Sikkim High Court
Tenzing Samchok Bhutia vs Health Care And Family Welfare ... on 22 November, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia,
S/o Late Pema Rinzing Bhutia,
R/o Sela Inn Lodge, Phaka, Lachung,
P/S Lachung,
North Sikkim.
Presently residing at Indira Bye Pass,
Gangtok, East Sikkim.
..... Petitioner
Versus
1. Health Care & Family Welfare Department,
Government of Sikkim,
Through the Secretary,
Tashiling Secretariat,
Gangtok, Sikkim 737101.
2. Land Revenue & Disaster Management Department,
Government of Sikkim,
Through the Secretary,
Tashiling Secretariat,
Gangtok, Sikkim 737101.
3. District Collector,
North District Administrative Centre,
Mangan, North Sikkim 737116.
4. Chief Medical Officer, North
Mangan District Hospital,
Mangan, North Sikkim, 737116.
5. Sub Divisional Magistrate,
Chungthang Sub-Division,
Chungthang, North Sikkim 737120.
6. State Public Information Officer,
Health Care & Family Welfare Department,
Tashiling Secretariat,
Gangtok, Sikkim 737101.
..... Respondents
2
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
Application under Article 226 of the Constitution of India.
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Appearance:
Mr. Kazi Sangay Thupden, Mr. Varun Pradhan and Mr.
Sudhir Prasad Advocates for the Petitioner.
Mr. Sudesh Joshi, Additional Advocate General with Mr.
Sujan Sunwar, Assistant Government Advocate for the
respondents.
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Date of hearing : 08.11.2021.
Date of pronouncement : 22.11.2021.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The petitioner belongs to a Scheduled Tribe. He is a
resident of Phaka, Lachung, North Sikkim. According to him in
the year 2018 he learnt, while initiating construction in his
property i.e. plot no.588, that the respondents had constructed
three structures in his property measuring 0.1480 Hectares (Ha)
(15,930 square feet) by acquiring an area approximately 0.1050
Ha (11,302 square feet) without following the provisions of the
Land Acquisition Act, 2013. The writ petition has been filed by
the petitioner seeking a mandamus against the Health Care and
Family Welfare Department (respondent no.1) and Land Revenue
and Disaster Management Department (respondent no. 2) of the
Government of Sikkim to initiate proceedings under the Land
Acquisition Act, 2013 for paying compensation and to allow
access to the remaining land belonging to him of plot no.588.
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
2. The petitioner avers that when he learnt about the
construction he made a representation on 18.09.2018 to the
Sub-Divisional Magistrate (respondent no.5) pursuant to which a
spot verification report dated 23.10.2018 was prepared by the
Revenue Surveyor stating that the respondent no.1 had
encroached an area of 0.1050 Ha and constructed two RCC
structures and one wooden structures in the property bearing
plot no.588 recorded in the name of the petitioner. It was further
stated that as per the land records the plot has a total area of
0.1480 Ha out of which 0.1050 has been encroached by the
respondent no.1. This fact was informed by the respondent no.5
to the District Collector (respondent no.3) vide file noting dated
02.11.2013. As per the direction of the respondent no.3 a sketch
map was also prepared showing the area acquired by respondent
no.1 and the construction laid therein. On 7.01.2019 the
respondent no.3 informed the respondent no.2 about the
representation made by the petitioner and the observation of the
joint inspection conducted on 25.10.2018 in which it is recorded
that neither the office of respondent no.5 nor his office has any
records of acquisition of the said plot. On 22.01.2019 the
respondent no.2 wrote to the respondent no.1 to forward all the
relevant documents pertaining to the said plot. On 11.02.2019
another joint inspection was conducted in which it was also
found that the respondent no.1 had occupied a portion of land
from plot no.588 measuring 0.1050 Ha recorded in the name of
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
the petitioner as per the land records and two RCC structures
has been constructed in the year 2017-2018 and that there was
an old existing wooden structure. The petitioner wanted more
information and sought for it from the State Public Information
Officer of the respondent no.1 by his application dated
24.01.2020, however, to no avail in spite of reminder dated
06.10.2020 compelling the petitioner to approach this court.
3. The respondent nos. 1 to 6 has filed a joint counter-
affidavit in which they aver that plot no.588 was originally
recorded in the name of the petitioner's father. Since there were
no medical facility in Lachung, the petitioner's father came
forward along with the then 'Pipon' of Lachung 'Zumsa' and
proposed to gift his land to the Government of Sikkim for the
establishment of the Primary Health Sub-Centre (PHSC).
