ORDER
M.L. Bhat, J.
1. Petitioner prays for a writ of certiorari for quashing impugned communication Nos. NAG/TG/87/71 dated 15-5-1987, NAC/TG-87/204-06 dated 4-6-1987 and NAC/TG/87/268-70 dated 18-6-1987 and for a writ of prohibition against the respondents 1 and 2 to the effect that they should be restrained from interfering in the construction of hotel. The grounds of challenge are numerous and are detailed out below :
(a)That the State Govt. vide SRO 79 dated 17-2-1977 accorded sanction to the constitution of an authority for purposes of grant of permission for raising construction in Notified areas of Tangmarg/Gulmarg. The committee in the absence of Zonal Plan/Master Plan under which it had to grant permission, was to refer the matter to the Govt. with its recommendation and the original SRO was amended by a subsequent SRO 448 dt. 4-8-1978. A committee consisting of various functionaries was constituted which could grant or refuse building persmission. The said committee sanctioned the petitioner’s plan for construction. Respondent No. 1 is one of the members of the said committee. He could not prevent the petitioner from raising the construction. The impugned communication of respondent No. 1 is therefore said to be illegal, without jurisdiction and authority;
(b) The revised plans are said to have been passed by the building permission committee on 7-2-1987. Formal orders sanctioning the plan was passed by the Chief Executive Officer on 30-3-1987. The State Govt. had vide order No. 948-UD of 1979 dated 10-12-1979 authorised the Chief ExecutiveOfficerof the project organisation Gulmarg to have control of all engineering works within the notified area. Respondent No. 1 has no authority and he is unconnected with the construction activities at Gulmarg. It is the Building permission committee which is competent to decide about the legality or otherwise of a building permission. Once the building persmission is granted, respondent No. 1 is not competent to interfere with the construction work. Respondent No. 1 has no power to demolish any building having regard to the provisions of Municipal Act and the Development Act and Chapt. 21 of the J. and K. Town Planning Act. …….. The respondent No. l’s action is without any authorities.
(c) The appointment of respondent No. 2 as Administrator vide SRO 275 is also challenged. It is said to be mala fide and an abuse of authority because the appointment of respondent No. 2 is made under Section 284 of the Municipal Act for the notified area of Tangmarg/Gulmarg. Respondent No. 2 is appointed for purposes of Sub-sections 2 and 3 of Section 284 only which relate to collection of tax within the municipal area and its expenditure. The tax is to be imposed by the Govt. Section 284 of the Municipal Act does not deal with any question relating to the construction of buildings in the notified areas of Tangmarg/Gulmarg. The appointment of respondent No. 2 is restricted to the functions which are to be discharged by him under subsections 2 and 3 of Section 284 of the Municipal Act. The respondent No. 2 has therefore no authority to interfere with the petitioners building or prevent him from raising the construction,
(d) Respondent No. 2’s action is said to be an abuse of authority for extraneous and collateral reasons. Respondent No. 2 is said to manage and run a hotel at Gulmarg in the name and style of High Land Park. The said respondent is closely relatled to the Chief
Minister of the State as also to the Works
Minister. His personal interest is in conflict
with the duties which are imposed on him.
Respondent No. 2 is said to be disqualified
from being even a member of the Building
permission committee. He cannot have also
the final authority in the said committee. The
respondent No. 2 is said to have malice with
the petitioner. Therefore, he is exerting
pressure and instilling fear on the petitioner
so as to prevent him from construction of the
Hotel. The impugned communucations which
are challenged in this, writ petition are as
under:–
(i) The communication of the respondent
No. 1 to the respondent No. 3, who is brother
of the petitioner dated 15-5-89, that no new
construction will be permitted to be built in ,
Gulmarg as was decided in the meeting of
the Board of Ecology and Environment held
under the chairmanship of His Excellency
the Governor, Shri Jag Mohair on 12-5-1987.
Cash deposit of the respondent No. 3 on
account of construction fee for raising the
building was not accepted and was returned.
(ii) The communication dated 4-6-1987, whereby the respondent No. 1 has written to the respondent No. 3 that the original building permission was given for 4000 sq. ft. of plinth area which, seems to have been expanded to 40,000 sq. ft. which is ten times the original sanction and unless the. respondent No. 1 would peruse the case completely and thoroughly, any construction on the said land will be deemed as illegal and suitable action will be taken as per law. This communication is in response to respondent No. 3’s letter through his legal adviser which advice is termed by respondent No. 1 as erroneous.
(iii) The communication dated 18-6-1987 is also similar to communication dated 4-6-1987. The respondent No. 1 has submitted the copies of the said communication to various authorities including the Chief Minister and the local M.L.A. who happens to be the State Minister for works and Estates for information.
(iv) The appointment of respondent No. 2 as Administrator is challengeld on the ground that his powers were restricted by the notification appointing him. He is said to be not appointed for the purposes of dealing with the matters relating to the raising of construction etc. In order to understand the controversy, in its true perspective, it is necessary to detail out the facts briefly.
2. Petitioner and respondent No. 3 are brothers. Vide Govt. Order No. 68 UD of 1981 dated 15-10-1981 lease was renewed in their favour for land at Gulmarg for purposes of construction of hotel and Guest house at pinnacle and behind the club house at Gulmarg. This order flows from the land Grant Rules of 1977. A copy of the order is contained as Annexure-A to the writ petition. Lease agreements were drawn up and registered under law, copy whereof is annexure B to the petition.
3. Petitioner had applied for raising a building on an area of 4,292 sq. ft. and the requisite fee was deposited with the respondent No. 1 in Sept. 1983. Plans were approved by the building permission committees and the Chief Executive Officer had addressed a communication copy whereof is Annexure C to the petition. Permission that time was granted to the respondent No. 3 who is the brother of the petitioner to construct the hotel at pinnacles vide communication dated 17-11-1983, copy whereof is Annexure D to the petition. The receipt of the deposit is also annexed as Annexure-E to the petition.
4. In 1985 revised plans were submitted to the Chief Project Officer Gulmarg project organisation in which permission was sought for construction of building on an area of 40,957 sq. ft. The matter remained for some time with the authorities. The State came under Governor’s rule in March, 1986 and thereafter Governor is said to have visited the area where She petitioner represented his case before the Governor. The minutes of the meeting revealed that on 4-5-1986 it was recorded as under :
“regarding construction of hotel at pinnacle site, it was represented that the site does not fall under the master plan of Gulmarg. The Governor desired this case be looked into by the concerned officers with the help of technical experts from Town Planning Department and Chief Architect and put up to the Adviser (Q) for decision.”
In view of this decision a meeting was proposed to be held on 14-8-1986 in which respondent No. 3 was invited. The meeting was however preponed to 12th Aug. 1986 some functionaries of the Gulmarg project organisation as also of the State Government including Chief Architect were present in the meeting. Some decisions were taken in the meeting. These were as under :
(i) That the area where the building was proposed to be built up fell outside the Master plan,
(ii) that the poposed construction does not affect the ecology/Biosphere of the area and the revised plans submitted by the petitioner were also discussed.
