THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 30th September, 2022
---------------------------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
---------------------------------------------------------------------------------------------------
WP(C) No.65 of 2017
Petitioner : Janga Bahadur Chettri
versus
Respondents : State of Sikkim and Others
Application under Article 226 of the Constitution of India
--------------------------------------------------------------------------------------
Appearance
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad, Advocate
for the Petitioner.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Yadev
Sharma, Additional Government Advocate and Ms. Pema Bhutia,
Assistant Government Advocate, for the Respondents No.1, 2
and 4.
Mr. Jorgay Namka, Advocate for the Respondent No.3.
--------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1(i) The prayers that are being pressed inter alia in the
instant Writ Petition are as follows;
(i) a Writ or Order or direction or declaration directing the Respondent No.3 (National Hydro-electric Power Corporation Limited) to make payment of compensation amounting to Rs.10,82,01,083/- (Rupees ten crores, eighty two lakhs, one thousand and eighty three) only; and
(ii) a Writ or Order or direction or declaration directing the Respondent No.3 to make payment of interest @ 12% per annum on the total compensation amount until final payment of the entire sum of money.
(ii) The Petitioner herein is aggrieved by non-payment of
compensation for acquisition of his property at Singbel Block,
Makha, East Sikkim, the Award of which was calculated at WP(C) No.65 of 2017 2
Janga Bahadur Chettri vs. State of Sikkim and Others
Rs.8,18,39,019/- (Rupees eight crores, eighteen lakhs, thirty nine
thousand and nineteen) only, and upon inclusion of 4%
establishment charge and 40 times capitalized value of land rent,
computed to a total of Rs.11,56,49,615/- (Rupees eleven crores,
fifty six lakhs, forty nine thousand, six hundred and fifteen) only.
(iii) The Petitioner's case in a nutshell, is that, he is the
owner of landed property bearing Plot Nos.647, 649 and 651,
measuring an area of 2.0590 hectares, situated at Singbel Block,
East Sikkim, allegedly his only landed property. Four houses are
located on the same land. In 2011, acquisition proceedings
commenced for the said landed property along with the existing
four houses and Notification under Section 4(1) of the Land
Acquisition Act, 1894 (hereinafter, "L. A. Act, 1894"), was
published in the Government Gazette, being Notification
No.84/902/LR&DMD(S), dated 19-10-2011. A declaration under
Section 6 of the L. A. Act, 1894, followed which was published in
the Government Gazette on 05-03-2013 and Government approval
under Section 7 of the L. A. Act, 1894, obtained on 28-05-2013.
Notice under Section 9 of the L. A. Act, 1894, was issued seeking
objections, if any, from interested persons. That, no Award under
Section 11 of the L. A. Act, 1894, was passed due to the enactment
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter,
"LARR Act, 2013") which came to be enforced from 01-01-2014,
hence, the proceedings under the L.A. Act, 1894, lapsed. In the
meanwhile, on 25-06-2014, the Respondents assessed
compensation for acquisition of the said property at Rs.73,42,232/-
(Rupees seventy three lakhs, forty two thousand, two hundred and WP(C) No.65 of 2017 3
Janga Bahadur Chettri vs. State of Sikkim and Others
thirty two) only, and paid 80% thereof to the Petitioner amounting
to Rs.58,73,786/- (Rupees fifty eight lakhs, seventy three
thousand, seven hundred and eighty six) only, while retaining the
remaining 20% compensation with them. On learning of the
enforcement of the LARR Act, 2013, in Sikkim in 2014, the
Petitioner applied to the State-Respondents for higher
compensation for his land and for rehabilitation, but to no avail.
He thus made a representation dated 06-01-2016 to the Hon'ble
Prime Minister of India requesting for higher compensation and
consequential benefits. The said Office forwarded the letter to the
Respondent No.1 for appropriate action. The Respondent No.2
then passed the Award under Section 23 of the LARR Act, 2013, for
acquisition of the Petitioner's land as detailed above. That, the
Petitioner has received a sum of Rs.58,73,786/- (Rupees fifty eight
lakhs, seventy three thousand, seven hundred and eighty six) only,
but he is yet to receive the remaining amount of Rs.10,82,01,083/-
(Rupees ten crores, eighty two lakhs, one thousand and eighty
three) only, with interest @ 12% per annum. Hence, the prayers
in the Petition.
