SEKAR REPORTER

Court News from Madras High Court

The Hon”ble Justice Mr. Anand Venkatesh was pleased to pass an order in W. M. P. No. 19288 and 19289 of 2021 in W.P. No. 18058 of 2021by staying the planning permit granted to the Raja Muthiah Chettiar charitable & Educational trust by the CMDA in respect of survey no’s. 4277/6 and also ordered status-quo in respect of construction activities. IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction)   W.P. No.                      of 2021   M.A.M.Ramaswamy Chettiar of Chettinad Charitable Trust Rep. by its Managing Trustee Dr. A.C. Muthiah

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The Hon”ble Justice Mr. Anand Venkatesh was pleased to pass an order in W. M. P. No. 19288 and 19289 of 2021 in W.P. No. 18058 of 2021by staying the planning permit granted to the Raja Muthiah Chettiar charitable & Educational trust by the CMDA in respect of survey no’s. 4277/6 and also ordered status-quo in respect of construction activities.

 

 

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P. No.                      of 2021

 

  1. M.A.M.Ramaswamy Chettiar of Chettinad Charitable Trust

Rep. by its Managing Trustee Dr. A.C. Muthiah

Having its registered office at

Chettinad House,

Rajah Annamalaipuram,

Chennai-600028.

 

  1. A.C. Muthiah

Trustee

 

  1. AR L Sundaresan

Trustee

 

  1. Jawahar Vadivelu

Trustee

 

  1. Alagusundaram                    

Trustee

 

All are having registered office at

Chettinad House,

Rajah Annamalaipuram,

Chennai-600028.                                            …Petitioners

 

 

                -:VERSUS:-

 

  1. State of Tamil Nadu

Rep. by The Principle Secretary to the Government

Housing & Urban Development Department,

Chennai – 600009.

 

  1. The Chennai Metropolitan Development Authority

Rep. by its Member Secretary

Thalamuthu-Natarajan Maaligai

No. 1, Gandhi Irwin road

Egmore, Chennai – 600008.

 

  1. The Corporation of Chennai

Rep. by its Commissioner

Rippon Buildings

Chennai – 600002.

 

  1. Rajah Muthiah Chettiar Charitable and Educational Trust

Rep. by its Trustee, Mr. M.A.M.R.Muthiah

Rani Seethai Hall Building.

No.603, Anna Salai, Thousand Lights

Chennai-600006.

 

 

 

 

  1. M.A.M.R.Muthiah,

S/o. R Sekkappa Chettiar,

No.603, Anna Salai, Thousand Lights

Chennai-600006.

 

  1. Kumararani Tmt. Meena Muthiah

Trustee,

W/o. Late Kumararajah,

Sri M.A.M.Muthiah Chettiar,

Chettinad House,

Rajah Annamalaipuram,

Chennai-600028.

 

  1. Ashwin C Muthiah

Trustee

Chettinad House,

Rajah Annamalaipuram,

Chennai-600028

 

  1. M.A.M.M.Annamalai

S/o.Late. Kumararajah,

Sri. M.A.M.Muthiah Chettiar,

Chettinad House,

Rajah Annamalaipuram,

Chennai 600028.                                            …Respondents

 

 

AFFIDAVIT OF Dr.A.C. MUTHIAH

I, Dr. A.C. Muthiah, S/o. late. Dr. M.A.Chidambaram, Hindu, aged about 80 years, Managing Trustee, Dr. M.A.M. Ramaswamy Chettiar of Chettinad Charitable Trust, having office at Chettinad House, Rajahh Annamalaipuram, Chennai-600028, do hereby solemnly and sincerely affirm and state on oath as follows.

 

  1. I am the 2nd Petitioner herein and trustee of the 1st Petitioner trust in the above application and as such I am well acquainted with the facts and circumstances of the case and I am competent to swear to this affidavit. The petitioners 3 to 5 are also the trustees of the 1st Petitioner’s trust. I am swearing to this affidavit on behalf of the Petitioners 3 to 5 also.
  2. The property/land measuring about 127 grounds originally belonged to one Rajah Sir Muthiah Chettiar. His wife was one Mrs. Meiyammai Achi. Rajah Sir Muthiah Chettiar had two sons namely Kumararajah Sri. M A M Muthiah Chettiar and Dr. M.A.M.Ramaswamy. Rajah Sir M A Muthiah Chettiar had created a trust namely the 4thRespondent by a trust deed dated 14.03.1957 registered as Doc No. 213 of 1957 on the file of the Registrar of Madras. The said Rajah Sir Muthiah Chettiar executed a registered gift deed dated 24.03.1960 in respect of ½ undivided half share of the property (Doc No. 517/1960 SRO Mylapore) in favour of his son Kumararajah Sri. M A M Muthiah Chettiar. The settlement was accepted and acted upon. Thereafter Kumararajah Sri. M A M Muthiah Chettiar became the owner of the undivided 50% share in the entire property and was also in possession thereof.

