THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No.11 of 2019
Norbu Doma Bhutia,
D/o late N.W. Bhutia,
R/o Tinkitam,
South Sikkim.
..... Appellant/Plaintiff
Versus
1. The Chief Secretary,
Government of Sikkim,
Secretariat Office,
Gangtok, East Sikkim.
2. The Secretary,
WS & PHE Department,
Government of Sikkim,
Near Zero Point,
Gangtok, East Sikkim.
3. The Chief Engineer,
PHE Department,
Gangtok, East Sikkim.
4. The Divisional Engineer,
PHE Department,
Namchi, South Sikkim.
5. The Assistant Engineer,
PHE Department,
Namchi,
South Sikkim.
6. The Junior Engineer,
PHE Department,
Namchi,
South Sikkim.
.....Respondents/Defendants
Appeal under Order XLI Rules 1 and 2 of the Code of
Civil Procedure, 1908.
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2
R.S.A. No. 11 of 2019
Norbu Doma Bhutia Vs. State of Sikkim & Ors.
Appearance:
Mr. B. K. Gupta, Legal Aid Counsel for the
Appellant/Plaintiff.
Mr. Sudesh Joshi Additional Advocate General.
Mr. Yadev Sharma, Government Advocate.
Mr. Sujan Sunwar, Assistant Government
Advocate for the State-respondents.
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Date of hearing : 09.08.2021
Date of judgment : 16.08.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. A suit under Section 9 of the Code of Civil Procedure 1908 (CPC) read with Section 10 of the Specific Relief Act, 1963 was filed by the plaintiff (the appellant herein) before the court of the learned District Judge, South Sikkim at Namchi (the learned District Judge). The respondents were the defendants before the Trial Court in the same order as they appear in the appeal. The parties would be referred to as the plaintiff and defendants for clarity.
2. The plaintiff averred that she was a government employee working under the Agricultural Department, Namchi, South Sikkim. The defendants were office bearers of different offices in the government. The plaintiff owned and possessed certain plots of agricultural land at Kamrang block, Boomtar Elaka, Namchi, South Sikkim 3 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. where she was indulging in agricultural activities in the year 2006. The plaintiff entered into an agreement with certain persons to open a dairy farm and to cultivate crops in several plots of land at Kamrang block which she ultimately purchased in the year 2015. According to the plaintiff these plots of land yielded Rs.4,88,750/- per annum. She asserted that one Govind Pradhan approached the plaintiff and appraised her about the government's desire for constructing Sewage Treatment Plant (STP Project) at Kamrang and the interest shown by the Public Health Engineering Department (the PHE department) to do so in her land. The plaintiff asserted that the officials of the PHE department conducted meetings with the plaintiff and other two individuals. Finally, according to her, a conclusive agreement was entered between the plaintiff, the two individuals viz. Bazar Singh Rai (P.W.4) and Bishal Manger (P.W.5) and the defendants for acquisition of their plots. According to the plaintiff during the acquisition process an amount of Rs.1,96,54,641/- was sanctioned in favour of the plaintiff for acquisition of plot no. 467/1043 and plot no. 467/1305 situated at Kamrang (two plots). She avers that as the acquisition process started, she stopped 4 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. agricultural activity due to which she suffered a loss of Rs.4,88,750/- annually from January 2015. In April 2016 the plaintiff was informed that the defendants had dropped the offer of constructing STP Project in her two plots and they were now doing so in the land owned by defendant no.5, the Assistant Engineer of the PHE department. It is the plaintiff's case that as per the agreement the defendants are bound to acquire her two plots and to pay compensation for the loss. The plaintiff, therefore, sought a direction upon the defendants to acquire the suit lands as per the agreement. Further directions upon the defendants were also sought to pay Rs.1,96,54,641/- as compensation for the acquisition and Rs.9,77,500/- as compensation for the two years of financial loss, till the filing of the suit. A further direction was also sought against the defendants to pay future financial damages till disposal of the suit.
