TEJ BAHADUR THAPA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner seeks to invoke the extraordinary jurisdiction of this Court. It is his grievance that the respondents are attempting to take possession of his 24,000 square feet of land (40 feet in width and 600 feet long) (additional land) contiguous to khasra plot nos. 68 and 69 at Chota Singtam Block, Saramsa, Pakyong District, Sikkim, along the existing Ranipool Pakyong Block without lawfully acquiring it, wrongfully perceived as 'road reserve'. He seeks a direction upon the respondents not to do so without lawful acquisition and claims that the amount of compensation for the additional land shall not be less than the amount due and payable prescribed in the first schedule under Sec. 26(2) read with Sec. 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the Fair Compensation and Acquisition Act). In addition, he seeks a direction that he be paid 100% solatium of the total compensation calculated together with interest at 12% per-annum on the total value of the additional land.

(2.) According to the petitioner, on 23/1/1968 his father late Kaiser Bahadur Thapa purchased khasra plot no. 36 (under the survey operations of 1951) situated at Chota Singtam Block, Saramsa, East District, East Sikkim (the land) from late Dadhiram Sapkota Sharma by virtue of sale deed registered in Book no.1, Volume no.2, Item no.268 for the year 1968. On 20/8/1986, by a decree of this Court in Civil First Appeal No.4 of 1985 ownership rights in favour of his father was declared and decreed. On 4/6/1996, his father was handed over possession of the land. According to the petitioner the land was used for paddy cultivation and has been under the petitioner's family unhindered possession for over 50 years since 1968. The land is completely fenced by ferroconcrete posts, angled irons with barbed wires, RCC with stone cladding, Iron Gate and concrete footpath. There is a road leading to the petitioner's farm house that dominates the land. The petitioner has developed portions of the land for tourist related purposes and had earlier converted a portion of the land abutting the road for opening a petrol/diesel pump. On 16/9/2017, Notification No.2462 dtd. 29/8/2017 was published under the provisions of sub Sec. (1) of Sec. 3A of the National Highways Act, 1956 (the 1956 Act) in the Sikkim Express. On 27/12/2017, after hearing the objection of the petitioner, the Competent Authority vide Order dtd. 27/12/2017, directed joint inspection with the officials of the Competent Authority and the Petitioner. However, on 16/3/2018 the Competent Authority vide letter bearing memo no.1119/53/B/RO/DCE, dtd. 16/3/2018 forwarded copy of an order disallowing his objection. On 29/3/2018 the declaration under Sec. 3D of the 1956 Act was published. On 1/8/2019 the petitioner was served a notice under Sec. 3 E of the 1956 Act. On 19/2/2020 the Competent Authority issued public notice under Sec. 3 G (3) of the 1956 Act inviting all land owners and persons interested in the land being acquired to submit their claims in respect of the lands mentioned in the schedule given in the public notice within 15 days from publication. On 2/3/2020 the petitioner submitted his claim petition. The petitioner states that in his claim petition he had stated that on studying the plan in relation to the due process of acquisition of the petitioner's notified lands, it came to light that not only the portions of the petitioner's notified land in khasra plot no. 68 admeasuring 0.0020 hectare and 0.0300 hectare were being acquired but a large portion of petitioners' unnotified land i.e. the additional land along the existing Ranipool-Pakyong road are also being taken away without the same being acquired by the respondent no.1 by showing it as 'road reserve'. On 10/7/2020 the petitioner filed three applications inter-alia praying for calling of documents; submitting documents and notes and for seeking time to file additional documents in support of his claim. On 20/8/2020 the petitioner issued notice to the Competent Authority. On 3/9/2020 the petitioner received order dtd. 10/7/2020 dismissing his claim. On 27/9/2021 the Competent Authority electronically transferred 50% of amount calculated as being payable to the petitioner towards the cost of the structures on the petitioners un-acquired land. On 14/2/2022 the petitioner submitted his application stating that he had received the amount under protest. On 4/3/2022 W.P. (C) No. 07 of 2022 was filed by the petitioner which was withdrawn on 16/3/2022 with liberty to file afresh. The present writ petition was filed thereafter on 28/9/2022.

(3.) The respondent nos. 1 and 2 has filed a common counter affidavit contesting the writ petition. It is submitted that the writ petition is not maintainable as the petitioner seeks monitory relief and further has failed to prove his title. It is their case that they have started their construction after the site was handed over by the State Government vide handing over/taking over documents dtd. 5/11/2018, 14/11/2018 and 13/2/2019. It is their case that the State authorities had informed them that as per land record of 1979/82, the 'road reserve' is 100 feet i.e. 50 feet by each side from the centre of the road and that they had acquired the land beyond the 'road reserve' falling within the right of way/alignment of the project through the 1956 Act. They also rely upon the cadastral map of the concerned block duly signed by the District Collector and other officers as well as letter Memo No.605/SDM/PKG dtd. 28/9/2019. It is their case that they acted on the details provided by the State administration and acquisition was done under the 1956 Act. It is submitted that as per Sikkim 'road reserve' (Protection and Preservation) Act, 2009, 'road reserve' means such portion of land lying within such distance from the centre on either side of such roads or highways as may be prescribed in any law but shall not include reserved forest area on either side of the road or any other notified area especially earmarked for its exclusive use by any other authorities. Where the 'road reserve' has been vested in the name of the State Government it shall be lawful for the persons authorized by the State Government to enter and perform such acts as may be necessary upon the land for carrying out maintenance, repair, management of the road and building/bungalow or the part thereof, or any other work connected therewith. It is submitted that the concerned project is an infrastructure project which connects the capital Gangtok to the only airport in the State of Sikkim. It is a time bound project scheduled for completion by July, 2024 and due to the stoppage of work by the petitioner the project is being delayed. It is their case that the land area within the 'road reserve' does not need to be acquired as being Government land for road purpose and therefore, not listed in the schedules of the gazette notification issued under Sec. 3(A) of the 1956 Act.