MENUKA DEVI BHATTARAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Heard Mr. J.B. Pradhan, learned Senior Counsel as well as Mr. D.K. Siwakoti, learned counsel for the petitioner. Also heard Dr. Doma T. Bhutia, learned Additional Advocate General, Sikkim for the respondents. Mrs. Menuka Devi Bhattarai vs. State of Sikkim & Anr.

(2.) The case of the petitioner, as presented in the writ petition, is that in the year 2004, respondent no. 2, i.e., Tourism and Civil Aviation Department purchased a plot of land belonging to the father-in-law and husband of the petitioner as well as a few others for the purpose of construction of Banjhakri Falls Energy Park, hereinafter referred to as the Park. A Notice Inviting Tender (for short, ,,NIT) was issued on 14.06.2016, inviting sealed tenders for taking the Park on lease. Tenders were opened on 09.07.2016 and bid of the petitioner having been found to be the highest, a lease agreement was entered into on 01.09.2016 and the Park was handed over to the petitioner. It is stated that the petitioner was not given any opportunity to examine the document or to consult any other person and besides, the petitioner having studied only up to Class VIII in a Nepali School, she had to sign and execute the deed without understanding the terms and conditions of the lease deed. In terms of Clause 3.2 of the agreement she had paid advance rent for three months amounting to Rs.51,00,000.00 (Rupees Fifty- one Lakhs) and she had also deposited a sum of Rs.20,00,000.00 (Rupees Twenty Lakhs) as interest free refundable security deposit. As the Park did not have proper infrastructure like swimming pool, adventure sports, restaurant, etc., the petitioner apprised the officers of respondent no.2 to create such infrastructure indicating that if such infrastructure is not provided, it would be difficult for her to raise revenue to pay the lease amount. Respondent no.2 informed her that for construction of additional facilities and infrastructure a Memorandum of Understanding, for short, ,,MoU, has to be entered into and accordingly, an MoU was prepared by respondent no.2. The said MoU was executed on 12.11.2016 and an order dated 12.11.2016 was issued granting permission to the petitioner for construction of infrastructure as indicated therein, besides granting permission for revenue collection from the shops within the Park. Mrs. Menuka Devi Bhattarai vs. State of Sikkim & Anr.

(3.) It is pleaded by the petitioner that she informed the authorities that when the lease period was only for five years it would not be possible for her to make investment for establishment of such infrastructure which may run into a few crores of rupees and in response, the petitioner was given to understand that in view of a Circular dated 25.02.2013, her lease period will be extended to 20 years from 5 years. Relying on the said assurance as well as on the assurance that she would be compensated at a reasonable market rate for investment made for creation of permanent immovable assets, she started to make investments for creating additional infrastructure and she completed the construction of swimming pool, fish pond, traditional food court and eco hut at a cost of about rupees three crores. In addition, some construction for adventure sports was still continuing. It is further pleaded that there was an indefinite shut-down including many cases of arson from the month of June, 2017 in view of protests raised by Gorkha Janmukti Morcha in the wake of Government of West Bengal declaring that ,,Bengali subject would be a compulsory subject from Class I to X in the entire State of West Bengal including in the hill district of Darjeeling. Such violent protests disrupted vehicular movement in the National Highway connecting Sikkim and during the "bandh" period, which was called off on 27.09.2017, spanning about 100 days, not even a single tourist visited the Park. In view of the aforesaid circumstances, the petitioner submitted a representation on 28.11.2017 to the Chief Minister, which was endorsed by the Member of Legislative Assembly (MLA) of the constituency. However, instead of fulfilling the given assurances, a termination order dated 22.07.2019 came to be issued terminating the lease of the Park. It is pleaded that the petitioner did not receive any letter/order other than the termination order and that the petitioner was neither heard personally nor granted an opportunity to justify her case before issuing the termination order, which was issued only to bestow undue favour to a blue-eyed person. It is pleaded that Clause 6.24 of Mrs. Menuka Devi Bhattarai vs. State of Sikkim & Anr. the lease deed and Clauses 4 and 5 of the MoU are arbitrary, unjust and unconscionable. The petitioner had submitted a notice through her advocate but the same having failed to evoke any response, the writ petition was filed.