After this meeting nothing was heard by the petitioner. Therefore, he filed a representation before the Chief Engineer Gulmarg project organisation requesting him to place the building plans of the petitioner before the building permission committee for purposes of consideration. The said Chief Engineer Addressed a communication to the Housing and Urban Development department on 19-11-1986 in which clarification was sought from Administrative department. Copy of the said communication is Anexure G to the petition. The said communication was replied on 31-12-1986. The Chief Engineer was asked to expedite the building permission case of the petititoner on merits. A copy of the said communication is Annexure-H to the petition.
5. On 7-2-1987 a meeting was held in the office of the Chief Engineer, Gulmarg project organisation in which besides him Chief Architect, Administrator Notified area committee Tangmarg/Gulmarg and Chief Executive Officer Gulmarg, who is member secretary of the Building permission committee were present. The Building permission committee in the said meeting approved the plans subject to the fulfilment of some formalities. A recommendation was made to the Government for grant of the formal permission for construction of the hotel. The plans submitted by the petitioner were found in accordance with the bye-laws and master plan of Gulmarg. Copy of the decision of the Building permission committee is marked as Annexure-I to the petition. On 14-2-1987 the petitioner was asked to attend the office of the Chief Executive Officer Gulmarg project organisation for completion of certain formalities. After the formalities were completed, the matter was referred to the Chief Engineer Gulmarg project organisation on 6-3-1987. Copy of this communication is annexed as Annexure J to the petition. The Chief Engineer referred the matter to the State Government for according the necessary sanction for the construction of the Hotel. The Government informed the Chief Engineer that approval of the construction of a modern hotel at pinnacle in private sector at Gulmarg of the respondent No. 3 has already been accorded and he was asked to proceed further in the matter. To this the Chief Engineer appears to have sought a clarification and he addressed a communication to the Chief Executive Officer Gulmarg project organisation with the remark that the plan stands already sanctioned and cleared by the Building permission committee. Formal permission was granted to the petitioner on 30-3-1987 to raise construction of the hotel at pinnacle Gulmarg subject to the conditions contained in the said letter of permission. Copy of the said communication is annexed as Annexure-K to the petition.
6. The petitioner had deposited Rs. 4,292/- earlier and he wanted to deposit the balance amount of Rs. 36,665/- which was refused to be accepted by the respondent No. 1 and which gave rise to the present dispute.
7. The State of Jammu and Kashmir by respondent No. 4 in their reply affidavit filed by respondent No. 4 was added as party subsequently it is stated that the lease hold rights in respect o.f 60 kanals of land at Gulmarg (at pinnacle and behind club house) was subject matter of controversy and litigation for many years. In 1937 lease was granted to one S. Mangat Singh c/o one S. Attar Singh. S. Attar Singh happened to be the Governor of Kashmir. However, in 1939 a communication was addressed by the Governor of Kashmir to Mangat Singh wasidar informing him that the lease in respect of the aforesaid land held by him had been transferred to one Surrinder Singh by the Revenue Commissioner. Vide the said communucation the aforesaid Surrinder Singh was asked to fill in the lease agreement. The period of lease was fixed as 90 years. There is no record available about the sanction of the Revenue commissioner or any lease agreement having been entered into by Surrinder Singh.
8. In course of time one Sunmukh Singh claimed to be heir of Mangat Singh and raised dispute about the lease hold rights of the land and vide Govt. Order No. 547-UD of 1978 dt/- 28-10-1978 based on cabinet decision lease hold rights were ordered to be substituted in the name of Mangat Singh. The parties contested their rights before the Revenue courts as also before the High Court. The Govt. settled the controversy by issuing an order No. 680-UD of 1981. The lease hold rights were transferred to M/s. Amarjeet Singh and Prabhjeet Singh, petitioner and respondent no. 3 from S. Surrinder Singh.
9. The petitioner and respondent No. 3 are said to have made an application in 1974 for permission to construct the hotel/Guest house on the said land. At this time the Town Planning Act of 1963 had already come into force. Permission for raising the construction was to be obtained from the Housing and Urban Development Minister. On the application of the petitioner and respondent No. 3 the Minister had recorded the following:
“I am not in favour of violating the proposals of Master Plan. Once we make a relaxation, the purpose of framing the Master Plan will be defeated. There will be no objection to the permission being granted provided the construction of the Hotel is considered feasible in the net area which will be left with the lessee after earmarking the area required for protection of coniferous. forest in pursuance of Gulmarg Master Plan.”
These observations were followed by a letter dated 25-1-1975 from the Deputy Secretary to the Chief Executive Officer conveying that respondent No. 3 be allowed to construct a modern hotel at pinnacle site. It is however contended by the respondent No. 4 that the above observations of the Minister did not accord any permission for construction of a hotel at pinnacle site. Secondly the petitioner and respondent No. 3 had no interest in the land in 1975. After the lease was transferred in 1981 to the petitioner and respondent No. 3, they had applied for construction on an area of 4,2,92 sq. ft. only. The papers in this regard were not placed before the Building permission committee for examination. On the other hand the Chief Executive Officer appears to have addressed a communication to the Chairman Notified Area Committee conveying that the building plans of the petitioner stood already approved by the Chairman Building permission committee (Shri B.L. Chackoo). Upon this respondent No. 3 was conveyed that building permission has been granted for construction of hotel at pinnacle site. The respondent submits that this was not based on any approval or recommendation of the Building permission committee. After the petitioner submitted revised plan for permission to raise construction on 40.957 sq. ft., the committee is said to have noticed that the said site was outside the master plan limits and no mention had been made about the land use of the site in the master plan. Consequently placing reliance on SRO 79 dt/- 7-2-77 Building permission committee recommended the case to the Government for grant of formal permission. Thereafter the Chief Executive Officer is said to have addressed a communication to the Chief Engineer on 6-3-1987 requesting him to take further action. The matter was not referred to the Minister incharge of Housing and Urban Development Department. A short circuit method was adopted and reference was made to earlier communications which were not based on any approval/sanction of the Minister. Record of the case in possession of the State Government is said to contain mutually contradictory and irreconcilable position which are pointed out in detail as under ; —
(a) Pursuant to the communication of the then Governor requiring said Surrinder Singh to execute a lease agreement, was any such agreement executed and if not did the aforesaid communication convey any right or interest to said Surrinder Singh.
(b) If the aforesaid communication of the then Governor transferring the lease from Mangat Singh to Surinder Singh had been acted upon, how and why was Government order No. 547-UD of 1978 dt. 28-10-78 based on cabinet Decision No. 827 dt. 2-10-78 passed ordering subsistence of lease in favour of Mangat Singh till 1980;
(c) When Government Order No. 547-UD of 1978, which order was based on a cabinet decision was in force, how and under what circumstances was Government order No. 680-UD of 1981 issued transfering lease hold rights to M/s Amarjeet Singh and Prabhjeet Singh;
(d) Why did not Government Order No.”680-UD of 1981 make any mention about quantum of location of the land or for that matter of any existing lease from which the transfer was sought to be made;
(e) While the Govt, Order No. 680-UD of 1981 directed transfer of lease in favour of M/s Amarjeet Singh and Prabhjeet Singh, how and under what circumstances was a lease deed executed with them on a renewal basis because renewal presupposed an existing lease of which no indication had been given in Govt. Order No. 680-UD of 1981.