3. The defendants filed a joint written statement. They questioned the maintainability of the suit and denied that the plots of land owned by the plaintiff yielded agricultural income. They alleged that the two plots were purchased by the plaintiff with oblique motive of reaping huge benefit in the acquisition, which the sellers were not aware of. They 5 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. asserted that they do not know any Govind Pradhan or that he was authorised by the PHE department to negotiate with the plaintiff. They deposed that during the inspection of Bazar Singh Rai's (P.W.4) land, the defendant No.4 was informed about the plaintiff's two plots and her willingness to part with it. Accordingly, the plaintiff's land was identified for establishment of the STP Project. They denied that they held any meeting regarding the acquisition. They asserted that since defendant No.4 needed land for the STP Project in the given area an informal survey was conducted in respect of Bazar Singh Rai's (P.W.4) land. They denied that there was any final agreement entered or drawn up with the plaintiff. According to the defendants, since the plaintiff was interested in selling her land, she had been asked to quote her rate. They admitted the several meetings held during the verification/identification of land process. They admitted the participation of the plaintiff, the defendants, the boundary holders, local panchayat members and other individuals of the locality in such meetings. They admitted that steps had been taken for the acquisition of the plaintiff's lands. They asserted that due to the public complaint against the establishment of the STP Project at 6 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. Kamrang they could not carry forward this proposal despite the plaintiff and other interested landowners' willingness. The defendants averred that they had failed to convince the public of Kamrang about the STP Project and therefore, the District Collectorate was asked to identify another land. As the implementation of the project was getting delayed, especially after Namchi was declared a smart city, the defendant no.4 requested the defendant no.5 to give his private land located at Tinzir block, which was accepted by him, after much persuasion. Thereafter, verification was done and since various advantages were seen, the defendants took possession of the land and started construction. It was stated that the plaintiff's land were never acquired by the defendants and therefore, she did not have any locus standi to file the suit.
4. The learned District Judge framed ten issues. In the impugned judgment dated 31.07.2019 the learned District Judge examined each of these issues and except for issue no.9 all other issues have been held against the plaintiff. The suit was accordingly, dismissed. Issue no.9 was whether the plaintiff purchased the two plots between 01.12.2015 and 17.02.2015 just to earn huge benefit from 7 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. compensation as the plaintiff came to know that there was a proposal to acquire the land for STP Project at Kamrang.
5. Mr. B. K. Gupta, learned counsel for the plaintiff, drew the attention of this court to exhibit 8 to 14 filed by the plaintiff which reflects the various stages of the proposed acquisition. He drew the attention of this court to Form 'A' (Exhibit-14) and submitted that it would reflect that the entire acquisition process was over and all that remained was payment of compensation. He submitted that these documents reflected that the defendants were serious about the acquisition and therefore, the plaintiff had abandoned her agricultural activities in the proposed land causing her huge losses. Thus, it was argued that the learned District Judge had failed to appreciate the evidence in its correct perspective.
6. Mr. Sudesh Joshi, learned Additional Advocate General submits that no interference was required. The learned District Judge had correctly appreciated that there was in fact no concluded contract. As the entire case of the plaintiff was based on the alleged concluded contract, the suit must fail since she could not establish it. 8
R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors.
7. On examination of the plaint, the pleadings, and the depositions, it is quite clear that the plaintiff sought for specific performance of contract alleged to have been entered between the plaintiff and the defendants. The reliefs sought under Section 10 of the Specific Relief Act, 1963 is a discretionary relief. It is also well settled that no amount of evidence can be looked into, if there are no pleadings to that effect. The plaintiff deposed that a conclusive agreement was entered between her and the defendants for acquisition of the land at Kamrang. During her cross-examination she admitted that there was no written agreement but asserted that there was a verbal agreement between her and M. K. Rai, Divisional Engineer of the PHE Department. She also deposed that when she insisted for a written agreement from M. K. Rai, he told her that a land assessment was sufficient for government acquisition. M. K. Rai was neither made a defendant nor a witness.
8. The plaintiff's witnesses i.e., Kumar Sunar (P.W.2) and Naresh Mukhia (P.W.3) deposed generally about the plaintiff's involvement in agricultural activities i.e., running poultry farm and growing crops. They would not elaborate or provide any specific details of the plaintiff's 9 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. income from her agricultural activities. They also deposed about the activities of the defendants during the year 2015 in the process of identification of suitable land for the STP Project. Bazar Singh Rai (P.W.4) and Bishal Manger (P.W.5) deposed about the information they received from Govind Pradhan about the proposal for construction of STP Project at Kamrang in the year 2015. He deposed about the various meetings the defendant had with him and the plaintiff. Bishal Manger (P.W.5) further deposed about the assurance given by M. K. Rai about the acquisition of the lands owned by him, Bazar Singh Rai (P.W.4) and the plaintiff. Dip Kanya Rai (P.W.6) deposed about the construction of the STP Project in the land of defendant no.5.
9. Subash Gurung (P.W.7) the then Assistant Revenue Surveyor identified the official documents exhibited by the plaintiff. The statement of land and other standing properties (exhibit-8) has been signed by the plaintiff and the ward panchayat but not by the governmental authorities. Memo dated 05.10.2015 issued by the Assistant Engineer to the District Collector (exhibit-9) doesn't relate to the plaintiff. Communication dated 18.11.2015 by M. K. Rai to the District Collector relates to 10 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. the plaintiff. It reports about the proposal to acquire the plaintiff's land and requests for land assessment. Exhibit 11 are the internal note sheets of the District Collector's office between the period 29.07.2015 till 09.04.2016. The note dated 27.10.2015 records the joint inspection conducted in the presence of the plaintiff and other landowners and representatives of the PHE Department for the construction of the STP Project. It also records that the lands owned by the plaintiff, Bishal Manger (P.W.5), Bhim Bahadur Rai and Bazar Singh Rai (P.W.4) have been identified for the STP Project. The undated note under the signature of the then Revenue Officer (exhibit-11(a)) proposes that since the landowners are willing and the acquisition is not large it could be acquired by registration of sale deed. However, the District Collector's note thereafter, dated 18.11.2016 refers to the discussion with the Secretary, Land Revenue Department and proposes that they should wait till multiplication factor is decided by the government.