2. In the Counter-Affidavit of the Respondent No.2 (The
District Collector) and Respondent No.4 (The Secretary, Land
Revenue and Disaster Management Department), it is admitted
that acquisition of the Petitioner's land was initiated as per the L. A.
Act, 1894. However, Award under Section 11 of the said Act was
not completed due to the enforcement of the LARR Act, 2013, and
all matters under the L. A. Act, 1894, were kept in abeyance.
That, admittedly, declaration of Award under Section 23 of the
LARR Act, 2013, was published on 30-07-2016, computing the net WP(C) No.65 of 2017 4
Janga Bahadur Chettri vs. State of Sikkim and Others
compensation payable by Respondent No.3 to the Petitioner as
Rs.11,40,74,869/- (Rupees eleven crores, forty lakhs, seventy four
thousand, eight hundred and sixty nine) only.
3. The Respondent No.3, for whom the land was being
acquired, disputed the averments of the Petitioner and the
Respondent Nos.2 and 4, and contended that a total amount of
Rs.73,42,232/- (Rupees seventy three lakhs, forty two thousand,
two hundred and thirty two) only, was computed as Award for
acquisition of the properties of the Petitioner under Singbel Block.
That, the Respondent No.4 communicated to the Respondent No.3
to deposit a total amount of Rs.1,81,86,160/- (Rupees one crore,
eighty one lakhs, eighty six thousand, one hundred and sixty) only,
which included compensation for acquisition of the Petitioner's land
with that of others under Singbel and Khamdong Blocks. The
Respondent No.3, vide letter dated 21-02-2014, sought clarification
from the District Collector, East Sikkim, regarding the ownership
and extent of its liabilities in respect of the compensation assessed,
to which, the Respondent No.2 clarified by communication dated
19-03-2014 that the acquired property would be transferred to the
Respondent No.3 with no remaining liabilities. That, the
Respondent Nos.2 and 4 admitted that an amount of
Rs.58,73,736/- (Rupees fifty eight lakhs, seventy three thousand,
seven hundred and thirty six) only, being 80% of the compensation
fixed was received by the Petitioner, but the Petitioner declined to
receive the remaining 20% and possession of the properties were
not handed over to the Respondent No.3 despite several requests
made to the Respondent No.2 on this aspect. That, the LARR Act,
2013, was enforced in the State of Sikkim with effect from 16-10- WP(C) No.65 of 2017 5
Janga Bahadur Chettri vs. State of Sikkim and Others
2015 after the Rules were framed and till then the L.A. Act, 1894,
was applicable. Hence, the Writ Petition be dismissed.
4. Learned Senior Counsel for the Petitioner while
reiterating the facts of the Petitioner's case contended that no
Award was prepared under Section 11 of the L.A. Act, 1894, and
only compensation was assessed of which 80% was paid, which is
evident from the Note Sheet of the Office of the Respondent Nos.2
and 4 (Annexure R2), wherein it is clearly specified that acquisition
process up to Section 9 of the L. A. Act, 1894, was completed but
the Award was yet to be assessed. That, Annexure P10,
communication from the Respondent No.2 to the Respondent No.4,
dated 10-11-2016, indicates that the total compensation calculated
for acquisition of the Petitioner's land was Rs.11,40,74,869/-
(Rupees eleven crores, forty lakhs, seventy four thousand, eight
hundred and sixty nine) only, with 4% establishment charges and
40 times capitalized value. That, the Revenue Officer of the
Respondent No.4 Department had intimated the General Manager
of the Respondent No.3 Company, vide Annexure P11 dated 22-11-
2016, of the statement of compensation of the Petitioner as per the
LARR Act, 2013. The communication was duly received by the
Respondent No.3 on 23-11-2016 and the Award remained
unassailed by the Respondent No.3 in any Forum. That, on 14-07-
2017, the Petitioner again reminded the Respondent No.2 that the
Award of Rs.11,40,74,869/- (Rupees eleven crores, forty lakhs,
seventy four thousand, eight hundred and sixty nine) only, had
been prepared but the resettlement and employment to one of the
family members of the Petitioner's family as also the interest on
the Award had not been addressed. That, on 03-08-2017, the WP(C) No.65 of 2017 6
Janga Bahadur Chettri vs. State of Sikkim and Others
Revenue Officer of the Respondent No.4 Department informed the
Petitioner that since the acquisition of land was still pending, the
employment for one family member in the Respondent No.3
Company may be taken up after completion of acquisition
proceedings. That, now the Petitioner does not press the prayer
for rehabilitation and employment of a family member, but the
Award calculated on 30-07-2016 (Annexure P7) be made over to
him.