(f) regarding the permission part, how did letter No. UD-174 dt. 25-1-1975 come into being when the then Minister of Housing had not accorded any sanction to the construction of a Hotel at either site;
(g) Why and under what circumstances was it deemed fit not to place the request for permission before the duly constituted Building permission committee in 1983 when petitioner and respondent No. 3 submitted their building plans for a plinth area of 4,292 sq. ft. pertaining to the pinnacle site and what is the effect and validity of the communication of Chief Executive Officer dt. 23-9-1983 and that of the Chairman NAC dt. 17-11-83;
(h) In 1987 when the BPC made recommendation for Government sanction in respect of revised building plans covering a plinth area of 40957 and odd sq. ft. why and under what circumstances was not the matter placed before the Minister for Housing and UD for according sanction as the Minister alone was competent in the circumstances of the case to accord sanction.
(i) Did the communication of Dy. Secretary dt. 11-3-1987 placing reliance on an earlier communication dt. 25-1-1975 convey any approval or sanction by the Government;
(j) In and under what circumstances the Chief Executive Officer (CPO) issued Order No. 4/1986-87/BPC dt. 30-3-1987 placing reliance on communication dt. 25-1-1975, 11-3-1987 and minutes of the BPC meeting dt. 7-2-1987.
10. To look into all these aspects of the matter, the Minister for Housing and Urban “Development vide his order dated 9-11-1987 ordered an enquiry into the whole affair particularly in respect of rights of transferee i. e. petitioner and respondent No. 3 under Govt. order No. 680 of 1981 and communication of Dy. Secretary dt 25-1-1975 and ‘why and how’ the Govt. order No. 547-UD of 1978 and that of 680 as also the legality thereof. The Secretary to Govt. Housing and Urban Development Department is said to have been appointed as Enquiry Officer who has initiated enquiry into the whole affair and his report was awaited and the communication dt 25-1-1975, 11-3-1987 and order No. 4 of 1986 issued by the Chief Executive Officer is kept by the Minister in abeyance pending completion of enquiry.
11. In reply to various paras of the writ petition the State has not denied the existence of various Govt orders but it has doubted its own communications and orders and the action of the respondent No. 1 is claimed to be justified.
12. A detailed rejoinder is filed by the petitioner it is stated that the respondents cannot be allowed to challenge its own orders. Some of the orders are being.attacked by the Government which cannot be allowed in law. These orders are binding on the respondents and its functionaries. The factual aspect given in the reply affidavit is said to be distortion of facts and not true in its entirety. The land is said to have been transferred to S. Surinder Singh in 1939 vide order No. 2502/N dt 4-10-1939. The total land was 60 kanals 12 marlas. Out of this land 8 kanals and 18 marlas fell behind ‘club House’. The remaining land is located at a site popularly called pinacle which measures 51 kanals and 14 marlas. At the pinacle site land, predecessor-in-interest of the petitioner had constructed a hut which was numbered as 202. Another hut on the land behind the club existed till 1947 which was numbered as 93-B. The hut at pinacle site continued to, exist till 3-12-1970 when it was burnt down by fire. After the transfer of the leasehold rights in favour of S. Surinder Singh entries were made in Demand and Collection Register of wasidars at Gulmarg. Register relates to the year 2005 BK and the entry in the said register is based on the order of 1939 made by Assistant Governor, vide mutation No. 140 land was allotted in favour of the petitioner and respondent No. 3. The previous mutations were in the name of one S. Mangat Singh.
13. When the petitioners applied for permission, the applications were referred to the Chief Executive Officer, Gulmarg project organisation for remarks who obtained report from Tehsildar concerned. The Tehsildar concerned had reported that the lease was expiring in the year 1980. For the construction of hotel at pinacle site the Chief Executive Officer had reported that they have no objections to the construction of the hotel as it does not conflict with the Master Plan. It is stated that the concerned Minister at no stage had objected to the construction of the hotel at pinacle site, but he wanted coniferous forest to be protected At that time proposal before the Minister was for construction of hotel at both the sites. So far as the pinacle site was concerned there was no objection raised by any authority. In respect of the construction of the Hotel behind the club site feasibility of protecting the coniferous forest was pointed out On 25-1-1975 petitioner and respondent No. 3 were wasidars because the original wasidar had died during the currency of the lease. Therefore, they acquired the rights in the land which were vested in S. Surinder Singh notwithstanding the wrong entries in the revenue records, and the Minister granting the permission on 25-1-1975 vide SRO 79 Minister delegated its authority to Building permission committee which was authorised to grant permission to the construction proposed to be raised. Within the Notified Area Committee of Gulmarg/Tangmarg. The necessity of expanding the area as hotel site is explained in the rejoinder. It is stated that the petitioner had felt the need for raising finance for the construction of Hotel and had approached the State Financial Corporation. The petitioner had to mortgage lease hold rights with the corporation as a security for the repayment of loan which might be granted to the petitioner and respondent No. 3 by the said corporation. The permission was obtained from the State Government for the purpose.
14. In 1983 one Sanmokh Singh raised dispute about the petitioner’s title and he started litigation before the High Court. The High Court decided the writ petition No. 444/84 on 19-2-1985, copy whereof is annexed as Annexure-6 to the petition. State of Jammu and Kashmir was also a party to the said writ petition and the State of Jammu and Kashmir had contended that the petitioner and respondent No. 3 herein were the owners of the land. The said Sanmokh Singh had initiated litigation on the basis of Govt. Order No. 547-UD of 1978. He was shown as lessee of 60 kanals and 12 marlas of land. The said order was wrong, against the record and was against the true facts. Petitioner and respondent No. 3 made enquiries as to how this order was issued. Their enquiries revealed that the subordinate revenue officers had given wrong information about the lease in ignorance of 1939 order. The information was contrary to the revenue record which was in favour of the petitioner and respondent No. 3. So far as the Govt. is concerned, it cannot dispute the title of the petitioner and respondent No. 3. In the present case Sanmokh Singh’s title cannot be set up by the State Govt. The order of the revenue Minister on which respondents have relied which is contained in Annexure-9 of the reply affidavit has come into existence during the pendency of the writ petition after the court had issued interim orders, is attacked as being non est as it cannot be taken into consideration and need not be challenged’ separately for it is not supported by any law and is contrary to the provisions of law and is without authority.
15. After the conclusion of arguments, Mr. B.A. Khan placed the file containing the Govt. record before me for perusal.
15-A. During the course of arguments Mr. B. A. Khan strongly relied on the Revenue Minister’s order ordering enquiry into the whole matter including the question of the title of petitioner and respondent No. 3 in the lease hold rights and keeping the permission of construction in abeyance. It was contended that the petitioners have failed to challenge that order and unless that order was challenged, petitioner cannot be granted any relief. The said order was said to have clinched the whole issue and the State Government is within its powers to decide the matter afresh and conduct an enquiry. After the enquiry report was available, it was contended that the State Govt. was entitled to take a decision which according to Mr. Khan would be in accordance with law.
