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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