5. Learned Additional Advocate General appearing for
Respondent Nos.1, 2 and 4 while endorsing the submissions of
Learned Counsel for the Petitioner drew the attention of this Court
to Annexure P11 letter dated 22-11-2016 (supra) and contended
that the Respondent No.3 did not assail this communication neither
did the Respondent No.3 ventilate any grievance against the
alleged enhancement. Relying on the ratio of Indore Development
Authority vs. Manoharlal and Others1 it was submitted that the
Respondent No.3 is liable to pay the computed compensation.
6. Learned Counsel for the Respondent No.3 for his part
advanced the contention that the Petitioner cannot invoke the writ
jurisdiction as an alternative forum is provided under Section 64 of
the LARR Act, 2013, which must be exhausted. Strength on this
count was garnered from the decision of this Court in Linkwell
Telesystems Pvt. Ltd. vs. State of Sikkim and Others2 which was
upheld by the Division Bench of this Court in Linkwell Telesystems
Pvt. Ltd. vs. State of Sikkim and Others3. That, the date of 20-06-
2011 reflected on Annexure R/3-2 is not the date of deemed
1 (2020) 8 SCC 129 2 2021 SCC OnLine Sikk 69 3 2021 SCC OnLine Sikk 189 WP(C) No.65 of 2017 7
Janga Bahadur Chettri vs. State of Sikkim and Others
Award, but only an acquisition code maintained by the Government
when the process of acquisition starts, indicating that the
acquisition proceedings had commenced in 2011 much before the
LARR Act, 2013, came into being. In fact, the acquisition
proceedings were initiated based on the communication dated 22-
09-2010 addressed to the Hon'ble Chief Minister by the Petitioner,
pursuant to which, the proceedings under Sections 4, 6, 7, 9 of the
L. A. Act, 1894, took place culminating in the Award under Section
11 of the L.A. Act, 1894, calculated at Rs.73,42,232/- (Rupees
seventy three lakhs, forty two thousand, two hundred and thirty
two) only, and not Rs.11,40,74,869/- (Rupees eleven crores, forty
lakhs, seventy four thousand, eight hundred and sixty nine) only,
as claimed. Such demand for compensation was made by the
Revenue Officer to the Respondent No.3 vide communication dated
07-03-2013 (Annexure R/3-3) and compensation was duly made
over to the Respondent Nos.2 and 4. That, in fact, the Respondent
No.3 had acted responsibly by issuing letter dated 21-02-2014
(Annexure R-3/4 collectively) addressed to the Respondent No.2
enquiring about any liabilities but the Respondent No.2 vide its
letter dated 19-03-2014 informed the Respondent No.3 that the
acquired property would be transferred to the Respondent No.3
with no liabilities once the compensation is paid to the affected
land owners/house owners. That, communication dated 10-06-
2014 reveals that 14 (fourteen) cheques dated 09-06-2014,
amounting to Rs.6,35,93,555/- (Rupees six crores, thirty five
thousand, ninety three thousand, five hundred and fifty five) only,
which included compensation for the Petitioner, had been made
over to the Respondent No.2 with a request to the Respondent WP(C) No.65 of 2017 8
Janga Bahadur Chettri vs. State of Sikkim and Others
No.2 to complete transfer of the properties in the name of the
Respondent No.3 immediately after disbursement of the entire
compensation, which was not complied with. That, as the Award
had already been computed under the L. A. Act, 1894, of which
80% was paid to the Petitioner and he had declined to receive
20%, the proceedings had already truncated. That, even if the
Award was not passed under Section 11 of the L.A. Act, 1894,
whether the Award granted under Section 23 of the LARR Act,
2013, was correct considering that the compensation was increased
from Rs.8,00,00,000/- (Rupees eight crores) only, to
Rs.11,00,00,000/- (Rupees eleven crores) only, within one year,
i.e., 2016. That, the word "revised" employed in Annexure P8,
dated 30-07-2016, is revelatory of the fact that previously
compensation had already been computed. It was urged that
presuming that the Award was not passed, the Hon'ble Supreme
Court has laid down that compensation may be under the LARR
Act, 2013 but the Award should be under Section 11 of the L.A.