16. Mr. Z. A. Shah, on the other raised a preliminary objection to the order of the Minister which came into existence during the pendency of the writ petition. He submitted that the said order was without authority and was without jurisdiction. The Minister could not decide something about which the decision had already been taken, nor could the Minister circumvent the process of law by ordering enquiry when the writ petition was pending and is under active consideration of the court He also invited my attention to CMP No. 1591/1987 in which an interim order dt. 29-10-1987 was passed after hearing the parties. The communications of the respondents which are impugned in the writ petition were kept in abeyance and it was directed by the court that District Judge Budgam be appointed as Commissioner with the direction to immediately go on spot and submit his report regarding the present position of the construction of the hotel on spot. After the submission of the report of the Commissioner, petitioner and respondent No. 3 can proceed with the construction of the Hotel strictly in accordance with the sanctioned plan after giving an undertaking before the Deputy Registrar of this court to the effect that in case of failure of this writ petition they would remove the construction raised hereinafter at their own risk and cost and would not claim any benefit on the basis of such further construction raised by them. This order was in operation when the Minister had ventured to pass the order dt. 9-11-1987 on which Mr. B.A. Khan relies.
17. 1 shall first consider the validity or otherwise of the order dt 9-11-1987 passed by the Minister by which he has raised two questions; one relating to right of transferees under Govt. order of 1981 and 1975 and the other why and how of the Govt. order of 1981 and 1975 and their legality. Pending enquiry the Minister has suspended the order dated 25-1-1975 and 11-3-1987 whereby the petitioners were permitted to raise the construction.
18. In my opinion the learned Minister has overstepped his jurisdiction by ordering the enquiry into the Govt. orders which were passed after due consideration. The Minister seems to have taken into consideration the Govt. order of 1978 by which lease was renewed in favour of Mangat Singh by holding that lease hold rights would expire in 1980. 1978 order cannot be accepted as correct because the State Govt. has accepted that lease hold rights were transferred in favour of S. Surinder Singh in 1939 during the period when one S. Attar Singh was Governor of Kashmir. It is not the case of respondent No. 4 that the said order was non est or fabricated or manipulated. They admit the existence of the order but their contention is that the record pertaining to that order was not available. In 1939 grant was conferred for 90 years on S. Surinder Singh, when the lease hold rights were transferred in his name from S. Mangat Singh. His death has taken place in 1961 which is not denied. So when he died he had subsisting right in the land as he was the lessee. The natural concomitant is that after his death rights in the lease hold land would pass on to his sons who are petitioner and respondent No. 3. If the revenue people did not record this position but entered something which was contrary to law an,d facts, rights of the petitioner and respondent No. 3 cannot be put in jeopardy.
19. On the basis of some wrong information, Govt. seems to have passed 1978 order in favour of Mangat Singh/Sanmukh Singh. They had no right in the land nor could any order be passed in their favour when the legal heirs of the original lessee were in possession of the lease hold rights and when they had right to be in possession of the land. Their position was evidenced by the entries in the wasidari register. The Govt. could not cloud their rights by passing an erroneous order of 1978 which was later rectified.
20. It is not advisable for the State to go into the rights of transferee on the ground that some erroneous order which was passed in favour of Mangat Singh/Sanmukh Singh in 1978 by mistake. The State Govt. was bound by its contentions which were upheld by the High Court in writ petition No. 444/1984 decided on 19-2-1985 by the Division Bench of this court. Sanmukh Singh claiming through Mangat Singh as wasidar of the land had filed a writ petition challenging theGovt. orderof 1981 as also the competence of the petitioner and respondent No. 3 to mortgage the said land in favour of State Financial Corporation as a security for the repayment of the loan that was in the process of being sanctioned in favour of the petitioner and respondent No. 3 herein. The State Govt. had appeared in the case and had taken a stand that the petitioner and respondent No. 3 were the wasidars and the said Sanmukh Singh had no right in the land and he cannot agitate his claim against the petitioner and respondent No. 3 herein. If that was the stand taken by the state in 1984 before the Division Bench in regard to the petitioner and respondent No. 3 in the said land, how could they change their stand now and take a someresault with a view to justify the action of the respondent No. 1. The Minister’s query as regards order of 1981 in favour of the petitioner and respondent No. 3 does not seem to be justified in view of its positive stand in the writ petition No. 444/1984 and the decision of the Division Bench on the basis of that stand in favour of petitioner and respondent No. 3. While examining the record, probably this decision of the Division Bench has not been brought to the notice of the Minister. 1939 order by which the land was transferred to S. Surrinder Singh from Mangat Singh was not doubted in the said writ petition, but was upheld in the said writ petition. That being the position, the contention of Mr. B. A. Khan, that the Minister’s order would not defeat the right of the petitioner or respondent No. 3 in the writ petition cannot, be accepted.
21. There is another equally strong reason, for ignoring the order of the Minister from consideration. This court in CMP No. 1591/1987 had passed interim order, gist whereof is given elsewhere in this judgment. The petitioner and respondent No. 3 were permitted to raise the construction on some conditions. The orders passed by the respondent No. 1 to the contrary were stayed. The Minister seems to have overreached the process of court by ordering enquiry and by staying the order of permission for raising the construction of the petitioner and respondent No. 3. When the case was pending in the High Court and the matter was seriously contested by the parties, the interim order was in operation, communications of respondent No. 1 were stayed at interim stage by the court, was it proper for the Minister to circumvent the process of law by staying the building permission is another question that falls for consideration of this court.
22. The interim order dated 29-10-1987 passed in CMP No. 1591/1987 is operative. The said order has neither been altered nor modified in any manner. If the State was aggrieved of the said order, they could agitate the matter in some higher forum. After having accepted that order as final for the interim period, it was not proper for any authority in the State, muchless the Minister, to interfere with the process of the court and pass an order which has the effect of staying the interim order passed by this court on 29-10-1987. A positive direction was made by this court that the petitioner and respondent No. 3 can raise the construction subject to furnishing undertaking before the Deputy Registrar to the effect that in case of their failure in the writ petition, they would remove the construction raised by them at their own risk and cost. The Minister has suspended the permission itself whereby the petitioner and respondent No. 3 were to raise the construction of their hotel Therefore the direction of this court has become futile. The permission granted by the authorities to the petitioner and respondent No. 3 for raising the construction in 1975 and in March, 1987 could be upheld or annulled by the court in the writ petition. It could not be suspended by any authority during the pendency of the writ petition with a view to circumvent the interim order dated 29-10-1987. Therefore, the Minister’s order is likely to effect the process of the court and this court is within its jurisdiction to ignore the said order from consideration and not to rely on it because it does not seem to have been passed according to law and propriety.
23. The Minister seems to have given justification for ordering the enquiry and for suspending the two orders of permission in favour of the petitioner and respondent No. 3. It is most likely that the Minister’s attention was not drawn to the order dated 29-10-1987 passed in CMP No. 1591/1987 by this court because at no place mention is made by the Minister of the stay order nor has the Minister dealt with the question of effect of the stay order which though interim, was as binding on the respondents as final order.
