PRAYAG CHAND PERIWAL Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Writ Petition is directed against the order dated 22nd November, 1999 (Annexure P-10) passed by the Commissioner-cum-Secretary, Government of Sikkim, Urban Development and Housing Department, respondent No.2, by which respondent No.2 regularised the alleged encroached area of Smt. Bhagya Mani Devi, respondent No. 4 on receipt of an application from her in prescribed form with bank receipt on being satisfied that the norms required are fully complied with. Before regularisation, respondent No. 2 heard the interested parties including the petitioner.

(2.) The petitioner claimed that he owned and held a portion of vacant land measuring 20' x 20', that is, 400 Sq.ft. out of plot No. 933 situated in the Town area below the property of one Karma Yenten Wanger Bhutia of Khamdong, below Mahatma Gandhi Marg, Gangtok. Annexure-P1 is the copy of Sale Deed in favour of the petitioner and its schedule shows that on the east, the land is butted and bounded by R.C.C. building of Karma Yenten Wanger Bhutia of Khamdong and 5' gully leading towards the purchased land, which adjoins with the Government gully in the north, on the west, it is butted and bounded by Government guUy, on the north it is bounded by R.C.C. building of Smt. Bhagya Mani Devi and on the south by Orchid Hotel. The petitioner alleged that the authority, i.e. respondent No. 2, regularised the undisputed encroachment and unauthorised construction over 341.25 Sq. ft. by respondent No. 4 on payment of regularisation fee and therefore, such regularisation falls outside the plot of Bhagya Mani Devi and the order is ex-fade illegal and without jurisdiction because Regulation 26(b) of the Sikkim Building Construction Regulations, 1991 made under the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985, restricts to the power of regularisation of construction beyond Blue Print Plan subject to the condition that such construction is within the allottee's own holding (private). Copy of the Mutation Certificate issued by Registrar, East District Collectorate in respect of responent No. 4, has been filed by the petitioner being Annexure P-2 and the same document has also been filed by respondent No. 4 along with her counter-affidavit as Annexure-R3. The Mutation Certificate (Annexures P-2 and R-3) reveals that the land of respondent No. 4 measuring 20'X40' below Mahatma Gandhi Marg, Gangtok Bazar is butted and bounded on the east by the land and building of Jetmull Bhojraj sold to one R.C. Mundra and Norbu Bhutia. The petitioner's further case is that respodent No. 4 is the owner of adjacent plot of land measuring 20'X40', i.e. 800 Sq.ft., situated north to the petitioner's plot of land and towards the east of the plot of land purchased by respondent No. 4, there has all along been a 5' wide gully in the north south direction running parallel to the eastern boundary of her plot of land. The 5' wide gully as aforesaid links the plot of land purchased by the petitioner through the Government gully on the north. The said 5' wide gully is the only means of ingress and egress and was never sold to anybody by the original owner. The petitioner further stated "that sometimes after the petitioner purchased the plot of land respondent No. 4 started unauthorised construction of the 5' wide Gully". Respondent No.4 had built a six storied building on the plot of land purchased by her before the petitioner purchased the adjacent plot of land and at the time of purchase of land by the petitioner, 5' wide gully was situated towards the east of the land and building of respondent No. 4 and it was open and free for ingress and egress to the petitioner's plot of land. It is further alleged that respondent No. 4 had made construction over 1141.25 Sq. ft. and thereby made unauthorised construction over 5' wide gully and part of the petitioner's land measuring 341.25 Sq.ft.

(3.) Respondent Nos. 1 to 3 contested the case by filing counter-affidavit and denied all the material allegations.