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TMI Blog2021 (11) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... nand, 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 Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Commissioner (Planning), Srinagar Municipal Corporation, rejecting the application of the petitioner for grant of building permission. The petitioner has also prayed for a 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 before respondent Nos. 1 to 3 on the principle of deemed permission and not to cause any kind of interference with the raising of the said construction in any manner, whatsoever. 2. The case of the petitioner is this: That in terms of lease deed executed on 08.08.2013, registered on 12.08.2013 by Sub-Registrar, Srinagar, land measuring 01 Kanal and 10 Marlas, falling under Survey No. 695 min, Khewat No. 3, Khata No. 40 situate in Mouza Nursing Garh (Solina), Tehsil and District Srinagar, was leased out by Swami Tapna Nand Ji, Chaila of Swami Sukhanandji Saraswati, Mahant Narayan Mutt, Mandir Shivji, Solina, Srinagar, to the petitioner in consideration of an amount of ₹ 1,00,000/- paid as premium before execution of the lease deed and in consideration of monthly rent of ₹ 2,150/- for an initial period of 40 years on the terms and conditions inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put out in the revenue extracts, it was not Sarkar/Nazool land. 4. Thereafter, according to the petitioner, respondent No. 3, instead of granting the building permission in favour of the petitioner for raising the construction of commercial building on the said land, vide order bearing No. 142 of 2020 dated 09.07.2020, rejected the petitioner's application on the grounds mentioned therein which have been reproduced by the petitioner in para 3(f)(i to iv) of the petition. On this, the petitioner is stated to have submitted an application and issued notice for demand of justice on 16.07.2020 to the respondents, seeking revocation of the order and grant of the request for building permission. It is averred that in the aforesaid notice, the petitioner stated that he had submitted before respondents 1 to 3 copies of the aforesaid lease deeds at the time he had made the application seeking the building permission, and that there was no direction passed by the High Court to withhold or reject the permission to those persons who had acquired the Mandir properties legally. According to the petitioner, in the notice he also stated that there was no contempt petition pending before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posal of the petitioner could be considered, but he failed to produce the same before the Competent Authority. On the above grounds, it is stated that the petitioner's proposal was rejected. It is further averred that the contention of the petitioner that he may be allowed to initiate the construction on the basis of deemed sanction is grossly misconceived. 7. Respondents 6 and 7 in the preliminary objections taken in their reply have stated that because the lease executed by the mahant in favour of the petitioner is not tenable in the eyes of law, the writ petition by the petitioner is not maintainable. To buttress this statement, the respondents have referred to and quoted a passage from Mayne's Treatise on Hindu Law (11th Edition) in their reply. They have also referred to the judgment of the Supreme Court in Sridhar Suar v. Shri Jagan Nath Temple, MANU/SC0021/1976 AIR 1976 SC 1860 wherein it has been held that it is beyond the powers of a manager to grant permanent lease at a fixed rent in the absence of unavoidable necessity etc. It is averred that no compelling reason has been mentioned in the instant lease deeds. 8. In the para-wise reply, respondents 6 7, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muneera Akhter, sons and daughter of Late Khazir Muhammad Bhat of Khosabagh, Baghat-i-Kaniporak, Budgam for surrendering possession of land measuring 07 Kanals covered under Survey No. 74-min situated at Mouza Rakh-i-Sathu, Tehsil Baghat-i-Kanipora, District Budgam in favour of Swami Tapanand. It is further averred that 'it was for paying the amount of ₹ 35,00,000/- to the aforesaid persons and make them to surrender the possession of 7 Kanals of land in favour of the temple that Swami Tapanand had to execute the lease deeds dated 08.08.2013 and 22.02.2019 in favour of the petitioner so as to lease out land measuring 2 Kanal and Marla, falling under Survey No. 695 min, Khewat No. 3, Khata No. 40 situate in Mouza Nursing Garh (Solina), Tehsil and District Srinagar, for a consideration of ₹ 45,64,200/-'. It is stated that lease deeds 08.08.2013 and 22.02.2019 were executed in favour of the petitioner only because there was an unavoidable necessity for him to do so. It is stated that there is no bar for a Manager/Mahant to lease out the said properties for compelling reasons. Reference in this connection is made to Section 2(a) of the J K Migrant Immovable Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court in Krishen Chand v. State Ors., 2007 (3) 263 [HC] and Mahant Vidaya Puri v. State of J K, 2015 (1) JKJ 297 [HC]. 12. On the other hand, arguments in response to the above were advanced by Mr. Moomin Khan, learned counsel, representing the Srinagar Municipal Corporation. Since Mr. D.C. Raina, learned Advocate General, appeared in the case on behalf of respondents 6 to 9, the Court thinks it appropriate for the sake of maintaining the statutory decorum in this judgment of the prior audience of the learned Advocate General envisaged by Section 23(4) of the Advocates Act, 1961, the point in reference and the arguments of Mr. Moomin Khan would be dealt with later in the judgment. 