24. It will be a sad day for this country if judicial orders are tampered with by any authority in the State and are not taken note of. The judicial orders are meant to be obeyed. No authority has power to defeat a judicial order by any method whatsoever. Of course the judicial orders are liable to be altered/changed either by praying for the same or by filing appeal in a superior court. The tendency of the Executive to circumvent the judicial orders or to overreach the judicial process needs to be curbed more so when the Executives aim, in doing so is only to justify its orders.
25. Assuming for the sake of arguments, but not admitting that the Minister had the power to order enquiry into the rights of the petitioner and respondent No. 3 in the leasehold land, but could he suspend the 1975 order and 1987 order recognizing the petitioner’s right to raise the construction at the back of the petitioner and respondent No. 3, is another matter which needs to be carefully dealt with in this case.
26. From reading the order, it appears that during the course of preparations for drafting the reply affidavit, Minister had noticed something which he manifested in the order dt. 9-11-1987. The preamble suggests that preparations of reply affidavit were being made which were to be filed in this petition, Minister had examined the record and during the course of examination of the record, he proceeded to order an enquiry against its own orders and against the settled position. This was done, admittedly by the Minister at the back of the petitioner and respondent No. 3. After ordering the enquiry and appointing enquiry officer he suspended the order dt. 25-1-1975 and order dt. 11-3-1987. This was also done at the back of the petitioners. Had the Minister power to do it, is a pertinent question that needs to be answered.
27. The two orders suspended by the Minister had created some rights in the petitioner and respondent No. 3. By suspending these two orders during the pendency of the writ petition, were they required to be heard or not. When this question was put to Mr. B.A. Khan, he submitted that the two orders were suspended and they were not cancelled and if enquiry report was against the petitioner and the respondent No. 3, they will be given opportunity of being heard. However, I am not convinced by this argument.
28. On the basis of the orders which are suspended by the Minister, petitioner had projected his case before the court and had obtained interim relief with regard to the raising of construction on conditions. Suspension of two orders, enabling the petitioner and respondent No. 3 to raise the construction, would mean that an important right of the petitioner and respondent No. 3 recognized by the court on conditions was taken away from them at their back without affording them an opportunity of being heard . The administrative fairness would require that the petitioners and respondent No. 3 were heard before they were deprived of their right to raise the construction in pursuance of the two orders. The suspension of two orders had serious implications for the petitioner and respondent No. 3. They on the one hand were denied the benefit of the two orders and on the other hand the order obtained by them from this court by way of interim arrangement was sought to be tampered with by administrative action. This should not have been done.
29. Rights of a citizen cannot be affected to their detriment at their back without affording them opportunity of being heard. This principle is recognised and embodied in our Constitution. Therefore, the executive authorities are bound to follow the rules of natural justice and they cannot pass adverse orders affecting the right of any citizen at their back. The rules of natural justice have assumed fundamental importance in our system. The Minister by violating the principles of natural justice and by passing the orders at the back of the petitioner and respondent No. 3, has violated the rules of natural justice. Therefore, the order of the Minister which, on the face of it is violative of principles of natural justice is not taken into consideration by me for this additional reason also.
30. Prof. H. W. R. Wade on Administrative law in its fifth edition has commenced that by developing the principles of natural justice the courts have devised a kind of code of fair administrative procedure. Procedure, according to Prof. Wade is not a matter of secondary importance. As governmental powers continuously grow more drastic, it is only by procedural fairness that they are rendered tolerable.
31. A Judge of the United States Supreme Court has said, “procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.” He went on to say that it might be preferable to live under Russian law applied by common law procedure than under common law enforced by Russian procedure. Jackson J. in Shaughnessy v. United States, (1952) 345 US 206.
32. Prof. Wade proceeds to comment in chapter V of his book on page 415 :
“Just as a power to act ‘as he thinks fit’ does not allow a public authority to act unreasonably or in bad faith, so it does not allow disregard of the elementary doctrines of fair procedure. As Lord Selbourne once said. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice. Quoting these words, the Privy Council has said that it has long been settled law that a decision which offends against the principles of natural justice is outside the jurisdiction of the decision making authority. Likewise Lord Russell has said.
It is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of principles of natural justice, and the Parliament does by the Act require, in the particular procedures, compliance with those principles.”
“de Smith” in his treatise on Judicial Review of Administrative action (Fourth Edition) has also commenced on the effect of breach of principles of natural justice :
“Depending on the circumstancces of the case, a decision reached or proceedings conducted in breach of the audi alteram partem rule will.be reviewable by means of certiorari, prohibition, mandamus, an injunction or a declaration. If a man is deprived of his liberty without the hearing to which he was entitled, he will be able to secure his release on application for habeas corpus.
Although breaches of natural justice used to be assignable as ‘errors in fact’, a ground of challenge presupposing that the impugned order was merely voidable, there is a substantial body of recent judicial decisions to the effect that breach of the audi alteram partem rule goes to jurisdiction (or is akin to a jurisdictional defect) and renders an order or determination void.”
de Smith says, that natural justice requires that persons liable to be directly affected by proposed administrative actions, decisions or proceedings be given adequate notice to what is proposed, so that they may be in a position :
a) to make representation on their own behalf or
b) to appear at a hearing or enquiry (if one is to be held) and
c) effectively to prepare their own case and to answer the case, (if any) they have to meet.
(de Smith, Judicial Review of Administrative Action, Fourth Edition page 196).
33. Article 14 of our Constitution mandates every authority and tribunal to observe the rules of natural justice. This principle has multiple dimensions and enjoins on all authorities not to pass orders adversely affecting rights of citizens at their back, without affording them opportunity of being heard An obligation is cast on the State and all its functionaries, agencies and instrumentalities to afford opportunity of being heard to a person against whom any order adverse to his interest is proposed to be passed.
34. In the present case, the Minister’s order to the extent it suspends the order dt 25-1-75 and 11-3-1987, on which Mr. B.A. Khan has relied, flagrantly violates the principles of natural justice as it is passed at the back of the petitioner and respondent No. 3. It affects the fundamental rights of the petitioner. It prevents him to enjoy his property and puts curb on his right to raise construction in accordance with the permission granted to him by a competent authority.
35. The Minister’s order as regards enquiry into the right of the petitioner over the land in question also seems to proceed on some misconception. The order of the Minister proceeds on the assumption that the transfer of lease in favour of S. Surrinder Singh from Mangat Singh was questionable and order of transfer of lease in favour of Mangat Singh in 1978 was operative. It also seeks to cast doubt on Govt. order No. 680-UD of 1981 dt. 15-10-81 when lease of the land in question is transferred in favour of the petitioner and the respondent No. 3 from S. Surrinder Singh and permission is granted to the transferees to mortgage the lease hold rights to the J & K State Financial Corporation or any other financial institution for borrowing of loan.
