THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
-------------------------------------------------------------------------------
SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
-----------------------------------------------------------------------------------------------------------------
W.P. (C) No. 50 of 2021
Shri. Palzor Thendup Bhutia,
Son of Late Sonam Tashi Bhutia,
Resident of Penlong Bazaar,
P.O. and P.S. Gangtok,
East Sikkim-737103.
..... Petitioner
Versus
1. State of Sikkim,
Through the Chief Secretary,
Government of Sikkim,
Gangtok, East Sikkim-737101.
2. Urban Development Department,
Government of Sikkim,
Through its Secretary,
Gangtok, East Sikkim-737101.
3. The Chief Executive Officer,
Gangtok Smart City Development Limited,
Level 5, Kisan Bazaar Building,
Lall Market Road,
Gangtok, East Sikkim - 737101.
.....Respondents
Writ Petition under Article 226 of the Constitution of
India.
(Notice dated 06.10.2021 issued by the Urban Development Department,
Government of Sikkim, vide letter No.UDD/25/405/SA/439 ordering the vacation of
the premises/site legally allotted to Late Sonam Tashi Bhutia ).
-------------------------------------------------------------------------------
Appearance:
Mr. N. Rai, Senior Advocate with Mr. Pradeep Tamang
and Ms. Tara Devi Chettri Advocate for the Petitioner.
Mr. Sudesh Joshi, Additional Advocate General, Mr.
Yadev Sharma, Government Advocate and Mr. Sujan
Sunwar, Assistant Government Advocate for the
State-Respondents.
------------------------------------------------------------------------------
2
W.P. (C) No.50 of 2021
Palzor Thendup Bhutia vs. State of Sikkim & Ors.
Date of hearing : 07.09.2022
JUDGMENT (O R A L)
Bhaskar Raj Pradhan, J.
1. Heard Mr. N. Rai, learned Senior Counsel assisted by
Mr. Pradeep Tamang and Ms. Tara Devi Chettri, learned
counsel for the petitioner and Mr. Sudesh Joshi, learned
Additional Advocate General for the State-respondents.
2. The writ petition has been filed by one Palzor Thendup
Bhutia against the State-respondents challenging notice
dated 06.10.2021 (incorrectly mentioned as 06.10.2018 in
the writ petition) claiming it to be in violation of the site
allotment Order dated 31.05.2002. The writ petition also
prays in the alternative for a direction upon the State-
respondents to allot a similar site premises in an around
Gangtok town to him.
3. The documents filed by the petitioner as well as the
State-respondents reflect that on 16.02.2000 Sonam Tashi
Bhutia (since deceased) made an application to the
concerned Minister of the UDHD respondent no.2
requesting for allotment of site for canteen at private bus
stand which was newly constructed. He claimed to be
unemployed and a Sikkim Subject Holder. Late Sonam
Tashi Bhutia thereafter, seem to have filled a form of 3 W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
application for allotment of site addressed to the Secretary
of the respondent no.2 applying for allotment under the
relevant provisions of Sikkim Allotment of House Site and
Construction of Building (Regulation and Control) Act,
1985 (the Act). The form required the applicant to also
provide the name of the members of the family and their
occupation. In serial number 6(d) thereof the name of
Palzor Bhutia, the petitioner herein, is mentioned as one of
the members of the family of late Sonam Tashi Bhutia. On
31.05.2002 the Assistant Town Planner of the respondent
no.2 vide site allotment Order No. 3054/UD&HD allotted
185 square feet of site at new car park Gangtok to late
Sonam Tashi Bhutia. The site allotment order referred to a
letter dated 12.04.2002 of late Sonam Tashi Bhutia
accepting the terms and conditions mentioned in the
department's letter No.1976/UD&HD dated 21.05.2002.
The letter dated 21.05.2002 contained the following terms
and conditions :
"....................