 

  1. Kumararajah Sri M A M Muthiah Chettiar was the brother of the Dr. M.A.M.Ramaswamy Chettiar. He died intestate on 24.01.1970.

 

  1. On the death of Mr. Kumararajah Muthiah Chettiar, his undivided half share in the entire property (i.e. about 63.5 grounds) devolved equally on the 6th respondent and on late Mrs. Meiyammai Achi the mother of Kumararajah Muthiah Chettiar and Kumararani Dr. Meena Muthiah, wife of Kumararajah M A M Muthiah Chettiar. Each inherited 31.75 grounds undivided share.

 

  1. The aforesaid Mrs. Meiyammai Achi died intestate on 01.03.1970. Pursuant to the same her share (ie) 31.75 grounds undivided share in the entire property devolved equally on her Class I heirs. i.e., Her husband Rajah Sir M A Muthiah Chettiar and her 2nd son Dr. M.A.M. Ramaswamy. Each inherited 15.89 grounds undivided share in the entire property.

 

  1. The aforesaid Rajah Sir M A Muthiah Chettiar executed an registered deed dated 28.03.1970 (Doc. No.635/1970, SRO, Mylapore) transferring his undivided half share of the entire property to the 4th Respondent trust. The remaining 50% undivided share belonging to Kumararajah Sri. M A M Muthiah Chettiar was never transferred, conveyed or vested in the said 4threspondent trust in any manner known or recognized by law. Possession of the same was also never handed over to the 4th Respondent trust.

 

  1. Rajah Sir Muthiah Chettiar died intestate on 12.05.1984. On his death, his share in the entire property devolved equally among Dr. M.A.M. Ramaswamy on one side and the 6th and 8th respondent on the other. Each obtained an additional 7.9 grounds undivided share in the above property.

 

  1. It is submitted that the said property has not been partitioned at all and it remains an undivided extent of 127 grounds.

 

  1. In these circumstances, Dr. M.A.M. Ramaswamy Chettiar founded a public trust namely the 1st Petitioner on 09.02.2015. He on his own accord and volition executed a will which was his last will and testament, in accordance with law complying with all the requisite formalities in a sane, stable and disposing state of mind. He thereby bequeathed all his assets to the 1st Petitioner trust. The 5thRespondent herein claims to be the adopted son of Dr. M.A.M. Ramaswamy. It is submitted that the said alleged adoption dated 09.02.1996 is neither valid nor legal and it is contrary to the customs of the Nagarathar community from which all the persons in this suit hail. The said adoption is void. Dr. M.A.M. Ramaswamy also when he was alive disowned the 5thRespondent and clearly declared that the aforesaid alleged adoption was void and not valid. He also declared that he does not want any of his assets to go to the 5thRespondent or his wife or children and that the 5threspondent or his family members should not even conduct his funeral ceremonies. The funeral ceremonies of the said M.A.M. Ramaswamy were accordingly not done by the 5th respondent.

 

  1. It is submitted that in accordance with the will dated 18.02.2015 executed by Late Dr. M.A.M. Ramaswamy totally 23.77 grounds of undivided share of land in the said property has devolved on and got vested with the 1st Petitioner on the death of Dr. M.A.M Ramaswamy by operation of law.

 

  1. It is submitted that the 1st Petitioner has applied for probate of Dr. M.A.M. Ramaswamy’s will dated 18.02.2015 and the said case is pending as TOS no. 27 of 2021 in the original side on the file of this Hon’ble Court.

 

  1. The Respondents 4, and 5 are attempting to put up construction of a commercial building in about 41.630 grounds out of the wholesome property on its Northern side having frontage on Thandavarayan Street. It is submitted that the property admeasuring 127 grounds is an undivided property where all the co-sharers have undivided shares of land and the Respondents 4 and 5 cannot claim any exclusive or absolute right over the above property where they are putting up construction which is a portion of the suit A scheduled property. It is also learnt that the 4thRespondent by using questionable and unlawful methods has transferred the revenue documents of the entire property in the name of the 4thRespondent and got it subdivided. It is submitted that the mutation and the changes made in the TSLR and other revenue records of the whole property without notice to the other co-sharers is not lawful or correct and the same is not binding on the Petitioners and the other co-sharers. The TSLR or any other revenue document is not a document of title and cannot clothe the 4th Respondent or convey to the same any title in the entire property to the exclusion of the Petitioners and other co-sharers.