36. In these proceedings the State cannot question its own orders and rely on an order which is outcome of gross negligence and mistake. The order dated 28-10-1978 on which the State relies is a composite order. Para 2 of the said order reads as under : —
“Out of the two leases shown in Annexure ‘B’ to this order whose period of lease is expiring in 1980 the land leased out in favour of Sh. Peston Ji be resumed as he is not in favour of its continuance and the lease in favour of Sardar Mangat Singh should be allowed to run its time.”
Order of 1978 in so far as it deals with Mangat Singh is erroneous on the face of it. This order would not affect the rights of the petitioner and respondent No. 3. Their rights actually flow from order contained in Annexure R-l to the reply affidavit (order dated 4-10-1939) lease was to remain in force in favour of their father for 90 years from that date. Order dated 4-10-1939 (Annexure-Rl to the reply affidavit) and order dated 15-10-1981 are binding on the State. It is strange that on the basis of some illegal order of the Minister passed during the pendency of the writ petition in flagrant violation of principles of natural justice State is trying to wriggle out from the position which it has taken about the lease and which is almost settled in favour of the petitioner and respondent No. 3. State will not be allowed to attack its own orders as a respondent. I am supported in this regard by an judgment of the Supreme Court dated October 6,1967 in State of Assam v. Raghava Rajagopalochari.
37. In view of the reliance of the respondents on the order of the Minister which is sheetanchor of their reply, matter of lease etc. is dealt with in some detail. Respondents, State in particular, probably wanted a finding on the validity of lease in favour of the petitioner otherwise they would not have manufactured the order of the Minister during the pendency of the writ petition and then relied on it.
38. After the constitution of the building permission committee which was delegated the powers for purpose of provisions of the Town Planning Act vide SRO 79 of 1977 read with SRO 4487 of 1978, the Minister could not exercise the power under section 10 of the Town Planning Act unless he would withdraw the delegation granted to the committee. Minister is the repository of the power. He could withdraw the authority and exercise the power himself. But once the delegatee had exhausted the authority given to it and exercised the power so delegated to it, could the Minister retain the authority to suspend any order which its delegate has already passed and which has conferred right on a citizen. The order of the Minister needs to be examined in this context also.
39. After the delegate had exercised the power in 1987 the Minister could not exercise that power which was already exhausted by the delegate. Minister had not retained any authority to exercise the power which stood already exercised. Suspension of the order dated 25-1-1975 and 11-3-1987 could not be ordered by the Minister.
40. The committee constituted for purposes of granting permission no doubt is a delegate, but its powers in regard to grant of building permission are concurrent with the person who delegated the power to the committee. After the power is exercised by the delegate. It could not be annulled by the repository of power. Of course the exercise of the power by the delegated authority could be tested on the anvil of its jurisdiction and authority to exercise the delegated power.
41. In Huth v. Clarke (1980) 2 SQBD 391 Lord Coleridge CJ and Wills J while concurring on the conclusion of the powers of a delegate and the repository gave different reasoning in support of their orders by which conviction ordered by a delegated authority for violation of law was recorded. Lord Coleridge held that delegation does not imply a deputation of power of repository of the said power. The delegation in that case was provided by a statute. The local authority had power to punish people under Contagious Diseases (Animals) Act of 1988. Local authority was empowered to appoint executive committee to have all the powers of local authority under the Act. The Executive Committee/could further appoint sub-committee and delegate them any of the powers of the executive committee with or without restrictions. The executive committee of a county council delegated its powers under the Rabies order of 1987 to a sub-committee. The Executive Committee without expressly revoking the delegation issued certain regulation under the Rabies order as to the muzzling of dogs and keeping them under control. The authority of the Executive Committee’s Regulation was in question on the ground that they have already delegated their power to the local sub-committee and they should not issue the regulations. The regulations were upheld by the learned Judges of the Queens Bench and about the powers of delegate it was held by one Judge that delegation implies that the powers are committed to another person or body which are as a rule subject to resumption by the power delegating and many examples of this might be given. If the delegated authority had exercised the powers which could be exercised by the delegate but the delegate had not exercised that, there was no question of conflict of jurisdiction.
42. Wills J while concurring with the Lord Chief Justice held that delegation does not imply parting with power by the person who grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would not do himself. By delegating power to sub-committee the Executive Committee never parted with their own authority.
43. While Lord Coleridge CJ observed that Executive Committee which had granted the power had assumed its power, Wills J proceeded to say that executive committee had never parted with its power at any rate. Both upheld the order. Their reasoning was attempted to be reconciled by V. Ramaswami J, In (G. Vasantha Pai v. C. Ramaswamy) AIR 1978 Mad 342 was observed as under (at p. 351 of AIR): –
“If the delegated authority had already exercised that power, the question of the delegating authority’s power would not arise because in such a case, whether the exercise by the delegated authority was right and within his jurisdiction would be the only question and it could not have been the subject matter of the authority who delegated that power. So long as the authority delegated had not been exercised by the delegated authority, the power still remains with the original authority and no question of the jurisdiction of the original authority could arise at all.”
I am in respectful agreement with the observations of V. Ramaswami J.
44. The delegate in this case had already exhausted the delegated authority. Therefore, the Minister granting delegation, would not make that power subject to his review after it was exercised. He could of course exercise the same power if the delegate had not already exercised it or he could withdraw the authority from the delegate before the delegate had exercised the delegation. After having exhausted the power the Building permission committee’s action could not be called in question by the Minister.
45. For the reasons which I have stated hereinabove, I am of the firm opinion that the Minister’s attempt to make certain orders subject matter of enquiry and question the delegates authority is uncalled for and needs to be ignored as in the eye of law it is non est.
46. That brings me to the other limb of the argument.
On merits the controversy turns on the question of validity of the plan sanctioned in favour of the petitioner and the respondent No. 3 for construction of the Hotel and authority of the respondent No. 1 to prevent the holders of the permission to raise the construction.
47. Respondent No. 1’s case is that Minister had not granted no objection in 1975 with regard to the construction of a building on pimacle site in favour of the petitioner and the respondent No. 3. It is also contended that in 1975 the lease hold rights were not transferred in the name of the petitioner or the respondent No. 3. They became lessees in 1981, therefore question of granting any ‘no objection’ in their favour would not arise.
48. The Housing Department on 25-1-1975 conveyed the following to the Chief Executive officer Gulmarg :
“Government of J & K Department of Housing and Urban Development.
The Chief Executive Officer,
Gulmarg project organisation,
Tangmarg.
No. UD-174/74-Gul Dated 25-1-1975
Sub : Permission for construction of a modern hotel at Gulmarg in private sector.
Sir,
I am directed to refer to your communication No. 2718.19 dt. 8-11-1974 regarding the subject cited above and to say that Shri Amarjit Singh Johar may please be permitted to construct a modern hotel at pinnacle site in private sector at Gulmarg as recommended by you.
Yours faithfully,
Sd/- T. N. Dullu
Deputy Secretary to Govt.”
