Doctrine of Proportionality Must Adhere to Reasonableness Principal Test: Madras High Court

Young Men’s Christian Association built a commercial complex and leased it without having due permission. The District Collector & Tahsildar issued a show-cause notice to them and pursuant thereto issued orders to resume the lands to the government. The case was heard and decided upon by Hon’ble Justice Senthilkumar Ramamoorthy. 

Facts of the Case:

Young Men’s Christian Association is part of a global association founded in 1844 having its headquarters in Geneva, Switzerland. The association aims to provide free education, maintain hospitals, counselling centres, libraries, playgrounds, etc. to develop the human body, mind, and soul. The then British Government issued a miscellaneous patta whereby lands measuring an extent of about 1.73 acres were assigned to the Petitioner. The assignment was based on the condition that the land will only be used for an institution, hostel, and playground with secretary quarters. 

However, the Petitioner built a marriage hall, training centre, hostel facilities, games rooms, etc. in 1920. These buildings were periodically renovated and reconstructed. In 1984, special permission was obtained from the District Collector and the municipal authorities to build the Secretary’s Quarters. In 2003, the Petitioner again applied for permission to construct new buildings, including a commercial complex. The Petitioner claims that they were granted this request. However, the Respondents- District Collector & Tahsildar of Nilgiris refute the same. Nevertheless, the Petitioner proceeded to construct a commercial complex with shops, which have been let out to tenants. It claims that the income from the commercial complex was used to fulfil the objects and purposes of the Petitioner Association.

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In 2005, the District Collector served the Petitioner with a show-cause notice, stating that buildings were constructed by deviating from the sanctioned plan and building a commercial complex without permission. The Petitioner replied that the construction happened after obtaining the approval of the Government and the AAA Committee. It was also stated that the building was inspected by the local government authorities and was assessed to property tax. Such property tax is being paid, and the income is used only for the purpose of financing the social and charitable objects of the Petitioner Association. It was further pointed out that the Petitioner Association is providing employment to youth and is running schools where free education is provided. Despite such a reply, the respondents issued the impugned proceedings to resume the lands. 

Arguments before the Court:

The Counsel for the Petitioner submitted that a miscellaneous patta was granted to the Petitioner for establishing an institution with a hostel, playground, and secretary quarters. But the same could also be used for any other purpose with the local government’s previous sanction. The counsel pointed out to the proceedings dated 05.05.2000 and maintained that the grant is not merely a license or permission to use but that there was the transfer of title to the Petitioner Association. 

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The Counsel further submitted that in 2003, the Petitioner Association requested permission to construct a 1000 square foot youth hostel and 2000 square foot shopping complex by providing necessary information. The Council conceded that the said request was not granted, however, such buildings were constructed and used for various social purposes. 

The Counsel further argued that even if the Petitioner had violated the terms of the grant as regards the construction of the commercial complex, the interest of justice warrants that only partial resumption should be resorted to especially in view of the fact that the Petitioner is running a school for the underprivileged, hostels for working men, library and other facilities which sub-serve a social purpose. 

The Respondents’ Counsel- District Collector & Tahsildar of Nilgiris maintained that the grant was made without receiving any consideration. Naturally, the grant was subject to stringent conditions. Thus, the lands could be resumed by the Government, wholly or in part, if there is an infringement of conditions.  

Concerning the commercial complex, the request for approval was rejected. Despite the rejection, the Petitioner Association went on to construct such a commercial complex and let out 30 shops to tenants, thereby compounding the illegality of their actions. The Counsel further submitted that the permission was applied and approved for 286.69 square meters, but the actual constructed area was 403.52 square meters. 

The Counsel went on to submit that the respondents followed due process in that,  a show-cause notice was issued in 2005, and the impugned orders followed after. The Respondents were well within their powers when they issued the impugned order to resume the lands. The Counsel placed reliance upon a few cases, where the Court held that doctrine of proportionality is applicable only if there is perversity or it flows from the requirement of reasonableness and, therefore, is dependent on the factual matrix in each case.

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The Counsel for the third respondent, i.e., Lakshmaya, submitted that the Petitioner Association entered into a registered lease deed in 1998. Pursuant to the said lease, the third Respondent has been regularly remitting the monthly rent to the Petitioner. The original lease also had the provision for an extension period, and the lease has been extended in the present case. The counsel argued that the impugned proceedings are liable to be quashed since the lessee was not put on notice or provided a reasonable opportunity before deciding to resume the lands.

Court’s Observations:

After perusal of all the relevant documents, the Court observed that the construction of the commercial complex infringes the condition relating to the land use. The Court also observed a second violation by the Petitioner wherein the area constructed was almost double than what was approved. The third violation, the Court noted referred to entering into a lease deed with the third Respondent and permitting him to sublet the shops to about 30 occupants. 

The Court observed that the impugned order for resumption of the entire 1.73 acres is not justifiable and grossly disproportionate notwithstanding the infringement’s gravity due to the Wednesbury reasonableness test.

Court’s Order:

The Court allowed the present writ petition and set aside the impugned proceeding to enable the Respondents to initiate fresh proceedings by considering the requirement of reasonableness and proportionality. The Court also ordered that the Respondents be entitled to resume extent and portions commensurate with the infraction and public purpose requirements.

Click here to view the Judgment.


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