lease is renewable only at the option of the Lessee and not at the option of the sub-lessee. The sub-lessee cannot compel the Lessee to exercise the option for renewal, merely because it is beneficial to the sub-lessee. Therefore, the decision in Lalji Tandon, cannot be invoked by the plaintiffs, for their benefit.

101. Contending that the rights of the sub-lessee are independent and enforceable when there is collusion between landlord and the chief tenant and that a part of the property cannot be surrendered by the chief tenant to the landlord, the learned Senior Counsel for the applicants relied upon two decisions of the Apex Court, in Shyam Babu vs. District Judge, Moradabad {1984 (1) SCC 411 [LQ/SC/1983/366] } and Tirath Ram Gupta vs. Gurubachan Singh {1987 (1) SCC 712 [LQ/SC/1987/132] }.

102. At the outset, the decision in Shyam Babu, arose out of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which was a welfare legislation enacted for the benefit of the tenants. The case on hand is one of lease of land by the Corporation of Chennai to a Public Trust and the sub-leasing of a part of the same by the Trust in favour of Mr.N.D.Gupta. Apart from the fact that the case on hand arises out of lease of a vacant land, the case on hand relates to a Public Trust. Therefore, the said decision is of no application.

103. Even the decision in Tirath Ram Gupta, is of no avail to the plaintiffs, for the very same reasons. Moreover, Tirath Ram Gupta is a case where, by a compromise reached with the landlord, the chief tenant surrendered only the portion in the occupation of the sub-lessee and not the other portion. Consequently an order of eviction was passed only in respect of that portion. Therefore, the Apex Court held that the contract cannot be terminated in part. But in the case on hand, the Trust has not merely surrendered the portion sub-leased to the plaintiffs (viz., 13 grounds and 1720 sq. ft.). They have surrendered the entire leasehold land of 57 grounds. Therefore, the decision in Tirath Ram Gupta does not go to the rescue the plaintiffs.

104. In the counter affidavit filed by the Commissioner of the Corporation, a stand is taken by them that the main objective behind the Memo of Compromise was to restore and preserve the area as a heritage area and that one of the essential requirements of heritage restoration is that there should be no visual obstruction to the monument. It is claimed in the counter affidavit that the Victoria Public Hall qualifies for a heritage monument and that as per the guidelines issued by the Archelogical Survey of India, there should not be any construction within 100 meters from the preserved monument. However, this argument is sought to be countered on the strength of the provisions of The Ancient Monuments and Archeological Sites and Remains Act, 1958 and a decision of the Division Bench of this Court in Indian National Trust for Art and Cultural Heritage vs. CMD Authority {2003 (4) CTC 513 [LQ/MadHC/2003/1950] }.

105. But I do not think that I need to go into the said question. My conclusions in the preceding portions of this order are not based upon the question whether the Public Hall is a heritage monument or not. All the conclusions that I have drawn, are on a scrutiny of the pleadings of the plaintiffs, the documents relied upon by them and the contentions raised on their behalf.

106. Once it is found (i) that there was no actual dissolution of the Trust, but only a proposal to dissolve the existing Trust, after creating a new one with the same objects, subject to the approval of this Court (ii) that the Memorandum of Compromise and the surrender of the leasehold land to the Corporation, was actually for the benefit and not to the detriment of the Trust and (iii) that the very Deed of Sub-lease dated 12.10.1973 executed by the Trust in favour of N.D.Gupta for a period upto 30.9.2028, was vitiated, there is no escape from the conclusion that the plaintiffs have no prima facie case for the grant of an order of injunction. Therefore, the applications for injunction are liable to be dismissed.

107. Additionally, once it is found that the very Deed of Sub-lease dated 12.10.1973 executed by the Trust in favour of N.D.Gupta for a period upto 30.9.2028, was vitiated, then the possession of the land of the extent of 13 grounds and 1,720 sq. ft., by the plaintiffs, would be merely similar to the possession that several shop keepers had. All those shop keepers, who were in occupation of small extents of land, in pursuance of the leases/licenses allegedly granted by the Trust, were evicted by the Corporation by invoking the powers conferred by The Chennai City Municipal Corporation Act, 1919.