49. In 1977, SRO 79 dated 17-2-1977 came into being. The then Minister Housing and Urban Development Department had constituted a committee in exercise of powers vested in him under Section 10 of the Town Planning Act of 1963. This committee was to be headed by Chief Engineer Gulmarg project organisation. Chief Executive officer Gulmarg project organisation was one of the six members of the committee.
50. The committee was directed by the Minister to have due regard to the following before granting permission to raise construction in Notified Area committee of Gulmarg/Tangmarg.
1) That the Master plan/Zonal plan proposals are adhered to;
2) That where, in any case, the master plan is silent the case is scrutinised under the Town Planning Rules, sanctioned by the Government under the Jammu & Kashmir State Town Planning Act, 1963.
3) That where, in any case, both the Master plan as well as the Town Planning Rules are silent the matter is referred to the Government with its recommendation.”
51. Subsequently SRO 415 of 1978 came to be issued by which Gulmarg Development Authority was constituted by the State Govt. It consisted of nine members and was headed by commissioner Tourism J & K State. It had nothing to do with the grant of building permission.
52. On 4th August, 1978 by virtue of SRO 448 the SRO 79 of 1977 was amended and the committee constituted there under was substituted by a new committee consisting of:
1) Chief Engineer project organisation chairman
2) Senior Architect, J & K Member.
3) Chairman Notified Area committee, Member.
4) Chief Executive Officer, Gulmarg project organisation. Member, Secy.
53. Under SRO 448 of 1978 the respondent 1 is also a member of the committee which is constituted for purposes of granting building permission in Gulmarg/Tangmarg Notified Area committee.
54. It is not denied that the building permission committee met on 7-2-1987 to consider the building permission case of the respondent No. 3, All the members of the committee appointed vide SRO 448 were present.
55. The said committee took note of transfer of lease in favour of the petitioner and respondent No. 3 from S. Surrinder Singh. The petitioner and respondent No. 3 were required to sign all the building plans submitted by them. The Chief Executive Officer was asked to ascertain boundaries of the site as shown in the building plan.
56. The following recommendations were submitted to the Govt. for approval :
“However the Building permission committee approves the plans subject to the formalities mentioned in aforesaid paras are completed before it is sent along with the recommendations to the Government for granting formal permission for construction of a hotel. The plans submitted are in conformity with the general, by-laws and Master plan concept of Gulmarg. The hights and other specifications of the building are within the norms laid down in the Master plan. In fact the building permission committee feels that if the proposed hotel is constructed as per drawing submitted, it will be a land mark in Gulmarg.”
57. On 6-3-1987 Chief Executive Officer seems to have written to Chief Engineer Gulmarg project organisation to take further necessary action in the light of decisions taken in the meeting on 7-2-1987.
58. Deputy Secretary’s letter dated 11-3-1987 on the subject and Govt. order dated 25-1-1975 seems to have been made basis of grant of permission to raise the construction in favour of the petitioner and respondent No. 3. This is reflected by order No. 4/1986-87/BPC dated 30-3-1987. Certain conditions were laid in the said order and the order granting permission was conveyed to the petitioner and respondent No. 3.
59. From the reading of the order dated 30-3-1987 based on decision dt. 11-3-1987 and Govt. order dated 25-1-1975 the petitioner and respondent under law are entitled to construct the proposed construction at Gulmarg and the respondent No. 1 is to see that they adhere to the terms of the building permission order and in case they violate the same they may suffer prosecution or for any violation done by them its removal may be ordered by the respondent after following the procedure established by law in this behalf.
60. Respondent No. 1 has no authority under law to prevent the petitioner or respondent No. 3 to raise the construction which they are permitted to raise by a duly constituted authority.
61. Respondent No. 1 is a creation of a statute. He is to exercise the powers which he is permitted to exercise under the statute. In the capacity of Administrator he can have a dual position, of being a member of the building permission committee also, but he cannot, annul or stay the order of building permission committee which is granted to the petitioner and respondent No. 3 under law.
62. His communications which is impugned make a very interesting reading. On 15-5-1987, soon after his appointment by virtue of SRO 275, he writes the following to the respondent No. 3. The letter is impugned.
Office of the Administrator Notified Area Committee. Tangmarg/Gulmarg.
No. NAC/TG/87/71
Dated 15-5-1987
Shri A. S. Johar,
Johar Hotels limited
Gulmarg.
Dear Sir,
1 am hereby directed by the Hon’ble Minister of works that no new construction will be permitted to be built in Gulmarg as was decided in the meeting of the Board for Ecology and Environment held under the chairmanship of H.E. the Governor Shri Jagmohan on 12-5-1987. I am, therefore, not in a position to accept your cash deposited by you directly into the bank and am returning the same which may please be acknowledged.
You are further requested to take up the matter with the Board. Please note that no new structure should be constructed at the site till you have taken the matter up with the Board. Sd/- Administrator, Notified Area Committee Tangmarg/Gulmarg" 63. Copy of this letter is sent by him among others to the Minister for works who is not concerned with the grant or refusal of building permission at Gulmarg.
64. Two letters seem to have been addressed to him by the respondent No. 3 and the petitioner. In one letter he was requested to furnish the minister’s order metioned in the impugned letter of the respondent No. 1 dt. 15-5-1987. In another letter he is conveyed the opinion tendered to the petitioner by his legal consultant about the impugned letter being without any legal basis as such the petitioner was starting the proposed construction.
65. On receipt of the two letters the respondent No. 1 seems to have, in anger, written to the respondent No. 3 that unless his office does not peruse the building permission case of the petitioner thoroughly any construction raised by the petitioner and respondent No. 3 was to be taken as illegal which would warrant taking of suitable action under law. The respondent No. 1 has termed legal opinion received by the petitioner as erroneous. The copy of the letter dated 18-6-1987 impugned, is sent to the Chief Minister of the State and to the works Minister also.
66. On 4-6-1987 also the respondent No. 1 by his communication has reprimanded the respondent No. 3 and asked him to desist from raising the construction, after holding the legal advice received by the respondent No. 3 as erroneous. This communication is also impugned in this petition.
67. On perusal of the letters of the petitioner and respondent No. 3 it appears that they had decided to exercise their legitimate rights which they could exercise in pursuance of order dated 30-3-1987.
68. The respondent No. 1’s impugned letters addressed to the petitioner dated 15-5-1987, 4-6-1987 and 18-6-1987 are without authority. The respondent No. 1 had no jurisdiction to prevent the petitioner from raising the construction in accordance with the sanctioned plan which was validly granted to them by a lawful authority.
69. Respondent No. 1 has tried to sit in appeal over the lawful orders of the competent authority which had granted the permission to the petitioner and respondent No. 3 to raise the construction on the terms and conditions mentioned in the order dt. 30-3-1987. The impugned letters of the respondent No. 1 have the effect of causing obstruction and interference with the lawful rights of the petitioner and the respondent No. 3. The impugned letters infringe valuable rights of the petitioner and the respondent No. 3.
70. The respondent-State and not the respondent No. 1 has filed the reply affidavit. The reply affidavit is silent about the powers of the respondent No. 1 which he has exercised in gross violation of law.