Accordingly, the Government of Sikkim in the year 1987-88
established a PHSC on plot no.588 by constructing a wooden
structure. The respondents are since then owners of the property
gifted by the petitioner's father. During the earthquake of
September, 2011 the wooden PHSC suffered severe damage and
was found to be unfit for use because of which the cabinet vide
memorandum no.920/HC, HS & FW/12-13 dated 07/06/2012
approved the reconstruction of Lachung PHSC and Class II
double unit quarter for an estimated cost of Rs.1,29,82,643/-
from the funds made available from the Prime Minister's Relief
Fund. The respondents awarded the work of the construction of
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
the new PHSC at Lachung to one local contractor Dewang
Wangchuk Lachungpa on the recommendation of the Lachung
'Zumsa'. The reconstruction of the PHSC commenced on
25.01.2013; was completed on 19.03.2018 and inaugurated on
23.07.2018. Although the plot had been gifted by the petitioner's
father, the land continued to be recorded in his name in the
record of rights. Respondents plead that although the petitioner
was aware of the gift he caused the mutation of plot no.788 in
his name in the year 2018 and started claiming it from the year
2020. It is the respondent's case that the gift was an oral gift.
4. The petitioner has chosen not to file rejoinder.
5. Mr. Kazi Sangey Thupden, learned counsel for the
petitioner submits that the act of the respondents of illegally
taking over the petitioner's land and constructing the structures
thereon is in the teeth of Article 300A of the Constitution of
India. He further submits that the unverifiable claim of the
respondents that his father had made an oral gift of plot no.588
to the Government of Sikkim for the construction of PHSC is not
only without any proof thereof but barred by Section 123 of the
Transfer of Property Act, 1882. Relying upon the judgment of the
Supreme Court in Vidya Devi vs. State of Himachal Pradesh1 he
argued that in a case like the present one of continuing cause of
action, plea of delay and latches cannot be raised and
1 (2020) 2 SCC 569
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
compensation can be granted. It was further argued that adverse
possession as a plea of the State justifying forcible expropriation
of a private property by the State without following any
procedure or compensation cannot be countenanced. He referred
to Jilubhai Nanbhai Khachar vs. State of Gujarat2 in which the
Supreme Court had explained the phrase "deprived of his
property" in Article 300A of the Constitution of India.
6. The learned Additional Advocate General reiterated the
facts stated in the counter-affidavit in which it was claimed that
plot no.588 had been gifted by the petitioner's father and the very
fact that the petitioner had not taken exception to the
construction of the PHSC till 2020 when he approached this
court does reflect that he was in fact aware of the oral gift. He
further submitted that since the present case involves disputed
question of facts the petitioner should be directed to approach
the civil court instead.
7. The relevant facts are however, not in dispute. That plot no.
588 is recorded in the name of the petitioner and earlier in the
name of his late father is not disputed. The 'parcha khatiyan'
filed by the petitioner records the name of the petitioner as a
right holder of plot no.588. The 'parcha khatiyan' was evidently
prepared on 19.03.2018. The spot verification report dated
25.10.2018 records the encroachment of an area of 0.1050 Ha
2 (1995) Supp 1 SCC 596
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
from plot no.588 by respondent no.1 and construction of two
RCC structure and one wooden structure therein. So does the
sketch map prepared by the Revenue Surveyor and the joint
inspection report dated 11.02.2019. It is also not disputed that
the respondent no.1 had in fact started constructed of the PHSC
on a portion of plot no.588 in the year 2013 and completed the
same in the year 2018. The State Public Information Officer
under the Right to Information Act, 2005 under the respondent
no.1 chose silence over divulgence of information which was his
statutory duty in spite of the reminder dated 06.10.2020.
8. The Supreme Court in Gomtibai (Dead) & Ors. Vs. Mattulal
(Dead)3 examined whether an intention to give the land by gift
created valid title in law and held that gift of immovable property
should be made only by transferring the right, title and interest
by the donor to the donee by a registered instrument signed by or
on behalf of the donor and must be attested by at least two
witnesses. It was further held that in the absence of any
registered instrument of gift and acceptance thereof by the
donee, the said property could not be said to have been legally
transferred in favour of the person as the gift is not complete in
the eye of law.
3 AIR 1997 SC 127
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
9. In Renikuntla Rajamma vs. K. Sarwanamma4 the Supreme
Court held that Section 123 regulates the mode of making a gift
and, inter alia, provides that a gift of immovable property must
be effected by a registered instrument signed by or on behalf of
the donor and attested by at least two witnesses. Section 123
makes transfer by a registered instrument mandatory, this is
evident from the use of the word "transfer must be effected" used
by Parliament in so far as immovable property is concerned.
10. In Daulat Singh (Dead) vs. State of Rajasthan5 the Supreme
Court held that Section 123 provides that for a gift of immovable
property to be valid, the transfer must be effectuated by means of
a registered instrument bearing the signature of the donor and
attested by at least two witnesses.
