STATE OF SIKKIM Vs. KANTA THEENGH

JUDGEMENT

(1.) Special leave granted.

(2.) The facts in a nutshell are, that the first respondent sought allotment of a parcel of land for the construction of a house and a house site was proposed to be allotted to her, but before the actual allotment could take place, the sikkim Allotment of House. Sites and Construction of Building (Regulation and Control) Act, 1985 (hereinafter called "the Act") came into force whereby "all allotments in which registration whether complete or not, and those falling under the notified green belt", stood cancelled. Accordingly, the allotment made to the first respondent was also cancelled. Admittedly, this cancellation was not questioned till 1994 when this very plot came to be allotted for a milk booth to the second respondent. We are not concerned with the question whether the first allotment was validly cancelled under the act because the first respondent did not question it till 1994 by when the milk booth across the road was shifted to the house site and the site where the milk booth stood was allotted to Respondent 2. The first respondent made a representation on 30-5-1994 to the department concerned to allot the site to her, but that representation was turned down. She, therefore, filed a writ petition in the High Court under Article 226 of the Constitution. The writ petition has been allowed by the High Court and hence this appeal.

(3.) We have heard learned counsel for the parties. It is indeed true that, earlier the house site in question was allotted to the first respondent admeasuring about 15 feet x 10 feet, but before the proposal could be finalized into a firm allotment, the Act came into force and by virtue of that act, all allotments stood cancelled and the proposed allotment in favour of the first respondent also met the same fate and she accepted the same till 30-5-1994 by when milk booth across the road had been shifted to the house site and the site where the milk booth was earlier located was allotted to the second respondent. It was at that point of time that she made a representation and thereafter filed the writ petition. The contention of the Government was that the milk booth is required to be located at that site having regard to the physical conditions of the road; the house site being located at the injunction where the road tapers, it is not desirable to have the house constructed at the same site. The contention urged on behalf of the government was that the decision catered to the needs of the community and unless it is shown that the action of the Government was mala fide or emanating from a bias against the first respondent, the Court should not intervene in the matter. This plea made on behalf of the Government was rejected on two grounds, viz. , (i) that the milk booth was already located just across the road; and (ii) it is not the case of the Government that the site where the milk booth was earlier located was less suitable compared to the house site in question. It is on these grounds that the High Court rejected the contention of the Government that its decision was not for public interest. It may here be mentioned that T. B. Gurung, Manager of Sikkim Cooperative milk Producers Coop. Ltd. , asked for an alternative site to run the milk booth after the earlier milk booth was dismantled. The Government had also taken notice of the fact that it was not desirable to allow a building to come up on that site as it did not conform with the requirements of the building bye-laws which had recently come into existence. It may be mentioned that the first respondent had no vested right to the allotment of the house site in question. The initial allotment made was still at the proposal stage and had not turned into a firm allotment. Merely because the site was given to a milk booth and the milk booth was earlier in existence across the road, did not mean that the first respondent had a better right because it must be conceded that the milk booth caters to the needs of the community at large, and if the Government thought that the site was appropriate for the milk booth, that was a decision which the Government had taken keeping in view the physical condition of the locality. There was no bias against the first respondent nor had the government acted mala fide. The Government has also pointed out that the commissioner appointed by the Court had not taken the measurements and since the road tapers at that place and may be widened in future, it was thought proper not to allow any permanent construction to come up at that place. Since the. original proposal was made before the bye-laws had come into force, that proposal was not tested on the provision in the bye-laws. The government also indicated to the first respondent that it was prepared to give an alternative site and suggested one; but the first respondent did not respond to the suggestion. Even when the matter was pending before this Court, this court made an order on 19-4-1996 for the allotment of an alternative site wherein it was made clear that it is for the first respondent to make up her mind whether or not she is willing to accept the allotment and convey her decision within six weeks which she has failed to do till today. In the circumstances it is obvious that the State Government was willing to give an alternative site but the first respondent has chosen to remain silent on that proposal despite the Court's order.