 

  1. The Petitioners are entitled to only to undivided share in the entire property. The 4thRespondent at best can claim title only to undivided ½ share in the wholesome property. In these circumstances, it is totally unlawful and illegal on the part of the 4thRespondent in carrying on the construction in the C scheduled property as though it is its exclusive property. It is submitted that the 4thRespondent through the 5thRespondent has somehow manipulated and obtained planning approval etc. on the basis of unlawful mutation in the revenue records of the above property done as stated above.

 

  1. The design formulated by the 4thRespondent with the connivance and support of the Respondent 5 to put up a construction in above 41.63 grounds of land which is a part of the wholesome 127 grounds and a very advantageous portion of the same having enormous main road access and frontage is illegal and arbitrary.

 

  1. I submit that I learnt that an application for building plan approval in respect of 41.63 grounds of land approximately out of the 127 grounds stated supra to the 2nd Therefore, the 1st Petitioner gave an objection dated 12.11.2019 to the 2nd Respondent and the Commissioner of Police, Greater Chennai stating our case and also objecting to grant of building plan approval aforesaid sought by the 4th & 5th respondents.

 

  1. I state that though I sent objections to the 2nd Respondent by speed post on 14.11.2019 and the same was received by the 2nd Respondent on 15.11.2019, there was no reply or response whatsoever from the 2nd Respondent to my objection dated 12.11.2019. Based on the planning permission given by the 2nd respondent, the 3rd respondent has mechanically granted planning permission to the 4th

 

  1. I submit that on 14.05.2021 the 4th and 5th Respondents started construction in the 41.63 grounds of land stated above out of the above 127 grounds of land. The 4th Respondent has filed C.S. No.198/2016 in this Hon’ble Court against the 6th Respondent herein and the 6th Respondent herein has filed a partition suit against the 4th and 5th Respondents and others including the 1st Petitioner in C.S. 223 of 2021 in this Hon’ble Court and both the suits are pending before this Hon’ble Court.

 

  1. In the above circumstances, we don’t have any other alternative or efficacious remedy other than filing this Writ Petition before this Hon’ble Court challenging the building plan approval granted to the 4th Respondent above named by the 2nd Respondent on the following among other

GROUNDS

  1. The application for building plan approval filed by the 4th Respondent was originally rejected by the 2nd Respondent on 21.11.2013.

 

  1. The 4th Respondent filed an appeal before the 1st Respondent on 18.12.2013.

 

  1. The appeal filed by the 4th Respondent was disposed by the 1st Respondent on 19.07.2019 stating that

 

“the clause 8 of the trust deed (Document No.213/4, dated 14.03.1957) entitles the trustees to sell, transfer or otherwise alienate any of the shares set out and described in the schedule there under provided however that the amount realized on such sale or conversion, or in the event of any of the companies going into liquidation in lieu of the said shares shall be treated as the corpus of the trust and invested in such securities and in such manner as the trustees may decide. After detailed deliberations, the Government allowed the appeal with a direction to reserve the required OSR.”

 

  1. After allowing the above appeal on 19.07.2019 the 1st Respondent remitted the issue back to the 2nd

 

  1. Meanwhile, the 1st Petitioner filed his objections dated 12.11.2019 and it was received by the 2nd Respondent on 15.11.2019.

 

  1. The 2nd Respondent without considering and disposing the objections dated 12.11.2019 filed by the 1st Petitioner, granted building plan approval to the 4th Respondent on 25.02.2021 without considering the objections of the 1st

 

  1. The building plan approval granted to the 4th Respondent by the aforesaid order is unlawful and illegal due to the following reasons.