Act, 1894, for which reliance was placed on Paragraph 366.1 of the
Indore Development Authority (supra).
7. In rebuttal, Learned Senior Counsel for the Petitioner
submitted that invocation of Section 64 of the LARR Act, 2013, by
the Respondent No.3 is erroneous as the provision is self-
explanatory.
8. Having considered the pleadings and the arguments
advanced by Learned Counsel for the parties, the moot question
herein is; Whether an Award had been computed under Section 11
of the L.A. Act, 1894 or Whether the compensation was determined
in terms of the LARR Act, 2013 and Whether the Petitioner would WP(C) No.65 of 2017 9
Janga Bahadur Chettri vs. State of Sikkim and Others
be entitled to the compensation in terms of Annexure P11 of the
Writ Petition?
9(i) It is the specific admission of the Respondent Nos.2
and 4, the authority concerned, that the proceedings under the L.
A. Act, 1894, had commenced up to the stage of issuance of Notice
under Section 9. This is also apparent from the office notes of the
Respondent No.2, Annexure R2, wherein it is specified as follows;
"Reference above.
This is a 100% payment of land
and houses (sic). Land compensation of
Rs.1,74,84,576/- and 17 persons house compensation 4,36,60,958/-. Acquisition process completed upto u/s 9 and Award is to be completed. One person land compensation of Singbel is to back to N.H.P.C. (sic) Due to de-acquisition.
Sd/-
18/6/14
We may deposit the cheque pl.
Sd/-
18/6/14"
(ii) The Respondent No.3 despite submitting that the
Award under Section 11 of the L. A. Act, 1894, had already been
computed has failed to buttress his argument with any
documentary evidence in the teeth of the Office notings supra and
his own submission that the date reflected on Annexure R/3-2 viz.;
20-06-2011 was only the "acquisition code" maintained by the
Government when the proceedings for acquisition commence. In
light of the documentary evidence before this Court, it cannot be
concluded that Annexure R/3-2 is an Award which thereby answers
the first facet of the questions raised above.
(iii) Annexure P7 is a declaration of Award under Section 23
of the LARR Act, 2013, prepared by the Office of the Respondent
No.2 and reveals the Schedule of the properties and the steps
taken towards such acquisition and the compensation computed for WP(C) No.65 of 2017 10
Janga Bahadur Chettri vs. State of Sikkim and Others
a total of Rs.8,18,39,019/- (Rupees eight crores, eighteen lakhs,
thirty nine thousand and nineteen) only. It is apparent that the
Respondent No.2 vide communication dated 30-07-2016 (Annexure
P8) informed the Respondent No.4 that the Award under Section
23 as per the LARR Act, 2013, in connection with the land
belonging to the Petitioner which was acquired by the Respondent
No.3 was being forwarded. That, the compensation statement at
revised rate and house compensation was also enclosed for
reference and a request was made to the Respondent No.4 to claim
the remaining amount of compensation for payment to the land
owners. Annexure P9 (office note) reveals that the "Net
Compensation to be claimed: Rs.11,40,74,869/-". On 10-11-2016,
the said information was resubmitted to the Respondent No.4 by
the Respondent No.2 (Annexure P10) with the request that the
compensation as assessed from the acquiring department be
realized for payment to the affected land owner. The Respondent
No.4 was also informed that the land owner had requested for
resettlement and employment of one person of the family.
Needless to add here that the request for resettlement and
employment of one person of the family is not being pressed by the
Petitioner before this Court and therefore no further discussions
need ensue on this point. Vide letter dated 22-11-2016 (Annexure
P11) the Respondent No.3 was informed by the Revenue Officer of
the Respondent No.4 department of the "Statement of
compensation bill as per RFCTLARR Act, 2013 in connection with
the land acquired by NHPC Ltd. under Singbel block, East Sikkim"
inter alia as follows;
WP(C) No.65 of 2017 11
Janga Bahadur Chettri vs. State of Sikkim and Others
".....................................................................