71. The reply affidavit raises some extraneous question to justify the Minister’s order of inquiry and suspension of orders dated 11-3-1987 and 25-1-1975. I have elsewhere in this judgment dealt with the Minister’s order. Therefore 1 need not repeat what is settled already in this judgment about the validity of the Minister’s order.
72. The respondent No. 4 had to show independently the powers of the respondent No. 1 wherefrom the impugned letters have emanated. State should have frankly conceded that the respondent No. 1 has addressed the impugned letters without any authority. When the respondent No. 1 had no authority to issue the impugned communication, he will be said to have no jurisdiction to issue the same. Jurisdiction, according to “desmith” means authority to decide. It is not a case of wrong exercise of power. It, on the other hand, is exercise of power without jurisdiction.
73. Once the building permission was granted to the petitioner and the respondent No. 3, their right to raise construction in accordance with the sanctioned plan could not be interfered with by the respondent No. 1. He cannot arrogate to himself any power which is not conferred on him by the statute to which he owes his existence. He is obliged not to step outside his jurisdiction. His communications impugned in the petition are ultra vires the powers that are vested in him.
74. When the respondent No. 1’s attention was drawn by the petitioner on the basis of legal advice which he had received to the fact that impugned communications had no legal basis, the respondent No. 1, instead of correcting himself or wishing not to agree with the legal opinion on which the petitioner relied, seems to have arrogantly termed the legal opinion as erroneous.
75. Public authorities have to inculcate the habit of shunning arrogance in their dealings with the public or in disagreeing with any lawyer’s opinion. Respondent No. 1 could disagree with the lawyers opinion but he could not jump to the conclusion that it was erroneous and what he was professing to do was his eternal right.
76. The appointment of respondent No. 1 is also challenged It is said that he is appointed by virtue of SRO 275 dated 7th May, 1987 for purposes of Clauses (2) and (3) of Section 284 of the Municipal Act. It is sought to be conveyed that respondent No. 1 can function only for collection of tax and its expenditure.
77. Reasons for his appointment is attributed to the relationship of the said respondent with the Chief Minister and in that view his appointment is termed as mala fide.
78. I have carefully considered this aspect of the case. In my opinion respondent No. 1 is not disqualified to be appointed as Administrator merely because he is related to the State Chief Minister. A relation of the Chief Minister can hold any post in the State set up in his own right. The appointment of the respondent No. 1 as Administrator cannot be mala fide.
79. Respondent No. 1’s appointment may have been made under Section 284(4) for purposes of Sub-sections (2) and (3) of the said section only. That should not bother the petitioner. Under whatever provision of law he is appointed, petitioner cannot challenge his appointment for that is not the dispute in the present writ petition. The validity of appointment of respondent No. 1 as administrator arises collaterally.
80. The impugned communications addressed by him are declared without jurisdiction and are rendered illegal. Consideration with regard to the limits of his power under Section 284 of the Municipal Act and scope of his functions as administrator will be inconsequential in this petition. Therefore I would decline to declare the appointment of respondent No. 1 as bad or liable to be quashed. SRO 275 dated 7th May, 1987 is refused to be disturbed.
81. The last argument which falls for consideration is as to whether respondent No. 1’s personal interest is in conflict with the duties which are imposed on him. If that be so, are the impugned communications said to have been issued because of bias.
82. It is true that the respondent No. 1 has a hotel of his own at Gulmarg, as stated by the petitioner and respondent No. 3 and admitted by the State in their reply. It is said by the State that there are about thirty hotels in Gulmarg and one five star hotel is also to be built there. Respondent No. 1’s Hotel is, not the only hotel there. Therefore he cannot, be said to have monopoly of the Hotel business there which would induce him to prevent others to bui!d hotels at Gulmarg. It does not seem to be correct that the respondent No. 1 in furtherance of his own hotel business is putting hurdles to the construction of hotel by the petitioner and respondent No. 3. This is a far-fetched inference. On the basis of the pleadings of the parties it is very difficult to hold that issuance of impugned letters by the respondent are outcome of a biased mind.
83. The respondent No. 1 should learn to discharge his function fairly and without any arbitrariness. He has acted without jurisdiction in issuing the impugned letters which has given rise to some suspicion against his conduct. It is time that he alleys all the fears of the petitioner about his own conduct.
84. I do not appreciate the argument of Mr. Z.A. Shah that Section 10 of the Town Planning Act would not operate as a bar for raising the construction at pimacle site at Gulmarg. He submitted that for making Section 10 applicable, it is necessary that publication of notification under Section 5 of the Town Planning Act is issued and thereafter Section 10 comes into play and permission is to be obtained from the Minister for raising the construction.
85. Section 5 of the Town Planning Act
empowers the Government by notification
to require the Board before the fixed date to
prepare and submit a draft scheme with
respect to any area in regard to which a town
planning scheme may be made. According to
Mr. Z.A. Shah no draft scheme was ever
prepared under Section 5 of the Town
Planning Act. So the question of applicability
of Section 10 would not arise.
86. This argument itself defeating in as much as the petitioner and respondent No. 3’s case is that they are governed by the Town Planning Act and Section 10 of the Town Planning Act would apply to them. They have sought permission from the concerned authority under the said section and throughout it is their case that sanction was given to them for raising the construction under the Town Planning Act by a Board to which powers were delegated by the Minister for granting sanction to raise the construction at Gulmarg. If the argument of Mr. Z.A. Shah is believed, people can raise construction without obtaining sanction from the concerned authority which may lead to chaos in Gulmarg in as much as there will be mushroom growth of buildings and various schemes applied to Gulmarg may also be rendered negatory. However, petitioner and respondent No. 3 are estopped to exclude the applicability of Section 10 of the Town Planning Act to the present case. Therefore, I am of the opinion that Town Planning Act and Section 10 of the said Act would apply to the area covered by Notified Area Committee Gulmarg/Tangmarg and under Section 10 petitioner and respondent No. 3 were obliged to apply and obtain permission for raising the construction from the authority nominated in this behalf. Section 10 empowers the Minister to grant permission for raising the construction. Minister has authority to delegate his authority to a Board which in the present case has been done.
87. For the reasons stated above, I allow
this writ petition and by a writ of certiorari
the impugned communications
No. NAC/TG/ 87/71 dt- 15-5-1987 and
communication No. NAC/TG/87/204-06
dated 4-6-1987 as also communication
No. NAC/TG/87/268-70 dated 18-6-1987
issued by respondent No. 1 are hereby
quashed.
88. By a further writ of prohibition, the respondents (except respondent No. 3} are directed not to interfere directly or indirectly in the construction of hotel or to cause any interference with the petitioner and respondent No. 3’s right to raise hotel building (sic) pinnacle site Gulmarg, in pursuance of the sanction accorded to them in this behalf.
89. The respondent shall also pay the costs the petitioner which I quantify at Rs. 500/-(five Hundred) only.
90. I issued the writs prayed for on 15-2-1989 by delivering only the operative portion of the judgment. This judgment contains the reasons in support of conclusions and the reliefs which I granted on 15-2-1989. Order dated 15-2-1989 shall be taken as integral part of this reasoned judgment.