1. The site salami (premium) of Rs.37,000/- (Rupees thirty seven thousand) only shall be deposited by you in the name of the Secretary, UD & HD under the head "0045-O.T.D."- other taxed and duties and site salami fee and submit the Bank receipt within one month from the date of issue of this letter;
4
W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
2. That you shall pay ground rent @ Rs.93/- (Rupees Ninety Three) only per annum from the date of allotment which will not however be a basis for the claim of ownership of the site if no construction is started within the stipulated time;
3. That the construction of building should come up as per approved Blue Print Plan;
4. No residential site shall be converted into a commercial one unless the site has a Godown and a parking space reserve within the given site after leaving the road.
5. That any extension for the ground of extending your building beyond the area already allotted, in the Government land shall be presumed to be a trespass and necessary legal action taken against you.
6. That the site allotted to you or the building which you may be construct thereon shall not be transferred to any other party in any manner whatsoever without the prior approval of the Government.
7. That the allotment of site shall be on a lease basis for a period of sixty years to be commence from the date of allotment order renewable in such conditions and for such period as the Government may decide. A registered copy of the lease Deed shall be submitted to this Department before construction order is issued.
8. That the ground rent shall be increased every ten years of the period of lease by 50%.
9. That you shall abide by the building by laws as well as all other Acts and Rules applicable of the Urban Development & Housing Department or any other Department of the Government of Sikkim.
10. That you will confine the construction exclusively within the site allotted to you for which a Blue Print Plan has to be submitted for approval to this Department and any encroachment beyond the site allotted to you will be liable to be demolished as per law.
5
W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
The building (built up area may not exceed) will have to be built so that a minimum of 4 ft on the 3 sides & 5 feet in the front is kept from the edge of the building boundary.
The Blue Print Plan should show the following:-
i) garbage chute for disposal of wastes.
ii) drainage plan showing where the rain water and waste water will be disposed off.
iii) sewerage plan showing the disposal of night soil with reference to the PHE sewer network.
iv) proposed water and power connections.
Please note that no sewer or water pipe should cross or pass inside a drain or water course failing which they will be removed without notice.
11. That you will be responsible for any damage to private or public properties due to your construction work;
12. That you shall not dump earth and debris recovered from the site at place other than what has been earmarked for such purposes by this Department, failing which the construction will be stopped.
13. That you will not unload any building materials on the road side and in the event of any wilful violation, the department shall auction the materials without giving any notice to you.
14. That this proposal for allotment issued to you will be automatically cancelled without any intimation if all of the following documents are not produced by you;
1) Sikkim Subject Certificate or Certificate of
Identification
2) No Landed Property Certificate,
3) No Housing Flat Certificate,
4) Site application form with photograph
6
W.P. (C) No.50 of 2021
Palzor Thendup Bhutia vs. State of Sikkim & Ors.
A formal allotment order will be issued in your favour after you have conveyed, with the required documents, your acceptance of the above terms and conditions and also paid site salami (premium) within one month of issue of this order failing which this allotment will stand automatically cancelled without any intimation to you.
15. That the construction should be two storey only.
16. Where the Government has developed the site, you shall pay the development cost also with the site salami.
17. That you shall start the construction only after the Department demarcates and pegs your site and in case it is found that you have started the construction without demarcation of the site by the Department, the same shall be demolished and the cost of such demolition recovered from you.
18. The side of any of the Roads/Highway, you shall not encroach ever by way of cantilever upon the road reserve which are as follows:-
Gangtok
1. Bye-Pass (Western as well as Northern Bye-Pass) - 45' from the centre of the road.
2. National Highway - 27' from the edge of the road.
3. Other roads - 27' from the edge of the road.
Please note that the road reserve is required to be kept vacant in your own interest as you may require it for your own vehicular parking/road expansion in future.
19. That you shall not ask for additional site in future.
...................."
4. The site allotment order also contained certain terms
and conditions which are as follows:
7
W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
"..............
1. That you shall submit the Blue Print Plan of the proposed building in quadruplicate to this Department for approval after the demarcation of the site has been done by the Engineer of this Department.
