2021 (11) TMI 778 - HC - Indian Laws

Seeking grant of building permission - seeking mandamus to direct the respondents to allow the petitioner to raise the commercial construction on the leased land, as per the plans submitted by him - principle of deemed permission - HELD THAT - This Court in the present proceeding is not required to determine or decide about the title of the land, nor could such an issue be raised in the writ petition. Going by the judgment cited by Mr. Qayoom in Mohinder Singh v. Chief Election Commissioner 1977 (12) TMI 138 - Supreme Court , this Court in its power of review is required to judge the validity of the impugned order by the reasons mentioned therein. Perusal of the impugned order reveals that there are various facts and circumstances mentioned as reasons therein which have prompted the Authority to refuse the building permission in favour of the petitioner. The principal reason mentioned therein, apparently, is that the land on which building was proposed to be constructed by the petitioner belongs to Mandir Shiv Ji under the control of Sant Tapanand, Chaila, and that pursuant to the various orders passed by the High Court in the writ/contempt petition and directions of Divisional Commissioner, Kashmir, the Srinagar Municipal Corporation has issued show cause notices dated 22.06.2020 regarding cancellation/revocation of permissions to those applicants who had previously obtained building permission on mandir properties. The Authority has clearly mentioned the directions of the Court passed in the writ petition and the contempt petition as well as the orders issued by the Divisional Commissioner, Kashmir. The impugned order states that pursuant to the directions issued by the Divisional Commissioner, Kashmir, the Srinagar Municipal Corporation issued notices even to those persons for cancellation of building permissions in whose favour such permissions had already been issued by it, meaning thereby that the Divisional Commissioner, Kashmir, in compliance to the Court orders had issued directions to the Srinagar Municipal Corporation not only to desist from issuing building permissions for construction on the lands belonging to the religious places, but also to revoke and cancel those building permissions which the Corporation had already issued. The fact/reason thus stated in the impugned order about the orders issued by the Divisional Commissioner is not denied by the learned Advocate General, but is, in fact, admitted by him by saying that pursuant to the Court direction, the Government and its functionaries had to take action and intervene. Alternate plea of necessity taken by the petitioner - HELD THAT - This Court in this petition, in its capacity as being a coordinate Bench, cannot overlook, ignore or undo the aforesaid direction passed by the coordinate Bench of the Court. Swami Tapanand having failed to take recourse to either of the options available to him, the Government and its all concerned functionaries are bound by the direction passed by the Court in the said writ petition and the Srinagar Municipal Corporation is not excepted. It is, therefore, immaterial that the lease deeds have not been challenged by any person. Plea of deemed permission - HELD THAT - It is true that Clause 5.1 of the Bye-laws provides that in case the applicant has fulfilled all the requisite formalities and the Authority has failed to refuse the sanction of the building or work or upon refusal he has failed to communicate the refusal of the building permit to the applicant within sixty (60) days, the Authority shall be deemed to have accorded the sanction to the building etc and the applicant shall be at liberty to commence or proceed with such building or work in accordance with the plans - the question of deemed building permission in favour of the petitioner, in the given facts and circumstances, would not arise. Since the Court has come to a definite conclusion on merits of the case, the question of maintainability of the writ petition is left to be decided in future in some other case. The judgments cited by Mr. Qayoom at the Bar, therefore, need not be mentioned - this petition is held to be without merit and, therefore, deserves to be dismissed. Petition dismissed.

Summary

Issues Involved:
1. Quashing of the order rejecting building permission.
2. Deemed permission under Clause 5.1 of the Srinagar Municipal Corporation (Building) Bye-laws, 2011.
3. Validity of lease deeds executed by the Mahant.
4. Compliance with High Court orders regarding protection of religious properties.
5. Maintainability of the writ petition in light of alternate remedy of revision.

Detailed Analysis:

Quashing of the Order Rejecting Building Permission
The petitioner sought the quashing of the order dated 09.07.2020 issued by the Joint Commissioner (Planning), Srinagar Municipal Corporation, which rejected his application for building permission. The petitioner argued that he had legally acquired the land through valid lease deeds and had fulfilled all requisite formalities, including obtaining necessary NOCs from various authorities.

Deemed Permission under Clause 5.1 of the Bye-laws
The petitioner argued that the authority should be deemed to have accorded the sanction for building permission as per Clause 5.1 of the Bye-laws, which states that if the authority fails to refuse the sanction within sixty days, the applicant can proceed with the construction. The petitioner claimed that all formalities were completed by 18.02.2020, and the authority did not communicate the refusal within the stipulated sixty days.

The respondents countered this argument by citing the unprecedented situation caused by the Covid-19 pandemic, which led to a lockdown starting from 19.03.2020. The Supreme Court had extended the limitation periods during the pandemic, and this was argued to apply to the period for granting or refusing building permissions as well.

Validity of Lease Deeds Executed by the Mahant
Respondents argued that the lease deeds executed by the Mahant in favor of the petitioner were not tenable under the law. They cited the Supreme Court judgment in Sridhar Suar v. Shri Jagan Nath Temple, which held that a manager could not grant a permanent lease without unavoidable necessity. The petitioner, in his rejoinder, attempted to justify the lease on grounds of necessity, stating that the funds were needed for repairs and other expenses related to the temple.

The court noted that the necessity was not mentioned in the lease deeds and appeared to be an afterthought. The court emphasized that any necessity for leasing out temple property should have been brought before the court that issued the original protective order regarding temple properties.

Compliance with High Court Orders
The respondents highlighted that the High Court had issued orders in OWP No. 610/2007, directing the state to protect religious properties. The Divisional Commissioner, in compliance with these orders, had directed the Srinagar Municipal Corporation to cancel building permissions granted on temple properties. The court found that the land in question was indeed temple property and that the directions of the High Court and Divisional Commissioner were binding.

Maintainability of the Writ Petition
The respondents argued that the petitioner had an alternate remedy available under Section 403 of the Jammu and Kashmir Municipal Corporation Act, 2000, which allows for revision by the government. The petitioner contended that the availability of an alternate remedy does not bar the filing of a writ petition. The court chose not to decide on this issue, given its conclusion on the merits of the case.

Conclusion:
The court dismissed the petition, holding that the rejection of the building permission was justified based on the High Court's orders and the Divisional Commissioner's directions. The plea of deemed permission was also rejected due to the extension of limitation periods during the Covid-19 pandemic. The court found no merit in the arguments regarding the validity of the lease deeds or the necessity for leasing out the temple property. The writ petition was thus dismissed, with no order as to costs.