10. Form 'A' (exhibit-14) dated 01.04.2015 signed by the PCE-cum-Secretary of the W.S. & P.H.E. department is a form of application for acquisition of land for public purpose. The plaintiff's land verification was done by the 11 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. acquisition cell of the District Collectorate on 27.08.2015 and recorded in spot verification report (exhibit-13). Memo dated 17.10.2015 (exhibit-12) addressed to the District Collector by the Assistant Engineer, PHE department informs that the plaintiff, Bishal Manger (P.W.5) and Bazar Singh Rai (P.W.4) have quoted a rate of Rs.500/- per square feet for the proposal.
11. Ramesh Subba (D.W.1), Tara Rai (D.W.2) and Khem Lall Chettri (D.W.3), the then Divisional Engineer (defendant No.4), Assistant Engineer (defendant no.5) and Junior Engineer (defendant no.6) respectively deposed on behalf of the defendants. They admitted that there was a proposal for acquisition of the plaintiff's land for the STP Project. They stated that they found residential houses in the lands of Bazar Singh Rai (P.W.4) and Bishal Manger (P.W.5) proposed to be acquired. They admitted the identification, verification, and assessment of the plaintiff's land. They stated that finalisation of the acquisition process got delayed since the multiplication factor required under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was still not available. They stated that in the meanwhile the public opposed the STP Project 12 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors. coming up in their vicinity after which the defendant No.5's land was identified.
12. Admittedly, there was no written agreement. The evidence of verbal agreement with M. K. Rai, Divisional Engineer came during the cross-examination of the plaintiff who had not pleaded so in the plaint. There is no evidence to establish such verbal agreement as well, leave alone the legality of it. The official records filed by the plaintiff have not been disputed by the defendants. These documents suggest that identification, verification, and assessment of the plaintiff's land had in fact been done by the defendants. There was in fact an initial proposal to acquire the plaintiff's land. However, as the plaintiff was willing, suggestion to purchase the land by a registered sale deed was also made. The evidence led suggest that there were talks between the plaintiff and the defendants during this process. It is quite evident that the talks with the plaintiff did not fructify and ultimately the land of defendant no.5 was selected for the STP Project. This court is not examining the legality of the selection of the defendant no.5's land for the STP Project in the facts of the present case.
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R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors.
13. In State of Madhya Pradesh v. Vishnu Prasad1 the Supreme Court held that the process of acquisition always begins with a notification under Section 4(1) of the Land Acquisition Act, 1984. Similarly, the process of acquisition of land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would begin with the issuance of the notification under Section 11 thereof. Section 11 contemplates the declaration of the Government that the land is required or likely to be required for any public purpose. No such notification had been issued. It is also seen that though there was a proposal to purchase the plaintiff's land, it was not done. There is no evidence of a concluded contract. Consequently, the plaintiff has failed to establish what she had asserted in her plaint about the conclusive agreement entered between her and the defendants. The reliefs for directions upon the defendants to acquire the suit land and to pay Rs.1,96,54,641/- as compensation is based on the plaintiff assertion of a conclusive agreement. Since the plaintiff has failed to establish such an agreement the said prayers cannot be granted.
1 AIR 1966 SC 1593 14 R.S.A. No. 11 of 2019 Norbu Doma Bhutia Vs. State of Sikkim & Ors.
14. The plaintiff has sought for compensation for the loss she suffered from agricultural income. Besides oral evidence no other evidence, documentary or otherwise, has been led by the plaintiff to establish the same. During her cross-examination the plaintiff admitted that the tabulation of her agricultural income (exhibit-7) filed by her is not a document prepared by any chartered accountant or valuer. She admitted that she had not stated to whom she supplied her agricultural produces, dairy, and poultry products. She admitted that no receipts of income raised out of sale proceeds had been produced by her. The plaintiff has therefore, failed to establish the loss of agricultural income as asserted by her in the plaint. Consequently, the relief prayed for compensation for the financial losses and future damages cannot be granted.
15. The appeal fails and is therefore, dismissed. No order as to costs.
(Bhaskar Raj Pradhan) Judge Approved for reporting: yes.
Internet: yes.
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