2. That you shall not start the construction work without demarcation of the site and approval of the Plan.
3. That since the site being transferred to you on a lease basis you shall sign the Approved lease deed agreement containing the terms and conditions of the transfer as early as possible and not later than three months from the date of this order failing which the execution of work on the site will be stopped for which you will keep in touch with this office immediately.
4. That the lease deed will have to be registered and you shall have to bear all expenses involved in the registration including the cost of the forms to be supplied by this department.
5. That you shall complete the construction within one year from the date of this order and submit the completion report of this department failing which the site allotted to you would be liable to be cancelled and
6. That the construction for the building should come up within the area of 185.0 sft only.
........."
5. In the counter affidavit filed by the State-respondents
it is seen that on 02.08.2008 the Assistant Town Planner of
the respondent no.2 had issued an order of cancellation of
site to late Sonam Tashi Bhutia informing him that the
allotment stood cancelled since there is a proposal from the
Government to take up mega project in that area. The 8 W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
State-respondents have also filed yet another document
dated 04.11.2008 purportedly written by late Sonam Tashi
Bhutia and addressed to the Secretary of the respondent
no.2 which also contains certain notes thereon of the
official of the department. The petitioner however, contests
this document as according to the petitioner it is not the
signature of his late father Sonam Tashi Bhutia.
6. From the documents on record it seems that on
30.10.2011 late Sonam Tashi Bhutia expired. However,
ground rent continued to be paid in his name. The
petitioner has also filed various documents for payment of
water supply bills which also reflects that the water supply
bills were also made in the name of late Sonam Tashi
Bhutia. According to the petitioner after the death of late
Sonam Tashi Bhutia the petitioner applied for trade license
before the Gangtok Municipal Corporation and he was
accordingly issued a trade license to run his business in
the same property as that of his late father on 02.03.2012
which was further renewed on 03.06.2019.
7. The writ petition seeks to challenge the impugned
notice dated 06.10.2021 in the name of Mr. Sonam Bhutia
by his son, the petitioner. This notice had been addressed
to late Sonam Tashi Bhutia who had since expired in the
year 2011 itself. Obviously respondent no.2 had been 9 W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
oblivious of his death. It is not in dispute that the petitioner
is still in possession of the property which is allotted to his
late father. From the documents on record it is also clear
that the site allotment order to late Sonam Tashi Bhutia
mandated the signing of the lease agreement between late
Sonam Tashi Bhutia and the respondent no.2. Neither the
petitioner nor the State-respondents have filed any lease
deed signed between them. Quite clearly it does not exist.
Since the State-respondents desired to rely upon the
cancellation Order dated 02.08.2008 issued to late Sonam
Tashi Bhutia this court asked the learned Additional
Advocate General to enlighten this court on the relevant
provision of the Act which permitted them to cancel the
allotment so granted.
8. The learned Additional Advocate General fairly
submits that there seems no provision specifically
permitting cancellation of sites allotted. It was his further
submission that if therefore, there is no provision for
cancellation of site allotment in the Act it would be
incumbent upon them to issue a notice under Section 106
of the Transfer of Property Act, 1882. A perusal of Section
106 of the Transfer of Property Act, 1882 reflects that a
lease of immovable property for any other purpose other 10 W.P. (C) No.50 of 2021 Palzor Thendup Bhutia vs. State of Sikkim & Ors.
than what has been specified in the first part of sub-section
(1) thereof mandates a 15 days' notice.
9. The impugned notice addressed to late Sonam Tashi
Bhutia dated 06.10.2021 grants only 7 days notice to a
dead person to vacate the premises. Faced with this
situation, the learned Additional Advocate General submits
that they would proceed against the petitioner as per law
for eviction in the manner required. In view of the same the
impugned Notice No.D/UDD/25/405/SA/439 dated
06.10.2021 is hereby quashed. The State Government may
take any necessary legal action which may be required and
permissible in the circumstances they are in.
10. In such view of the matter the writ petition needs no
further consideration and it stands disposed of accordingly.
The pending application also stands disposed.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
to/