 

  1. The 2nd Respondent failed to see that there are no documents to show or prove that the 4th Respondent was the owner of the entire land for which planning permission was sought.
  2. The 2nd Respondent failed to see that the 4th Respondent had not produced any material or evidence to show that it had absolute and exclusive right and title over the above 41.63 grounds of land where he intended to put up the construction.
  3. The 1st Respondent erred in allowing the appeal filed by the 4th Respondent against the order of the 2nd Respondent without applying its mind and finding out whether the 4th Respondent had absolute exclusive and full titleover the land in Respondent of which planning permissible was applied for by the 4th
  4. The orders of the 1st and 2nd Respondent are made without application of mind and without considering the material facts, documents, and evidences available on record.
  5. The act of the 2nd Respondent is not considering and disposing the objection dt.19.11.2019 filed by the 1st Petitioner is unlawful is illegal.
  6. In any event the 4th respondent had applied for planning permission to the 2nd respondent on 23.8.2019 based on two documents (ie) Gift deed dt.28/3/70 executed by Rajah Sir M A Muthiah Chettiar in favour of the 4th respondent and power deed dt.10.8.2012 executed by Dr.M.A.M.Ramaswamy in favour of the 5th The 2nd respondent has failed to take into consideration and apply its mind to the fact that doct. No.1 aforesaid not have proof of title of the entire land in New Survey No.4277, Old Survey Bo.4277/1, Mylapore village in favour of the 4th respondent and that doct.No.2 was not valid as Dr.M.A.M.Ramaswamy had expired on 2.12.2015 and the power deed stood extinguished on the date of application. The concerned land when construction is carried on is subdivided and shown as R.S.No.4277/6.
  7. The grant of building plan approval by the 2nd Respondent without hearing the 1st Petitioner is against the law and principles of natural justice.
  8. The planning permission granted to the 4th respondent by the 2nd respondent has been granted without application of mind and mechanically based on extraneous consideration without considering the material documents, facts and circumstances.
  9. The 5th respondent has obtained planning permission by playing fraud based on invalid documents.
  10. In any event the planning permission is unlawful and illegal and liable to be set aside.
  11. Therefore, the Petitioners have filed the above Writ Petition. To avoid technical and legal objections in addition to the 1st Petitioner, the Petitioners 2 to 5 who are trustees are added as parties herein and the remaining trustees of the 1st Petitioner namely the Respondents 6 & 7 are added Respondent in the above Writ Petition, so that all the trustees are individually made parties herein.

 

  1. We have a strong prima facie case. The balance of convenience is in our favour. Irreparable injury will occur to us if the 4 & 5 respondents are permitted to proceed with the impugned construction. We only have the Xerox copy of the impugned order. The certified copy was not given to us though we applied. The petitioners have the same interest in the W.P. Therefore should be permitted to file single W.P.

 

  1. Therefore, this Writ Petition is filed.
    1. Hence it is prayed that this Hon`ble Court may be pleased to permit the petitioners above named to file a single writ petition in the above W.P.

 

  1. Hence it is prayed that this Hon`ble Court may be pleased to dispense with the production and filing of the certified copy of the 2nd respondent dt.25.2.2021 in C3(S)730/2019 in the above Writ Petition, and pass such further or other orders as the court may deem fit and proper and thus render justice.
  2. It is prayed that this Hon`ble Court may be pleased to stay the operation of the order of the 2nd respondent in C3(S)730/2019, dt.25/2/2021 pending disposal of the above W.P, and pass such further or other orders as the court may deem fit and proper and thus render justice.

 

  1. It is prayed that this Hon`ble Court may be pleased to pass an order of injunction restraining the 4th & 5th respondents and their men, servants, agents and employees from carrying on construction in S.No.4277/6 in Thandavarayan Street, Duraisamy Dinakaran Road, Rajah Annamalaipuram, Chennai – 600 028, pending disposal of the above W.P, and pass such further or other orders as the court may deem fit and proper and thus render justice.

 

  1. Hence it is prayed that this Hon`ble Court may be pleased to issue a Writ of certiorarified Mandamus or any other writ, order, or direction in the said nature calling for the records of the 2nd Respondent in connection with the order dated 25.2.2021 in C3(S)730/2019 granting building plan permission to the 4th Respondent in respect of land in R.S. No. 4277/6 in Thandavarayan Street, Duraisamy Dinakaran Road, Rajah Annamalaipuram, Chennai – 600028, and set aside the same and direct the 3rd respondent to cancel the building permission and all approvals granted to the 4th respondent in pursuance of the planning permission dt.25.2.2021 of the 2nd respondent in favour of the 4th respondent and pass such further or other orders as the court may deem fit and proper and thus render justice.

 

 

Solemnly affirmed at Chennai

this             day of August, 2021 and                   BEFORE ME,

signed his name in my presence.

 

 

 ADVOCATE, CHENNAI

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