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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 ..... n 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 Rs. 1,00,000/- paid as premium before execution of the lease deed and in consideration of monthly rent of Rs. 2,150/- for an initial period of 40 years on the terms and conditions incorporated in the lease deed. It is averred that in terms of the stipulations in the lease deed, the lessee-petitioner is authorised and empowered to raise construction of any commercial building viz. hotel, guest house, hostel etc. and to use and allow others to use the same without any interference from the lessor. There is a photocopy of a receipt dated 23.10.2013 placed by the petitioner on record of the petition showing that subsequent to the registration of the aforesaid lease deed, Swami Tapana Nand Ji purportedly received an amount of Rs. 27,32,200/- from the petitioner representing as rent to the extent of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the High Court and that the one, which was filed, had been disposed of by order dated 06.05.2019 and the directions issued in that petition did not pertain to the petitioner. In the notice, according to the averments made in the petition, it was further stated that the petitioner has been granted lease of the property under valid/registered lease deeds by an authorised person. 5. The petitioner also states to have filed an application before respondent No. 6, the Divisional Commissioner, Kashmir, raising his aforesaid grievance before him, stating therein that the property for which he had sought the building permission had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement, 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, reiterating the above submission, have stated that the answering respondent (Divisional Commissioner), being the custodian of the temple/migrant properties in terms of J&K Migrant Immovable Property (Prevention, Protection and Restraint on Distress Sales) Act, 1997, and Rules made thereunder, has authority to issue directions for non-alienation of the temple/migrant property, and that, whatever action has been taken by any authority pursuant to the lease deeds executed contrary to law is illegal. 9. The petitioner has also filed a rejoinder affidavit, primarily, responding therein to the preliminary objections taken by respondents 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2; 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 Rs. 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 Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. It is averred that since Swami Tapanand has not made any sale, gift, mortgage with possession or exchange of the Mandir property, therefore, there was no restriction to the execution of the lease deeds by him in favour of the petitioner. 10. I heard learned counsel for the parties and considered the matter. 11. The first and the foremost submission made by Mr. M.A. Qayoom, learned counsel for the petitioner, is that the 'Authority' has to be deemed to have accorded the sanction to the building permission in favour of the petitioner, and that the petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cited the decision of the Supreme Court in Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851. 14. This Court is of the opinion that with a view to elucidating the submissions made by Mr. Qayoom in this regard, it is necessary to extract hereunder the relevant grounds mentioned in the impugned order on the basis of which the application of the petitioner for building permission has been rejected. The order is extracted thus: "Whereas one namely Mr. Sadat Ahmad Qadri applied for building permission on the subject cited above for construction of G+4 storey commercial building having ground floor as stilt parking; Whereas the land on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 affidavit also submitted that the land in question actually belongs to Narain Mutt and that it is not a temple property. The learned counsel made detailed submissions to draw a distinction between a Mutt and Temple with reference to the principles of Hindu law. Citing the judgment of the Privy Council in Ram Charan v. Naurangi Lal, AIR 1933 Privy Council 75, the learned counsel submitted that a Mahant has power to create an interest in the property appertaining to the Mutt which will continue during his own life or during his tenure of office of Mahant. Alternatively, Mr. Qayoom submitted that it is permissible for a Mahant to alienate temple debutter property for the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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. Reference in this regard may be made to para 3(g) under the heading 'factual background of the case' of the writ petition wherein, the petitioner has stated 'that he had submitted copies of lease deeds with the application and that there is no direction passed by the Hon'ble High Court to withhold or reject the permission to those persons who have acquired the Mandir properties legally'. The extracts of revenue records placed by the petitioner with the file as its annexures also show the Mandir Shiv Ji as owner of the land. That being the factual position, given the fact that the Divisional Commissioner had issued orders to the Srinagar Municipal Corporation in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed 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 with specific direction to have only minimal attendance of the staff to avoid spread of the pandemic. He submitted that it was because of such unprecedented situation that the limitation period of 60 days provided in Clause 5.1 of the Bye-laws could not be adhered to. In this regard, he further submitted that, in fact, the Supreme Court of India was pleased to take suo motu cognizance of the situation prevailing all over the country on account of the Pandemic and passed an order on 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020 'In re: Cognizance for extension of limitation', that the period of limitation in all proceedings, irrespective of the limitation prescribed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance 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 on account of which the life had come to a stand still. Taking suo motu judicial notice of the situation, even the Supreme Court was pleased to pass a general order on 23.03.2020 extending the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 23.03.2020 was extended from time to time. Finally, by order dated 08.03.2021, while disposing of the suo motu writ petition, the Supreme Court was pleased to pass the following directions: "2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the petitioner, in the given facts and circumstances, would not arise. 21. Mr. Moomin Khan, learned counsel for Srinagar Municipal Corporation also raised an objection to the maintainability of this writ petition on the ground that in terms of Section 403 of the Jammu and Kashmir Municipal Corporation Act, 2000, there is an alternate remedy of revision available to the petitioner. Section 403 says that the Government may, at any time, for the purposes of satisfying itself as to the correctness, legality, propriety or regularity of any proceeding or order passed by any officer of the Government or the Commissioner or any officer subordinate to him, call for and examine the record and may pass such order with refere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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