108. It is relevant to state here that the shop keepers who were served with notices of eviction and the shop keepers who were served with orders cancelling the licenses granted to them for running their shops, came up with a batch of writ petitions. In the said batch W.P.Nos.16270 to 16285 of 2009 etc., K.Chandru, J., passed a common order on 4.11.2009. By the said order, the batch of writ petitions challenging the notices of eviction issued by the Corporation, was dismissed. However, the batch of writ petitions challenging the order by which the Corporation cancelled the licenses of the shops on public health grounds, was allowed, on a concession granted by the Corporation.

109. The shop keepers whose writ petitions challenging the notices of eviction, were dismissed, filed a batch of writ appeals in W.A.Nos.1584 to 1615 of 2009. In paragraphs 16 and 17 of the common order dated 20.11.2009, by which the writ appeals were disposed of, the Division Bench comprising of Prabha Sridevan and M.Sathyanarayanan, J.J., upheld the view taken by K.Chandru, J., to the effect that even if the shop keepers were in possession in pursuance of a lease/license granted by the Trust, it would not amount to permissive occupation, after 1.4.1985. This is in view of the fact that the 99 year lease granted by the Corporation to the Trust, was not renewed or extended beyond 1.4.1985. On the contrary, the Trust itself had decided against it. Therefore, I do not think that the plaintiffs are in a better position than those shop keepers.

110. I am conscious of the fact that those shop keepers could not produce a single scrap of paper, except the receipts for payment of fees, to show that they had valid licenses/leases. On the contrary, the plaintiffs have produced the Deeds of Sub-lease dated 17.6.1968 and 12.10.1973. Therefore, it is possible to contend that the case of the plaintiffs cannot be equated to that of those shop keepers.

111. I am also conscious of the fact that the plaintiffs have put up multi storeyed buildings at Door Nos.1132, 1132/1 and 1132/2. The plaintiffs have filed Valuation Reports, where the Civil Engineers appointed by the plaintiffs have arrived at the value of these buildings at Rs.5.73 crores, Rs.3.96 crores and Rs.6.08 crores. Therefore, even on this ground, it is possible to contend that the case of the plaintiffs stand on a different footing.

112. But the above two distinctions, one arising on account of the registered Deeds of Sub-lease and another arising on account of the construction of the multi storeyed buildings, would not place the prayer of the plaintiffs for an order of injunction, in a better position. At the most, these two distinctions may enable the plaintiffs to seek compensation from the defendants.

113. At this juncture, it should be pointed out that under clause 6 of the registered Deed of Sub-lease dated 17.6.1968, the plaintiffs were obliged to surrender all the superstructures to the Trust, without claiming any compensation, after the expiry of the initial period of 18 years (from 1.4.1968) or at least after the expiry of the extended term, viz., 31.3.2008. Therefore, whatever structures they have put up, may not entitle the plaintiffs to any compensation, since the term of Sub-lease contemplated under the registered Deed dated 17.6.1968 came to an end on 31.3.2008.

114. Even if I go by the registered Deed dated 12.10.1973, which according to me, is a document vitiated for several reasons indicated supra, the plaintiffs are not entitled to any compensation for the superstructures, if they are allowed to continue till 30.9.2028. Therefore, in essence, even if the document dated 12.10.1973 is presumed to be a valid document, binding on the Corporation, the plaintiffs may not be entitled to any compensation for the superstructures, except on the ground, that the Sub-lease got terminated earlier than the period agreed under the Deed dated 12.10.1973.

115. In other words, assuming the best possible scenario for the plaintiffs, they may not be entitled to an order of injunction. At the most, they may be entitled to compensation for the earlier termination of the sub-lease, subject however to the plaintiffs establishing in the course of trial of the above suits that the document dated 12.10.1973 is valid and binding. The plaintiffs in my opinion, have a long way to go, to establish that the document dated 12.10.1973 is valid and binding. There are any number of reasons, some of which have been indicated in the previous portion of this order, to show that this document dated 12.10.1973 is vitiated.

116. In such circumstances, when the plaintiffs have not established a prima facie case for the grant of an order of injunction and when they may be entitled only to compensation, that too subject to several question marks, the applications for injunction cannot be allowed. Hence, the applications O.A. Nos.1201 and 1202 of 2009 in C.S.Nos.1036 and 1037 of 2009 are dismissed. However, there will be no order as to costs. It will be open to the Corporation to issue notices to the plaintiffs, as they had done to the other shop keepers and proceed further for recovery of possession of the land in question from the plaintiffs.