11. In Wg Cdr. (Retd) R.N. Dawar vs. Ganga Saran Dhama6 the
Delhi High Court held that under Section 123 of the Transfer of
Property Act, 1882, a gift of immovable property which is not
registered is bad in law and cannot pass any title to a donee. Any
oral gift of immovable property cannot be made in view of the
provisions of Section 123 of the Transfer of Property Act, 1882.
Mere delivery of possession without written instrument cannot
confer any title.
4 (2014) 9 SCC 445
5 (2021) 3 SCC 459
6 AIR 1993 Del 19
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
12. Although the respondents have taken a plea of oral gift by
the petitioner's father there is no record to evidence such a gift.
In any case, Section 123 of the Transfer of Property Act, 1882
provides that for the purpose of making gift of immovable
property, the transfer must be affected by registered instrument
signed by or on behalf of the donor, and attested by at least two
witnesses. The State, this court is certain, were aware of the law.
Oral gifts of immovable property cannot be made and mere
delivery of possession without a written instrument cannot
confer title. Although the respondent's claim that the oral gift
was made by the petitioner's father pursuant to which the PHSC
had been built and functioning since 1987-88, the respondents
admit that the plot no.588 continued to remain in the name of
the petitioner's father until it was mutated in the petitioner's
name. If at all such an intention to gift was there, there was no
reason for the respondent no.1 not to have the property
transferred to their name during the lifetime of the petitioner's
father. Even after the death of the petitioner's father when the
petitioner caused the entry in the 'parcha khatiyan' changed to
his name, no steps seems to have been taken by the respondent
no.1 to have the 'parcha khatiyan' cancelled. No
contemporaneous record has been filed by the respondents to
even suggest the correctness of the plea of oral gift as stated in
the counter-affidavit. It is quite obvious that no such record is
available.
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
13. The Transfer of Property Act, 1882 was brought into force
in Sikkim w.e.f. 01.09.1984 vide S.O. 643(E) dated 24.08.1984.
Thus, it is clear that on and from the enforcement of the Transfer
of Property Act, 1882 oral gifts would also be prohibited in the
State of Sikkim under Section 123 thereof. The respondents
being the State are precluded from taking a position contrary to
law and in ignorance of law. Thus the very foundation of the
respondents stand is based on an illegality.
14. Although the mere entry in the 'parcha khatiyan' does not
confer title upon the petitioner, the respondents have not shown
better title. Admittedly, the 'parcha khatiyan' was earlier in the
name of the petitioner's father and thereafter, in the petitioner's
name. Quite evidently the respondent has constructed the PHCS
on the land owned by the petitioner after encroaching it as per
the spot verification report as well as the joint verification report
conducted by the officers of the respondents. The fact that
neither the petitioner's father nor the petitioner seem to have
protested the construction of the PHSC in plot no.588 owned by
them over a long period of time does seem to indicate that the
respondents were permissive users. However, this is not the
stand taken by respondents. Consequently, there has been
violation of the petitioner's constitutional right under Article
300A.
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
15. The only question that remains is the nature of relief which
may be granted to the petitioner. In Anakh Singh vs. State of
H.P.7 the High Court of Himachal Pradesh considered a similar
case in which the petitioner's land had been used by the
respondent State for the construction of the road, but no
compensation in accordance with law had been paid to them.
The High Court directed the respondent State to issue
notification under Section 4 of the Land Acquisition Act, 1894
within a period of three months and thereafter, to complete the
entire process within a period of one year. In Vidya Devi (supra)
the Supreme Court considered the judgment of the High Court of
Himachal Pradesh. The State respondent in Vidya Devi (supra)
was directed to pay compensation on the same terms as awarded
by the reference court vide order dated 07.07.2015 in Anakh
Singh (supra) case along with all the statutory benefit including
solatium, interest, etc. within a period of eight weeks, treating it
as a case of deemed acquisition. In Vidya Devi (supra) the
Supreme Court noticed that similarly situated persons [Anakh
Singh in Anakh Singh (supra)] like the petitioner therein whose
land has been taken over by the respondent State for some
public purpose had approached the writ court claiming
compensation before the High Court which directed the
7 (2007) SCC OnLine HP 220
W.P. (C) No. 47 of 2020
Tenzing Samchok Bhutia vs. Health Care & Family Welfare Department & Ors.
respondent State to acquire the land of the writ petitioner under
the Land Acquisition Act, 1894.
16. In the present case also there was no acquisition
proceeding. It is not in dispute that the respondents have
constructed PHSC on the area encroached by them at a
substantial cost. The respondents are therefore, directed to
initiate acquisition proceedings under the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 for the area of 0.1050
Ha of plot no.588 and pay fair compensation to the petitioner
within a period of one year from the date of the judgment. The
respondents are also directed to ensure that the petitioner has
free ingress and egress to the remaining portion of plot no.588
which stands in the name of the petitioner. The writ petition is
allowed. In the circumstances no order as to cost.
( Bhaskar Raj Pradhan )
Judge
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