1. Total Compensation Rs. 11,12,00.426/-
2. 4% Contg./Estb. Charges Rs. 44,48,017/-
3. 40 times capitalized value of land rent Rs. 1,172/-
Grand Total Rs. 11,56,49,615/-
Assessment made earlier by D.C, East
& amount deducted Rs. 73,42,232/-
Net payable Rs. 10,83,07,383/-
4. Total house compensation Rs. 55,45,660/-
5. 4% Contingency Charge Rs. 2,21,486/-
Total Rs. 57,67,486/-
(Grand total Rs.108307383 + Rs.5767486 = Rs.11,40,74,869) Rupees Eleven Crore Forty Lakhs Seventy Four Thousand Eight Hundred Sixty Nine) only.
I am, therefore, directed to request you to release the payment amounting to Rs.11,40,74,869/- only at the disposal of the Secretary, Land revenue & Disaster Management Department for making payment to the land owners, please.
....................................................................."
(iv) The above document bears the official stamp of
Respondent No.3 with acknowledgement of receipt of the letter on
23-11-2016. Following this communication, from the records
before this Court it transpires that, on 07-02-2017 the Respondent
No.3 sent a communication to the Respondent No.2, the subject
being "Handing over vacant possession of properties and land
damaged at Dipudara, East Sikkim and transfer of ownership to
NHPC -Reg.". It is an admitted position that the vacant possession
of the properties have not been made over to the Respondent
No.3. No reference has been made to the compensation computed
as reflected in Annexure P11 by the Respondent No.3 nor was any
objection raised in that context before any authority including
Respondent Nos.2 and 4. Communication dated 14-06-2017
addressed to the Respondent No.2 by the Respondent No.3 again
raises no objection with regard to the compensation. These are
followed by the communications dated 7/9-10-2017, 19-12-2017, WP(C) No.65 of 2017 12
Janga Bahadur Chettri vs. State of Sikkim and Others
02-02-2018 where also no reference is made to the alleged
enhanced compensation.
10. Reliance on Section 64 of the LARR Act, 2013, by the
Respondent No.3 is misplaced for the reason that it is not the
Petitioner's case that he has not accepted the Award nor has he
made a written application to the Respondent No.2 requiring that
the matter be referred by the Respondent No.2 for the
determination of the authority, on his objection to the
measurement of the land, the amount of the compensation, the
person to whom it is payable, the rights of rehabilitation and
resettlement under Chapters 5 and 6 or the apportionment of the
compensation amongst the persons interested. Further, the
arguments of Learned Counsel for the Respondent No.3 involving
the ratio in Indore Development Authority (supra) is of no assistance
to his case as the proceedings by the Respondent No.2 and
Respondent No.4 had admittedly not reached the stage of Section
11 of the L.A. Act, 1894, as discussed supra.
11. In light of the above position, it is evident that the
Respondent No.3 had no objection to the compensation computed
by the Respondent No.2 vide Annexure P9 (office notes) and
Annexure P11, duly communicated to the Respondent No.3 vide
letter dated 22-11-2016 (Annexure P11). The argument of
Learned Counsel for the Respondent No.3 that the compensation
calculated allegedly under Section 23 of the LARR Act, 2013, is
doubtful due to the enormous increase within the year is
unsustainable as Annexure P11 details the reasons for the increase.
12. In view of the foregoing discussions, the Respondent
No.3 is directed to pay the compensation to the Petitioner WP(C) No.65 of 2017 13
Janga Bahadur Chettri vs. State of Sikkim and Others
computed in terms of Annexure P11 to the Writ Petition, duly
deducting the amount received by the Petitioner earlier. In view
of the circumstances of the case and the relevant provision of the
Statute, i.e., Section 80 of the LARR, Act, 2013, the Petitioner is
not entitled to interest.
13. The Writ Petition stands disposed of accordingly.
14. No order as to costs.
( Meenakshi Madan Rai ) Judge 30-09-2022
Approved for reporting : Yes ds