13. Mr. Qayoom, referring to the impugned order of refusal of building permission in favour of the petitioner, next argued that the grounds mentioned therein are not at all attracted in his case. He submitted that when a statutory functionary makes an order based on certain grounds, the validity of the order has to be judged by the reasons so mentioned therein and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. To buttress his submission, the learned counsel c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of permissions to those applicants/permittees who have previously obtained building permission on mandir properties; Now, therefore, in light of above facts and circumstances, and in view of the fact that the applicant has misrepresented before the competent authority, the application of Mr. Sadat Ahmed Qadri s/o Mohammad Amin Qadri S/A Solina, Srinagar, for building permission on the above cited subject is rejected. Hence be informed. By order. Mr. Qayoom submitted that the petitioner was not a party in any of the writ petitions or contempt petition referred to in the impugned order. Therefore, any direction passed therein is not binding on him. He submitted that, in any case, the contempt petition No. 217/2017 stands disposed of. He further submitted that Swami Tapna Nand Ji is not a non-local, and that he had not encroached upon any Mandir properties, but was a validly appointed Chaila having full control of the land in question. He further submitted that the petitioner has valid lease hold rights over the landed properties and that such lease deeds have not been challenged by any person. The learned counsel, referring to the averments made in the Rejoinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o grant a permanent lease in favour of the petitioner. The learned Advocate General also, in this regard, relied upon the decision of the Supreme Court in Sridhar v. Shri Jagan Nath Temple (supra). Reading out the contents of the lease deeds and the receipts of payments placed on record by the petitioner, the learned Advocate General submitted that the lease deeds actually are sale deeds, and that, thereby, what the Mahant could not have done directly has been done by him indirectly. So far as the ground of necessity for the estate of the Temple taken by the petitioner in his Rejoinder is concerned, the learned Advocate General submitted that it is just an afterthought on the part of the petitioner, and that such necessity has not been stated or disclosed in the lease deeds in question. 16. As to the rival submissions made, as hereinabove narrated, it needs to be observed at the outset 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 (supra), this Court in its power of revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court in the contempt petition, according to the learned Advocate General, the Government intervened and took necessary action. 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. 17. Now, it is the admitted case of the petitioner that the land in question belonged to Mandir Shiv Ji. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Viewed thus, the judgment of the Supreme Court in Sridhar v. Shri Jagan Nath Temple (supra), cited and relied upon by Mr. Qayoom, cannot help him. 19. Coming back to the plea of deemed permission taken by Mr. Qayoom, Mr. Moomin Khan, learned counsel for respondent 1 to 5, submitted that on account of the onset of the deadly pandemic of Covid-19, there was a lockdown ordered by the Administration in the UT of Jammu and Kashmir, especially in the City of Srinagar, with effect from 19.03.2020, as a result the government offices, including that of the Srinagar Municipal Corporation, were closed. He submitted that, thereafter, the unlocking commenced from 2nd week of June, 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgments cited at the Bar and relied upon by the learned counsel for the petitioner are not attracted. 20. I have given my thoughtful consideration to the submissions made at the Bar on the point. 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. It is also found that the requisite formalities in the instant case had been fulfilled on or around 18.02.2020 and, therefore, ordinarily, the period of limitation of 60 days provided under Clause 5.1 of the Bye-laws would come to an end on or around 18.04.2020; whereas the sanction of the building permission has been refused by order dated 09.07.2020. However, as rightly put forth by Mr. Moomin Khan, an unprecedented situation on account of the Covid-19 Pandemic intervened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 23.03.2020 and 08.03.2021 reveals that the periods of limitation were ordered to be extended/excluded from 15.03.2020 till 14.03.2021 for the benefit of litigants, for example, in computing the period of limitation for filing any suit, appeal, application or instituting any proceedings, yet, since the concerned staff of the Srinagar Municipal Corporation was not immune from the peculiar situation, and taking judicial notice of the fact that the Corporation, as rightly submitted by Mr. Moomin Khan, was at the forefront of taking necessary measures in containing the spread of the Pandemic in Srinagar, on the analogy of the Supreme Court orders, referred to above, the period of limitation prescribed under Clause 5.1 of the Bye-laws can validly be deemed to have been extended/excluded for computation, especially so when the order of refusal has been passed almost immediately after the lockdown in the City of Srinagar was eased out. Viewing thus, on account of the peculiar circumstances, the judgments cited by Mr. Qayoom are not attracted and the argument advanced by him in this regard cannot be accepted. Consequently, the question of deemed building permission in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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