NAR BAHADUR KHATIWADA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THE unsuccessful plaintiff in Title Suit No.08 of 2012 on the files of the Court of the District Judge, Special Division­II, East Sikkim at Gangtok is the appellant in this First Appeal. The respondents/ defendants are ­ (i) the State of Sikkim through the Secretary, Land Revenue Department, Government of Sikkim and (ii) Sub-Registrar/ District Collector, East District, Sikkim. Parties will be referred to hereinafter, for the sake of convenience, as "appellant/plaintiff" and "respondents/defendants" respectively. The appellant's case as pleaded by him has been narrated in great detail by the Court below in the impugned judgment and hence for the seek of brevity, I am adverting to them only briefly.

(2.) ACCORDING to the appellant, on 10.12.1986 a gift deed was executed by Late Kazi Lhendup Dorjee Khangsarpa (L. D. Kazi for short,) in his favour in respect of the suit property, which is an extent of 0.35 acres corresponding to 0.0845 hectares of land bearing plot No. 713 at Gangtok Bazar, East Sikkim bounded within the following 4 (four) boundaries ­ East : 31 A National High Way. West : Masjid Compound. North : Road to old West Point School and Masjid. South : Building of Dr. (Mrs.) Changchup, D. Chankapa and T.T. Chankapa. According to him, the above gift deed was presented on the day of execution before the Sub-Registrar, East Sikkim for registration, who after receipt of the same, deferred the registration to 11.01.1987 issued public notice inviting objection, if any, regarding the proposed registration. The appellant says that even though nobody filed any objection in response to the public notice given by the Sub-Registrar, the Sub-Registrar on 24.07.1987 and 15.03.1988 refused to register the gift deed on the reason that the transaction was not permissible in the absence of express sanction from the State Government in view of Revenue Order No.1. The appellant made an appeal against the order of the Sub-Registrar to the Appellate Authority (the Secretary, Land Revenue Department, Government of Sikkim). The Appellate Authority by its Order dated 15.03.1988 would uphold the Order of the Sub- Registrar, nevertheless observing that the suit property is not an agricultural property indicating that the same is urban property falling within the limits of Gangtok town.

(3.) THE appellant points out that even as the Civil Appeal was dismissed, the Hon'ble Supreme Court had left open the question of law involved to be decided in an appropriate case. He further points out that the notification for acquisition of the suit property was promulgated by the State Government during the pendency of Writ Petition No. 6 of 1988 and that though he and the Donor together filed the Writ Petition No. 18 of 1988 challenging the land acquisition proceedings, the Donor, L.D. Kazi withdrew his name from the writ petition leaving him alone to pursue the legal battle against the respondents. It is pointed out that Writ Petition No.18 of 1988 was dismissed on 11.08.2004 in view of the apparent finality attained by the land acquisition proceedings. The appellant points out further, that against the judgment of this Court dismissing Writ Petition No. 18 of 1988, he preferred a Special Leave Petition, which was dismissed by the Hon'ble Supreme Court on 12.09.2005, observing that the appellant does not have locus standi to maintain the Special Leave Petition in view of the subsequent event of the acquisition being completed and compensation being paid to the Donor, L.D. Kazi, observing nevertheless that the appellant will be free to pursue the remedy available to him on the dispute relating to the gift.