Sikkim High Court
Tej Bahadur Thapa vs Union Of India And Ors on 11 July, 2023
Bench: Hon'Ble The Justice, Meenakshi Madan Rai
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Record of Proceedings
WA No. 06/2023
TEJ BAHADUR THAPA APPELLANT (S)
VERSUS
UNION OF INDIA AND OTHERS RESPONDENT (S)
For Appellant : Appellant In-Person.
For Respondent No. 1 : Ms. Sangita Pradhan, Deputy Solicitor
General of India with Ms. Natasha Pradhan
and Ms. Purnima Subba, Advocates.
For Respondent No. 2 : Ms. Gita Bista, Advocate with Ms. Pratikcha
Gurung, Advocate.
For Respondents No. 3 & 4 : Mr. Thinlay Dorjee Bhutia and Mr. Yadev
Sharma, Government Advocates with Mr.
Sujan Sunwar, Assistant Government
Advocate.
Date: 11/07/2023
CORAM:
HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
...
J U D G M E N T : (per the Hon'ble, the Chief Justice)
This Intra-Court mandamus appeal arises in respect of a judgment and
order rendered by a learned Single Judge on 29th May, 2023, in WP(C) No. 10 of
2022 (Shri Tej Bahadur Thapa vs. Union of India and Others).
By the impugned judgment and order, the learned Single Judge was
pleased to dispose of the said writ petition, observing inter alia as follows;
"21. The Petitioner contends that although the State-Respondent nos.3
and 4 claim plot no.54 to be 'road reserve', they have not been able to
demonstrate that they are the owner thereof and therefore this Court must
necessarily examine whether by merely declaring a particular land to be
'road reserve', the State-Respondent could claim that it vests upon the
State. This Court is afraid that although the question of whether mere
declaration of a particular land to be 'road reserve' would vest the land
upon the State, is an arguable question, it would not arise in the facts of
the case. Disputed questions of fact cannot be examined in Writ
jurisdiction. The Writ Petitioner is required to demonstrate clearly that
either his fundamental right or his statutory legal right has been violated
by the State which would compel this Court to interfere. The question
whether plot no.54 shown as 'road reserve' is actually owned by the State-
Respondent does not fall for consideration in the present Writ Petition as
the Petitioner has nowhere claimed or shown that this plot no.54 is owned
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by him. Although the petitioner claims that the additional land contiguous
to khasra plot nos.68 and 69 is his, there is no record filed by him which
establishes it. During the course of the present proceedings, the Petitioner
has filed various documents relating to the land originally purchased by his
father late Kaiser Bahadur Thapa. None of these documents however,
establishes what the Petitioner claims in the Writ Petition that he is the
owner of the additional land. More importantly all these documents relate
to the period prior to the decree passed by this Court in the year 1986.
The expansion of the National Highway is an infrastructural project which
must be given due precedence. In the circumstances, this Court is of the
view that the Respondents should be allowed to go ahead with the project.
While doing so, the Respondents shall ensure that the Petitioner's property
rights on plot nos.67, 68, 69, 70/753 and 72/754 having a total area of
1.456 hectares is not interfered with, without following the due process of
law. The petitioner, however is not entitled to the prayers as sought for,
which are accordingly rejected.
22. The Writ Petition is disposed of in the above terms. Pending
applications also stand disposed of accordingly."
The appellant before us is the writ petitioner who appears in-person. It is
the specific contention of the appellant/writ petitioner that the learned Single
Judge failed to take into consideration the fact that the bone of contention,
namely, a portion of plot no.54, was a subject-matter of a civil suit wherein the
right, title and interest of the predecessor-in-interest of the appellant/writ
petitioner have been clearly established. A portion of plot no.54, therefore,
could not have been acquired by the State without giving adequate
compensation to the appellant/writ petitioner or his predecessor-in-interest.
We are afraid to point out the fact that this issue centering around plot no.
54 has been extensively considered and discussed by the learned Single Judge
in the impugned judgment and order. Paragraph 21 of the impugned judgment
and order, which has been quoted above, clearly takes note of the fact that the
learned Single Judge squarely applied his mind over the issue centering around
plot no. 54 while disposing of the writ petition.
In an Intra-Court mandamus appeal, interference is usually warranted
only when palpable infirmities or perversities are noticed on a plain reading of
the impugned judgment and order. In the facts and circumstances of the instant
case, we do not notice any such palpable infirmity or perversity. That apart and
in any event, the impugned judgment and order is supported with cogent
reasons. However, we would only like to clarify that dismissal of the writ
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petition by the learned Single Judge -- for reasons stated therein -- does not
take away any right, if at all such right is existing at this stage in favour of the
appellant/writ petitioner and provided the same can be established by him,
strictly in accordance with law.
The appeal stands disposed of accordingly.
(Meenakshi Madan Rai) (Biswanath Somadder)
Judge Chief Justice
ds/avi/ami
